City of Austin v. Thompson

219 S.W.2d 57, 147 Tex. 639, 1949 Tex. LEXIS 454

• Court: Texas Supreme Court
• Decided: March 23, 1949
• Docket: No. A-1908
• Status: Published

Opinions

Mr. Justice Hart

delivered the opinion of the Court.

On June 3, 1948, Honorable Homer Thornberry, a member of the City Council of the City of Austin, resigned, thereby creating a vacancy in the City Council. On August 19, 1948, the City Council passed an ordinance which recited that “the City Council desires to receive nominations from the qualified voters • of the City in order that the person receiving the highest number of votes may be named by the Council to fill said vacancy.” The ordinance ordered an election to be held on October 5, 1948, “at which election there shall be nominated at large by the qualified voters of the City of Austin a Councilman for the unexpired term of Homer Thornberry who resigned June 3, 1948.” Section 5 of the ordinance read as follows:

“That the candidate receiving the highest number of votes in said election shall be the nominee for Councilman; and the City Council will name said nominee as Councilman to fill the vacancy for the unexpired term of Homer Thornberry, resigned.”

On September 11, 1948, the respondent, J. Albert Thompson, filed this suit against the City of Austin, the Mayor, the members of the City Council, and other named officials. He alleged that he was a taxpaying, resident citizen and voter in the City of Austin, that the election ordinance was void because it was contrary to the provisions of Article XVIII, Section 2 of the Charter of the City of Austin in that it was an effort by the Ctiy Council to evade its duty to fill the vacancy in the Council, and that in order to hold the election the City of Austin would be put to an illegal expense of approximately $2,000.00. The respondent prayed for a temporary restraining order to restrain the City and its officials from taking any steps preparatory to holding or from holding an election as provided by the ordinance, for a temporary injunction after hearing in the terms of the restraining order, and for a permanent injunction against the holding of the election and the expenditure of any public funds in connection therewith.

On the same day that the petition was filed, the district court issued a temporary restraining order which recited that it appeared to the court that the defendants would unlawfully expend funds of the City in preparation for the holding of the election, and the defendants were restrained from doing or performing any act in connection with the holding of the election on October 5, 1948.

On September 17, 1948, the district court held a hearing in which he considered the plea in abatement and certain special exceptions which were presented by the City and its officers in their answer to the respondent’s petition. In this hearing it was agreed that the court could consider also the relevant provisions of the City Charter, before and after its amendment in 1924, and the full provisions of the election ordinance of August 19, 1948. The district court sustained the City’s pleas and exceptions, and the respondent having refused to amend his petition, the temporary restraining order was dissolved and the temporary injunction was denied."

The respondent appealed to the Court of Civil Appeals, which rendered judgment on October 2, 1948, without filing a written opinion. The judgment recited that since the respondent, as a taxpayer of the City of Austin, had no special interest in the election, the district court was correct in denying an injunction against the holding of the election. The judgment further recited, however, that the respondent as a taxpayer had the right to enjoin the unlawful expenditure of public funds and that the court was of the opinion that the threatened expenditure of approximately $2,000.00 for the purpose of holding the election was illegal in that the election .was not authorized by the Charter of the City of Austin or any other law. The Court of Civil Appeals by its judgment issued a temporary injunction enjoining the City and its officials “from the further expenditure of public funds of the City^of Austin in connection with the calling or holding of such election.”

Two main questions are presented: first, whether the election ordinance was valid; and second, whether, even if the ordinance was invalid, the court had any authority to enjoin the election or the payment of any expenses which are incident to it.

The provision of the Charter of the City of Austin relating to filling vacancies in the City Council is Article XVIII, Section 2, which reads as follows:

“Vacancies in the City .Council shall be filled by the City Council for the remainder of the unexpired term, but any vacancy resulting from a_ recall election shall be filled in the manner provided in such cases.”

This provision of the charter was adopted at a special election held on August 9, 1924, and at the same election the section of the original charter which related to the same subject was repealed. The repealed section read as follows (Art. VI, Sec. 3, Charter of the City of Austin, Spec. Laws, Reg. Sesss., 31st Leg., 1909, ch. 2, p. 19) :

“Whenever a vacancy shall occur in the office of councilman the city council shall immediately order a special primary eletion for nominations for the office of councilman, which election shall be held within 30 days thereafter. Said special primary election shall be governed in all things by the provisions of Article 3 of this act, except as to the day of holding said election; provided, that in the event such vacancy should occur within ninety days of the next regular election to be held for mayor and city councilmen, then in such event no special primary election shall be held. A special election shall be held two weeks after said special primary election for the election of councilmen to fill the unexpired term of councilman, and said election shall be governed in all things by the provisions of Article 3 of this act.”

The section of the City Charter relating to recall elections (Art. VIII, Sec. 1) provides in part as follows:

“If the majority of the votes case at such election shall be in favor of removal, the City Council shall immediately declare the result of said election, and declare said office vacant, and shall immediately order an election to fill such vacancy as hereinbefore provided.”

A consideration of the quoted sections of the City Charter leads us to the conclusion that the City Council exceeded its authority in calling the election to fill the vacancy in the City Council. We think that the only fair and reasonable construction of the election ordinance is that the City Council bound itself to appoint the person receiving the highest number of votes in the election. The City Charter now plainly provides that the vacancy must be filled by the City Council itself. The purpose of adopting the amendment to the Charter in 1924 obviously was to change the method of filling vacancies in the City Council from the cumbersome method of election to the more expeditous method of selection by the City Council. This purpose would be defeated by the construction of the Charter for which the City contends in this case. The fact that -no election was intended in cases of vacancies caused by resignation or death is shown by the special provision for elections to be called in cases where vacancies were created as the result of real elections. It was the duty of the City Council to assume the responsibility and exercise the power of selecting a new member of the Council, and the Council was without authority to delegate this responsibility and power to the electorate. Where the City Charter prescirbes a method for exercising a power, this method is exclusive and must be followed. Foster v. City of Waco, 113 Texas 352, 255 S. W. 1104. While broad discretion in many instances is permitted the City Council in the exercise of its powers and authority, it must respect the express provisions of the Charter in instances where they are applicable. It cannot call an election, under the general provision of the Charter giving it this power, where the Charter provides that a vacancy must be filled in another way. We therefore conclude that the election ordinance was invalid because contrary to the provisions of the City Charter.

On the second question, however, we think that the court was without authority to issue an injunction against the election or the expenditure of public funds in connection with the holding of the election. In ordinary cases, an injunction against the expenditure of public funds to pay the expense of an election would have the same practical effect as an injunction against the holding of the election. Every election requires the services of election officials and the furnishing of supplies, as well as expenses in connection with publishing notices and setting up the polling places. It is not reasonable to expect that those who furnish their services or their property so that the election may be held will be willing, except in rare and unusual cases, to do so at their own expenses. To enjoin the expenditure of public funds to pay the expenses of holding an election would therefore ordinarily be a roundabout way of enjoining the election itself.

This court has adopted the view that it is beyond the power of a court of equity to enjoin an election or any incident to it, although the election may be called without authority and therefore absolutely void. The fundamental reasons for this rule of

decision, as stated in City of Dallas v. Dallas Consol. Electric Street Ry. Co., 105 Texas 337, 341, 148 S. W. 292, 294, are worth repeating here:

“Elections belong to the polictical branch of the government, and the general rúle is that they are beyond the control of the judicial power. The authority resides in the courts to determine their validity, and in cases of invalidity to protect property rights which may become effective and is sought to be enforced; but a proper deference’ for their respective powers that is imposed upon the several departments of the government should constrain the court to caution and certainty when their authority is invoked against the determination of the popular will. It should always be remembered that the separation of the great powers of government into different and distinctive departments, each independent in its own sphere and protected by constitutional limitations that neither can transcend but which all must respect, is the distinctive feature of our system, and its accomplishment is the fundamental fact of our history. * * *

“As elections are essentially the exercise of political power, it cannot be doubted that all action properly related thereto and necessary to their completion is from the same source, and is but the expression of the same power. The canvassing of the returns of an election is necessary to the determination of the result. It is an integral part of the election itself, without which the election is a vain proceeding; and as such inheres as a right sanctioned by the political power, as absolute as the right of the electorate to vote or for the election to be held. When it is declared that because of their relation to the political power of the government, elections are beyond the control of the judicial power, it is meant that the whole election, including every step and proceeding necessary to its completion, is exempt from judicial interference, and the canvassing of the returns of an election must therefore be held as within the rule and justly entitled to its protection.” (Emphasis added.)

The same conclusion was stated even more emphatically in Winder v. King (Tex. Com. App.), 1 S. W. (2d) 587. There an effort was made to enjoin the holding of an election, it being alleged “that said election, if held, would be void and a great expense to the taxpayers * * *.” (See 1 S. W. (2d) at p. 587.) The court reached the conclusion that the election was called without authority and would be void (see 1 S. W. (2d) at p. 590) :

“We are therefore of the opinion that the election ordered in Hansford county to be held on August 6, 1927, and all proceedings thereunder would be absolutely void. The defendants in error would be without jurisdiction to order said election, and such an election held less than two years from the previous election would be without legal effect.”

Nevertheless, the court held that no injunction should be issued against even a void election, or any incident to it (see 1 S. W. (2d) at p. 589) :

“The courts of this state have no jurisdiction to interfere with the political rights of the people to hold an election, and by holding the election is meant every step pertaining thereto, including the declaring of the result. This rule obtains even though the election called and held is void. The right to call and hold a void election is a political right that the courts have no jurisdiction to interfere with, but the right to enforce a void election in such a way as to violate the laws of this state would present a matter that the judicial power of the government would have the right to give relief from.” (Emphasis added.)

In Leslie v. Griffin (Tex. Com. App.), 25 S. W. (2d) 820, 821, the court said that the question was no longer open:

“It is no longer an open question in this state that an' election is essentially the exercise of political power, and, during its progress, is not subject to judicial control. This comprehends the whole election, including every step and proceeding necessary to its completion.”

In Ex parte Barrett, 120 Texas 311, 37 S. W. (2d) 741, a suit was brought by taxpayers to enjoin an election on the ground that the election was not authorized by the statutes. The injunction was issued, but it was disobeyed by the relator, who was adjudged to be in contempt of court. The relator then sought a writ of habeas corpus from this court, which granted the writ on the ground that the injunction was void, regardless of whether the election was validly called (see 37 S. W. (2d) at p. 742) :

“The holding of an election is a political function, and courts have no power to inquire into the validity of an election until it is completed. Regardless of whether the election be one which conforms to statutory requirements or not, the bare fact that the election is held would not affect private rights. Consequently the matter of stopping the progress of an election, merely for the purpose of inquiring into its validity, lies outside of the general scope of judicial power. This constitutional principle, though sometimes overlooked, has been recognized and applied in a number of well-considered cases, and must be treated as settled.”

These decisions by this court have been followed as settled law by the courts of civil appeals in many cases, including Harris v. Elder, 38 S. W. (2d) 352 (writ of error refused); League v. Brazoria County Road Dist. No. 13, 187 S. W. 1012; Noguess v. Burton, 10 S. W. (2d) 216; Temple Lumber Co. v. Commissioners’ Court of Sabine County, 239 S. W. 668 (writ of error dismissed); Richardson v. Mayes, 223 S. W. 546 (writ of error dismissed); Lyle & Eiker v. Logan, 162 S. W. 1156; Watson v. Cochran, 171 S. W. 1067; Kennedy v. Broughton, 70 S. W. (2d) 500; Moore v. Plott, 206 S. W. 958; Fuller v. McHaney, 192 S. W. 1159; City of Honey Springs v. Templeton, 194 S. W. (2d) 620 (writ of error refused, n. r. e.).

Only two case decided by this court, Oden v. Barbee, 103 Texas 449, 129 S. W. 602, and Roper Q Gilley v. Lumpkins, 111 Texas 107, 230 S. W. 144, are in any way inconsistent with the rule that elections will not be enjoined. In the first of these cases it appeared that the commissioners’ court had annulled the order for the election and that private parties were attempting to hold the election without any kind of official authorization. The case is therefore .distinguishable from the case before us, where the election ordinance stands unrevoked. In the Roper & Gilley case, a memorandum opinion was written by this court over seven years after a suit had been brought to enjoin a pool hall election. Both of the lower courts had refused to grant the injunction, and it is difficult to see why the case had not become moot, so far as the injunction against the election was concerned. However that may be, it seems evident that no consideration was given to the point of the court’s power to enjoin elections. The opinion was written by Chief Justice Phillips, who also wrote the opinion in the City of Dallas case, cited above, but the opinion in the City of Dallas case is not referred to and the point is not discussed. In any event, the carefully considered and explicit declarations of this court after the Roper & Gilley case was handed down have settled the law so far as this court is concerned.

We regard the rule as sound which leads the courts to refuse to interefere with elections, for the reasons set forth at length in our previous decisions. The injury which any taxpayer will suffer from the expense of an election is inconsiderable. It is of vastly greater importance that the courts refrain from interferring with the exercise of political functions. This consideration in our judgment clearly outweighs the reasons ordinarily sustaining the rule that the courts will enjoin the unlawful expenditure of public funds, as, for example, in Terrell v. Middleton (Tex. Civ. App.), 187 S. W. 367 writ of error refused, 108 Texas 14, 191 S. W. 1138). From a practical viewpoint it is also well to remember that it would usually be impossible to reach a final determination of an injunction suit before the time set for the election. This case illustrates the truth of this statement. If the courts were free to enjoin elections (or what would amount in most instances to practically the same thing, the expenditure of public funds to pay the expense of the elections), then it might occur that elections would be prevented by the granting of injunctions in the trial court, even though this court might eventually determine that the elections would have been entirely legal. We should not make possible such unwholesome situations.

We regard it as immaterial whether the election in the present case has already been held. Since the payment of the expense is a necessary incident to the election, we think the courts are without jurisdiction to enjoin the expenditure of the required public funds, either before or after the voting is completed.

The judgment of the Court of Civil Appeals is reversed and the judgment of the district court is affirmed.

Opinion delivered March 23, 1949.