190 S.W. 840 | Tex. App. | 1916
The following statement of the nature and result of the suit is taken from appellant's brief: This suit was filed by the appellant, R. T. Hunter, against the appellees, E. Rice, W. S. Ford, J. N. Collier, A. D. Rhea, P. J. Sherman, and J. C. Finley, the appellant seeking to enjoin the issuance and sale of certain bonds of the town of Whitney, Tex., and the levy and collection of a tax to pay the interest on, and provide a sinking fund for the payment of, said bonds. The cause was tried before the court without a jury, and, after hearing the case, the court rendered judgment in favor of appellees. Appellant thereupon filed his motion for new trial and said motion, upon consideration, was overruled by the court, and appellant excepted to such action and gave notice of appeal, and has in due time and manner perfected his appeal to this court.
The appellant, R. T. Hunter, alleged that he was a qualified voter and property taxpayer of and resided in the town of Whitney, Hill county, Tex., and further alleged that the appellee E. Rice was the duly elected, qualified, and acting mayor of the said town, and that the other defendants named were the duly elected, qualified, and acting aldermen of said town. Appellant further averred that, on September 14, 1915, the appellees, in their official capacity, passed an order, whereby they ordered that an election should be held in said town of Whitney on October 19, 1915, to determine whether or not the appellees should be authorized to issue the bonds of said town in the sum of $15,000, payable 40 years after date, bearing interest at the rate of 5 per cent. per annum, "and to levy a tax sufficient to pay the interest on said bonds and create a sinking fund sufficient to redeem them at maturity," for the purpose of constructing a waterworks system in said town. He further averred that on October 19th, the said election was held, and that the appellees thereafter, on October 25th, declared the result of said election as being in favor of the issuance of said bonds and the levy of said tax, and that the appellees were seeking and preparing to issue said bonds and to levy the said tax, and would do so unless restrained by the court. Appellant further averred that the election was void, and all the orders and proceedings of the appellees were void for the reasons: (1) That there was no law of the state authorizing the town of Whitney to issue bonds for the purpose specified in said order; (2) that no legal and sufficient notice of the election had been given before the same was held; (3) that the order for the election was void, because the same did not specify, as required by law, the rate of taxes to be voted to pay the interest on said bonds and provide a sinking fund for their redemption. Appellant prayed for a writ of injunction to issue, restraining the appellees from issuing said bonds and from selling the same when issued and from levying or attempting to levy or collect the said tax. The appellees answered by general demurrer, general denial, and by special answer that the bonds referred to in plaintiff's petition were regularly issued, and that all the proceedings had and done with respect to their issuance were valid, and that proper notice was given, etc.
The appellant presents but one assignment of error, namely:
"The court erred in denying the injunction prayed for, for the reason that the order for the bond election did not specify the rate of taxation proposed to be assessed and levied to support the said bonds, as required by the laws of this state, and the said order was therefore *841 void, and the election ordered was therefore void, and the said bonds illegal and void."
The order for the election in question was regularly made by the appellees on September 13, 1915, and by its terms ordered that an election be held in the town of Whitney on the 19th day of October, 1915, and that at said election the following proposition be submitted:
"Shall the city council of the city of Whitney be authorized to issue the bonds of said city in the sum of fifteen thousand dollars ($15,000.00), payable (40) forty years after date, with the option of redeeming same at any time after ten years from date, bearing interest at the rate of (5%) five per cent. per annum, payable annually and to levy a tax sufficient to redeem them at maturity, for the purpose of constructing a waterworks system in the said city of Whitney?"
The question presented is, Does the law require that the order for a bond election of the character involved in this proceeding shall specify the rate of taxation to be levied and collected for the payment of the bonds? Article 606 of Vernon's Sayles' Texas Civil Statutes prescribes how the proposition in such cases shall be submitted to a vote of the qualified taxpaying voters of the city, and reads as follows:
"The proposition to be submitted for the issuance of bonds shall distinctly specify the purpose for which the bonds are to be issued, the amount thereof, the time in which they are payable, and the rate of interest; and all voters desiring to support the proposition to issue bonds shall have written or printed upon their ballots the words, `For the issuance of bonds,' and those opposed shall have printed upon their ballots the words, `Against the issuance of bonds.'"
This statute, as will be observed, does not require, as one of the requisites of the order to be made for the election, that it state, either in a general way or specifically, the tax to be levied, and we have found no statute to that effect. The case differs materially from Parks v. West, 108 S.W. 466, seemingly relied on by appellant, and the case of Lowrance v. Schwab,
The judgment of the court below is affirmed. *842