Fletcher v. Ely

• Decision Date: 05 October 1932
• Docket Number: No. 3879.,3879.
• Citation: 53 S.W.2d 817
• Parties: FLETCHER et al. v. ELY et al.
• Court: Texas Court of Appeals

Page 817

53 S.W.2d 817

FLETCHER et al. v. ELY et al.

No. 3879.

Court of Civil Appeals of Texas. Amarillo.

October 5, 1932.

Rehearing Denied October 25, 1932.

Appeal from District Court, Lubbock County; Homer L. Pharr, Judge.

Suit by C. E. Fletcher and others against W. R. Ely and others. From judgment for defendants, plaintiffs appeal.

Reversed and rendered.

Vickers & Campbell, of Lubbock, for appellants.

James V. Allred, Atty. Gen., T. S. Christopher and J. A. Stanford, Jr., Asst. Attys. Gen., and L. L. King and C. C. Broughton, both of Childress, for appellees.

MARTIN, J.

In January, 1930, appellants presented their petition to the district court of Childress county, asking that the appellees, as members of the commissioners' court of said county, and also the members of the state highway commission, be temporarily restrained from expending certain bond money upon any road building project save and except state highway No. 4, as it existed on December 21, 1927, and praying on final trial for a permanent injunction. The relief prayed for was denied and a general demurrer to said petition sustained. An appeal was taken to this court, and the judgment of the lower court affirmed, which is reported in 26 S.W. (2d) 444, 446. A writ of error was thereafter granted, and upon a final hearing the judgments of the Court of Civil Appeals and the district court were reversed, and the cause remanded; the opinion by the Supreme Court Commission being reported in (Tex. Sup.) 39 S.W.(2d) 32, 34. These are referred to for a statement of the nature of this case except as we may find it necessary to make additions thereto.

This cause was transferred by agreement to Lubbock county, where a trial was had before the court on its merits and upon the same petition originally presented to the district court of Childress county, and judgment was there rendered denying the relief prayed for. The trial was upon an agreed statement of facts brought forward in the record.

The disposition of this case on the former appeal turned largely upon a construction of the pre-election order of the commissioners' court of Childress county as shown by the concluding paragraph of Judge Randolph's opinion, as follows: "As stated above, the only points of control named in the order of the commissioners' court, as shown by the petition, were the north and south boundary lines of Childress county. Therefore, the state highway commission and the federal bureau of roads had, as between those boundaries, full discretion to locate or relocate the highways, and such discretion was not abrogated by the fact that the voters were induced to believe that the money would be expended upon highway No. 4, as it then existed."

The cases of Singeltary v. Heathman (Tex. Civ. App.) 300 S. W. 242, and Quisenberry v. Mitchell, 116 Tex. 378, 292 S. W. 160, 163, appear to have been given controlling effect in the decision reached.

It is again here contended by appellees that, since the only control points named in the order of the commissioners' court were the two points above mentioned, with no specifications as to the intermediate route, therefore appellees were at liberty to use the proceeds of the bond money between these points upon any route selected by them, and particularly did they have a right to use it as they were threatening to do, and that such use of it constituted a substantial compliance with said order.

The Heathman Case, supra, and the instant case were written on by the same judge, who took occasion to explain the difference between the two cases. A verbatim copy of the order of the commissioners' court in controversy is shown in the opinion of Judge Randolph, reported in (Tex. Civ. App.) 26 S.W.(2d) 444. If the order of the commissioners' court is to be given the broad legal effect claimed for it by appellees, it would have effectually disposed of the question before the Supreme Court. Its reversal constituted an implied holding against such legal construction under our interpretation of the opinion.

Judge Short in his opinion states the issue of this case in the following language: "The plaintiffs in error merely contended that neither the state highway commission, nor the commissioners' court, under the alleged facts of this case, have the authority to divert the proceeds from the sale of the bonds from being expended on Highway No. 4, as it existed on the date of the election, where it appears that no part of said proceeds were intended to be so used."

In the solution of the final question to be determined herein, we may proceed upon the hypothesis that the following propositions, directly or indirectly involved therein, are well settled:

(1) That any commissioners' court in Texas is within its legal rights in annexing a condition in its pre-election orders which fixes the exact purpose for which the bond money constituting the proceeds of a bond issue submitted to a vote is to be used. Moore v. Coffman, 109 Tex. 93, 200 S. W. 374.

(2) That, in the absence of a definite identification of the specific road to be paved, a discretion exists in the commissioners' court as to which of two or more routes may be followed between control points named in the pre-election orders, which discretion, however, may be and is surrendered when in response to a referendum, under a proper order of submission, the particular route and road to be paved is identified and named. Brown v. Preston County Court, 78 W. Va. 644, 90 S. E. 166, 167; Wright v. Allen (Tex. Civ. App.) 257 S. W. 980.

(3) That, when the voters thus speak, the proceeds of the bond issue are "earmarked" with the character of a trust fund which may not be diverted to another purpose or project, and any such attempt will be enjoined by a court of equity. The result thus obtained has been referred to as having the binding effect and force of a contract. Black v. Strength, 112 Tex. 188, 246 S. W. 79; 19 R. C. L. pp. 1163, 1164; Roane County Court v. O'Brien, 95 W. Va. 32, 122 S. E. 352, 355.

(4) It is a cardinal rule of construction of instruments that the intent of the parties to same is the dominant ruling factor and that they should always be construed in the light of the circumstances surrounding the parties at the time of their making. 12 C. J. pp. 542, 1301; St. Louis, B. & M. Ry. Co. v. Hicks (Tex. Civ. App.) 158 S. W. 192.

We have here for decision in the light of the above legal principles only the question, as we view it, of whether or not the facts and circumstances of this record show that the proceeds of the bond issue in question were to be used to pave state highway No. 4 as it existed on the ground at the time of the aforesaid election. We are met at the threshold of a solution of this question with the pre-election order already referred to, which is very general and somewhat vague in its description of the road to be paved. We repeat it here.

"Be it ordered by the commissioners' court of Childress County, Texas, that, in the event bonds are voted in the amount of $650,000.00 for the purpose of constructing, maintaining and operating macadamized, graveled, or paved roads and turnpikes, or in aid thereof; and issued, that the proceeds from the sale of the bonds be used for the following specific purposes:

"State Highway Number Five over its entire length in Childress County, from the Hardeman County Line on the East to the Hall County Line on the West shall be constructed of concrete, its equivalent or a higher grade material, and shall pass through the town of Kirkland, Texas, over the length of Cleveland Street; through the town of Carey, and the City of Childress.

"State Highway Number Four over its entire length in Childress County, from the Collingsworth County line on the North to the Cottle County Line on the South shall be constructed of concrete, its equivalent or a higher grade material."

Keeping in mind that we are endeavoring here to arrive at the intention of all parties with respect to the road to be paved, as gathered from the face of the above order interpreted in the light of the surrounding circumstances of the parties at the time it was made, we make note of the following facts agreed to by the parties and reproduced in the record as part of the agreed statement of facts:

"That at and previous to the time of the election, and at and previous to the date of the bond order and collateral order herein quoted, there existed a well-defined highway through Childress County which was known to the public generally as Highway No. 4, and that the same had been marked with Highway markers under the direction of the Highway Department, and that said road had been improved by the expenditure of a portion of a previous bond issue, said improvements costing approximately $70,000.00, which said sum was derived from the local county bond issue, and by being matched by State and Federal aid, and that said road had been and is now by the State Highway Commission maintained and generally used by the public, and that some twenty concrete culverts have been built on the Highway No. 4, under the direction of the Highway Department, and that both the State and Federal Government participated in the improvement and maintenance of Highway No. 4.

"That at the time of the bond election, to-wit: on December 21, 1927, and at the time of the entry of the collateral order quoted in paragraph 4 hereof, that State Highway No. 4 was a part of a highway extending across the State of Texas from Canada to Del Rio, Texas. That the said highway passed through the county of Childress, and over its entire length in Childress County, from the Collingsworth County line on the north to the Cottle County line on the south; that said highway was and had been a Federal aided, State designated highway, pursuant to the State and Federal Highway Acts, and passed through the town of Childress. * * *

"That the $650,000.00 voted in bonds was to be used to pave the two State designated highways...