City of Austin v. Thompson
| Citation | 219 S.W.2d 57 |
| Decision Date | 23 March 1949 |
| Docket Number | No. A-1908.,A-1908. |
| Parties | CITY OF AUSTIN et al. v. THOMPSON. |
| Court | Supreme Court of Texas |
Trueman E. O'Quinn, City Atty., Robert L. Burns, and Joe B. Roberts, Asst. City Attys., all of Austin, for petitioners.
John D. Cofer, of Austin, for respondent.
On June 3, 1948, Honorable Homer Thornberry, a member of the City Council of the City of Austin, resigned, thereby creating a vacancy in the City Council. On August 19, 1948, the City Council passed an ordinance which recited that "the City Council desires to receive nominations from the qualified voters of the City in order that the person receiving the highest number of votes may be named by the Council to fill said vacancy." The ordinance ordered an election to be held on October 5, 1948, "at which election there shall be nominated at large by the qualified voters of the City of Austin a Councilman for the unexpired term of Homer Thornberry who resigned June 3, 1948." Section 5 of the ordinance read as follows:
"That the candidate receiving the highest number of votes in said election shall be the nominee for Councilman; and the City Council will name said nominee as Councilman to fill the vacancy for the unexpired term of Homer Thornberry, resigned."
On September 11, 1948, the respondent J. Albert Thompson, filed this suit against the City of Austin, the Mayor, the members of the City Council, and other named officials. He alleged that he was a taxpaying, resident citizen and voter in the City of Austin, that the election ordinance was void because it was contrary to the provisions of Article XVIII, Section 2 of the Charter of the City of Austin in that it was an effort by the City Council to evade its duty to fill the vacancy in the Council, and that in order to hold the election the City of Austin would be put to an illegal expense of approximately $2000. The respondent prayed for a temporary restraining order to restrain the City and its officials from taking any steps preparatory to holding or from holding an election as provided by the ordinance, for a temporary injunction after hearing in the terms of the restraining order, and for a permanent injunction against the holding of the election and the expenditure of any public funds in connection therewith.
On the same day that the petition was filed, the district court issued a temporary restraining order which recited that it appeared to the court that the defendants would unlawfully expend funds of the City in preparation for the holding of the election, and the defendants were restrained from doing or performing any act in connection with the holding of the election on October 5, 1948.
On September 17, 1948, the district court held a hearing in which he considered the plea in abatement and certain special exceptions which were presented by the City and its officers in their answer to the respondent's petition. In this hearing it was agreed that the court could consider also the relevant provisions of the City Charter, before and after its amendment in 1924, and the full provisions of the election ordinance of August 19, 1948. The district court sustained the City's pleas and exceptions, and the respondent having refused to amend his petition, the temporary restraining order was dissolved and the temporary injunction was denied.
The respondent appealed to the Court of Civil Appeals, which rendered judgment on October 2, 1948, without filing a written opinion. The judgment recited that since the respondent, as a taxpayer of the City of Austin, had no special interest in the election, the district court was correct in denying an injunction against the holding of the election. The judgment further recited, however, that the respondent as a taxpayer had the right to enjoin the unlawful expenditure of public funds and that the court was of the opinion that the threatened expenditure of approximately $2000 for the purpose of holding the election was illegal in that the election was not authorized by the Charter of the City of Austin or any other law. The Court of Civil Appeals by its judgment issued a temporary injunction enjoining the City and its officials "from the further expenditure of public funds of the City of Austin in connection with the calling or holding of such election."
Two main questions are presented: first, whether the election ordinance was valid; and second, whether, even if the ordinance was invalid, the court had any authority to enjoin the election or the payment of any expenses which are incident to it.
The provision of the Charter of the City of Austin relating to filling vacancies in the City Council is Article XVIII, Section 2, which reads as follows:
"Vacancies in the City Council shall be filled by the City Council for the remainder of the unexpired term, but any vacancy resulting from a recall election shall be filled in the manner provided in such cases."
This provision of the charter was adopted at a special election held on August 9, 1924, and at the same election the section of the original charter which related to the same subject was repealed. The repealed section read as follows, Art. VI, Sec. 3, Charter of the City of Austin, Spec. Laws, Reg.Sess., 31st Leg., 1909, ch. 2, p. 19:
The section of the City Charter relating to recall elections, Art. VIII, Sec. 1, provides in part as follows:
"If the majority of the votes cast at such election shall be in favor of removal, the city council shall immediately declare the result of said election, and declare said office vacant, and shall immediately order an election to fill such vacancy as hereinbefore provided."
A consideration of the quoted sections of the City Charter leads us to the conclusion that the City Council exceeded its authority in calling the election to fill the vacancy in the City Council. We think that the only fair and reasonable construction of the election ordinance is that the City Council bound itself to appoint the person receiving the highest number of votes in the election. The City Charter now plainly provides that the vacancy must be filled by the City Council itself. The purpose of adopting the amendment to the Charter in 1924 obviously was to change the method of filling vacancies in the City Council from the cumbersome method of election to the more expeditious method of selection by the City Council. This purpose would be defeated by the construction of the Charter for which the City contends in this case. The fact that no election was intended in cases of vacancies caused by resignation or death is shown by the special provision for elections to be called in cases where vacancies were created as the result of recall elections. It was the duty of the City Council to assume the responsibility and exercise the power of selecting a new member of the Council, and the Council was without authority to delegate this responsibility and power to the electorate. Where the City Charter prescribes a method for exercising a power, this method is exclusive and must be followed. Foster v. City of Waco, 113 Tex. 352, 255 S.W. 1104. While broad discretion in many instances is permitted the City Council in the exercise of its powers and authority, it must respect the express provisions of the Charter in instances where they are applicable. It cannot call an election, under the general provisions of the Charter giving it this power, where the Charter provides that a vacancy must be filled in another way. We therefore conclude that the election ordinance was invalid because contrary to the provisions of the City Charter.
On the second question, however, we think that the court was without authority to issue an injunction against the election or the expenditure of public funds in connection with the holding of the election. In ordinary cases, an injunction against the expenditure of public funds to pay the expense of an election would have the same practical effect as an injunction against the holding of the election. Every election requires the services of election officials and the furnishing of supplies, as well as expenses in connection with publishing notices and setting up the polling places. It is not reasonable to expect that those who furnish their services or their property so that the election may be held will be willing, except in rare and unusual cases, to do so at their own expense. To enjoin the expenditure of public funds to pay the expenses of holding an election...
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