Haverbekken v. Hale
| Decision Date | 27 February 1918 |
| Docket Number | (No. 2841.) |
| Parties | HAVERBEKKEN v. HALE, County Judge, et al. |
| Court | Texas Supreme Court |
Preliminary injunction proceedings by Ole O. Haverbekken to restrain P. S. Hale, County Judge, and others, as members of the Commissioners' Court of Bosque County, from opening a public road. From an order denying the injunction, plaintiff appeals. The Court of Civil Appeals affirmed the order, and transferred the case to the Supreme Court on certificate of dissent and on certified questions. Answered.
S. C. Padelford, of Cleburne, for appellant. H. J. Cureton, of Meridian, for appellees.
This is a certificate of dissent from the honorable Court of Civil Appeals for the Second District.
The following is a summary of the facts stated in the certificate:
The case was a preliminary injunction proceeding instituted by Haverbekken to restrain the Commissioners' Court of Bosque County from opening a public road of the second class across his land, heard upon petition and answer and attached exhibits and affidavits. The injunction was sought upon the ground that the action of the Commissioners, in ordering the opening of the road was void because, among other reasons, the proceedings in respect to the number of freeholders petitioning for the road and the notice given on the petition did not comply with the statutes.
Attached to the plaintiff's petition in the suit was an exhibit from the proceedings before the Commissioners' Court showing that the petition for the road upon which the court acted contained the signatures of twenty persons therein designated as freeholders of the precinct in which the road would lie. It was charged, however, in the plaintiff's verified petition in the injunction proceeding that the petition for the road so acted upon was not signed by eight freeholders as required by Article 6876. This averment was not traversed by the answer of the defendants.
The petition for the road, shown by the exhibit referred to, stated that it would be presented to the Commissioners' Court on November 25, 1914. Another exhibit from its proceedings attached to the petition in the suit disclosed that the Court acted on the petition on November 11, 1914, by then appointing the jury of view to lay out the road and assess the damages. In this connection the plaintiff alleged under oath in the injunction suit that the twenty days prior notice of the petition, provided by Article 6875, was not given. It does not appear from the certificate that this allegation was in anywise denied by the defendants.
Affidavits presented by the defendants were sufficient to sustain findings that the jury of view gave the plaintiff the required statutory notice of the date designated by them for the laying out of the road and a hearing as to his claim for damages; that he appeared before them at the time appointed and disputed the County's right to open the road but did not present any claim for damages; that he was present when the Commissioners' Court approved the report of the jury of view and ordered that the road be opened, and made no objection to its action.
So far as the record discloses, he prosecuted no appeal from the order of the Commissioners' Court assessing his damages in the amount found by the jury of view.
The District Judge denied the injunction, his order being affirmed by the Court of Civil Appeals in an opinion delivered by Associate Justice Dunklin; Associate Justice Buck dissenting.
As we construe the certificate, we are asked to determine whether the fact that eight freeholders of the precinct did not sign the petition for the road and a failure to give twenty days notice on the petition rendered void the action of the Commissioners in ordering that the road be opened.
In our opinion both of these requirements prescribed by the statutes are jurisdictional, and their observance is essential to a valid exercise by the Commissioners' Court of the power to open upon the application of others a road of the class here involved.
The various statutes bearing on the question are found in Chapter 1 of Title 119. The first article in the chapter defines what roads are declared as public. The second article in the chapter, Article 6860, reads:
"The Commissioners' Courts of the several counties shall have full powers and it shall be their duty to order the laying out and opening of public roads when necessary, and to discontinue or alter any road whenever it shall be deemed expedient as hereinafter prescribed."
This is original Article 4360 of the Revised Statutes of 1879. That article has been amended by three different acts by the addition of a proviso and the amendment of the latter, the last amendment being that of the act of April 2, 1889 (Acts of 1889, page 21), — its proviso as last amended now constituting Article 6861; but this part of it remains as originally enacted. Its office was to confer upon the Commissioners' Courts the general powers they were to possess in relation to public roads. But it imposed the express limitation that the exercise of those powers should be "as hereafter prescribed." The effect of this limitation is to directly point to the succeeding articles of the chapter for the procedure necessary to a valid use of the powers conferred in respect to the several classes of roads with which the chapter deals.
As to first class roads between county seats, the Commissioners' Courts, under Article 6864 may, of their own motion, initiate the proper proceedings. Likewise, the last clause in Article 6871 says:
"And Commissioners' Courts may, on their own motion, where it is deemed necessary, open new roads or straighten existing ones."
But in respect to the opening of new roads or the discontinuing of old ones on the application of others, Article 6875 is positive in its declaration that in no instance shall the Commissioners' Court grant its order unless the persons making the application shall have given at least twenty days' notice of their intended application, as prescribed in the article; and Article 6876 is equally emphatic in its requirement that such an application shall be signed by at least eight freeholders in the precinct or precincts in which the road is desired or is to be discontinued. Article 6875 is in these words:
"The Commissioners' Court shall in no instance grant an order on an application for any new road, or to discontinue an original one, unless the persons making application therefor, or some one of them, shall have given at least twenty days' notice by written advertisement of their intended application, posted up at the court house door of the county and at two other public places in the vicinity of the route of the proposed new road, or the road proposed to be discontinued."
The pertinent provision of Article 6876 is as follows:
"All applications for a new road, and all applications to discontinue an existing one, shall be by petition to the Commissioners' Court, signed by at least eight freeholders in the precinct or precincts in which such road is desired to be made or discontinued, specifying in such petition the beginning and termination of such road proposed to be opened or discontinued."
Does the clause above quoted found in Article 6871 control Articles 6875 and 6876 and sanction an entire disregard of their requirements? We do not think so. It was the opinion of the majority of the honorable Court of Civil Appeals that since under Article 6871, and Article 6860, as well, as construed by them, the Commissioners' Court may of its own motion open a new road when deemed necessary, the observance of Articles 6875 and 6876 in relation to notice and the number of freeholders petitioning for the opening or discontinuance of a road is not essential to its jurisdiction, even though it be invoked in virtue of those articles. We regard this as a mistaken view. It is but to say that those articles may be availed of to set in motion the power of the court, and yet be wholly ignored in respect to those things plainly prescribed as essential to the valid exercise of the power.
Article 6860 does not of itself, in our opinion, confer upon the Commissioners' Court any authority to open a new road of its own motion. Article 6871...
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