Ellis v. Vanderslice, 18059

• Decision Date: 19 October 1972
• Docket Number: No. 18059,18059
• Citation: 486 S.W.2d 155
• Parties: Tom E. ELLIS, County Clerk, Dallas County, et al., Appellants, v. Charles VANDERSLICE et al., Appellees.
• Court: Texas Court of Appeals

Page 155

486 S.W.2d 155

Tom E. ELLIS, County Clerk, Dallas County, et al., Appellants, v. Charles VANDERSLICE et al., Appellees.

No. 18059.

Court of Civil Appeals of Texas Dallas.

Oct. 19, 1972.

David R. Snodgrass, Morris Jaffe, Wynne, Jaffe & Tinsley, Whitley R. Sessions, Henry Wade, Dist. Atty., Harry J. Schulz, Asst. Dist. Atty., Dallas, for appellants.

Douglas E. Bergman, Bergman & Hicks, G. H. Kelsoe, Jr., Kelsoe & Paternostro, Dallas, for appellees.

GUITTARD, Justice.

This appeal was taken from an order restraining the county clerk of Dallas County from certifying to the commissioners court a petition for a local option election under the Texas Liquor Control Act. ¹ On October 12, 1972, after submission to this court on briefs and oral argument, we reversed and dissolved the trial court's order. We now state our reasons.

Appellees Charles Vanderslice and others alleged in their 'Original Petition and Application for Temporary Restraining Order' that they were qualified voters of Justice of the Peace Precinct No. 2 of Dallas County, and were opposed to an election to legalize the sale of alcoholic beverages within such precinct. They alleged that on August 28, 1972, ten or more individuals claiming to be qualified voters of the precinct applied to defendant Tom E. Ellis, County Clerk of Dallas County, for a petition for local option election, and thereafter mailed letters to residents of precinct 2 soliciting signatures on a form of petition for local option election. Appellees further alleged that approximately 9,000 such petitions had been filed with the county clerk, that he was preparing to certify to the commissioners court that all statutory requirements had been met in regard to such petitions, and that he would make such certificate momentarily. Among the irregularities alleged as grounds for restraining such certification were that the petitions did not bear the original seal of the clerk, but only photographic reproductions of it, that the signatures had been obtained by fraudulent representations, and that an insufficient number of qualified voters had signed with intent to request an election on the issue of legalizing sale of alcoholic beverages within precinct 2.

Appellees presented their application Ex parte to the judge of one of the district courts of Dallas County on Friday, October 6, 1972, and he immediately signed a 'temporary restraining order' restraining the county clerk from certifying to the commissioners court the number of qualified voters signing any petition for local option election within precinct 2, and setting a hearing on the application for temporary injunction for October 16, 1972. On Monday, October 9, defendant clerk presented to the district court a motion to dissolve the temporary restraining order, alleging that the court had no authority to issue it, that it was prematurely brought as an election contest, and that section 40a of the Texas Liquor Control Act ² provides an adequate means for contesting a local option election. The clerk further alleged that the least expensive manner in which to conduct a local option election was to include the issue on the ballot at the general election to be held November 7, 1972, that the cost of a special election would be at least $25,000, that substantial savings would result if the commissioners court at its regular meeting on October 9 elects to place the local option issue on the ballot for the general election, that the commissioners court would not have another opportunity before the general election of November 7 to place the local option issue on the ballot, and that the effect of the order restraining him from certifying the petitions until after a hearing on October 16 was to prevent the commissioners court from including the issue on the general election ballot.

The trial court permitted an intervention by L. M. White and others, who alleged that they were the voters who had applied for and had circulated the petitions for local option election. They moved to dissolve the 'temporary restraining order' on the same grounds alleged by the clerk and they alleged further that they would have to incur additional expense and effort if the issue were not placed on the general election ballot on November 7.

The district court overruled the motions to dissolve. The clerk and the intervenors appeal from that ruling and also from the original order.

APPEALABILITY OF TRIAL COURT'S ORDERS

Appellees have filed a motion to dismiss the appeal on the ground that the orders in question are not appealable. This question depends on Tex.Rev.Civ.Stat. Vernon's Ann. art. 4662 (1952), as follows:

'Any party to a civil suit wherein a temporary injunction may be granted or refused or when motion to dissolve has been granted or over-ruled, under any provision of this title, in term time or in vacation, may appeal from such order or judgment to the Court of Civil Appeals * * *.'

Appellees contend that this statute limits interlocutory appeals to orders granting or overruling 'temporary injunctions,' which are granted after hearing and continue to final trial, and does not extend to 'temporary restraining orders,' which are granted Ex parte and continue only until a hearing can be had. One line of decisions by Texas intermediate courts seems to support this distinction. See Smith v. State, 140 S.W.2d 299 (Tex.Civ.App., Eastland 1940, no writ) and cases therein cited. Other Texas authorities have construed article 4662 more broadly to permit an appeal from a 'temporary restraining order' when the effect of the order goes beyond maintaining the status quo until a hearing can be had. Alpha Petroleum Co. v. Terrell, 122 Tex. 257, 59 S.W.2d 364, 372 (1933); Railroad Commission v. A. E. McDonald Motor Freight Lines, 127 S.W.2d 932 (Tex.Civ.App., Waco 1939, no writ); Smith v. Coleman, 127 S.W.2d 928 (Tex.Civ.App., Waco 1939, no writ); Barkley v. Conklin, 101 S.W.2d 405 (Tex.Civ.App., Waco 1937, no writ); Railroad Commission v. Real, 80 S.W.2d 494 (Tex.Civ.App., Austin 1935, no writ).

Appellees argue that these authorities are not applicable because under Texas Rules of Civil Procedure 680 a temporary restraining order must expire by its own terms within ten days after issuance unless extended for a like period for good cause, and the order now in question continues only until October 16, the date set for hearing of the application for temporary injunction. We cannot agree with this argument because it assumes that our statutory jurisdiction under article 4662 is limited by rule 680. That rule does not purport to limit our jurisdiction and we do not construe it as attempting to do so. The cases above cited, though decided before adoption of rule 680, still support a broader construction of article 4662 than one which would limit appeals to temporary injunctions granted after hearing and effective until final trial.

From the above authorities it is clear that our jurisdiction is not limited by the form of the order and that we must consider its actual impact on the situation of the parties. In this case we have no difficulty in determining that the circumstances of the parties would be materially changed if the temporary restraining order is permitted to continue until after hearing on October 16. Section 32 of the Texas Liquor Control Act ³ requires the commissioners court to order a local option election at its 'next regular session' after a proper petition with the necessary signatures is filed with the county clerk. Tex.Rev.Civ.Stat.Ann. art. 2348 (1971) provides: 'The regular terms of the commissioners court shall be commenced and be held at the court house on the second Monday of each month throughout the year and may continue in session one week * * *.' Under this article a regular term of the commissioners court began October 9, 1972. If the temporary restraining order is permitted to continue until after the hearing on October 16, the commissioners court will not be required to act on it, and arguably would not be authorized to act on it, until the next regular term, which begins November 13. Thus, the temporary restraining order may effectively prevent action by the commissioners court at a time when the commissioners could effect substantial savings of county funds by including the issue on the ballot at the general election on November 7, and clearly prevents appellants from requiring such action at such a time. Appellants also point out that submission of the local option election at a special election rather than at a general election would materially affect the number of voters that may be expected to vote.

These circumstances show that the effect of the trial court's order will probably be felt well beyond the date set for hearing of the application for temporary injunction. Although the commissioners court, within its regular term, may defer action on such a petition until a subsequent date, ⁴ it has nothing before it on which to act or defer action until the clerk makes his certificate. We need not decide whether a 'regular session' of the commissioners court under section 32 may be held at a time other than within a 'regular term' as provided by article 2348. Neither do we need to speculate as to whether after conclusion of a temporary injunction...