Trimmier v. Carlton

• Decision Date: 26 March 1924
• Docket Number: (No. 6784.)
• Citation: 264 S.W. 253
• Parties: TRIMMIER et al. v. CARLTON et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

264 S.W. 253

TRIMMIER et al. v. CARLTON et al.^*

(No. 6784.)

Court of Civil Appeals of Texas. Austin.

March 26, 1924.

Rehearing Denied May 7, 1924.

Appeal from District Court, Runnels County; J. P. Woodward, Judge.

Action by J. B. Carlton and others against Paul Trimmier, Canvassing Board, and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

A. K. Doss, of Ballinger, and Gaines & Gaines, of San Antonio, for appellants.

Carden, Starling, Carden, Hemphill & Wallace, and W. M. Taylor, all of Dallas, and O. L. Parish, of Ballinger, for appellees.

McCLENDON, C. J.

On July 9, 1923, J. L. Scott and 292 others filed with the board of water engineers a petition to determine the advisability of creating a conservation and reclamation district out of territory taken from the counties of Coke, Runnels, and Tom Green, under Vernon's Ann. Civ. St. Supp. 1918, art. 5107—80. The board of water engineers upon hearing the petition eliminated a part of the territory embraced in the petition, and included in the proposed district additional territory; determined that the project was feasible as applied to the boundaries as so changed; certified their findings to the commissioners' courts of the counties whose territory was involved; and directed those courts to call an election within the territory taken from their respective counties to determine whether the district should be created, and notes issued to pay the preliminary expenses, and to elect five directors of the district. The boundaries of the district included the towns of Ballinger and Miles in Runnels county, and Bronte in Coke county. The election was ordered and had, and the returns from the several counties were certified by the respective commissioners' courts to appellant Paul Trimmier, the county judge of Runnels county, as canvassing board for the district. These returns showed on their face that a majority of all the votes cast was against the creation of the district and issuance of notes. The returns from Ballinger showed a large majority against both propositions, and the returns from Bronte and Miles showed majorities in favor of each proposition. By eliminating Ballinger only from the district a small majority favored both propositions. By eliminating the vote in Ballinger, Miles, and Bronte both propositions lost by a small majority. The canvassing board, upon these returns, found that the propositions failed to carry in Ballinger, but that they carried by a majority vote in the balance of the district; and the board accordingly certified that the district was legally created, with boundaries as fixed by the board of water engineers, with Ballinger eliminated from the district. This certificate was issued on August 31, 1923, and on the same day appellants Carlton, Slaughter, and Turner joined by the state of Texas, appearing by the Attorney General, instituted this suit in the district court of Runnels county, naming as sole defendant Paul Trimmier in his capacity as canvassing board. The petition alleged various grounds as constituting illegality in the method of creating the district, which will be noted hereafter, and prayed for judgment declaring the election void, and in the alternative asked that the votes cast be recounted, and either that all of the votes cast at such election should be counted in determining the result, or that only such votes be counted as were lawfully cast by those voters residing in that part of the proposed district lying outside of the three municipalities. There was also a prayer for general relief. On the following day certificates of election as directors of the district were issued by the canvassing board to appellants W. B. Cobb, C. L. West, J. L. Scott, and H. T. Wilkins, each of whom received a majority of the votes cast outside of Ballinger; there being a tie vote between Bert Fletcher and J. B. McCutcheon for the fifth directorship. After these certificates were issued, and on the same day, appellee G. G. Odom and a number of other resident taxpayers within the district filed a petition of intervention, adopted plaintiffs' pleadings, made the four elected directors parties defendant, and sought to enjoin them from issuing notes or otherwise acting as directors. Paul Trimmier filed an answer, to which he attached copies of all the proceedings had before him, and prayed for such action as the court might deem proper in the premises. The defendant directors filed an answer in which they questioned the right of the interveners to intervene, on the ground in the main, that this was an election contest and only the state could conduct the litigation. Defendant Trimmier interposed a like objection to the intervention. These exceptions and objections were overruled. On September 19th, plaintiffs and interveners, upon leave of the court, filed an amended petition, to which the defendants objected both by demurrer and motion to strike out. In this petition the state limited its appearance in the case in the following language:

"That the Attorney General of the state of Texas has joined in this suit only pro forma to enable plaintiffs to maintain their suit, in so far as same is to contest the election as to the method of determining the vote under the provisions of the statute and not to contest said election on any ground of the unconstitutionality of any statute or irregularity of the acts of the board of water engineers, and has no other or further interest herein, and does not join in prayer for injunction."

All objections and exceptions to the petition were overruled; the cause was tried on its merits on September 21, 1923, and judgment was rendered, in which it was decreed that the cause of action before the court was not a contested election but a suit to test the validity of the district, to have it declared void, and to enjoin the directors from proceeding to organize the district, and from issuing and selling notes. The state was thereupon dismissed as a pro forma party to the suit. The court further decreed that the district was illegally created; that no power existed for the issuance of notes by the character of district sought to be created; and granted and perpetuated the injunctive relief prayed for.

The rulings of the trial court are properly before us upon appeal duly perfected by the defendants Trimmier and the four named directors of the district.

The several contentions urged by appellees, and sustained by the court, as grounds for the relief sought and granted may be reduced to the following propositions:

(1) That the board of water engineers was without power to determine the matters submitted to it for two reasons: First, because section 80 of chapter 87 of the Laws of 1917 delegated those matters to the commissioners' courts of the several counties out of which the district was created; that section 1 of the Canales Act required that conservation and reclamation districts be created in accordance with the laws in force at the time the Canales Act went into effect; and that the subsequent amendments to section 80 of the 1917 act were therefore not applicable in the original creation of conservation and reclamation districts; and second, because the board of water engineers is a branch of the executive department, and the powers sought to be conferred upon that board by the 1921 amendment to section 80 of the 1917 act were judicial in character, and could not be conferred upon any instrumentality of the executive department of the government.

(2) That the petition was not signed by the requisite number of property owners residing within the district.

(3) That the boundaries of the district were not described with sufficient definiteness.

(4) That under V. S. R. C. S. 1922, art. 5107—118, the vote cast by electors in the municipalities situated within the district should be entirely eliminated in determining whether or not the election carried, and, with the vote in Ballinger, Miles and Bronte eliminated, less than a majority voted in favor of the propositions submitted. In the alternative it was urged that the entire vote of all the municipalities, as well as other votes cast in the election, should be counted, in which event, by adding the vote cast in Ballinger, the election failed to carry. These particular issues raise questions of law presented upon the face of the returns as certified by the several commissioners' courts to the canvassing board.

(5) That no power is granted for the issuance of preliminary notes to the directors in a district created under section 80 of chapter 87 of the 1917 water improvement district act, or any of the amendments thereto.

In addition to controverting each of the several propositions urged by appellees appellants present the following contentions:

(1) That the proceeding as originally brought was an election contest which the state alone could institute and prosecute.

(2) That being an election contest its character could not be changed by plaintiffs, or in any event without the consent of defendants.

(3) That the several matters questioning the validity of the district and the powers of the directors could not constitute the basis of a suit at the instance of a taxpayer, but could only be litigated by the state in a quo warranto proceeding.

(4) That under the express provisions of section 60 of article 5107, which reads:

"No suit shall be permitted to be brought in any court of this state contesting or enjoining the validity of the formation of any district created under the provisions of this Act, or any bonds issued hereunder * * * except in the name of the state of Texas, by the Attorney General, upon his own motion, or upon the motion of any party affected thereby upon good cause shown, except as herein provided."

Only the Attorney General could raise the questions urged by the plaintiffs, and, since the Attorney General had expressly limited his appearance to matters involving only the procedure adopted by the...