Meurer v. Hooper

• Decision Date: 10 January 1925
• Docket Number: (No. 10213.)
• Citation: 271 S.W. 172
• Parties: MEURER et al. v. HOOPER et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

271 S.W. 172

MEURER et al. v. HOOPER et al.^*

(No. 10213.)

Court of Civil Appeals of Texas. Fort Worth.

January 10, 1925.

Rehearing Denied February 28, 1925.

Error from District Court, Archer County; H. R. Wilson, Judge.

Petition for mandamus by J. F. Meurer and others against E. M. Hooper and others. Judgment of dismissal, and petitioners bring error. Affirmed.

Watkins & Walsh, of Wichita Falls, for plaintiffs in error.

John R. Moore and W. E. Forgy, both of Archer City, for defendants in error.

DUNKLIN, J.

Article 627, Texas Complete Statutes of 1920 (or Vernon's Sayles' Ann. Civ. St. 1914, art. 627), reads as follows:

"Any county in this state, or any political subdivision or defined district, now or hereafter to be described and defined, of a county, is hereby authorized and empowered to issue bonds, or otherwise lend its credit, in any amount not to exceed one-fourth of the assessed valuation of the real property of such county, or political subdivision, or defined district thereof, and to levy and collect such taxes to pay the interest upon such bonds and provide a sinking fund for the redemption thereof, for the purpose of constructing and maintaining and operating macadamized, graveled or paved roads and turnpikes, or in aid thereof."

By article 628 of the same chapter, it is provided that upon a petition of 50, or a majority of resident property tax-paying voters of any county, or political subdivision or defined district of any county, to the county commissioners' court of such county, it is made the duty of that court to order an election to be held in that defined district to determine whether or not the bonds of the district shall be issued in an amount not to exceed one-fourth of the assessed value of the real property of the district, "for the purpose of constructing, maintaining or operating macadamized, graveled or paved roads and turnpikes, or in aid thereof"; and at such election there shall also be submitted to such resident property taxpaying voters the question as to whether or not a tax shall be levied upon the property of said proposed district subject to taxation, for the purpose of paying the interest on said bonds and to provide a sinking fund for the redemption thereof. Then follow provisions requiring notices to be issued and posted of the election to be held, and prescribing the manner of holding the election, making returns thereof to the commissioners' court, etc.

Article 631 reads as follows:

"If, after the result of said election is known, it shall appear to the commissioners' court of the county in which said election was held, that a two-thirds majority of the votes cast at such election were in favor of the issuance of bonds, it shall be the duty of said commissioners' court, as soon thereafter as practicable, to issue said bonds on the faith and credit of said county, or of said political subdivision or defined district now or hereafter to be described and defined, within the state of Texas, and which may or may not include towns, villages, or municipal corporations of the county, as the case may be."

By other articles, it is provided that the bonds shall draw interest at a rate of not exceeding 5½ per cent. per annum, and that they shall mature not later than 30 years from date, and require the levy of a tax on the property within the district sufficient to meet the interest on the bonds, and provide a sinking fund to liquidate them at maturity.

Article 637d, Vernon's Ann. Civ. St. Supp. 1918, provides that when a district is thus created no other district shall be established that will overlap any portion of it.

On January 7, 1924, a petition was filed in the commissioners' court of Archer county for an election to be held to determine whether or not bonds of a certain district should be issued for the purpose of constructing, maintaining, and operating, macadamized, graveled, or paved roads and turnpikes or in aid thereof in said district. The district was designated as district No. 1, its boundaries were defined, and the petition was signed by 79 of the property taxpaying voters of the district; that number being in excess of the number required by article 628 of the statutes. The petition was in statutory form and included the statement that the amount of the bonds proposed to be issued was $325,000, maturing in 30 years and drawing interest at the rate of 5½ per cent. per annum. The proposed district No. 1 embraced a strip 5 or 6 miles wide off the east side of Archer county.

On January 14, 1924, subsequently to the filing of the petition for road district No. 1, another petition was filed for the issuance of bonds in the sum of $250,000 for like purposes by what is designated as road district No. 2, which included about one-half of the county and covered a strip off the north side of the county, running across the county from east to west and overlapping a part of the proposed road district No. 1. That petition was also in due form, having the signatures, of the required number of property taxpaying voters within the district.

On January 14, 1924, when the petition for road district No. 1 came on for hearing, attorneys for those petitioners who were in court, and who presented the same, requested the court to grant them leave in behalf of the petitioners then and there to so amend the petition as to change the amount of the bonds to be issued by the district from $325,000, as stated in the petition, to $100,000, and also change the rate of interest the bonds should bear from 5½ per cent., as stated in the petition, to 5 per cent. The attorneys did not have the written authority from the petitioners to make such change, and for lack of such evidence of authority the court declined to grant the request to so amend the petition. Thereupon the attorneys asked to be allowed time to procure such written authority from the petitioners and to amend the petition later, which the court declined to grant. On the same day the petition for road district No. 2 was presented to the commissioners' court and was by that court granted. At the same time, the court ordered an election to be held within district No. 2 to determine whether or not the bonds in the sum of $250,000, as prayed for, should issue.

On January 17, 1924, the court allowed petitioners for road district No. 2 to so amend their petition as to increase the proposed bond issue from $250,000 to $300,000, maturing in 30 years and drawing interest at the rate of 5½ per cent. per annum; the rate of interest and date of maturity being the same as proposed in the original petition. The court then ordered an election to be held in road district No. 2 to determine whether or not that district should issue bonds in the sum of $300,000. The election held in obedience to that order resulted in favor of the bond issue, and upon returns being made the court ordered the issuance of bonds and levied a tax to provide for the payment of interest and also a sinking fund to meet the principal; all in compliance with the statutes in such cases made and provided.

On January 17, 1924, when the court allowed the amendment to the petition for road district No. 2 and ordered the election that was later held, as above related, attorneys representing petitioners for road district No. 1 appeared and presented to the court authority in writing, signed by 50 of the persons who had signed the original petition, for that road district to so amend their original petition as to change the amount of the bond issue originally proposed from $325,000 to $100,000, and the rate of interest from 5½ per cent. to 5 per cent. At the same time, the attorneys for road district No. 1 again asked leave of the court to so amend said original petition, and prayed the court that the same be granted as amended, and objected to the amendment of the petition for road district No. 2 and the granting thereof as amended, all of which requests the commissioners' court refused.

J. E. Meurer, and four others who signed the petition for road district No. 1, instituted this suit against the county judge and county commissioners of Archer county, alleging the presentation of the two petitions and the action of the court thereon, and all the other facts recited above, and prayed the court for a writ of mandamus commanding the defendants to allow the proposed amendment of the petition for road district No. 1 so as to change the amount of the bond issue from $325,000 to $100,000, and to change the rate of interest the bonds should draw from 5½ per cent. to 5 per cent. per annum; and to enter an order recognizing the creation and establishment of road district No. 1, and ordering an election to be held in that district to determine whether or not bonds should be issued in the sum of $100,000, drawing interest at the rate of 5 per cent. per annum, for the purposes authorized by the statutes in accordance with the prayer of the petition filed for the creation of road district No. 1; and further commanding the defendants to enter an order nunc pro tunc, reforming the boundaries of road district No. 2 so that the same will not overlap the boundaries of the proposed road district No. 1.

The following is a brief statement of additional facts alleged in plaintiffs' petition as summarized in briefs filed for plaintiffs in error.

"The county is 30 miles square. In the northwest portion lie the towns of Dundee, Mankins, and Holliday; near the center is Archer City; to the southwest is Megargle; on the east side are the towns of Windthorst and Scotland and the Lake Creek community. The towns named, except Windthorst, Scotland, and Lake Creek, have railroad facilities in addition to the natural dirt roads in the communities. The Ozark Trail connects Holliday, Mankins, and Dundee in the northwest corner of the county with Wichita Falls, Archer City, and points south in the center of the county. In the southwest corner of the county is the 3F Highway. These highways are...