Kelsey v. Corbett
| Decision Date | 13 October 1965 |
| Docket Number | No. 5716,5716 |
| Citation | 396 S.W.2d 440 |
| Parties | John H. KELSEY et al., Appellants, v. Perry H. CORBETT et al., Appellees. |
| Court | Texas Court of Appeals |
Stubbeman, McRae, Sealy & Laughlin & F. H. Pannill, Midland, for appellants.
Deaderick, McMahon & McKim and Connell Ashley, Odessa, Kerr, FitzGerald & Kerr, Midland, for appellees.
Gibson, Spence & Gibson, Austin, amicus curiae.
John H. Kelsey and others, tax-payers and taxable property owners within the District of Pecos County Water Control and Improvement District No. 2, appellants herein, brought this suit as plaintiffs, seeking a judgment declaring that neither the plaintiffs nor their property interests were subject to the ad valorem taxes levied and assessed for the purpose of payment of interest and principal, past and future, on bonds issued by such Improvement District. Named as defendants were Pecos County Water Control and Improvement District No. 2, Perry H. Corbett and J. Folse Roy, the original purchasers and present hloders of the bonds, and Dan L. Crump, Tax Assessor and Collector for Pecos County, and others.
Pecos County Water Control and Improvement District No. 2 was formed by an election held in 1955, and it is conceded by all parties hereto that all proceedings relating to the formation of such District and the approval of its bonds are, on their face, letter-perfect. The plaintiff-appellants quite frankly concede in their brief in this court that their position is:
'(a) There were no resident property taxpaying qualified voters who had rendered their property for taxes so as to be qualified to vote-in fact, there were no inhabitants at all in the area constituting the purported district;
'(b) The persons who did vote at the election to create a district and at the election to authorize the issuance of the bonds were imported from outside the district for the sole purpose of casting ballots at this fictitious election, and were neither residents of nor owners of property within the purported district, and
'(c) The defendants who are the original purchasers and present claimants of the bonds knew at all material times, and particularly at and prior to their purchase of the bonds that there were no resident property tax-paying qualified voters who had rendered their properties for taxes who did or could have voted at the elections and therefore knew, or were on notice, that the elections were fictitious.'
Plaintiffs went to trial on their Third Amended Original Petition, all of which, except paragraph 2 thereof, they specifically dismissed with prejudice; and paragraph 2 simply adopted their Second Amended Original Petition; so that, in effect, they went to trial on their Second Amended Original Petition. An analysis of that petition shows that they allege only that there was (1) no such legal entity as Pecos County Water Control and Improvement District No. 2; and (2) that they, the plaintiffs, were not obligated to pay the bonds and their property not subject to them.
At the conclusion of all the evidence the trial court withdrew the case from the jury and rendered judgment contrary to the plaintiffs' position and upholding the validity of the District . In that action we think the trial court was correct for two reasons: first, that the plaintiffs' suit was, in essence, an election contest which they could not maintain in such a proceeding; and second, the plaintiffs could not question the existence of the District, as quo warranto was the sole exclusive remedy.
Plaintiffs sought to show that at the time the District was formed in 1955 there were no residents within the physical boundaries of the District, and that those who voted for the formation of the District and for the issuance of the bonds thereof were not property-owning residents of the District. As stated, an election was held, and such election proceedings were in all things valid on their face, and were approved by the Commissioners Court of Pecos County. In effect, plaintiffs are attacking the qualifications of those who voted in the election. This they seek to do by suit filed some six years after such election, and not in conformity with the Election Code. In all their contentions plaintiffs come back to this one proposition-that there were no residents of the...
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