*1
167 SOUTHWESTERN'REPORTER
308
mates
ed
mitted an
for the
made before
have estimates
such
was
dum
sary part
election,
osition based
plated thereby, and,
Leg.
tors
reciting
estimates
qualified
232,
issuance of bonds submitted
Raggio
and which
will affect
officers,
enough legal
ings
no
v.
Tex. Civ.
McClain,
Hays
der the
Dallas
W.
11 S. W.
25 S. W.
(N. S.) 839,
Thomson,
Court of
ment
Civ.
sey,
plied
Baker
Lumpkin,
HOLLAND et
nances —Submission
pality.
cuniary
[Ed.
The
Municipal
Brasius, Ariz.
Loan
Judges
such
an action
479;
Pursuant
submitted under
Under
provision,
possession
requested the
of Dallas
c.
valid as to
App. 304,
plant. Held,,
did not offer
part
when the
was voted
v.
Note.—For
May 16, 1914. On
public electric
Charter
&
was not
initiative and
that it
Neb.
& Trust
municipal plant
Tilson,
when an
shall sit in
1121; Rodriguez
731;
18
Northcraft
App.
Palmtag,
Terrell
was declared
Interest —
This ordinance
ordaining
Tex.
judges
404,
estimates
on such'
296; Whitney Krapf,
made and submitted
N. Y.
proposition of
to Dallas
al. v. CRANFILL.
directly in
Corporations
were
27
8) the
Hicks v.
was to
520,
held
(Acts
were
and the submission of a
trespass
note
Co.,
and that
mortgagee
Appeals
mortgage
an ordinance
Civ.
art.
190;
S. W.
submission of an
—Disqualification
v. Collins
order,
433,
155 Cal.
affirmed.
moreover,
who were
152,
for the
by Dierbach
pass it,
41 Wash.
referendum
30th
v.
thereto;
Taxpayer
required
not entitled to
and therefore
that a
their
N. W.
App.
estimates
require
cases, see-Judges,
McCamant v.
made,
to Voters.
31 Pac.
because of the
Hicks, 26 S. W.
Oliver,
843; Kaylor
ease
Civ.
Charter
no further
of Texas.
inherent and neces-
Leg.
v.
citizens at a
having
review
N.
pecuniary
debt.
248,
797, 103
pleadings
Rehearing,
secures
the establishment
v.
second ordinance taxes
committee should
Haynes,
of the streets be
493;
54,
taxpayers of the
under article
App. 610,
&
number
E.
Townshend
c.
44 W.
to sit
74
title.because
Williams, 4
40 L. R.
and referen-
oe Munici
891;
to the board
by proceed
electors un-
Calhoun v.
71,
the
securing of
(Acts
of a
Garrett
84 Pac.
such
S.
Tex.
contracts vote
Pac. 312.
of bonds
conclude
Roberts,
manner.
contem-
—Ordi
76
Sawyer
recover
art.
v.
lack
8
Bryan
adopt-
is dis-
prop-
regu- to those entitled
30th ed
227;
Tex.
Kel
title §
162,
pay
47;
Pe
the cial charter
8),
A.
v.
v.
to determine
only
applied
the result
so declared
The election
sue
providing,
tors
grounds,
commissioners
lighting the
Dallas Charter
Among
rives
initiate
tain
both
of
land and others to contest a
mine
ment of a
a
appeal.
ty ;
tion on the
3.Judges
erendum
under
30th
inated,_
by
place
to issue the
the.
whether submitted under
of such ordinance for the issuance of
whether such ordinance was
and referendum
sioners or
Corporations,
RASBURY,
cuniary
pality.
F.C.
[Ed.
Suit
2,
far as
sit as
its bonds
ordinance had
board of
Kenneth
át a
those shall
Under article
initiative and
Leg.
be enacted
In the manner
constructing
it.
of election for that
Const,
Note.—For other
to be
to those
property in the
electors
the election
etc.,
governmental
Cause
O’Donnell and
judges
c.
from District
J.
qualified
(§
Interest —
under
3,
bonds, and,
71), requiring
record
art.
city’s
prescribing
commissioners,
Dec.
Foree, Judge.
grants in
the electors under the initiative
44*)
granted by
referred to
favor
(Acts
passed,
provisions.
appellants.
for their
Cranfill
to vote
vote
11,
5,
expenditure
held,
2,
—
discussion.
the Court
been
appellants. Seay
sum of
buildings,
11.§
judges, until
here
and have
municipal light
electors
and- article
Disqualification
officers
not,
adoption
Taxpayer
30th
Dallas were
5,
§ 108.*]
city, which,
issuing
adopted, and it was
the initiative and
because of the dis-
who
shows,
purpose,
eases,
Marvin
left no
adoption
a suit
$400,000,
should be
§ 44.*]
Leg.
time, manner,
at elections held
charter
With reference
proper taxpayers
participated
developed
legally adopted,
canvass
streets,
same
vote
April 1,
Shortly
bonds.
provisions by
see
Dallas
Civil
required
elections
Judges,
money, etc.,
8,
art.
from a
Legislature.
M.W.
discretion
oe Munici
defendants
and' deter-
Dallas de
should
rejection.
plant
Municipal
who
city may
and that
board of
are cer
charter,
expend
adoption
Church,
&
8, page
course,
commis-
parks,
or re-
rejec
Coun-
after
From
Seay,
(Acts
elec-
them
Hol-
orig-
spe
Pe
is
Dig.-Key-No.
"Series&
same
*For other cases see
and section
Am-.
NUMBERin
&
*2
y.
HOLLAND
CRANÍTLL
appel-
they
declared,
jeetion
is,
of the ordinance
are “interested”
as
said,
provision affecting
ques
lee,
taxpayer,
instant
instituted the
the
us. The
a resident
that,
appellate
substance,
suit, alleging,
while
tion has
courts
in
been before the
many times,
peculiarly
ruling
there
the face of the returns of said
but the
cases
applicable
1,585
ease,
City
ordinance and
votes for the
in
because of
was east
1,512
instant
1,069
it,
similarity
Nalle,
the
the
in
Austin
nevertheless
illegal,
668; City
ordinance were
W.
many persons
Peacock,
voted
Dallas v.
qualified voters, City
not
ordinance who were
of Oak
of Texas ex rel.
Cliff v. State
upon property
al.,
in Gill
since
did not
taxes
et
W. 1069. The
Prayer
city
general
for a recount
rule deducible
those
from
entry of such
of the votes and the
well as
to, broadly stated,
earlier Texas cases therein
Appellants,
judicial
authorize.
as the facts would
where a
mayor
commissioners, met
and board of
officer has such an interest
in the matter at
appro-
given
order, decree,
any
full and
issue thus tendered
issue in a
suit that
by jury,
priate pleadings.
a trial
There was
or
him
entered therein will affect
had, directly
pecuniary manner,
of the votes
before whom a recount
in a
he comes
was entered
their verdict
and
reversing
citing
within the
Constitution.
judg
re-
hand,
of the election
the returns
On the other
if the result of his
enough
ment,
remotely
failed
said
or
af
but
pass
decreeing
it,
pecuniarily
votes to
fect
or is
partici-
disqualified.
contingencies,
not
is not
he
pating
Typical
negative
City
Prom
in
said election.
of the
rule
mayor
Gill, supra,
commissioners have
and board of
Oak Cliff v. State ex rel.
our
wherein
assign
appealed
Supreme
for review certain
Court held that Chief Justice
ceedings
participate
disqualified
in the court below.
Gaines was
in
not
during
Upon
case,
attacking
validity
a suit
Legislature annexing
of the act of the
suggestion
argument,
was made
oral
Oak Cliff to
taxpayer
of this
that the members
counsel for
in
of Dallas.
Justice
was a
Gaines
city,
are,
city Dallas,
the act
annexation
among
things,
hear provided,
of the state to
fied
and
themselves,
the Constitution
in
cause,
purposes
authorized,
recuse
and should
there
enumerated,
$50,000
that fact to the Gov- in
in
may
qualified justices
ernor,
appointed
levy
provide
sinking
in
be
order that
a tax sufficient to
fund
argued
being
law. The ordinance
interest,
and it was
taxpayer,
litiga
in
contest which is be-
involved
in
interested
a
tion,
through
he was
expendi-
Supreme Court,
speaking
fore us for review
etc. The
$400,000 by
city, which
Brown,
amount
ture
then Justice
Chief
Each mem-
can be
taxation.
Gaines
not
because
Justice
property
pays
any judgment
owns
ber of
taxes thereon
the
to,
of Dallas. Thus Supreme
directly
Court did not
arises: Are we “inter-
at once
of the bonds nor the
cause the issuance
ested,”
judgment holding
term has been several
times
tax,
as that
the act
brings
construed,
respect
such an extent as
us
any
over
in no
exerted
influence
valid
the
of the Constitution and
within the
of Dallas in deter
council of the
participation
prohibits
the case? The mining
not
or would
act
whether would
'
as amended in
authority
Constitution
act of ax-
conferred
provides:
nexation,
since its
to do was
any
derived,
or decree
“No
case
sit in
may
ties
finity
par
be
or where either of
Supreme Court,
from the act annex
may
by
degree
connected with
af
be
either
Applying
ing
the reverse of the
Oak Cliff.
consanguinity, within such a
litigation,
holding in
instant
that case to the
by
the case. When the Su
law, or
as
have been counsel
be
when he shall
enter
the instant
preme Court,
Court of Criminal
or defeat
any
Appeals, or
Court
member of
the
either,
determine
same shall
necessary
levy of the tax
bonds and the
shall be
thus
any
redemption
that in
thereof? We believe
case or cases in
be certified
to the Governor of the
commission the
disputably
or
it will. As we have
immediately
state, who shall
directing the issuance of the bonds
dinance
requisite
persons
number of
learned
city by
to the electors
trial and determination of such cause
compliance with,
authority of,
or causes. When a
of the district court
the in
disqualified by any
stated,
proper
failing
causes above
itiative parties
appoint
may,
consent
provisions of that ar
One of the
charter.
ticle of
person
try
case;
or,
so,
competent person may
is that:
to do
be
pend
the same in the
where it
majority of
electors vot-
“If
ing
lawr.”
prescribed by
in such manner as
be
proposed
ordinance shall vote in
on said
thereupon
such ordinance shall
favor
become
a valid and
ordinance of the
portion
of the article
inhibits
proposed by petition
sitting
members of his court
cases
a vote of
which shall
REPORTER
167 SOUTHWESTERN
repealed
except by
a vote vote cast
cannot
amended
people.”
preceding
requested appel
election,”
the last
just quoted,
construing
In
legal
lants
submit
voters
pur Supreme
City
Dal city
of Dallas v.
he held
election to
*3
Railway Co.,
las
Consolidated Electric Street
following ordinance:
said:
securing
“An ordinance
of esti-
plain
provi-
“The
declaration of this charter
installing
municipal
mates on
a
electric
thereupon be-
light
power
sion that ‘such
come a valid and
forbids the
plant,
ordinance
and
submission
of
city’
proposition
ordinance
a
regular
based on said estimates at a
completed
that the
enactment
view
upon anything
dependent
of this
further
by
“Be it ordained
the board of commission-
by
than the
board
quali-
ascertainment
by
Dallas,
ers of the
of
majority
of commissioners
a
Dallas, acting
provisions
under the initiative
fied
of it.”
voted in favor
of the charter:
Thus,
appellants,
“(a)
consisting
when
commissioners,
That a
committee
street,
water and finance
is here-
board of
ordinance
their
ascertained that the
instructed to have
sub-
by
estimates made and
adopted,
had been
here involved
mitted to the board of commissioners within
ceased,
functions
and the
days,
light
90
and
department, and,
electric
power plant
municipal
completed
in connection with the water
stood a finished and
law,
under which it
was the
“(b)
public
That no further contracts for the
pellants
prepare
negotiate
the bonds
to
lighting
by
electric
of the streets be made
proposition
the tax
authorized and use
before a
for the establishment
municipal plant,
on these
based
purpose
indicated.
It follows
them
then
mates,
by
is voted on
the citizens at a
cognizance
pres-
we take
election.”
cause, will
and to de-
ent
it
be to entertain
provided by
contemplates
are
proceeding
There
but two methods
termine a
which
which
has,
im-
destruction of a law which
By
commissioners, and
posed
enacted:
by
directly upon us,
a tax
exist-
electors,
provi-
language
as authorized
which, in
Su-
ence of
provi-
sions of the
the
initiative and referendum
preme
(article
sions of
§
article
to be entered
the members of this court.
Here we call attention first
record here shows the ordinance was
The
held
enacting
clause
of said ordinance
the lower
to have been
which
it
recites that
“under the
adopted, and,
ordained
in illustration
what
charter,”
initiative
an affirmance of that
would
already quoted
second
imposed,
to the statement
be to
us of the
relieve
tax
agreed
describing
statement of
condition
such a
a
would result
is said to be
presenting
disqualification.
those
ing
as “constitut-
test of
sure
cent,
per
in number
than five
stated,
more
For the reason
we deem ourselves
the entire vote cast
mayor
tb enter
preceding election,”
disqualification
other than to
the
reproduction
is all but a litéral
language
Governor,
directed,
herewith
passed
contained
and that
court
the cause be
until a
vision of
how
to hear and determine
originated.
be
the
Thus
it
same.
quoted
seen
On
at least enacted under the
erendum
ing, then,
of the charter. Proceed-
appellee earnestly
Counsel for
insist
record,
appears
with the
it
holding
we
error in
ourselves
appellants did submit said ordinance to the
fied
consider this
on the merits
April 2,1912,
electors at
election on
holding:
(1)
because we are in
error
canvassing
and after
the votes
the bond issue was
“duly
clared said ordinance
enacted.” After-
enacted
endum
virtue of the initiative and refer-
pursuant
acting
wards,
powers
confer-
charter;
(2)
adopted,
red
commissioners,
ordinance so
“proposition”
submitted to the electors
acting
through two
its
was,
ordinance;
vote the bonds
members,
installing
estimated the cost of
erred,
(3)
law,
as a matter of
municipal
power plant,
might
enter on the
estimate was
the board. There-
merits
this
pre-
'would
upon appellants submitted to the electors for
vent the issuance of the bonds.
rejection
general
making
[2] The facts
record,
contained in the
were stated
be
April, 1913,
election of
arid after
agreed to,
gener
inus
estimate,
following
ordinance:
way,
presumed
al
because we
no issue would
proposition
$400,-
“For the
issuance of
respect,
arise
but,
in that
in order to make
000 in bonds
of.
clear our conclusions of
we will dis purpose
procuring money
following
steps
cuss
litigation.
permanent public
seriatum
improvements,
the successive
shown
to wit: For
purpose
February
1912, certain municipal
to furnish the
.electors
“constituting in public lighting
streets, parks, grounds
cent,
per
number more than five
municipal-buildings
entire and
of of Dallas.”
v. DAWSON
ent and
mitted
amble
thereof
tion to establish
cites
of
and
property
prescribing
directing
lighting
pended upon
ized
Recognizing
tion on
the estimates to be
proposition
attempt
toward
sive
that of
issue
torate had voted
bonds
finished, since
nance,
surely
and not
which to
submitted
vides that
closed
sequent
be issued
that
shall
on the
ed
nance,
art.
and
ed the
would be used
sary
trict
tion,
ed
We hold
the cost of
the Dallas
complete
arter
to establish the
step
it was not. Thus
court it
be issued
Beyond
;
made
be the
the first ordinance. This last ordi an
result
approved
vote of
necessary part
makes the
the bond issue
to submit the bond issue
be made
only
ordinance is voted
by,
contemplated originated; shall be
that no further contracts
ordinance was
the
adopted. By
conceding that the
construct
to the voters
under the
until
every proposition
result
necessary by
both.
Such an ordinance
its commissioners until author-
same. The
Further,
election at
face
necessity
charter bonds
the issuance of bonds with
electorate,
last ordinance
the electorate. Article
installing
time,
the attitude of the electorate
rule,
to be to secure
decreed,
on such estimate
said ordinance.
its exact
adoption of
purpose.
and the
¿11
beside
procure
in the
of the returns of the
lighting plant
At the first
prepared
intention
thereby.
is found
rejected,
ultimately depends
voters,
manner,
as a
or first ordinance
bond
for
contemplated by
proposed plant
incomplete
what we have
whether the bonds W.
electorate the
as matter of
the
and
upon
concluding
deferring
whole was
the next succes-
provision
until
independent of,
contemplated.
issue
contest,
Until
yet
to have
analysis
the fact
he an
bond
contemplat-
of the dis
clearer
authoriz
prepared
so voted
no event
estimate
place
made no Where,
Charter,
*4
proposi- Deeming
contain
and un-
an elec-
perfect
and as
a sub- lege
clause
inher- a
public
taken,
issues
voted,
neces
regu-
upon
bond
ordi
pre-
pro
just
last
dis-
§
be-
re- the
in tion
of for a
a a
rendered
the
166.*]
justice’s
missal left
he could
1.
ed the
Dig. 162.*]
torate,
that
voted the
appeal by
3. Venue
going
ministerial,
county
peals. Affirmed.
his
Arnold,
ment
county
Judgment
there
county
1911, brought
against
justice
tion.
WAIVER.
Trial De Novo.
[Ed. Note.—For other
[Ed. Note.—For other
consequence any judgment
RICE,
Action
R. B.
majority
Justices
See, also,
Holland v. Cranfill
167 S.W. 308
Tex. App.1914Check TreatmentAI-generated responses must be verified and are not legal advice.