Kerr v. Riddle

• Decision Date: 15 May 1895
• Citation: 31 S.W. 328
• Parties: KERR et al. v. RIDDLE et al.
• Court: Texas Court of Appeals

31 S.W. 328

KERR et al. v. RIDDLE et al.

Court of Civil Appeals of Texas.

May 15, 1895.

Appeal from district court, Hood county.

Proceedings by H. J. Kerr & Son and others against G. W. Riddle and others to prevent the holding of a local option election, and the enforcement of such law, should it be adopted. From a judgment for defendants, complainants appeal. Affirmed.

Riddle & Martin and Todd & Rodgers, for appellants.

STEPHENS, J.

This injunction suit was brought by appellants, both as liquor dealers and taxpayers, to prevent a local option election in Hood county, and to prevent the enforcement of the law, should it be adopted. When the case was tried the election had been ordered by the commissioners' court, but the officers commisioned to hold the election were not made parties to the suit. Since the trial the time fixed for holding the election has passed, and we must presume it has been held. In so far, therefore, as this proceeding was designed to prevent the holding of the election, it has failed, and this court is powerless to afford any relief. It is analogous to a suit to recover an office, or to remove an incumbent, after the term of office has expired. State v. Loomis (Tex. Civ. App.) 29 S. W. 415, and cases there cited. We have, then, only to inquire whether the case stated in the pleadings of appellants—there being no statement of facts —entitles them to a judgment of perpetual injunction against the result of a future election, in case that result should prove to be adverse to their interests. In other words, did they, by the facts stated, make it reasonably to appear that the election would probably result in favor of local option? This question, we think, must be answered in the negative. The petition merely states the disastrous consequences apprehended by appellants in case the election should result in favor of the law, without stating any facts tending to show, or even alleging as a conclusion, that such a result was probable. In High on Injunctions (volume 1, § 35) the rule is thus stated: "Nor do the mere apprehensions and fears of complainant, unsustained by facts establishing their probability, constitute a sufficient ground to warrant the interference of equity by injunction, since such fears may exist without any substantial reason. Not the complainant, therefore, but the court, must be satisfied that a wrong is about to be committed which will be irreparable in its nature, before the relief will be allowed."...