City of Dallas v. Armour & Co.
| Citation | 216 S.W. 222 |
| Decision Date | 25 October 1919 |
| Docket Number | (No. 8283.) |
| Court | Court of Appeals of Texas |
| Parties | CITY OF DALLAS et al. v. ARMOUR & CO. et al. |
Appeal from District Court, Dallas County.
Action by Armour & Co. and others against the City of Dallas and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.
Jas. J. Collins, Edward Dougherty, T. B. McCormick, and Thompson, Knight, Baker & Harris, all of Dallas, for appellants.
Etheridge, McCormick & Bromborg, of Dallas, for appellees.
Upon the petition of Armour & Co. of New Jersey, Armour & Co. of Texas, a foreign and domestic corporation, respectively, and F. M. Etheridge and J. M. McCormick, of Dallas, Tex., having for its purpose the cancellation of a contract between the city of Dallas, the Texas & Pacific Railway Company, and the Wholesale District Trackage Company, on the ground that it was void, because illegal, and for temporary injunction restraining all parties thereto from performing said contract or any portion thereof pendente lite, and alleging that the petitioners were taxpayers of the city of Dallas, and sued for themselves and all other taxpayers in said city of Dallas, Hon. Horton B. Porter, judge of the Sixty-Sixth district court in Hill county, upon the sworn allegation that the proceeding was a class suit, by flat indorsed upon the petition in Hillsboro, directed the clerk of the district court of Dallas county to file the petition and docket the cause in the Fourteenth district court in Dallas county, and upon the petitioners entering into a bond in the sum of $10,000, conditioned as required by law, to forthwith issue the temporary injunction. Bond was filed and the writ issued. The city, the railway company, and the trackage company, without further proceedings in the court below, appealed from the order of the district judge in the time and manner prescribed by law.
Omitting formalities, the petition alleged that appellants entered into a contract in writing (certain details and provisions of which we omit, for the reason that they are not of importance to the issues presented), which, after reciting that the railway company operates double railway tracks upon Pacific avenue in the city of Dallas, under grant from said city for a period of 50 years from April, 1890, and that located on said street, between Griffin and Preston streets, are various industrial plants served by the tracks of the railway company, and that the city and the trackage company desire same removed between the points indicated, and that the railway company is willing to remove same, the parties agree (1) that the trackage company will procure and convey to a trustee for the railway company certain designated lands to be used by the railway company as an industrial district for the various uses required for that purpose, conveyance to the railway company to be made when it shall have removed its tracks from Pacific avenue as indicated, and convey to the city of Dallas by special warranty deed, in consideration of $100,000, certain lands which it proposes to acquire from the railway company; (2) that the railway company will arrange with the Houston & Texas Central Railroad Company to use the latter's tracks for entry into the city, abandon, with certain exceptions, its tracks upon Pacific avenue between the points indicated, abandon, after being put in peaceful possession of the lands agreed to be conveyed by the trackage company, all property on Pacific avenue, between Griffin and Lamar streets, other than that abandoned to it by the city, conveying to the trackage company by special warranty deed such thereof as it has title to, and, after the grant by the city of the rights above enumerated, and being vested with title in the lands by the trackage company, it will commence the construction of the tracks, etc., for the industrial district indicated, and complete same with due diligence; (3) that the city will by ordinance grant the railway company the use of the lands to be conveyed to it by the trackage company for the purposes indicated, as well as the right to operate its trains, etc., over a certain line of railway proposed to be constructed by the Houston & Texas Central Railroad Company in said city, to abandon by ordinance to the railway company a portion of the north side of Pacific avenue, between Griffin and Lamar streets, and to purchase from the trackage company, for $100,000, the land of the railway company lying contiguous to that abandoned to the railway company by the city, for the purpose of opening and extending Pacific avenue, between Griffin and Lamar streets.
As grounds for canceling said contract appellees allege, among other matters, that the proposed purchase by the city from trackage company of the property to be abandoned to it by the railway company is but a pretense, and is intended in fact as a gift or donation for making up a shortage for the trackage company in its purchase of the industrial district, and forbidden by the Constitution of the state, in addition to which said property is incumbered by sundry liens, aggregating more than $25,000,000, and further, if said agreement to pay $100,000 is not a gift or donation, it is yet in violation of ...
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