State v. Ball

• Citation: 296 S.W. 1085
• Decision Date: 04 June 1927
• Docket Number: (No. 3936.)
• Parties: STATE ex rel. MERRIMAN et al. v. BALL et al.
• Court: Texas Supreme Court

296 S.W. 1085

STATE ex rel. MERRIMAN et al. v. BALL et al.

(No. 3936.)

Supreme Court of Texas.

June 4, 1927.

Error to Court of Civil Appeals, of Ninth Supreme Judicial District.

Quo warranto proceeding by the State of Texas, filed by Marvin Scurlock, County Attorney of Jefferson County, on the relation of W. R. Merriman and others, against M. T. Ball and others, constituting the Board of Supervisors and Tax Collector of Fresh Water Supply District No. 1 of Jefferson County, charging usurpation, and praying for a judgment of ouster. Judgment for relators in the district court was reversed and rendered by the Court of Civil Appeals (245 S. W. 1012), and plaintiffs bring error. Judgment of Court of Civil Appeals reversed and that of district court affirmed.

Marvin Scurlock, Co. Atty., of Beaumont, Holland & Holland, of Orange, W. R. Blain and A. D. Lipscomb, both of Beaumont, and J. A. McNair, of Houston, for plaintiffs in error.

Sonfield, Nall & King, of Beaumont, for defendants in error.

CURETON, C. J.

This case is here by writ of error from the Court of Civil Appeals for the Ninth District. It is a quo warranto proceeding, filed in one of the district courts of Jefferson county by Marvin Scurlock, county attorney of that county, upon the relation of W. R. Merriman and others, against M. T. Ball and others, constituting the board of supervisors and tax collector of fresh water supply district No. 1 of Jefferson county, charging usurpation, and praying for a judgment of ouster. The case was tried before the court without a jury, and judgment entered in favor of the relators against the respondents, to the effect that fresh water supply district No. 1, of which respondents were officers, was invalid, and that for this reason they were guilty of usurpation, etc. Upon appeal to the Court of Civil Appeals this judgment was reversed and rendered, and a judgment entered declaring the district legally organized and valid in all respects. For a full statement of the case, see the opinion of the Court of Civil Appeals, 245 S. W. 1012.

Fresh water supply district No. 1 of Jefferson county was organized under chapter 48, Acts of the First and Second Called Sessions of the Thirty-Sixth Legislature, and may be found by reference to articles 5107 — 180 to 5107 — 266, Vernon's Complete Texas Statutes 1920.

In disposing of this case we find it only necessary to consider one question — that is, the constitutionality of the act under which the district was organized.

It is unquestioned but that the provisions of the law as found in the legislative act were followed in the organization of the district. This act in effect provides for the organization of local improvement districts, for the conservation, transportation, and distribution of fresh water from lakes, pools, reservoirs, wells, springs, creeks, and rivers, for domestic and commercial purposes, as contemplated by section 59, art. 16, of the Constitution of the state. Vernon's Complete Texas Statutes 1920, art. 5107 — 180. The method provided is the initiative and referendum, and the attack made upon it which we find necessary to notice is whether or not the agency selected by the Legislature for giving those to be affected by the creation of the district a hearing was authorized by the statute to pass upon the boundaries of the district and to determine whether or not the creation of the district would be of benefit to the territory included therein.

Articles 5107 — 181 and 5107 — 184 read as follows:

"Art. 5107 — 181. When it is proposed to create a fresh water supply district, there shall be presented to the commissioners' court in which the lands to be included in such district are located, or to the county judge of the county, if the commissioners' court is not in session, a petition signed by fifty or by a majority of the qualified voters of such proposed district who shall own land within the district proposed, setting forth the proposed boundaries thereof, the general nature of the work proposed to be done, the necessity therefor, and the feasibility thereof and designating a name therefor, which shall include the name of the county in which it is situated and upon presentation of such petition it shall be the duty of the commissioners' court of the county judge of such county if the court be not in session to forthwith fix a time and place at which said petition shall be heard before the commissioners' court of the county [w]herein in is filed, which date shall be not less than fifteen nor more than thirty days from the date of the order, and to order and direct the county clerk of such county, as ex officio clerk of the commissioners' court thereof, to issue notice of such time and place of hearing, which notice shall inform all persons concerned of the time and place of hearing and their right to appear and contest the genuineness of such petition and the signature [s] thereto and whether said petitioners are qualified voters of such proposed district, and owners of land therein and to deliver such notice to any adult who is willing to execute the same by posting as herein directed."

"Art. 5107 — 184. At the time and place set for the hearing of the petition or such subsequent date as may then be fixed the court shall proceed to examine such petition for the purpose of ascertaining the sufficiency thereof, and any persons interested may appear before the court in person or by attorney and offer testimony touching the sufficiency of such petition. Such court shall have jurisdiction to determine all issues raised touching the sufficiency of such petition. Such hearing may be adjourned from day to day and from time to time as the facts may require. The court shall have power to make all incidental orders necessary in respect to the matters before it."

The statute in a definite way regulates the subject of the elections, and provides for an order, after a canvass of the votes of the commissioners' court, establishing the district, in the event of a favorable vote therefor.

It will be seen from article 5107 — 181 that when it is proposed to create a district, a petition must be presented to the commissioners' court signed "by fifty or by a majority of the qualified voters of such proposed district who shall own land within the district proposed, setting forth the proposed boundaries thereof, the general nature of the work proposed to be done, the necessity therefor, and the feasibility thereof," etc. When this petition is presented, it becomes the duty of the court to fix a time and place at which the petition shall be heard, and to require the clerk to issue the statutory notice. The statute requires that this notice shall inform all persons concerned of the time and place of hearing, and their right "to appear and contest the genuineness of such petition, the signatures thereto, and whether such petitioners are qualified voters of such proposed district and owners of land therein."

Article 5107 — 184 prescribes what shall take place at the hearing. At the time and place fixed by the commissioners for hearing the petition, it is made the duty of the court to proceed "to examine such petition for the purpose of ascertaining the sufficiency thereof, and any person interested may appear before the court in person or by attorney and offer testimony touching the sufficiency of such petition." The article then gives the court jurisdiction to determine "all issues raised touching the sufficiency of such petition."

Article 5107 — 185 prescribes what must appear or what must be found by the court before it orders an election to create the district. The court must find in favor of the petitioners for the establishment of the district "according to the boundaries as set forth in said petition." If upon such hearing it be found that the petition (a) is signed by the requisite number of qualified voters of such proposed district, who own lands therein, and (b) that such petition conforms to the provisions of article 5107 — 181, supra, then they must order the election and take the necessary subsequent steps to bring about the submission of the question of its creation to the voters of the district, etc.

Reading these several articles quoted and referred to, it is plain, we think, that the question of the boundaries of the district is confided solely to those who sign the petition for its creation, and that no discretion or power is lodged in the commissioners' court to determine or fix these boundaries, or to pass upon the question of benefits to the lands to be embraced in the district. In other words, the statute plainly fails to provide for a hearing on the question of the boundaries of the district and on the question of benefits to the lands included in it. We may say that the statute here under review, providing for the organization of fresh water supply districts, in failing to provide for a hearing...