Tarrant County v. Shannon

• Decision Date: 31 March 1937
• Docket Number: No. 7226.,7226.
• Citation: 104 S.W.2d 4
• Parties: TARRANT COUNTY v. SHANNON et ux.
• Court: Texas Supreme Court

104 S.W.2d 4

TARRANT COUNTY v. SHANNON et ux.

No. 7226.

Supreme Court of Texas.

March 31, 1937.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by S. D. Shannon and wife against Tarrant County. A judgment dismissing the suit was reversed by the Court of Civil Appeals [99 S.W.(2d) 964], and defendant brings error.

Judgment of Court of Civil Appeals reversed and judgment of District Court affirmed.

Samuels, Foster, Brown & McGee, of Fort Worth, for plaintiff in error.

M. Hendricks Brown, Marvin H. Brown, Jr., and Marvin B. Shannon, all of Fort Worth, for defendants in error.

SHARP, Justice.

The principal question for decision here is whether the commissioners' court of Tarrant county has authority to condemn certain property for public road purposes by virtue of article 3264a of the Revised Statutes, or, at its option, under the provisions of H. B. No. 416, p. 45, c. 16, Acts of the 44th Legislature, 1935 (Vernon's Ann. Civ.St. art. 6716 note).

Tarrant county, through its commissioners' court, instituted condemnation proceedings in the county court to acquire an easement for a public roadway through land owned by S. D. Shannon and wife. The condemnation proceedings were instituted under the provisions of article 3264 et seq., Revised Civil Statutes, as amended (Vernon's Ann.Civ.St. art. 3264 et seq.), section 12, p. 45, c. 16, Acts of the Regular Session of the 44th Legislature (Vernon's Ann.Civ.St. art. 6716 note) and also pursuant to subdivision 3 of article 2351 of the Revised Civil Statutes, relating to the powers of commissioners' courts. The following requirements prescribed by law were complied with: (a) Negotiations with the owner for purchase of right of way, and failure to agree on price; (b) order of commissioners' court for institution of condemnation proceedings; (c) application to the county judge for appointment of three disinterested freeholders to act as commissioners to award damages; (d) the appointment of such commissioners; (e) hearing on such matter after due service of notice and appearance of property owners; (f) award by commissioners of the sum of $1,888.26 as compensation to the landowners for the construction of the roadway; (g) appeal by the Shannons from the award of the commissioners; (h) specifications of objections to the award by the Shannons, and the filing of such objections in the office of the county clerk and the clerk of county court at law No. 1 of Tarrant county.

While the appeal from the award of the commissioners in the condemnation was pending, and after the filing of objections and exceptions to such award by the Shannons, and before the appeal itself came on to be heard in the county court at law No. 1 of Tarrant county, the Shannons filed a petition for injunction in the district court of Tarrant county against Tarrant county and its commissioners, to restrain the prosecution of the condemnation proceedings in the county court at law No. 1 of Tarrant county, and set up various grounds as the basis for such injunction. The district court granted a temporary restraining order, enjoining Tarrant county and its commissioners' court from entering upon the property of the Shannons or from proceeding in any manner in the construction of the roadway across their property, and commanded Tarrant county and its commissioners' court to appear and show cause why the restraining order should not be continued. Tarrant county and its commissioners' court presented a plea to the jurisdiction of the court. This plea set out the various steps that had been taken in the condemnation proceedings, and showed that the prosecution of an appeal from the award on the part of the Shannons to the county court at law No. 1, where the appeal was then pending, and alleged the statutes under which the condemnation proceedings had been instituted. It was further revealed that the county court at law No. 1, where the appeal from the award of the commissioners was pending, had first acquired jurisdiction through the condemnation suit, and was the proper tribunal in which to litigate the questions presented by the petition for injunction, and the only tribunal which could grant adequate relief of the matters involved, and that the district court was without jurisdiction, under such circumstances, to entertain or hear the petition. The district court held that it was without jurisdiction to hear or entertain the complaint of the Shannons, and that the alleged grievances were such that, if they existed, the Shannons should resort to the county court at law No. 1 and seek redress or litigate their rights in the condemnation proceedings. It was ordered that the petition for injunction be dismissed. The Shannons appealed to the Court of Civil Appeals, which reversed the action of the district court in sustaining the plea to its jurisdiction, and held that the proceeding in condemnation by Tarrant county was void, in that article 3264 et seq., title 52, Revised Civil Statutes, as amended (Vernon's Ann.Civ.St. art. 3264 et seq.), were not available to counties, and that the only method of condemnation for public road purposes permitted to counties under the law was that set out in title 116, article 6702 et seq. of Revised Civil Statutes, as amended (Vernon's Ann. Civ.St. art. 6702 et seq.), and that, therefore, the condemnation proceedings on the part of Tarrant county were null and void. The Shannons presented their petition to the Court of Civil Appeals for a restraining order against the county pending said appeal, alleging, among other grounds, that the condemnation proceedings in the county court at law No. 1 were void, and that said court had no jurisdiction in the premises. That court issued its restraining order as prayed for, and, after holding the condemnation proceedings void, as above stated, the injunction was made permanent. 99 S.W.(2d) 964. This court granted a writ of error.

The Shannons, on the one side, contend that Tarrant county would have to proceed under the provisions of title 116, chapter 2, articles 6702-6716, Revised Civil Statutes, as amended (Vernon's Ann.Civ. St. arts. 6702-6716), in order to legally condemn their property for road purposes and to confer jurisdiction upon the county court at law No. 1 of Tarrant county for that purpose. Tarrant county, on the other side, contends that it is not limited to the provisions of the foregoing statutes, but that the county had the option to proceed under the provisions of title 52, articles 3264-3271, Revised Civil Statutes, as amended (Vernon's Ann.Civ.St. arts. 3264-3271), or even under H. B. No. 416, section 12, chapter 16, p. 41, of the Acts of the Regular Session of the 44th Legislature (Vernon's Ann.Civ.St. art. 6716 note).

The validity of H. B. No. 416, which conferred the alternative rights in condemnation upon certain counties falling within the provisions of this act, was not challenged or questioned in the principal opinion of the Court of Civil Appeals. However, in the concurring opinion the question was raised that H. B. No. 416 violates article 8, section 9, and article 3, section 56, of the Constitution; and it further questioned the correctness of the construction of article 3, section 56, of the Constitution by this court in the case of Dallas County v. Plowman, 99 Tex. 509, 91 S.W. 221, in which case it was held that local or special road laws may be enacted without giving the local notices required for special or local laws.

H. B. No. 416 is an act providing for public road systems for certain counties, and empowers the commissioners' courts to prescribe rules and regulations therefor. The act by its terms applies to all counties in Texas having a population of more than 160,000 and less than 230,000 population, according to the last preceding federal census, wherein is situated an incorporated city having a population in excess of 100,000 inhabitants according to such census. Tarrant county according to the last preceding federal census of 1930 contained 197,553 people. The city of Fort Worth by the same census contained in 1930 163,447 people. By reason of such facts, Tarrant county is included within the terms of the act.

The case of Dallas County v. Plowman, 99 Tex. 509, 91 S.W. 221, involved the validity of a local road law enacted by the Legislature, chapter 132, Acts of the 24th Legislature (1895), p. 213, which created a road system for Dallas county, and provided in detail for the laying out and maintenance of public roads. Section 11 of that law reads as follows: "Whenever it shall be necessary to occupy any land for the opening, widening, straightening or draining any road or part thereof, if the owner of said land can not agree with the court as to damages to be paid, the court may proceed to condemn the same in the same manner that a railroad company can condemn land for right of way, and the same proceedings may be had, and the same rights shall exist to each party that would exist if the proceedings were by a railroad company, except that the county shall in no case be required to give bond."

It was contended there that section 11 of the act was unconstitutional. Mr. Justice Brown, speaking for the Supreme Court, in the course of his opinion said: "The proposition that section 11 of the local road law for Dallas county is unconstitutional is predicated upon the following clauses of our state Constitution. Article 3, § 56, subd. 5: `The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law, authorizing the laying out, opening, altering or maintaining of roads, highways, streets or alleys.' Article 11, § 2: `The laying out, construction and repairing of county roads, shall be provided for by general laws.' It cannot be denied that the local law in question is in conflict with those provisions of the Constitution and would be void, if it were not for the following provision: `The Legislature may also...