Weinberg v. Molder, 3532

• Decision Date: 27 March 1958
• Docket Number: No. 3532,3532
• Citation: 312 S.W.2d 393
• Parties: Abe WEINBERG et al., Appellants, v. L. D. MOLDER et al., Appellees.
• Court: Texas Court of Appeals

Page 393

312 S.W.2d 393

Abe WEINBERG et al., Appellants, v. L. D. MOLDER et al., Appellees.

No. 3532.

Court of Civil Appeals of Texas, Waco.

March 27, 1958.

Rehearing Denied April 24, 1958.

H. J. Loe, Fannin & Fannin, Fort Worth, for appellants.

R. A. Kilpatrick, Cleburne, John L. Sullivan, Denton, for appellees.

TIREY, Justice.

This is an appeal from an order denying application for writ of injunction. Appellants, who are taxpayers of the Burleson Independent School District located in Johnson and Tarrant counties, brought this suit on June 7, 1957 against the Board of Trustees of the School District, seeking both temporary and permanent injunctions, wherein they sought (1) to prohibit the issuance and sale of bonds authorized at a bond election held in the District on October 27, 1956; and (2) to restrain the school official from collecting all school taxes in the School District for the year 1957. On June 25, 1957, a preliminary hearing was had before the Hon. Clarence Ferguson, Judge of the 77th Judicial District, who granted temporary injunction prohibiting the issuance and sale of the bonds during the pendency of the suit. Thereafter, on November 12, 1957, the case came on for trial on the merits before the Hon. Thos. C. Ferguson, Judge of the 33rd Judicial District, who, after hearing certain special exceptions urged by appellees, which were directed to the allegations contained in appellants' pleadings seeking to invalidate said bond election and restrain the issuance and sale of the bonds, was of the view that appellees' exceptions should be sustained, and the appellants having declined to amend, the court dismissed appellants' suit pertaining to said bond election. Thereafter the cause proceeded to trial, and after appellants had presented their evidence and rested, the appellees presented their motion for instructed verdict, which motion the court indicated would be overruled because the court was of the opinion that there were certain fact issues which should be submitted to the jury concerning the validity of tax assessments as to particular individuals because of excessiveness or lack of fair hearing before the Equalization Board, and thereupon the appellants requested the court to be permitted to waive any issues concerning individual citizens only and to have the motion determined solely upon the request for injunction as contained in their prayer (which was to the effect to declare all of the actions of the Tax Assessor and Collector and the Equalization Board for the School District in connection with the assessing and equalizing taxes for the year 1957 to be void, and to enjoin permanently all of the defendants from levying or collecting taxes for the year 1957 in said School District, and to enjoin the issuance and sale of the school bonds) set out in their Second Amended Original Petition, provided that such waiver and any action of the court should be without prejudice to any of the plaintiffs as individuals, and in respect to their own individual properties, or maintaining an action to cancel any tax lien or enjoin the enforcement thereof, or to defend against any tax suit brought for the recovery of any taxes due the School District for the year 1957 upon the ground of invalidity of any assessment for that year. The parties thereupon stipulated that the court could pass upon appellees' motion for instructed verdict without submitting or considering any issues concerning the validity of any individual assessment, without prejudice to the rights of the individual, and that the plaintiffs' action be limited for this purpose to an action for the cancellation of the assessments as a whole, or enjoining of the assessments as a whole for the year 1957, or as applicable to the plaintiffs as a group. Thereupon the court sustained appellees' motion for instructed verdict and withdrew the case from the jury. The judgment in effect decrees that plaintiffs, who are appellants here, are not entitled to an injunction enjoining the levy and collection of taxes based on the actions and proceedings had and performed by the District's Tax Assessor-Collector and the Equalization Board for the School District in connection with assessing and equalizing taxes for the year 1957, or to recover any order or relief holding same to be void and of no force and effect or permanently enjoining the appellees from levying or collecting taxes for the year 1957 based upon the tax assessment and equalization proceedings heretofore had. The court's order then provides that each individual taxpayer shall have the right to maintain any action for the cancellation of lien or to enjoin the collection of the tax or to defend against tax suits based upon excessive valuation or denial of fair hearing or other invalidity of the individual's assessment for the year 1957. Appellants excepted to all of the foregoing actions that were adverse to them, and appellees excepted to all of the actions adverse to them, and the appellants gave notice of appeal to this court and have duly perfected their appeal.

Appellants say that the court erred (1) in dismissing appellants' cause of action insofar as they sought an injunction to prohibit the issuance and sale of the bonds; and (2) in instructing a verdict against appellants as to that part of their suit wherein they sought an injunction to restrain the collection of the 1957 school taxes.

It is the appellants' contention that their suit consists of two causes of action; the first one being one for injunction to prohibit the issuance and sale of school bonds, and the other to restrain the collection of 1957 school taxes.

Appellants went to trial on their second amended original petition. This petition alleges generally that appellants' grounds for injunction are to the effect that the bond issue was passed only because the voters of the School District were misled and fraudulently deceived into believing that only a slight increase in taxes would be necessary to support the bonds. We quote Sections 1 and 2 in Paragraph III of such pleading:

'(1) The bond issue was passed at the election held on October 27, 1956, because the qualified voters in the School District were misled into believing that only a slight increase in taxes would be necessary to support the bonds by newspaper articles and by statements of the officials of the School District. If the voters in the School District had known that in fact total taxes in the District would have to be increased about three times to support the bonds, the bond issue would have been defeated;

'(2) The officials of the School District knowingly and intentionally deceived the qualified voters of the District and induced them to vote for the bond issue held on October 27, 1956, by fraudulently misrepresenting to them and concealing from them the amount of taxes that would be required to support the bonds.'

As we understand the record, the trial court sustained appellees' exceptions set out in subsections b and c in Paragraph VI and in subsection a of Paragraph VII of defendants' First Amended Original Answer, and these exceptions are to the effect that if appellants' allegations are true, they are not entitled to any relief, because (1) the matters alleged as grounds for the injunction could have been considered only in an election contest filed within thirty days after the bond election, as provided in the Election Code; and (2) because HB 507, Ch. 214, Acts 55th Legislature, Regular Session, 1957, p. 440, (art. 2815g-51, Vernon's Ann.Civ.St.) in all things validated the bond election and precludes appellants from obtaining an injunction to prohibit issuance and sale of the bonds. We are in accord with the court's action in sustaining the foregoing exceptions, and since appellants declined to amend, the court had no other course than to dismiss this part of appellants' suit. In support of our views, we make the following comment: The bond election was held on October 27, 1956, and this suit was not filed until June 7, 1957, more than seven months after said election. Because such suit is in the nature of an election contest, and was filed more than thirty days after the return date of the election, the trial court had no jurisdiction under the provisions of the Election Code pertaining to election contests. Moreover, said election was in all things valid under HB 507, Ch. 214, Acts 55th Leg., 1957, p. 440, and art. 2815g-51, approved May 10, 1957, effective May 10, 1957, which date was prior to the institution of this suit. (See Election Code, arts. 9.03, 9.30 and 9.36, V.A.T.S.) As we understand our statute, notice of an election contest must be given within thirty days after the result of the election is announced, and such notice is mandatory and jurisdictional and cannot be waived. This rule was announced by the Galveston Court in Treaccar v. City of Galveston, Tex.Civ.App., 28 S.W.2d 887 in April 1930, and the Supreme Court refused writ of error, and it has not seen fit to change the rule there stated. See also Landrum v. Centennial Rural High School Dist., Tex.Civ.App., 134 S.W.2d 353 (writ dis. woj); Ramirez v. Zapata County Independent School Dist., Tex.Civ.App., 273 S.W.2d 903 (no writ history); Adamson v. Connally, Tex.Civ.App., 112 S.W.2d 287 (no writ history); Yoakum County Gas Co. v. Dudley, Tex.Civ.App., 231 S.W.2d 997 (writ dis.); see also 16 Tex.Jur. 123, p. 157 for statement of the rule. Finally, art. 9.36 of our Election Code provides:

'The result of said contest shall finally settle all questions relating to the validity of said election, and it shall not be permissible to again call the legality of said election in question in any other suit or proceeding. If no contest of said election is filed and prosecuted in the manner and within the time herein provided for, it shall be conclusively presumed that said election as held and the result thereof as declared are in all respects valid and binding upon all cou...