Huggins v. Vaden

• Decision Date: 09 June 1923
• Docket Number: (No. 10602.)
• Parties: HUGGINS v. VADEN, County Judge.
• Court: Texas Court of Appeals

253 S.W. 877

HUGGINS v. VADEN, County Judge.

(No. 10602.)

Court of Civil Appeals of Texas. Fort Worth.

June 9, 1923.

Rehearing Denied June 30, 1923.

Appeal from District Court, Clay County; H. R. Wilson, Judge.

Petition for mandamus by J. L. Huggins and others against J. F. Vaden, County Judge. From a ruling denying the writ, petitioner appeals. Affirmed.

Taylor & Taylor, of Wichita Falls, and H. M. Muse, of Henrietta, for appellant.

Stine & Stine and Wantland, Dickey & Glasgow, all of Henrietta, for appellee.

DUNKLIN, J.

By the provisions of chapter 2 of title 18 of the Revised Civil Statutes of Texas, any defined district of any county is authorized and empowered to issue bonds in an amount not to exceed one-fourth the assessed valuation of the real property situated in such district, and to levy and collect taxes to pay off said bonds, for the purpose of constructing and maintaining and operating macadamized, graveled, or paved roads and turnpikes, or in aid thereof, within the boundaries of said defined district. By other provisions of the same chapter the right to issue such bonds is made dependent upon the votes of two-thirds of the resident property tax paying voters in said district, and before an election can be ordered by the commissioners' court for the issuance of such bonds a petition must be presented and filed with the commissioners' court, signed by at least 50 of the resident property tax paying voters of the district. By article 628 of that chapter it is made the duty of the commissioners' court to order such election whenever such a petition so signed is presented.

Under and by virtue of the provisions of the statute, M. B. Powell and 224 other persons, all of whom were qualified property tax paying voters of Clay county, filed with the commissioners' court of that county on February 10, 1923, a petition praying for the establishment and creation of a road district in that county, to be known and designated as "road district No. 2 of Clay county, Texas," and praying for an election to be called to determine whether or not $575,000 of bonds bearing interest at the rate of 5½ per cent. per annum should issue for the purpose of—

"constructing, maintaining, and operating macadamized, graveled, or paved roads and turnpikes, or in aid thereof, and whether or not a tax should be levied upon the property of said proposed road district subject to taxes for the purpose of paying the interest on said bonds and to provide a sinking fund for the redemption thereof at maturity."

The petition described the road district to be so created by metes and bounds, and all of the signers of the petition resided within those boundaries.

On February 12, 1923, another petition was filed in the same court to create and establish another road district in the same county, designated as road district No. 5, and praying for an election to determine whether or not bonds in the sum of $75,000 should be issued for the same purpose as was designated in the first petition. The petition for road district No. 5 was signed by 85 qualified property tax paying voters residing in that proposed district, and likewise defined the boundaries of that district, and a large portion of the territory embraced in those boundaries was included within the boundaries of road district No. 2.

On February 12, 1923, the same date the petition for road district No. 5 was filed, and after the same had been filed, the commissioners' court acted upon and granted the petition for road district No. 2; the order so made expressly establishing the territory defined in that petition as road district No. 2. The order also provided for the holding of an election as prayed for in the petition in that district, the date of the election being set for March 20, 1923. The petition for road district No. 2 was presented and acted upon before that for district No. 5 was presented, but at the time the first petition was presented the commissioners' court knew that the second petition was on file.

The second petition, which was for road district No. 5, was also presented to the court on February 12, 1923, but after the first petition, which was for road district No. 2, had been acted upon and granted. When the second petition was presented, the court called attention of the signers of that petition to the fact that the territory included in that proposed district, in a large measure, overlapped and embraced a portion of road district No. 2 which had already been established, and stated to the petitioners that they could not legally establish the proposed district No. 5, as the same was described in the petition by reason of such overlapping. The court thereupon proposed to the petitioners for road district No. 5 that the boundaries of that district as proposed by the petitioners be so changed as to exclude therefrom that portion which overlapped and was embraced in district No. 2, which had already been created, and offered to said petitioners to establish road district No. 5 and order the election prayed for, if they would make the changes suggested in boundaries. That suggestion and offer on the part of the court was declined by those petitioners, and on account of such overlapping the court declined to grant the petition as the same was drawn and presented.

Thereupon the petitioners for road district No. 5 applied to the judge of the district court for an order commanding the commissioners' court to grant the petition for district No. 5 and to order an election to determine whether or not bonds should be issued as prayed for in that petition. The district judge refused to grant the writ of mandamus prayed for, and from that ruling the petitioners for the proposed road district No. 5 have appealed.

We have no doubt that as a general proposition the commissioners' court has no discretion to refuse to hear and grant a petition to establish a road district and to order an election for the purpose of determining whether or not bonds shall be issued for road purposes, whenever such a petition is prepared and presented in compliance with the provisions of chapter 2, title 18, of the Statutes, and that a mandamus will lie to compel the performance of such duty whenever necessary. That conclusion is well sustained by the following decisions of this state: Sansom, Mayor, etc., v. Mercer, 68 Tex. 488, 5 S. W. 62, 2 Am. St. Rep. 505; Kimberley v. Morris, 87 Tex. 637, 31 S. W. 808; Ferguson v. Leigh, County Judge (Tex. Civ. App.) 193 S. W. 206; Boynton v. Brown (Tex. Civ. App.) 164 S. W. 893; Moore v. Coffman, 109 Tex. 93, 200 S. W. 374. Article 637d, Rev. Statutes, 1922 Supplement, reads as follows:

"Where a political subdivision or defined road district of a county has heretofore been established and issued bonds or is hereafter established and issues bonds, no political subdivision or defined road district shall thereafter...