Trimmier v. Carlton

• Decision Date: 04 June 1927
• Docket Number: (No. 4226.)
• Citation: 296 S.W. 1070
• Parties: TRIMMIER et al. v. CARLTON et al.
• Court: Texas Supreme Court

296 S.W. 1070

TRIMMIER et al. v. CARLTON et al.

(No. 4226.)

Supreme Court of Texas.

June 4, 1927.

COPYRIGHT MATERIAL OMITTED

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

Action by J. B. Carlton and others against Paul Trimmier, Canvassing Board, and others. Judgment for plaintiff was affirmed by the Court of Civil Appeals (264 S. W. 253), and defendants bring error. Affirmed.

A. K. Doss, of Ballinger, and Gaines & Gaines, of San Antonio, for plaintiffs in error.

Carden, Starling, Carden, Hemphill & Taylor, of Dallas, for defendants in error.

CURETON, C. J.

This case originated as an election contest, over which the Supreme Court ordinarily would not have jurisdiction. In the course of its progress, however, its form was changed, the election contest feature being eliminated. The opinion of the Court of Civil Appeals contains a fair résumé of the case, and we deem a complete statement in this opinion unnecessary. See opinion of the Court of Civil Appeals, Trimmier v. Carlton, 264 S. W. 253.

On July 9, 1923, J. L. Scott and 292 others filed with the board of water engineers a petition for the creation of a conservation and reclamation district out of territory lying in Coke, Runnels, and Tom Green counties, under the Conservation Amendment to the Constitution, art. 16, § 59, and by authority of chapter 87, Acts of the 35th Legislature, and amendments and additions thereto.

The general method of irrigation contemplated, as shown by the petition to the board, was the construction of a dam across the Colorado river near the town of Bronte, in Coke county, and conducting the water thus impounded by gravity in the usual way to and over the lands to be irrigated. The purposes of the district were the irrigation of the lands therein and those which might be added thereto, to furnish water for domestic and commercial purposes, to sell any surplus it might have for the irrigation of lands not situated in the district, to co-operate with the federal reclamation service for irrigation purposes. Generally, the petition stated that the district was to have "full power and authority to do and perform all acts authorized by chapter 67 (87) of the Acts of the 35th Legislature of the State of Texas, and any and all amendments or additions thereto, whether heretofore or hereafter to be made."

The method of irrigation contemplated and the objects thus defined were all within the statutes, if these statutes are applicable and valid. Vernon's Civil Statutes (1922 Supplement) arts. 5107 — 1, 5107 — 24, 5107 — 108, 5107 — 118, 5107 — 122L, 5107 — 122n; Id. (1918 Supplement) arts. 5107 — 20, 5107 — 21, 5107 — 83, 5107 — 109, 5107 — 110; Acts 38th Legislature (1923 2d Called Sess.) c. 11; Vernon's Complete Texas Statutes, arts. 5107 — 267 to 5107 — 276.

The land embraced in the proposed district was approximately 175,000 acres, and the estimated cost of the improvements necessary to irrigate it was $5,000,000.

In response to the prayer of the petition, after the issuance and service of the statutory notice a hearing was had by the board of water engineers, at which parties appeared for and against the creation of the district, and offered evidence in support of their respective contentions. Upon this hearing the board changed the boundaries of the district as originally proposed, so as to eliminate therefrom about 16,000 acres of land, and to add thereto approximately 1,000 acres not previously included. Whether or not this addition was made after notice to the owners thereof, other than the statutory notice of hearing, the record does not disclose, but no question is raised as to that. Such notice and hearing, unless waived, are essential to due process, and the statute in authorizing the inclusion of additional lands no doubt contemplates a notice to the owners thereof and an opportunity to be heard at some stage of the proceeding. Ross v. Board of Supervisors, 128 Iowa, 427, 104 N. W. 506, 1 L. R. A. (N. S.) 431; Browning v. Hooper, 269 U. S. 396, 46 S. Ct. 141, 70 L. Ed. 330.

The board after modifying the boundaries as stated, found "that the organization of such district and the construction of the proposed irrigation system is feasible and practicable and that it is needed and would be a public benefit to the land included in the district and would present a public utility," and entered the necessary order directing that an election be held to create the district. Pursuant to this order, and within the terms of the statute, the election was ordered and held in each of the counties in which was located a portion of the lands to be embraced in the district.

Returns showed that a majority of all the votes cast in the entire district was against its creation and the issuance of preliminary or organization notes. There were three incorporated towns in the district, however, Ballinger, Bronte, and Miles. The returns from Ballinger showed a large majority against the organization of the district and issuance of the notes, while the returns from Bronte and Miles showed majorities in favor of each proposition. By eliminating Ballinger only from the district, a majority favored the creation of the district and the issuance of the notes. By eliminating all of said incorporated towns, the creation of the district and the issuance of the notes lost. Inasmuch, however, as by eliminating Ballinger a majority of the votes in the proposed district was in favor of the propositions submitted, the district was declared created, and its directors qualified as such. Before the injunction was served on the officers of the district, they made and entered an order authorizing the issuance of the organization notes voted in the sum of $75,000, and purported to enter into a contract with one Hillenmayer to sell them for this amount. At this stage of the proceeding an injunction was served, and the activities of the district and its directors stopped.

The suit, in the course of which the temporary injunction was issued, was filed by the defendants in error, or some of them. Final trial was before the court without a jury, and judgment rendered against the plaintiffs in error, the effect of which was to invalidate the creation of the district and enjoin any further action by it. The trial court filed conclusions of fact and law consistent with this decree. Upon appeal to the Court of Civil Appeals by plaintiffs in error, this judgment was affirmed, and the case is now before us by writ of error granted at a previous term.

The conclusions of law of the trial court, stated generally, were that the entire organization of the district, beginning with the petition and ending with the activities enjoined in this action, was null and void, because the statutes followed were not applicable, and because certain of the statutes were unconstitutional.

Opinion.

The trial court held the organization of the district void, for the reason that such a district could only be organized under the Water Improvement Law as it existed at the time of the passage of the Canales Act in 1918 (Acts 35th Leg. [1918 4th Called Sess.] c. 25 [Vernon's Ann. Civ. St. Supp. 1922, arts. 5107 — 267 to 5107 — 276]).

The Canales Act, the authority for the organization of conservation and reclamation districts, adopted the Water Improvement Act, chapter 87, Acts Thirty-Fifth Legislature, as the law of the organization and government of such districts. The Water Improvement Act was afterwards amended in material respects, and as amended was followed in the organization of the district before us. The amendments, so far as here involved, were in substance as follows:

(a) Under the Act of 1917 as it existed when adopted by the Canales Act in 1918, the vote necessary to establish a water improvement district was a two-thirds vote. Vernon's Texas Civil Statutes, 1918 Supplement, arts. 5107 — 9, 5107 — 80. These provisions were amended in 1919 so that the vote thereafter required was a majority vote. Vernon's Texas Civil Statutes, 1922 Supplement, arts. 5107 — 9, 5107 — 80; Acts 1919 (2d Called Sess.) c. 28, §§ 9, 80.

(b) Under the law of 1917 as originally adopted by the Canales Act districts in more than one county could be organized only through the commissioners' courts of the several counties. See statutes above cited. These statutes were, however, amended in 1921, making the board of water engineers the initial agency for the organization of districts of this character. Vernon's Texas Civil Statutes, 1922 Supplement, art. 5107 — 80.

(c) At the time of the original adoption of the above named law by the Canales Bill, no authority existed for submitting to the voters of the proposed district the question as to whether or not preliminary or organization notes should be issued. Vernon's Texas Civil Statutes, 1918 Supplement, arts. 5107 — 5, 5107 — 7, 5107 — 9. These sections of the law were, however, amended in 1923, and such notes provided for. Acts 38th Legislature, 2d Called Sess., c. 11, §§ 1-3.

All of these amendments were in effect when the attempt was made to organize the districts here involved, and were followed in the organization.

Without mentioning at this point other conclusions of the trial court, the primary question for immediate discussion is whether or not these amendments were applicable to the organization of reclamation and conservation districts. The trial court and the Court of Civil Appeals found that they were not applicable. These conclusions were predicated upon the proposition that conservation and reclamation districts could only be organized under the Water Improvement Act as it existed in 1918, when the Canales Act was passed. In other words, the Canales Act adopted the Act of 1917 as it existed in 1918, and no amendment subsequent to that time of the Water Improvement Act was effective in so far as conservation and reclamation districts are concerned. With this construction we cannot agree. It is true that section 6 of...