Commissioners' Court of Limestone County v. Garrett

• Citation: 236 S.W. 970
• Decision Date: 25 January 1922
• Docket Number: (No. 296-3581.)
• Parties: COMMISSIONERS' COURT OF LIMESTONE COUNTY et al. v. GARRETT et al.
• Court: Supreme Court of Texas

Page 970

236 S.W. 970

COMMISSIONERS' COURT OF LIMESTONE COUNTY et al. v. GARRETT et al.

(No. 296-3581.)

Commission of Appeals of Texas, Section B.

January 25, 1922.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by Claud Garrett and others against the Commissioners' Court of Limestone County and others. From a judgment of the Court of Civil Appeals (230 S. W. 1010) reversing a judgment for defendants and remanding the cause, defendants bring error. Reversed, and judgment of trial court affirmed.

C. S. & J. E. Bradley, of Groesbeck, for plaintiffs in error.

Richd. Mays, of Corsicana, and A. B. Rennolds, of Mexia, for defendants in error.

HAMILTON, J.

The Thirty-Sixth Legislature passed, and the Governor approved on March 15, 1919, a statute denominated "An act to create a more efficient road system for Limestone county, Texas," the provisions of which pertinent to the issues in this suit are:

"Sec. 4. In the event an election is held and bonds voted for the entire county, a board of permanent road commissioners shall be composed of the county judge, county auditor, and the four commissioners, and in addition thereto, three citizens to be selected from each commissioner's precinct. The persons to be chosen members of the board shall be men of wide business experience and good sound judgment. They shall be nominated by a majority vote of the property taxpaying, resident qualified voters, voting at such election at the same time and place as the vote is taken on the bond issue, and in the event such election is hereafter held and bonds voted for any political subdivision or defined district of said county, the manner of nominating and electing citizen members of the board for such political subdivision of defined district shall be the same as that providing for the election of citizen members for county board of permanent road commissioners: Provided that no political subdivision or defined district shall have more than three citizen members on said board.

"Sec. 5. And in the event any political subdivision or defined district of said county has voted for the issuance of bonds or an election has been ordered for the voting of the issuance of said bonds for the construction of permanent roads at the time of the passage of this act, there shall be created for such political subdivision or defined district a body to be known as the board of permanent road commissioners for ____ (naming political subdivision) and hereinafter referred to as the `board' which shall be constituted and shall consist of the county judge and the county commissioner in whose precinct said subdivision or defined district may be, and three citizens of such subdivision or defined district; and in the event the same shall contain all or any part of two or more commissioners' precincts, then the commissioner of each such precinct shall be a member of said board, and the citizen members of such board shall be nominated by a majority vote of the resident property taxpaying voters of such political subdivision or defined district at a special election to be held therein for that purpose, said election to be on the petition of twenty or more resident property taxpaying voters of such political subdivision or defined district, said election to be ordered and held under the general election laws of this state at a time and place or places to be designated in the order of election and the persons whose names are so nominated shall, by the commissioners' court, be elected as the members of the board to which they are nominated, and said persons, together with all citizen members of boards created under this act, shall qualify by taking oath of office required by law, and shall give bond, payable to the county judge or his successors in office, in trust for the permanent road fund for said county, or said political subdivision or defined district, in the amount and condition as now prescribed by law for county commissioners when acting as road supervisors, and shall continue to serve as members of said board until the roads provided for under such bond elections are completed. In case of any vacancy arising in the citizen's membership of such board, such vacancy shall be filled by a majority vote of the remaining members of the board.

"Sec. 6. The county judge shall be the presiding officer of said board, and the members thereof shall elect one of their number as secretary. The members of said board whose salaries are not already provided for by law shall be paid the sum of three dollars each, for each day actually served.

"Sec. 7. The secretary of the board shall keep full and accurate minutes of the meetings, and of all transactions of the board and all contracts of the board shall be in writing and recorded in full in the minutes. Full and accurate accounts of the permanent road funds shall be kept in the finance ledger of the county and shall show all moneys received, from whom, and what source, all moneys expended, to whom paid, and for what purpose. All warrants on said funds shall be drawn by the county clerk as provided for by law as for other county warrants, upon accounts which have been duly filed with said clerk, and audited and allowed by said board, and certified by the clerk for payment over the signature of the presiding officer and secretary, and all provisions of the laws of this state regulating the auditing, approval and payments of accounts against counties shall apply herein. * * *

"Sec. 9. Said board shall adopt its own order of business, and shall fix times and manner of holding its regular or special meetings. Said board shall have the entire and exclusive charge. control and management of all matters pertaining or relating to the laying out and constructing of the permanent roads of the county, or such political subdivision or defined district, for which the bond issue was voted. The words `road' or `roads' as used herein, shall be taken to include and embrace all rights of way, roadbeds, ditches, drains, culverts, bridges, and other accessories pertaining to or in any way comprising any part of said roads or highways being constructed under the provisions of this act. * * *"

Chapter 74, Special Laws of Texas, Thirty-Sixth Legislature, p. 236.

Thereafter in road district No. 15, a defined district in Limestone county, an election was held resulting in favor of the issuance of the bonds in the sum of $300,000 to be used for the purpose of constructing, maintaining, and operating macadamized, graveled, or paved roads, or in aid thereof, in that district. In accordance with the provisions of sections 4 and 5 of the act, above set out, three citizens of the district were elected as members of the board and all qualified as provided therein. The board then entered upon the performance of its functions; whereupon a controversy arose between the three citizen members and the county judge and county auditor, on the one hand, and the four county commissioners, as commissioners' court, and the city commission of Groesbeck, a town of more than 1,000 inhabitants and less than 5,000 inhabitants, incorporated under the general laws of Texas and situated in road district No. 15, on the other hand, concerning the streets along which the Exall Highway should be built through Groesbeck. The three citizen members, the county judge, and the county auditor, being all of the board as constituted except the county commissioner in whose commissioner's precinct road district No. 15 seems to be located, contended for one route through the town, and the county commissioners, as a commissioners' court, and the city commission of Groesbeck, contended for a different route. The board began to construct the highway through Groesbeck along the route chosen by it. The four county commissioners and the city commission of Groesbeck interfered, and the commissioners' court took from the board the whole business of constructing the highway. The board of permanent road commissioners for road district No. 15 and two citizens of the district then filed a petition for injunction against the court. The petition alleged, among many other things, that a majority of the commissioners' court "have unlawfully interfered with and caused operations thereon to be suspended * * * and are preparing to arbitrarily construct the road through the town" along the streets favored for its location by the court, and prayed for an injunction restraining the court from "attempting in any manner, to prevent plaintiff road board from the discharge of its duty and lawful right in the construction of the highway" along the route chosen by it, and that "the court be enjoined from using any of the moneys of the road district in paying for work necessary by its attempt to change the location of said road as originally made," and that, "if it shall be held, for any reason, that defendant court has the power to improve the change in question, * * * that it be required to pay for same out of county funds subject to its disposal, and not out of any funds owned by road district No. 15."

Defendants answered, attacking the act as being in contravention of section 56 of article 3 of the state Constitution, providing, among many other things, that—

"The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law: * * *

"Regulating the affairs of counties, cities, towns, wards or school districts. * * *

"Authorizing the laying out, opening, altering or maintaining of roads, highways, streets or alleys. * * *

"Creating offices, or prescribing the powers and duties of officers, in counties, cities, towns, election or school districts."

and that "in all other cases where a general law can be made applicable, no local or special law shall be enacted" except "for the preservation of the game and fish of this state in certain localities."

The trial court, after a hearing, denied the application. Plaintiffs appealed,...