Hager v. State ex rel. Tevault
| Decision Date | 29 September 1969 |
| Docket Number | No. 7107,7107 |
| Citation | 446 S.W.2d 43 |
| Parties | Dale C. HAGER et al., Appellants, v. STATE ex rel. DeWayne TeVAULT et al., Appellees. . Beaumont |
| Court | Texas Court of Appeals |
Gilbert T. Adams, Beaumont, for Dr. Hager.
Thad Heartfield, Beaumont, for City of Beaumont.
Mehaffey, Weber, Keith & Gonsoulin, James Mehaffey and B. J. McGinnis, Beaumont, for appellees.
Alan McNeill, Beaumont, W. C. Lindsey, Dist. Atty., Beaumont, for Ken ritter.
This case comes to us as an appeal from a final judgment in a mandamus action requiring the Mayor and City Councilmen of the City of Beaumont to call an election wherein the question of the recall of Councilman Hager may be submitted to the qualified voters of the City. The District Attorney of Jefferson County joined in a petition to TeVault, et al, in seeking a peremptory writ of mandamus to require the governing body of the City to call such election. After a hearing, the writ was granted and the Council was required by the judgment to order said election before 5:00 o'clock p.m., September 30, 1969.
Simultaneously with the filing of the transcript in this court, appellants sought the entry of an order staying the proceedings below pending final determination of the cause in this court. On the same day, September 26, 1969, appellees filed a motion to dismiss the cause for want of jurisdiction. We ordered the filing of memoranda of authorities by the parties before entering any order.
We turn first to a discussion of the jurisdictional question presented. Beaumont is a Home Rule City and its governing body is composed of a Mayor and four Councilmen. The record reveals the existence of a division in the Council with Councilmen Hager, Fears, and Seale having an effective operating majority of the Council on the issue before us. Opposed thereto and in the minority are Mayor McNicholas and Councilman Ritter.
Acting under the recall provisions of the Beaumont Charter, Article XI, § 13, TeVault, et al, procured petitions from the City Clerk as an initial step in attempting to procure an election to recall Councilman Hager from office. The sufficiency of the application therefor, both as to substance and as to form, is challenged in this cause but we do not reach that point.
On August 28, 1969, TeVault, et al, filed the petitions so procured from the City Clerk with numerous signatures thereon. The Clerk was required by the Charter provisions, Article VI, § 15, to examine the petitions so filed 'and if he finds it sufficient and in compliance with the provisions of the charter, he shall within five (5) days submit it to the City Council with his certificate to that effect. * * *'
After the petitions bearing more than eight thousand signatures had been presented to the Clerk for checking and certification, but before the requisite certificate of sufficiency had been made, Councilman Hager sought an injunction to restrain any further action on the recall movement. The injunction was denied and the certificate of the Clerk was issued. Hager did not choose to resign within the five-day period thereafter as was also provided in § 15, supra.
In such contingency, the Charter provides that 'the City Council shall thereupon order and fix a date for holding a recall election.' On September 11, 1969, at a special meeting of the City Council with all members thereof present and participating, the Council declined to set the date of an election or to order an election to be held. The prevailing vote was along the divisive line mentioned earlier and the decisive vote creating the prevailing majority was that of Councilman Hager, whose recall was the precise question involved.
Immediately thereafter, TeVault, et al, acting under the provisions of Article XI, § 19 of the Charter, sought to have a District Judge of Jefferson County, Texas, order the election. Although such authority appears to have been granted by this provision of the Charter, the District Judge declined to act and his non-action is not before us.
Alleging their compliance with all of the provisions of the Charter and the exhaustion of their administrative remedies, TeVault, et al, filed this suit seeking a writ of mandamus to require the Mayor and Council to call the election. They alleged that they were resident citizens and taxpayers of the City, but did not otherwise allege a justiciable interest authorizing their maintenance of the proceeding. Cf. Yett v. Cook, 115 Tex. 205, 281 S.W. 837 (1926).
Hon. W. C. Lindsey, District Attorney of Jefferson County, on behalf of the State of Texas, joined in the suit 'as a petitioner because of the interest of the public in this matter and because of the desirability of determining (sic) a final ruling upon the matters involved herein.'
The respondents named in the pleading were the Mayor and Councilmen of the City. The City of Beaumont was not specifically named as a party. In paragraph XVII of their pleading, petitioners alleged:
'This suit is not instituted against the Mayor and City Councilmen individually, but only in their official capacities as constituting the City Council of the City of Beaumont.'
Following a dilatory pleading, a plea in abatement, and one challenging the authority of the District Attorney to join in the proceeding on behalf of the State of Texas, all of the officials named as respondents answered generally. At the conclusion of the trial, at which evidence was heard, the Court overruled the challenge to the authority of the District Attorney to participate and entered judgment awarding the peremptory writ of mandamus as sought.
The judgment was entered on September 22, and by its terms ordered that the 'defendants, acting as the City Council of the City of Beaumont, Texas, shall order and fix a date for the holding of such recall election at a time not less then thirty (30) nor more than sixty (60) days after the date said recall petition was presented to the City Council.' (The petition had been 'presented to the City Council' on September 2, 1969.) The judgment conformed to the time requirements of the Charter. It was further provided in such judgment that the required action must be taken 'not later than 5:00 o'clock P.M., Tuesday, September 30, 1969.'
Incorporated in the body of the order is the recitation: 'To all of which defendants in open court duly excepted and gave notice of appeal to the Ninth Supreme Judicial District, sitting at Beaumont, Texas.'
The defendants, in a motion filed in the trial court on September 24, sought the entry of an order setting the amount of a supersedeas bond, but the motion was denied. On the same day, September 24, the defendants 'and the City Council of the City of Beaumont', joined in the execution of an appeal bond which was approved and filed on September 25, 1969. This bond had the names of all of the defendants typed in the body thereof as principals, although it purported to bear the signature of only Councilman Hager. The signature line of the bond bears the typed names of all of the defendants and there followed the word: 'By', and the signature of Hager. Although named in the bond as a principal and obligor, it does not appear that the bond was executed by or on behalf of one of the ostensible principals, 'City Council of the City of Beaumont' except, if it does, through the typed names: 'Thad Heart-field and Gilbert T. Adams, Attorneys for said City and said Defendants.' Below this type appears only the signature of Hon. Gilbert T. Adams.
Taking judicial notice of the provisions of the Home Rule Charter of the City of Beaumont (Article 1174, Vernon's Ann.Civ.St.), we find that all of the powers of the City are vested in the City Council (Article I, § 2 and Article III, § 1) which is composed of a Mayor and four Councilmen (Article III, § 2). Attached to the motion to dismiss the cause, and in the statement of facts, we find a statement by counsel for the defendants, Assistant City Attorney Thad Heartfield, made in open court on September 23, 1969, wherein he represented to the Court that, although he represented 'the City Council', he did not
At a special meeting of the City Council held on September 25, 1969, Heartifield's request 'that the City Council determine, by resolution, whether or not we are to pursue the appeal to the 9th Court of Civil Appeals' the matter was considered. All members of the Council, including Councilman Hager, were present and participated therein. A resolution reading as follows was adopted:
Councilman Seale moved the adoption of the resolution and his motion was seconded by Councilman Fears. The vote being called for, Councilmen Seale, Fears and Hager voted 'FOR' the adoption of the resolution with Mayor McNicholas and Councilman Ritter voting 'NO.' We note that the minutes reflect the fact that Councilman Hager prefaced his vote with this remark: (The omission and the emphasis in this quotation so appear in the minutes.)
This special meeting of the City Council was convened at 10:00 o'clock a.m., and it is not shown in our record that any other official business was transacted at such meeting. At 1:43 p.m. upon the same day,...
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