126 S.W.2d 504 | Tex. App. | 1939
This appeal involves a suit the object of which was to enjoin the issuance and sale of bonds that had been voted by the property taxpaying voters of Ward County and to restrain the County Judge and County Commissioners and County Tax Assessor and Collector, individually and as officials, from recognizing said bonds as a lawful obligation of Ward County, and to restrain the use of the bonds for the purpose of constructing a court house in the town of Monahans. The plaintiffs, who are appellants here, are property owning taxpaying citizens of Ward County. Defendants filed a plea in abatement and general demurrer, special exceptions and a plea to the merits. Upon hearing the court sustained defendants' plea in abatement and general and special exceptions. Plaintiffs refused to amend and perfected their appeal to this court.
The original petition, the sufficiency of which is the subject of this review, alleged that the bonds were to be issued as a result of an election held on July 2, 1938; that the bond issue was utterly void; that the County was indebted beyond the amount it could be reasonably supposed to pay; that various bond issues affecting improvement districts, school districts and irrigation districts were outstanding; that the contemplated bond issue was based upon a fictitious value of temporary character due to oil production in the county; that the bonds, "while not expressly so issued, * * * have been actually issued to build a court house in the town of Monahans," and the money will be so used if the bonds are issued and sold. Various irregularities are alleged, all of which should appear of record if they exist, and the existence of which, plaintiffs contend, render the proposed bond issue void.
The second fatal defect of the petition is that it was prematurely filed. It was not alleged that the bonds had been examined and certified by the Attorney General or registered by the Comptroller. Nor was it alleged that when the record was presented to the Attorney General it would be approved by him. Article 709, R.C.S., makes it the duty of the County Judge to forward the bonds to the Attorney General, together with a certified copy of the order levying the required tax and a statement of the total bonded indebtedness of the county, including the series of bonds proposed, together with the amount of the assessed value of the property of the county as shown by the last official assessment, as well as any additional information that the Attorney General may require. In any action brought to enforce collection of the bonds the certificate of approval of the Attorney General, after registration by the Comptroller's office, shall be prima facie evidence of the validity and binding effect of the obligations, and the only defense that can then be offered against the validity of the bonds will be either forgery or fraud. Article 715, R.C.S. The duty of the courts prior to approval of the bonds by the Attorney General is thus well stated by the San Antonio Court of Civil Appeals in Johnson v. Town of Refugio,
For the reasons stated we think the judgment of the trial court correct. It is accordingly affirmed.