author: DUNAGAN, Chief Justice.

text:
    Al SCHULMAN et al., Appellants, v. CITY OF HOUSTON et al., Appellees.
    No. 244.
    Court of Civil Appeals of Texas. Tyler.
    July 21, 1966.
    Rehearing Denied Sept. 22, 1966.

      Joseph D. Jamail, John Gano, Houston, for appellants.
    Wm. A. Olson, City Atty., Homer T. Bouldin, Trial Supervisor, Houston, for appellee, city of Houston.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Alton F. Curry, DeLange, Hudspeth, Pitman & Katz, M. Marvin Katz, Eugene J. Wilson, Houston, for ap-pellee, United Compost Services, Inc.
   DUNAGAN, Chief Justice.

This is an injunction suit. The City Council of the City of Houston, Harris County, Texas, in discharging its lawful duties for the regulation and disposal of garbage for the city, investigated the various means and methods of disposal of garbage to meet the further needs of the city. Pursuant thereto, the duly qualified voters of the city were asked to vote on and voted in favor of a contract for disposal of garbage by composting or other effective methods for a term not to exceed twenty years.

After advertising for public bids, on or about March 24, 1965, the city negotiated and entered into a contract with United Compost Services, Inc., for the construction and operation of a compost plant at 4200 Beechnut Street located in the southwest area of the City of Houston.

Appellants instituted this suit seeking a temporary injunction, and permanent injunction upon final hearing, to prohibit ap-pellees, City of Houston and United Compost Services, Inc., from further contraction of a garbage compost plant under the contract executed between the city and United Compost, and to prohibit the operation of the plant once completed.

After a hearing before the 129th District Court of Harris County,'appellants’ application for temporary injunction was denied, and appellants duly and timely appealed from said order.

The appellants in their brief make the following contentions: “The Appellee, City of Houston, and the Appellee, United Compost Services, Inc., are unlawfully engaged in the performance of an invalid contract by their construction and intended operation of a garbage compost plant on the site in question situated in the 4200 block of Beechnut Street. The Appellees are unlawfully engaged in the expenditure and intended and threatened expenditure of public funds illegally and pursuant thereto. The Appellee, City of Houston, is unlawfully engaged in donating public properties to, and in aid of the Appellee, United Compost Services, Inc. The Appellee, City of Houston, is unlawfully engaged in lending its credit to and in aid of the Appellee, United Compost Services, Inc. * * * the City of Houston is unlawfully engaged in the illegal diversion of bond funds, and is unlawfully engaged in putting such site to the private use of the Appellee, United Compost Services, Inc., in violation of the dedication and use imposed upon such property. * * * the Appellees threaten a continued and repeated violation of statute in their proposed and intended dumping of 300 tons of garbage per day within less than 300 yards of a public highway, and the Appellees further threaten the conduct of a public nuisance upon such site. * * * ” Appellants further contend that they have no adequate remedy at law and that the court erred and abused its discretion in denying appellants’ application for injunction.

Appellants are resident citizens of, and the owners of, taxable real property in the City of Houston. Each appellant is a taxpayer of and to the City of Houston, ad valorem taxes being, and having been, levied and assessed upon their property and collected from each appellant, by the City of Houston. Appellants contend that they are beneficiaries of and have a real interest in the trust funds and the public funds of the City of Houston, and in the breach of each trust and diversion of such funds by the city.

Appellee, United Compost Services, Inc., contends that the trial court properly denied the application for temporary injunction as appellants have no standing to maintain this suit. The City of Houston joins in this contention. We sustain this contention.

The City Council, in the exercise of its discretion, selected the present site of the compost plant in the southwest part of the city on property already owned by the city, adjacent to an existing city police substation where the parking lot was currently being used for parking of the city garbage trucks. The tract is completely surrounded by the police substation, a city sewage disposal plant, the City of Bellaire Truck Maintenance and Repair Barn, Bellaire Sewage Treatment Plant, the Southern Pacific Railroad line, the Humble pipe line and the light and power company strip.

The manner or method of the disposal of garbage and the site for such disposal are in the sound discretion of the governing body of a home-rule city such as the City of Houston; and neighboring land-owners cannot enjoin the construction or operation of such plant unless it is shown that the city’s selection of the site was arbitrary and capricious. Bright v. City of Corpus Christi, 172 S.W.2d 763 (Tex.Civ.App.) 1943, n. w. h.; Stone v. City of Wylie, 34 S.W.2d 842 (Tex.Com.App.) 1931; Sheffield v. Town of Duncanville, 236 S.W.2d 851 (Tex.Civ.App.) 1951, writ ref., n. r. e.; Cheek v. Beckworth, 292 S.W.2d 158 (Tex.Civ.App.) 1956, writ ref., n. r. e.; Kimbrough v. Walling, 371 S.W.2d 691 (Tex.S.Ct.); City of San Antonio v. San Antonio Irrigation Co., 118 Tex. 154, 12 S.W.2d 546 (Tex.Com.App.); and 64 C.J.S. Municipal Corporations § 1803, page 265.

The Bright case cited is similar to the case now before us. In that case, citizens sought to enjoin the city and a Texas Gulf Construction Company from construction of a garbage disposal plant in close proximity to their residences and properties. The Court of Civil Appeals affirmed the trial court’s judgment for the defendants on an instructed verdict, holding, 172 S.W.2d, p. 764:

“ * * * The selection of a site for a garbage disposal plant was a matter addressed to the sound discretion of the City Council and their action in such matters cannot be disturbed unless it is shown that they have abused their discretion and acted arbitrarily and capriciously. * * * The burden was upon appellants to show that there was no reasonable basis for the selection of the site made by the city. This they failed to do. * * * ”

The record in this case does not reveal any act of the City Council of the City of Houston which is arbitrary, capricious or unreasonable.

Furthermore, the garbage compost plant is a permanent improvement designed to take care of the ever increasing needs of the city for the disposal of garbage, and it is to be maintained for the public purpose of disposing of garbage and for the welfare of the community. It is a lawful business and an operation not subject to abatement by injunction by citizens of the city. Appellants’ remedy, if any at all, is at law if the compost plant should in fact be operated as a nuisance to their damage. Stone v. City of Wylie, supra; Atkinson v. City of Dallas, 353 S.W.2d 275 (Tex.Civ.App.) 1961, writ ref., n. r. e., cert. denied, 370 U.S. 939, 82 S.Ct. 1587, 8 L.Ed.2d 808; City of Dallas v. Winans, 262 S.W.2d 256 (Tex.Civ.App.) 1953, n. w. h.; Dudding v. Automatic Gas Co., 145 Tex. 1, 193 S.W.2d 517 (Tex.S.Ct.) 1946; Williams v. City of Dallas, 52 S.W.2d 373 (Tex.Civ.App.) 1932, n. w. h.; Boyd v. City of San Angelo, 290 S.W. 833 (Tex.Civ.App.) 1927, err. ref.; Storey v. Central Hide & Rendering Co., 148 Tex. 509, 226 S.W.2d 615 (Tex.S.Ct.) 1950.

In the Boyd case, supra, the Court of Civil Appeals affirmed the trial court’s judgment denying the appellants’ application for injunction against the city erecting and maintaining a sewage disposal plant next to appellants’ property. The court held, 290 S.W. p. 835:

“If operation of such plant, which is essential to the welfare of the community, damages appellants’ property, they have their remedy at law, but that question must be left to the test of operation. * * * ”

Appellants attempt to sustain their right to bring this suit by virtue of being taxpayers and because they claim injury to them would necessarily result from the construction and operation of a compost plant. This claim of injury is made even though not any of their witnesses were in a position to testify that they had any knowledge whatever of the particular process to be used by appellee, United Compost.

A reading of the evidence shows that appellants have wholly failed to show any special damage to themselves or that they have no adequate remedy at law. It is significant that there has been no attempt made to show that the cost of processing garbage by composting would exceed the current cost of garbage disposal by other methods. Nor has it been shown that the city and/or United Compost are not able to respond in damages.

The general rule setting forth the circumstances which will enable a taxpayer to institute a suit for injunctive relief is set forth in 40 Tex.Jur.2d, Municipal Corporations, Sec. 427, where it is said, p. 118:

“A taxpayer may bring an action to enjoin the making or the performance of an invalid contract where he is able to show that the execution of the contract will financially affect him, and that he has no adequate remedy at law. He is not authorized to maintain a suit by the mere fact that the contract is illegal. * * *

The above language is clearly supported by the Texas cases, beginning with the Supreme Court decision in Altgelt v. City of San Antonio, 81 Tex. 436, 17 S.W. 75, 13 L.R.A. 383 (Tex.S.Ct.) 1890, wherein a taxpayer sought to set aside a contract between the city and water-works company and to restrain the city from paying out any municipal funds pursuant to said contract, which was alleged to be illegal and unauthorized. The plaintiff contended, among other things, that a monopoly was being permitted; that the city was exempting the company from taxes, and that he incurred damage as a tax-paying citizen. After holding that the contract was illegal, the court added, 17 S.W. p. 76:

“ * * * But it does not follow, we think, in this case because the contract is, as alleged by plaintiff, unauthorized and illegal, and creates a monopoly, or attempts so to do, and surrenders for the period of 25 years the legislative power with which the city is invested, that for these reasons alone the plaintiff can in this suit vacate or set aside said contract. In the case mentioned (City of Brenham v. Brenham Water Company, 67 Tex. 542, 545, 4 S.W. 143) the suit was by the water-works company to enforce the contract. This was resisted by the city of Brenham upon the ground that it attempted to create a monopoly, and was a surrender of the legislative power in the city with reference to that subject for 25 years. In the case under consideration the city is not complaining. On the contrary, the contract is recognized by the city, and, as long as it is so recognized by the city through its properly constituted authorities, it cannot be vacated by plaintiff upon these grounds. The plaintiff does not show by his averments that he, as a tax-payer of the city, is authorized to maintain this action by reason of any injury resulting to him from the contract of October, 1877, entered into by the city of San Antonio. It does not appear from the petition that he is prevented from obtaining water upon any better terms, nor does it appear that he is compelled under the terms of that contract to get water from the defendant water-works company, * *

In the case of Wood v. City of Victoria, 18 Tex.Civ.App. 573, 46 S.W. 284 (Tex.Civ.App.) 1898, err. ref., a taxpayer sought an injunction restraining the city and others from supplying water to a private corporation pursuant to the terms of an alleged illegal contract. Plaintiff alleged that he was a citizen, that he owned both real and personal property and paid taxes thereon. He argued that the contract to supply water out of the city to a private corporation was an unlawful use and appropriation of the city property. As additional facts to justify his standing to sue, he alleged that prior to the unauthorized act, there was barely enough water pressure, but with the contract there was an increased risk and hazard to his property from fire by virtue of the unauthorized use and resulting lack of pressure. The trial court held that the contract was in fact unauthorized and illegal, but denied plaintiff’s prayer because he “disclosed no right * * * to maintain the suit.”

The appellate court held:

“ * * * We agree with the court that the contract may be illegal, and yet the plaintiff not entitled to the injunction; and unless the petition in this case, by its averments, clearly shows that the illegal action complained of injuriously affects the plaintiff, the judgment dismissing his suit must be affirmed.”

The court further said:

“ * * * . and while we are inclined to concur with the court below that the contract with the city of Victoria and the gin company is one not authorized by law, and is ultra vires, we think the court held correctly that the plaintiff was not entitled to the writ of injunction. Courts of equity will not restrain municipal governments in the exercise of their functions, even though the act complained of be ultra vires, unless the complainant shows that the act is an injury to him or his property, and that it is one against which he has no adequate protection at law. This doctrine is clearly recognized, we think, in the cases of Altgelt v. City of San Antonio, * * * and City of Austin v. Nalle, 85 Tex. 520, 22 S.W. 668, 960. * * * ”

The Altgelt case was again followed in the recent case of Houston Natural Gas Corporation v. Wyatt, 359 S.W.2d 257 (Tex.Civ.App.) 1962, n. w. h.

The appellants have made an effort to allege some special interest and special injury, but have failed to show their absence of legal remedies. A similar, but unsuccessful, effort was made in San Antonio Conservation Soc. v. City of San Antonio, 250 S.W.2d 259 (Tex.Civ.App.) 1952, err. ref.

The appellants also make the contention that the contract is in violation of Article II, Sec. 19 of the City Charter and hence the contract is void, it not being countersigned by the Comptroller. Article II, Sec. 19 of the City Charter states:

“ * * * No contract shall be binding upon the city unless it has been signed by the Mayor and countersigned by the Comptroller.”

In Dallas Electric Company v. City of Dallas, 33 Tex.Civ.App. 424, 58 S.W. 153 (Tex.Civ.App.) 1900, err. ref., plaintiffs, as citizens and taxpayers of the City of Dallas, sued the city, its officers, and the Dallas Electric Company to enjoin the city from making further payments to the electric company due to an alleged void and extortionate contract for lighting streets and for mandamus to compel the city council to open and consider plaintiffs’ bid, alleged to be the lowest bid. Defendants’ company had been performing the services for about a year and a half under its “contract” (to run for a period of three years) but actually no contract was ever prepared or approved by the City Attorney, or signed by the Mayor. Among other grounds, plaintiffs allege that the contract was void because it was never signed by the Mayor. It was held that plaintiffs could not maintain the suit. The court, after stating that it would not determine whether the contract required the Mayor’s signature held: “* * * But if the contract was illegal, as alleged, the city was the only party which could take advantage of its invalidity. There is no fact alleged to show that appellees suffered such injury by reason of the contract as authorized the enjoining the city from recognizing it and complying with its terms. While there are authorities of high standing that hold a contrary view to the one here expressed, our supreme court in the case of Altgelt v. City of San Antonio, * * * fully supports our position. That decision, so far as we are aware, has not been overruled, nor is it in conflict with any other decision of our supreme court. It is therefore the law of this state, (citing cases).”

As has been stated, this suit is for temporary injunction and on final hearing, a permanent injunction, to prohibit the construction and use of the compost facilities where the construction has been authorized. The general rule is that an injunction will be denied where the threatened or anticipated act complained of may or may not become a nuisance. Dunaway v. City of Austin, 290 S.W.2d 703 (Tex.Civ.App.) n. w. h.; Corder v. State Water Pollution Control Board of the State of Texas, 391 S.W.2d 83 (Tex.Civ.App.) 1965, writ ref., n. r. e.; Boyd v. City of San Angelo, supra.

It has been held in this state that an injunction will not lie to prevent an alleged threatened act, the commission of which is speculative and the injury from which is purely conjectural, or an anticipated act. Haden Employees’ Association v. Lovett, 122 S.W.2d 230 (Tex.Civ.App.) 1938, writ ref.; Thomas v. Bunch, 41 S.W.2d 359 (Tex.Civ.App.) 1931, affirmed 121 Tex. 225, 49 S.W.2d 421; Kostoff v. Harris, 266 S. W.2d 204 (Tex.Civ.App.) 1954, writ ref., n. r. e.; 41 Tex.Jur.2d, “Nuisance” pages 634-636, Sec. 6b.

It has also been held in this state that a mere prospect of future annoyance or injury from a structure or an instrumentality which is not a nuisance per se is not ground for injunction.

It has been held that the location of a' sewage disposal plant located near a private residence does not constitute a nuisance per se. Boyd v. City of San Angelo, supra; see Storey v. Central Hide & Rendering Co., supra; State of Tennessee ex rel. Cunningham v. Feezell, Tenn., 400 S.W.2d 716; Atkinson v. City of Dallas, supra; O’Daniel v. Libal, 196 S.W.2d 211 (Tex.Civ.App.) n. w. h.; Dunaway v. City of Austin, supra; Jones v. Highland Memorial Park, 242 S.W.2d 250 (Tex.Civ.App.) n. w. h.

Therefore, the compost complained of in the instant case being a disposal plant for garbage would likewise not constitute a nuisance per se.

Where a municipal corporation is intrusted with the execution of a power, and is not confined to a particular mode, but has a discretion in the choice of means, a plain case of the abuse of discretion resulting in direct injury to the petitioner must be clearly shown in order to warrant the issuance of an injunction against the corporation. Lamm v. Chambers, 18 S.W.2d 212 (Tex.Civ.App.) 1929, n. w. h.

For the reasons above stated, we do not think the trial court abused its discretion in denying appellants’ application for temporary injunction.

Judgment affirmed.


source: Caselaw Access Project

author: MOORE, Justice.

license: Public Domain

text:
    Jerry M. HYDE, Appellant, v. Yvonne Young HYDE, Appellee.
    No. 216.
    Court of Civil Appeals of Texas. Tyler.
    July 7, 1966.
    Rehearing Denied Sept. 22, 1966.

      Price R. Ashton, Austin, for appellant.
    Jerry M. Hyde, Tyler, pro se on rehearing.
    Glass & Glass, Tyler, for appellee.
   MOORE, Justice.

This is a domestic relations case. Appellant, Jerry M. Hyde, instituted this suit in the form of an action for mandatory injunction seeking an order of the court requiring appellee, his wife, Mrs. Yvonne Young Hyde, to surrender to him the custody of their two minor children. He alleged, and the facts show, that the parties were married in 1958 and lived together until 1963, during which time two children were born. Prior to the time the present suit was filed, the record shows that Mrs. Hyde had theretofore on July 2, 1963, instituted a suit against him seeking a divorce upon the grounds of cruel treatment. After a trial in that cause on November 14, 1963, judgment was entered denying appellee a divorce. Appellant took the children into his custody. The parties continued to live separate and apart. Several months later, on January 17, 1964, Mrs. Hyde filed a suit for custody of the children under the provisions of Article 4639b, Vernon’s Ann.Texas Civ.St. Trial in that cause was before a jury and based upon a verdict reciting that it would not be to the best interest of the children for her to be awarded custody, the trial court on July 3, 1964, entered a take-nothing judgment against her. On the day prior to the entry of the judgment in that cause, Mrs. Hyde went to the home of appellant and without his knowledge or consent took possession of the children. The present litigation followed on July 14, 1964, when the appellant filed this suit seeking a mandatory injunction to require appellee to surrender the children to him on the ground that the previous judgment theretofore entered against her on July 3rd denying her the custody of the children was tantamount to placing the legal custody in him. His original petition requested the trial court to take immediate action by issuing a restraining order, without notice, directing the sheriff to take the children and turn them over to him immediately. The court, however, declined to take such action and set the matter for hearing on July 27, 1964. In the meantime, Mrs. Hyde filed her cross action for divorce alleging cruelty on the part of appellant occurring subsequent to the previous divorce judgment. She also sought custody of the children and ancillary thereto prayed for a temporary restraining order and a temporary injunction, prohibiting appellant from taking the children from her custody. The trial court granted her a temporary restraining order, without notice, prohibiting appellant from taking the children from her custody, and set the hearing on the temporary injunction for July 27th, along with the hearing on the appellant’s motion. Prior to the time set for the hearing, appellant filed a motion to quash the temporary restraining order issued against him on the ground that the judgment theretofore entered on July 3rd denying appellee custody of the children was res adjudicata upon the issue of custody. He also filed a motion to dismiss appellee’s cross action for divorce and custody on the ground that the previous judgments in the divorce case and in the child custody case were res adjudicata on the issue of divorce and custody in the present suit. Neither of these motions, however, was presented or urged on the date set for the hearing on the respective applications for an injunction. On the contrary, appellant appeared and entered into an agreement stipulating that Mrs. Hyde was to have the care and custody of the children during the pendency of her cross action for divorce, and agreeing to pay the sum of $100.00 per month for their support. The trial court accordingly entered a judgment to this effect, and further recited in the judgment that appellant’s application for injunction as well as his motion to quash and motion to dismiss were denied. Appellant registered no complaint to any portion of this order and the order remained in effect for some thirteen months before the cause finally went to trial on September 2, 1965.

The case was submitted to a jury and in response to the special issues submitted by the court, the jury found: (1) that the appellant had been guilty of excesses, cruel treatment or outrages toward the appellee; (2) of such nature as to render their further living together insupportable; (3) that there had been a material change of conditions after July 3, 1964, of such nature as to affect the welfare and best interest of the children; (4) that it would be to the best interest of the children that they be awarded to the custody of appellee; (5) that a reasonable amount of support for the children would be the sum of $150.00 per month; and (6) that a reasonable attorney’s fee for the appellee would be the sum of $1,250.00. From the judgment based upon such a verdict, appellant Jerry M. Hyde has perfected this appeal.

Appellant presents nine Points of Error. The first, second and third points complain of the action of the trial court in refusing to grant his application for mandatory injunction requiring appellee to surrender custody of the children to him, as well as the action of the trial court in granting Mrs. Hyde a temporary restraining order without notice restraining him from taking the children from her custody pending the hearing on her application for temporary injunction and in denying his motion to quash such an order. The basis of appellant’s contention seems to be that the previous judgment of July 3, 1964, denying her custody of the children was, as a matter of law, res adjudicata on the issue of custody in the present- suit and the court was, therefore, required to respect such judgment and place custody in him pending a hearing on the appellee’s motion for temporary custody. We think these points must be overruled for two reasons. First, it is most apparent, we think, that the purpose of the trial court in leaving the children in the custody of Mrs. Hyde and prohibiting appellant from forcibly taking them from her was to maintain the status quo until both sides of the controversy could be heard. The statutes clearly authorize the trial court to make temporary orders such as this pending suit for a divorce. Article 4636, 4639, V.A.T.S.; Goodman v. Goodman, 224 S.W. 207 (Tex.Civ.App.). Secondly, appellant did not register any complaint in the trial court of this action. On the contrary, he agreed to the order placing custody in the appellee. Moreover, he did not object or except to that portion of the judgment denying his request for custody. Having agreed to the order granting appellee custody and not having made any complaint in the trial court in this respect, he therefore waived his right to complain on appeal.

Appellant’s fourth, fifth and sixth points complain of the action of the trial court in overruling numerous special exceptions to appellee’s petition. The appellee has registered an objection to points four and five on the ground that some of the matters complained of in those points are not contained in the assignments of error in the motion for new trial. She likewise objects to points nine and ten on the same grounds. We have experienced some difficulty in determining this matter because appellant’s brief nowhere makes any references to where his assignments of error may be found in the record. Upon a search of the record, however, it appears that the objections are well taken and must be sustained. It is elementary that this court has no authority to pass on alleged errors not complained of in the trial court. Rule 418, T.R.C.P.; Henderson v. Jimmerson (Tex.Civ.App.), 234 S.W.2d 710. As stated before, we have experienced difficulty in evaluating the appellant’s Points of Error because appellant’s counsel did not make any references to the pages of the transcript where the supporting assignments of error could be found. Reference to the page of the record where such supporting assignments may be found is vital to this court. Appellant’s brief fails to comply with Rule 418, supra. Under such a situation, it is not ordinarily our duty to search the record for the assignment of error in support of a point. Rubenstein & Son Produce, Inc. v. State (Tex.Civ.App.), 272 S.W.2d 613. Points four, five, six, nine and ten are overruled.

In Point 7, appellant complains of the action of the court in ruling that his counsel would not be permitted to refer to or offer in evidence the judgment of any of the proceedings in the previous divorce case or the child custody case. As pointed out before, appellee’s grounds for divorce in the present case were based upon cruel treatment which was alleged to have occurred subsequent to the date of the judgment in the former divorce suit. The judgment in that suit was not, therefore, res adjudicata to the alleged cause of action arising afterwards, and would not be admissible. Nor does it appear that any of the proceedings in the former divorce suit were relevant as evidence on any issue in the present suit and therefore same is not admissible in evidence in this suit. Spoon v. Spoon (Tex.Civ.App.), 139 S.W.2d 162.

Nor do we believe that any error is reflected in the refusal to permit in evidence the proceeding of the former child custody case. No attempt is made by the appellant to demonstrate how such judgment or any of the circumstances surrounding that case would be relevant to any of the issues in the present suit. As stated before, the former child custody case was brought under the provisions of Article 4639b, supra. Section 4 thereof specifically provides that where the provisions of that statute have been invoked, in the event either party subsequently files a suit for divorce, the subsequent orders entered in the divorce suit shall control the matter of custody to the exclusion of the provisions of the statute. Thus when appellee filed her suit for divorce and the trial court entered an order of custody in the divorce case, the effect of such was to nullify the previous orders entered, if any, in the former child custody case. We therefore conclude that the former judgment in that case denying custody could not be res adjudicata to any issue in the present suit and the proceedings in that case were not therefore admissible in this cause.

By Point 8 appellant contends that the court erred in “merging” his mandatory injunction suit with appellee’s cross action for divorce. Contrary to his contention, the record does not reflect this to be the case. The record shows that prior to trial, the trial court announced that the appellee would have the burden of proof on the whole case and would be required to go forward with the evidence as if she were the plaintiff. Appellant made no objection to this procedure, nor did he request a severance or a separate trial. Moreover, at the time of trial appellant had already waived a separate hearing on his injunction suit by agreeing that appellee might have custody during the pendency of her suit for divorce. The point is overruled.

In our view, the record presents a case wherein appellee’s petition sufficiently alleged a cause of action for a divorce and child custody existing after the two former actions in that respect. Appellant’s primary defense was based upon the proposition that the two former judgments involving divorce and child custody were res adjudicata. As stated, we do not believe this defense to be applicable under the facts presented. All issues of fact were submitted to the jury and found in favor of the appellee. There is nó showing or complaint that the issues were not supported by evidence or that the same were against the overwhelming weight and preponderance of the evidence. So far as we are able to discern, all of the contentions set forth in appellant’s brief were foreclosed by the verdict of the jury. No complaint is made of any error in relation to any part of the jury’s verdict.

It is, therefore, our conclusion that the judgment of the trial court must be affirmed.


author: CHAPMAN, Justice.

text:
    CITY OF AMARILLO et al., Appellants, v. GRIGGS SOUTHWEST MORTUARY, INC., and James Horace Griggs, Jr., Appellees.
    No. 7627.
    Court of Civil Appeals of Texas. Amarillo.
    June 20, 1966.
    Rehearing Denied Sept. 6, 1966.

      Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, James H. Doores, Amarillo, of counsel, for appellants.
    Lockhart & Wilds, Amarillo, for appel-lees.
   CHAPMAN, Justice.

In June 1954 the City of Amarillo passed Ordinance No. 1991 regulating ambulance service upon the streets of the City, requiring (inter alia) permits, certificates of convenience and necessity, insurance and a performance bond, payment of a street rental charge, and prescribing conditions under which permits should be issued; providing for the regulation of rates, keeping of records and making reports thereon, duration and revocation of permits, and proper maintenance of equipment; defining the duties of the Director of Transportation; and providing that any person, firm or corporation violating any provision of the ordinance shall be guilty of a misdemeanor, and upon conviction shall be fined in any sum not to exceed $200, each day of a violation constituting a separate offense.

In January 1965 Griggs Southwest Mortuary, Inc., one of the appellees. herein, secured a permit from the Texas State Department of Health authorizing it to operate its ambulance to the twenty-first day of January, 1967. The permit was issued under authority of Senate Bill 230, Acts 48th Legislature, 1943, which is now Article 4590-b, Vernon’s Ann.Texas Civ. St.

Without obtaining a permit from the City of Amarillo, appellee Griggs Southwest Mortuary, Inc. and James Horace Griggs, Jr. began operating an ambulance service for hire within the City. The ordinance was penal and was being enforced against appellees. Additionally, appellants, City of Amarillo, its police department and its hospital district were refusing to do business with appellees because of non-compliance with the subject ordinance.

Appellees sued in the 47th District Court to have the ordinance declared void and unconstitutional and also sought to enjoin its enforcement and discrimination against appellees for failure to have acquired a city permit to operate the ambulance service.

The trial court entered a declaratory judgment that the ordinance is invalid, unconstitutional and of no force and effect. The court also enjoined appellants from discriminating against appellees because of failure to comply with the ordinance, but refused to enjoin the penal enforcement. Thus, with the judgment of a court of record holding the ordinance invalid, unconstitutional and of no force and effect, it is axiomatic that the City was left in the decree without power of enforcement of the penal ordinance regardless of the court’s exceptions recited therein. From such judgment appeal is perfected to our court upon numerous points of error, the first group of which attack the judgment enjoining appellants because of the court’s lack of jurisdiction.

Amarillo is a home rule city, with the right to make its own charter so long as the provisions are not inconsistent with the Constitution or the general laws. Article 11, Section 5, Constitution of Texas, Vernon’s Ann.St. To effectuate the provisions of that part of the Constitution just cited the legislature “ * * * enumerated for greater certainty” numerous powers of local self-government of home rule cities under Article 1175 of Texas Annotated Civil Statutes. Sections 20 and 21 thereof provide respectively as follows:

“20. To license, operate and control the operation of all character of vehicles using the public streets, including motorcycles, automobiles or like vehicles, and to prescribe the speed of the same, the qualification of the operator of the same, and the lighting of the same by night and to provide for the giving bond or other security for the operation of the same.
“21. To regulate, license and fix the charges or fares made by any person owning, operating or controlling any vehicle of any character used for the carrying of passengers for hire or the transportation of freight for hire on the public streets and alleys of the city.”

Section 22 of Article 2 of the Charter of the City of Amarillo sets out specific regulations and enforcements under the division titled “Good Order, Safety and Health.” Number (1) under Traffic provides for the regulation of all character of vehicles using the public streets of the City. Ordinance 1991 described in the first paragraph of this opinion regulates ambulance service.

A city such as Amarillo has a right to enact such an ordinance regulating vehicles. Town of Ascarate v. Villalobos, 148 Tex. 254, 223 S.W.2d 945; West v. City of Waco, 115 Tex. 472, 294 S.W. 832.

The fact that the state requires a license does not mean that the legislature has pre-empted the field. Ex Parte Heine, 158 Tex.Cr.R. 248, 254 S.W.2d 790; Town of Ascarate v. Villalobos, supra.

It is a well-established general rule in this state that equity will not enjoin enforcement of a criminal law, the exceptions to such general law being when the penal statute or ordinance “ * * * is unconstitutional, or otherwise void, and enforcement thereunder involves an invasion of property rights which will result in an irreparable injury thereto. * * * ” State v. Logue, supra; Ex Parte Sterling, supra; Crouch v. Craik, Tex., 369 S.W.2d 311.

“If either one of the requirements of equitable relief in this type of situation— void law and irreparable injury to property rights—is lacking, the courts of equity have no jurisdiction to entertain such suit.” State v. Logue, supra.

The Uniform Declaratory Judgments Act of 1943, Article 2524-1, V.T.C.S., did not change the rules respecting jurisdiction of courts of equity to construe penal statutes or ordinances, courts having been given in such act power to enter declaratory judgments only within their respective jurisdictions.

In Stecher v. City of Houston, Tex.Civ.App., 272 S.W.2d 925 (N.R.E.) Stecher sought injunction against the City of Houston and prosecution agencies to enjoin enforcement of a penal traffic ordinance and a declaratory judgment, just as in our case. That ordinance made it unlawful to park any vehicle other than a commercial vehicle in any truck loading zone between certain hours. Stecher operated a stationery service and used an automobile to deliver supplies in the City. The defendants excepted to the petition for lack of jurisdiction in the trial court on the ground that such relief could be granted only upon a showing of a vested property right, neither alleged nor shown. The trial court dismissed for want of jurisdiction and the intermediate appellate court affirmed, citing Kemp Hotel Operating Co. v. City of Wichita Falls, 141 Tex. 90, 170 S.W.2d 217 (Comm.App. opinion adopted); State ex rel. Flowers v. Woodruff, 150 Tex.Cr.R. 255, 200 S.W.2d 178; Liegl v. City of San Antonio, Tex.Civ.App., 207 S.W.2d 441 (N.R.E.) and others. In its opinion the appellate court quoted the trial court’s Con-elusion of Law No. 1 to the effect that the suit was essentially to restrain the police department and the City of Houston from enforcing a penal ordinance and that the character thereof was not changed by calling it a suit for declaratory judgment; that such judgment could not be enforced except by injunction; and Stecher not having any vested property rights in the use of the streets in the manner claimed by him, the court was without jurisdiction to entertain the cause of action. The appellate court then affirmed, saying:

“In the light of the well settled rule that courts will not perform useless and vain acts, the logic of the quoted conclusion is manifest. Aside however from that consideration, the following should be noted. The Uniform Declaratory Judgments Act, being Article 2524 — 1, Sections 1 to 16 inclusive, Vernon’s Ann.Civ. St., was passed in 1943 by the 48th Legislature. At that time, it was well settled, as shown by the authorities heretofore cited, that jurisdiction to determine the validity of penal statutes and ordinances where irreparable injury to vested property rights is not involved, is vested exclusively in the criminal courts. As those authorities indicate, such rule evolved from the construction placed by the courts on Article V, Section 5, Constitution of Texas. * * * ”

We hold the trial court lacked jurisdiction. In the first place appellees had an adequate remedy at law by testing the constitutionality of the ordinance through the method of asserting such defense in a criminal prosecution thereunder. State v. Logue, supra; Liegl v. City of San Antonio, supra; State ex rel. Flowers v. Woodruff, supra; City of Graham v. Seal, Tex.Civ.App., 235 S.W. 668, 670 (writ dism.); Kemp Hotel Operating Co. v. City of Wichita Falls, supra.

.The Supreme Court of Texas in State v. Logue, supra, said: “If there is an adequate remedy at law by setting up the defense of unconstitutionality of the statute in question in a criminal proceeding, then the trial court had no jurisdiction to enjoin such criminal proceedings * * * ” However, the requirement of property rights being affected is related to this adequacy of remedy at law. State v. Logue, supra. Wherein can it be said then that appellees have property rights to be protected? The property rights to be protected could only be the rights to do business as an ambulance service for hire on the streets of Amarillo. The cases are legion which hold that no person has a vested right to use such streets or state highways in carrying on a commercial business. Ex Parte Sterling, supra; Liegl v. City of San Antonio, supra; Mooney v. City of San Antonio, Tex.Civ.App., 386 S.W.2d 638 (writ ref.); Greene v. City of San Antonio, Tex.Civ.App., 178 S.W. 6 (writ ref.); State v. Logue, supra. In the last cited case the Supreme Court quoted with approval from Ex Parte Sterling, supra, where that court held:

“ ‘The complainants in the proceeding in which the injunctions were issued are not making, in common with the general public, the ordinary use of the highways, but an extraordinary one for the purpose of carrying on a business for profit. That they have no vested right to so use such highways is beyond question. Public highways and streets are constructed and maintained at the public expense. No person, therefore, can insist that he has, or may acquire, a vested right to use such streets and highways in carrying on a commercial business. * ⅜ * «

In Greene v. City of San Antonio, supra, Chief Justice Fly speaking for the San Antonio Court of Civil Appeals held:

“The highways of a state, including the streets in cities and towns, are under the paramount and primary control of the Legislature, and all powers of cities and towns over streets must depend upon the authority granted in special charters or general laws applying to such municipalities. Whatever power the state has over its highways can be granted by it to the municipalities it has created, * * *
“No individual has the inherent right to use a street or highway for business purposes. No man has the right to use a street for the prosecution of his private business, and his use for that purpose may be prohibited or regulated as the state or municipality may deem best for the public good.
* * * * * *
“The streets belong to the public, the city being its trustee, and no private individual or corporation has a right to use such streets for the prosecution of a business without the consent of the trustee and a compliance with the conditions upon which the permission to so use them is given * * * ”

Appellees contend there is an inherent conflict between Article 4590b and Ordinance No. 1991 in that the State of Texas issued the appellee mortuary a permit to operate an ambulance on the highways and streets. Minimum equipment and first aid knowledge by operators is required by the statute, so appellees contend this precludes cities from requiring permits. The same contention was made by Dallas Taxicab Co. v. City of Dallas, Tex.Civ.App., 68 S.W.2d 359 (N.W.H.) and in Town of Ascarate v. Villalobos, supra, and was rejected both by the Dallas Court of Civil Appeals and the Supreme Court of Texas. The latter court in the Villalobos case said:

“One holding a Certificate of Convenience and Necessity from the Railroad Commission to operate a motor bus line over a highway of this State is not thereby conferred with rights paramount or superior to the authority of a city, through which the highway runs, to regulate the traffic on its streets for the protection of the public.”

Since the last sentence of Paragraph 1, Section 4 of Article 4590b provides authorization for cities to regulate sirens, warning signals, warning lights and illuminating and sound devices on ambulances appellees contend that no regulation other than authorized therein could be required by cities and towns. It has been textually stated that the rule does not apply “ * * * where express authority given home rule cities is not inconsistent with, but merely goes beyond, general provisions authorizing the same thing to be done by all cities and towns.” 53 T.J.2d, Statutes, Sec. 142, p. 208.

We believe the case law of Texas is contrary to the application of the rule in a situation such as we have here. Cameron v. City of Waco, Tex.Civ.App., 8 S.W.2d 249 is analogous. The authority given home rule cities under Article 1175, V.T. C.S. is not inconsistent with but merely more extensive and comprehensive than Article 4590b. The latter article covers the entire class by saying “all incorporated cities and towns” while “individual subjects of the same class,” home rule cities, are covered by Article 1175. We believe it imperative that the City of Amarillo have the authority represented in its Ordinance No. 1991 and that the court below sitting as a court of equity was without jurisdiction to pass on the questions it decided.

It is not difficult to envision the danger and confusion in a city the size of Amarillo if all five mortuaries maintained ambulances and raced over the city to collisions and to other situations promising fees for ambulance service.

It is also important that the city be able to require applicants for ambulance operating privileges be physically fit, able and willing to perform, and be financially responsible, insured, and bonded. The Supreme Court of Texas in Parsons v. City of Galveston, 125 Tex. 568, 84 S.W.2d 996 has said:

“Every regulation that has a tendency to increase the responsibility of persons using public streets exclusively for private gain in carrying on a private business, to that extent protects the public against traffic dangers and promotes the general welfare.”

The statute was penal, so we do not believe the trial court could create jurisdiction for itself by stating the exceptions in its judgment heretofore mentioned.

The judgment of the trial court is reversed and rendered.

ON MOTION FOR REHEARING

We are challenged in appellee’s motion for rehearing in speculating on the danger and confusion involved if five mortuaries operated ambulances, as the record reflects there are only two ambulance services in Amarillo.

It is true the record so reflects, but it shows at least five competing mortuaries. Plaintiffs’ Exhibit No. 2 shows that Amarillo Ambulance Service, the only one in the city operating with a permit, has stated: “If the city will stop the Southwest Ambulance operation, we will continue in business. If it will not, this company must cease operations and try to pay all of its debts.”

Under the record here we believe it is reasonable to assume that if the city is not permitted to regulate ambulances the other mortuaries will be forced to initiate ambulance services to protect their mortuary interests. If they should all do so, the confusion in a city the size of Amarillo and the danger to both pedestrian and vehicular traffic would be intolerable.

The Amarillo Ambulance Service manager testified if Southwest Mortuary ceased to operate its ambulance service, it would be placed under the same rotation system as the mortuaries named.

The motion for rehearing is overruled.

      . State v. Logue, Tex., 376 S.W.2d 567; Ex Parte Sterling, 122 Tex. 108, 53 S.W.2d 294.


author: NYE, Justice.

text:
    C. D. J. ENTERPRISES, Appellant, v. Leroy G. DENMAN, Jr., Trustee, et al., Appellees.
    No. 203.
    Court of Civil Appeals of Texas.
    Aug. 25, 1966.

      H. Gordon Davis, Harvey L. Hardy, San Antonio, for appellant.
    James D. Baskin, San Antonio, for ap-pellees.
   OPINION

NYE, Justice.

This was a suit for a writ of mandamus filed by plaintiff, the appellant herein, to compel the defendants, appellees herein, to furnish electric service to Stonegate Division, Unit No. 1. The appellant is a real estate developing company and appellees are the trustees constituting the City Public Service Board of San Antonio, Texas. The Stonegate Division, Unit No. 1, is located in an area northeast of the City of San Antonio, which is claimed by the City of San Antonio by virtue of annexation. The same area is claimed by virtue of incorporation by the Town of Stonegate. The appellants proposed a subdivision development and in connection therewith filed a plat of the subdivision with the City Planning Commission of the City of San Antonio. This plat was disapproved. Subsequently it was approved by the Town Council of the City of Stonegate. The trial court rendered judgment for the defendants sustaining a plea in abatement and a motion to dismiss the suit for mandamus.

The appellees have admitted their obligation to furnish electric service to the Stone-gate area. However, they have refused such service contending that the developers have not complied with Art. 974a, Vernon’s Ann.Civ.St., requiring the submission of the plat of the subdivision for approval to the City of San Antonio.

The State of Texas filed a quo warranto proceeding attacking the validity of the incorporation of the City of Stonegate. This case was styled Vernon et al. v. State of Texas ex rel. City of San Antonio et al., 406 S.W.2d 236. Appellees here agree that if Stonegate is validly incorporated they will furnish electric service as requested.

We have this day held in Emory F. Vernon et al. v. State of Texas ex rel. City of San Antonio et al., supra, that the Stone-gate area in question has been validly annexed to the City of San Antonio and that the incorporation of the City of Stone-gate is void. Appellees have represented to the trial court and re-affirmed here that they will furnish utility service to the Stonegate area in question, when the appellants comply with the requirements of the City of San Antonio which has jurisdiction over this area. We have no doubt that this will be complied with. The action of the trial court in abating and dismissing this case is correct.

The judgment of the trial court is affirmed.


text:
    Emory F. VERNON et al., Appellants, v. STATE of Texas ex rel. CITY OF SAN ANTONIO et al., Appellees.
    No. 204.
    Court of Civil Appeals of Texas. Corpus Christi.
    Aug. 25, 1966.
    Rehearing Denied Sept. 15, 1966.

      H. Gordon Davis, Harvey L. Hardy, San Antonio, for appellants.
    James E. Barlow, Sam S. Wolf, J. Bruce Aycock, Marvin T. Deane, San Antonio, for appellees.
   OPINION

NYE, Justice.

This is a quo warranto proceeding filed by the State of Texas, as plaintiff, on the relation of the City of San Antonio and the Town of Windcrest attacking the validity of the incorporation as a municipality the Town of Stonegate in Bexar County, Texas.

The trial was to a jury. At the close of the evidence, most of which was of a documentary nature, the trial court granted the plaintiffs’ motion for judgment and took the case from the jury, declaring that the Town of Stonegate was void and that the officials be ousted. The trial court found that the attempted incorporation of the Town of Stonegate, Texas, was void from the beginning for: 1) the lack of compliance with Article 970a, Vernon’s Ann. Civ.St.; and, 2) for the reason that on October 8, 1964, the City of San Antonio by a duly enacted ordinance took the first legal step asserting annexation jurisdiction over the territory. The defendants in the trial court were the Mayor and Aldermen and certain inhabitants of the Town of Stonegate. They have perfected their appeal to this Court.

Appellants’ points on appeal are:

1. That the trial court erred in not granting defendants’ motion for instructed verdict and judgment and in not rendering judgment for defendants declaring the Town of Stonegate to be validly incorporated because:

(a). Article 970a is unconstitutional under Article II, Section 1 of the Constitution of the State of — Texas, Vernon’s Ann. St.

(b). The ordinance passed December 10, 1959, by the City of San Antonio, as a first reading of annexation, was no longer effective on October 30, 1964.

(c). Ordinance #32815 City of San Antonio dated October 8, 1964, was not an assertion of annexation jurisdiction.

2. The trial court erred in not sustaining defendants’ special exception to the effect that Ordinance #32815 (and others) were improperly pleaded.

3. The trial court erred in not submitting the question of abandonment of the Ordinance #28156 to the jury.

The chronological order of events leading up to this litigation that effect the decision of this case are as follows:

May, 1963 The Municipal Annexation Act of 1963 certified as Art. 970a, V.A.C.S., was passed and approved by the Legislature and took effect 90 days after May 24, 1963, adjournment date.
Aug. 22, 1963 Effective date of Municipal Annexation Act, Art. 970a, V.A.C.S.
Nov. 20, 1963 All ordinances not brought to completion (within 90 days of effective date of act) are abandoned and released as a matter of law from the jurisdiction of City of San Antonio. Art. 970a, Sec. 7D, V.A.C.S.
Oct. 8, 1964 Ordinance No. 32S15 adopted in compliance with Art. 970a, Sec. 6, V.A.C.S. (calling for public hearing of proposed annexation of subject Stonegate area).
Oct. 9, 1964 Notice of Public hearing published in newspaper (Ordinance No. 32815) Art. 970a, Sec. 6, V.A.C.S.
Oct. 22, 1964 Public hearing held on Oct. 22, 1964. (Ordinance No. 32815) Art. 970a, Sec. 6, V.A.C.S.
Oct. 30, 1964 Application to incorporate the Town of Stonegate filed with County Judge.
Nov. 5, 1964 Ordinance No. 32874 passed (first reading) annexing Stonegate territory, (result of public hearing, Ordinance No. 32815)
Nov. 5, 1964 Ordinance 32875 passed by City of San Antonio adopted agreement with City of Windcrest apportioning the overlap extraterritorial jurisdiction. Art. 970a, Sec. 3 B, First paragraph.
Nov. 6, 1964 Ordinance No. 32874 published in newspaper.
Nov. 6, 1964 Election ordered by County Judge to determine question of incorporation of Stonegate.
Nov. 9, 1964 Agreement to apportion the overlapped extraterritorial jurisdiction approved by the City of Windcrest.
Dec. 4, 1964 County Judge declared Town of Stonegate duly incorporated.
Dec. 8, 1964 This quo warranto suit instigated by the State of Texas.
Dec. 17, 1964 Ordinance No. 32874 finally passed by City of San Antonio annexing Stonegate territory. Art. 970a, Sec. 6.
Jan. 9, 1965 Election of Mayor and Aldermen of Town of Stonegate.

The City of San Antonio was a home rule city, having a population in excess of six hundred thousand (600,000) inhabitants. The Town of Windcrest situated northeast of the city limits of San Antonio was a duly incorporated municipality, having a population of less than five thousand (5,000) inhabitants. The area in question sought to be incorporated as a Town called Stonegate, lies adjacent to and northeast of the City of San Antonio and also adjacent to the Town of Windcrest.

On October 8, 1964, the City Council of the City of San Antonio adopted an Ordinance (No. 32815) in compliance with Art. 970a, Sec. 6 giving notice to all interested persons of the City’s intention to annex certain territory which included that portion of the Stonegate area in question. Notice of the public hearing was published (October 9, 1964) and the hearing was held on October 22, 1964.

On October 30, 1964, application to incorporate the Town of Stonegate was filed with the County Judge of Bexar County, Texas. This application admittedly complied with all applicable statutes, other than Art. 970a, V.A.C.S. The area included in the application to incorporate Stonegate was situated within the extraterritorial jurisdiction of the City of San Antonio. More than half of the area proposed by the incorporators to be included within the Town of Stonegate, was situated within the exclusive extraterritorial jurisdiction of the City of San Antonio and the remainder of such Stonegate area was situated within an area that overlapped the extraterritorial jurisdiction of the Town of Windcrest and the City of San Antonio. In other words, the proposed area to be incorporated as the Town of Stonegate was within the extraterritorial jurisdiction of the City of San Antonio, a part of which was also in the extraterritorial jurisdiction of the Town of Windcrest.

On November 5, 1964, the City of San Antonio, pursuant to its expression of its intention to annex the territory in question as expressed in Ordinance No. 32815, passed on first reading Ordinance No. 32874 annexing the Stonegate area. On the same day the City of San Antonio passed Ordinance No. 32875 adopting a written agreement with the Town of Windcrest apportioning the overlapping extraterritorial jurisdiction under Article 970a, Sec. 3 B, first paragraph, between the two municipalities. This mutual agreement apportioning the overlapping area of extraterritorial jurisdiction was finally approved by the City of Windcrest on November 9, 1964, and therefore was consummated. On December 17, 1964, Ordinance No. 32874, (passed on first reading on November 5, 1964) was finally passed by the City of San Antonio, annexing all of the area covered by. proposed incorporation of the Town of Stonegate.

On December 4, 1964, the County Judge of Bexar County, pursuant to an election ordered on November 6, 1964, declared the Town of Stonegate duly incorporated. On January 9, 1965, the Mayor and Aldermen of the Town of Stonegate were elected pursuant to an election called by the County Judge of Bexar County.

The Municipal Annexation Act, Article 970a, V.A.C.S., passed by the Legislature of the State of Texas “In order to promote and protect the general health, safety, and welfare of persons residing within and adjacent to the cities of this State * * *” declared in such Act (Sec. 3) that it is “ * * * to be the policy of the State of Texas that the unincorporated area, not a part of any other city, which is contiguous to the corporate limits of any city, to the extent described herein, shall comprise and be known as the extraterritorial jurisdiction of the various population classes of cities in the State and shall be as follows:

“(1) The extraterritorial jurisdiction of any city having a population of less than five thousand (5,000) inhabitants shall consist of all the contiguous unincorporated area, not a part of any other city, within one half (½) mile of the corporate limits of such city. * * * ”
“(5) The extraterritorial jurisdiction of any city having a population of one hundred thousand (100,000) or more inhabitants shall consist of all the contiguous unincorporated area, not a part of any other city, within five (5) miles of the corporate limits of such city.”

Section 8A of this Article provides that “No city may be incorporated within the area of the extraterritorial jurisdiction of any city without the written consent of the governing body of such city. * * * ” If only a portion of the proposed new city lies within extraterritorial jurisdiction of an existing city (City of Windcrest) such consent must be obtained for that portion to be included as a part of the new city.

The unincorporated area of Stonegate was under the extraterritorial jurisdiction of the City of San Antonio and the City of Windcrest. It is undisputed that the incorporators of the Town of Stone-gate did not seek or obtain the written consent of the governing bodies of the cities who exercised extraterritorial jurisdiction over the area sought to be incorporated by virtue of Article 970a, V.A.C.S. They neither sought nor obtained the written consent required under Section 8A of Art. 970a as to (1) the exclusive area within the extraterritorial jurisdiction of the City of San Antonio; (2) the joint authorization from the City of San Antonio and the Town of Windcrest comprising the overlapping area of extraterritorial jurisdiction; nor (3) the separate consent from the cities of San Antonio and Windcrest for the areas apportioned by mutual agreement between the two cities. Where the attempted incorporation violates a pertinent statute or fails to comply with a mandatory provision thereof, the certification of the County Judge is not conclusive. This holding was approved by the Supreme Court of Texas in Red Bird Village v. State ex rel. City of Duncanville, 385 S.W.2d 548, Tex.Civ.App.1964, wr. ref. The Legislature has the power to provide the conditions under which cities may incorporate and all conditions precedent required by statute must be substantially complied with. 39 Tex.Jur.2d Sec. 8, p. 370 — Sec. 12, p. 373.

It is defendants’ contention that Art. 970a is unconstitutional. It is their theory that a particular provision in Section 3B, second paragraph, of Art. 970a, which provides for a District Court to perform a legislative task of apportioning territory of an area under the extraterritorial jurisdiction of one or more cities, is unconstitutional in that it violates Art. II, Section 1 of the State Constitution. This constitutional provision provides for the separation of the powers of government. The second step in defendants’ theory is that this particular provision is inseparable from the other provisions of the “Municipal Annexation Act” because there is no way to end the overlaps of extraterritorial jurisdiction created by the Act except for the unenforceable method of voluntary agreement, and absent such agreement, and with such overlaps, the entire Act breaks down. Therefore, as appellant contends, Art. 970a is wholly geared to the concept of extraterritoriality rendering the entire statute unconstitutional. The third step in defendants’ theory is that Ordinance No. 32815, enacted October 8, 1964, was not an assertion of the first or prior jurisdiction by the City of San Antonio because it was passed pursuant to this void statute (Art. 970a) and did not comply with the proper method of instituting annexation proceedings prescribed by the City Charter of San Antonio, Section 3, paragraph 2. Defendants contend that since Art. 970a is void the City Charter controls under Texas law, and their application for incorporation filed October 30, 1964, with the County Judge acquired jurisdiction first over the Stonegate area thereby making the incorporation of their city valid.

Article 970a, Section 3B, reads as follows :

“In the event that on the effective date of this Act the area under the extraterritorial jurisdiction of a city .overlaps an area under the extraterritorial jurisdiction of one or more other cities, such overlapped area may be apportioned by mutual agreement of the governing bodies of the cities concerned. Such agreement shall be in writing and shall be approved by an ordinance or resolution adopted by such governing bodies.
“At any time after one hundred and eighty (180) days from the effective date of this Act, any city having an extraterritorial claim to such overlapping area shall have authority to file a plaintiff's petition in the district court of a judicial district, within which is located the largest city having an extraterritorial claim to such overlapped area, naming as parties defendant all cities having a claim to such overlapped area and praying that such overlapped area, to which it has mutual claim, be apportioned among the cities concerned. In effecting such apportionment, the district court shall consider the population densities and patterns of growth, transportation, topography, and land utilization in the cities concerned and in the overlapped area. The territory so apportioned to a city shall be contiguous to the extraterritorial jurisdiction of such city. In the event the extraterritorial jurisdiction of a city is totally overlapped, the territory so apportioned to such city shall be contiguous to the corporate boundaries of such city. Such territory so apportioned shall be in a substantially compact shape. Such overlapped area shall be apportioned among such cities in the same ratio (to one decimal) as the respective populations of the cities concerned bear to one another, but in such apportionment no city shall receive less than one-tenth (¼o) of such overlapping area. Provided, however, that any apportionment made under the provisions of this Subsection shall give consideration to existing property lines, and no tract of land or adjoining tracts of land, under one ownership upon the effective date of this Act and not exceeding one hundred and sixty (160) acres in size shall be apportioned so as to be within the extraterritorial jurisdiction of more than one city unless the landowner consents in writing to such apportionment.” (Emphasis supplied)

The offending sentence, which appellant contends as being a delegation to the District Court of a legislative function, reads as follows:

In effecting such apportionment, the district court shall consider the population densities and patterns of growth, transportation, topography, and land ulitization in the cities concerned and in the overlapped area.

The courts favor the constitutionality of statutes and the cardinal principle of statutory construction is to save, not to destroy. Our courts are obligated to uphold such laws and avoid doubts as to the constitutionality wherever possible. The courts should be reluctant to strike down a statute as unconstitutional unless and only when it is absolutely necessary on the facts or circumstances presented by the particular case. Woods v. Reilly, 147 Tex. 586, 218 S.W.2d 437, 442 (1949); 16 C.J.S. Constitutional Law § 98, p. 359. The cities of San Antonio and Windcrest were able to agree and did agree on the apportioning of the overlapped area. They did not seek the aid of the district court.

In the field of constitutional law, no stronger presumption exists than that which favors the validity of a statute. A legislative act must be sustained unless it is clearly invalid beyond a reasonable doubt. State v. City of Austin, 160 Tex. 348, 331 S.W.2d 737, 747 (1960); Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 at 440 (1946). The strength of this presumption is nurtured by an appreciation of the needs of the people and by a recognition that laws are directed to problems manifest by experience. The courts will not exert ingenuity to find reasons for holding a statute invalid; rather, they will sustain its validity even if it is valid by the narrowest margins. Texas Nat. Guard Armory Board v. McCraw, 132 Tex. 613, 126 S.W.2d 627-634 (1939); Dendy v. Wilson, 142 Tex. 460, 179 S.W.2d 269-277 (1944). This is particularly true when the statute pertains to governmental policies established in the interest of public health, safety, and welfare as is present in this statute. Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475, 486 (1934); 12 Tex.Jur.2d, Constitutional Law, Sec. 36, p. 380.

The provisions of the first and second paragraphs of Section 3 B are permissive and are not mandatory. The Legislature directed, absent the mutual agreement of the governing bodies of the cities concerned (Sec. 3 B, second paragraph), that “Such overlapped area shall be apportioned among such cities in the same ratio (to one decimal) as the respective populations of the cities concerned bear to one another, but in such apportionment no city shall receive less than one-tenth (Vio) of such overlapping area.” Other guidelines given by the Legislature in carrying out this judicial apportionment, include consideration to existing property lines, ownership, the size of the area to be apportioned, landowners’ consideration and in addition the guidelines which the appellants consider as legislative in nature. The cities of San Antonio and Windcrest did agree and did apportion the overlapped area. Although the cities had authority to file suit in district court in the event they were unable to mutually agree to apportion the overlapped area, such action never took place and is not before us for a determination of its propriety. We therefore do not express any opinion as to the validity of the judicial apportionment provision contained in the second paragraph of Section 3B of Art. 970a, as it is not necessary for us to do so for the proper disposition of this case under the facts before us. However, even if the judicial apportionment provision complained of in Section 3B second paragraph was invalid, we hold it is severable from the Act. Art. IV, Chap. 160, (Severability) pp. 447-454, Acts of 58th Legislature-Regular Session, 1963, “Municipal Annexation Act.” It is incumbent upon the courts to sever any unconstitutional provision and to sustain the remainder. See Harris County Water Control & Imp. Dist., etc. v. Albright, 153 Tex. 94, 263 S.W.2d 944 (1954); and see City of Taylor v. Taylor Bedding Mfg. Co., 215 S.W.2d 215-217, Tex.Civ.App. (1948), wr. ref. This is especially true where the statute concerns several matters. Davis v. White, 260 S.W. 138-141, Tex.Civ.App. (1924), wr. ref. We believe that if such section which appellants complain of, should be held invalid, it is not so intermingled with other parts of the Act as to make it impossible to separate from the balance of the Act.

Appellants contend by a series of hypothetical examples that the failure of one or the other of the cities to agree to apportionment, or to give their consent to the incorporation of the overlapped area, will render such area in effect, a “no man’s land”. This contention is not well taken for the Act provides in Section 7B that such territory can be annexed to one or the other of the cities where the majority of the owners request such annexation. In Section 8A where the governing body refuses to grant permission for the incorporation of such proposed city, then under certain conditions this section of the law authorizes the consent for the incorporation of such proposed city in such area.

No principle of law is more firmly established in this nation and in this state than that which says that the courts will not anticipate a constitutional issue. Bush v. State of Texas, 372 U.S. 586, 83 S.Ct. 922, 9 L.Ed.2d 958 (1963). When considering the theory of the petitioners as to the constitutionality of a certain act, our Supreme Court said in Woods v. Reilly, supra: “It [this theory] has no application to the facts of this case * *. When such a case is presented we should decide that question, and not before” It is fundamental that abstract questions regarding the validity of a statute will not be considered. St. Louis Southwestern Ry. Co. v. State, 113 Tex. 570, 261 S.W. 996 at 997 (1924); English Freight Co. v. Knox, 180 S.W.2d 633, 642, Tex.Civ.App. (1944) ref., w. m.

The issue of judicial apportionment of overlapping extraterritorial jurisdiction is not present in this case; therefore, appellants are in reality requesting an advisory opinion — something the courts decline to give. Hill v. Sterrett, 252 S.W.2d 766, 771, Tex.Civ.App. (1952), ref. n. r. e. Mere apprehension of what might have happened, but did not, does not justify the consideration of a constitutional question. Dallas Taxicab Co. v. City of Dallas, 68 S.W.2d 359, 363, Tex.Civ.App. (1934). It was said in Andrews v. Smith, 93 S.W.2d 493-495, Tex.Civ.App. (1936) wr. ref. that it is the settled rule in this state that:

“[I]f proper disposition of a case may be made without consideration of a question as to the constitutionality of a statute, that question should not be passed upon by the court.” Citing cases. “Especially should this be the rule where the court passing on the question of constitutionality of a statute is a trial or an intermediate appellate court.”

Not only is the question of the validity of Art. 970a, V.A.C.S. anticipatory and abstract, it is not necessary to the proper disposition of this case. Therefore, it should not be considered. Smith v. Feather, 149 Tex. 402, 234 S.W.2d 418 at 421 (1950); Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807-813 (1959); San Antonio General Drivers, etc. v. Thornton, 156 Tex. 641, 299 S.W.2d 911 at 915, Sup.Ct. (1957).

The Supreme Court held that Section 16, Art. 1 of the Texas Constitution did not prohibit the legislature from making the relevant provision of Art. 970a retroactive to certain pending annexation proceedings. Deacon v. City of Euless, Texas, 405 S.W.2d 59, July 9, 1966. There, the court considered the size limitation prescribed by the Legislature in Art. 970a. Again this statute as to time limitation for establishing jurisdiction was considered in Red Bird Village v. State, supra, and writ of error was refused by our Supreme Court. Appellants attack the constitutionality of the entire Art. 970a. The fact that the Supreme Court of our State has been called upon on two occasions to give effect to Art. 970a concerning the time limitation and size limitation set forth in such statute and approving such article in those particulars, is to be considered with favor as to its constitutionality. 12 Tex. Jur.2d Constitutional Law, Sec. 41, p. 385. We hold that the applicable provisions of Art. 970a as applied to the facts in this case are constitutional.

We therefore hold that the failure of the incorporators of Stonegate to obtain the required consent or authorization for the incorporation of their proposed city in compliance with Art. 970a, Sec. 8A, invalidates the proposed incorporation of the Town of Stonegate. We have considered all of appellants’ points, which are overruled.

Judgment of the trial court is affirmed.


author: COLLINGS, Justice.

text:
    Bailey Allen SWENSON, Appellant, v. Kathryn Thomas SWENSON, Appellee.
    No. 4075.
    Court of Civil Appeals of Texas. Eastland.
    Aug. 12, 1966.
    Rehearing Denied Sept. 2, 1966.
    Reynolds, White, Allen & Cook, Joe H. Reynolds and Grant Cook, N. Wyatt Collier, Houston, for appellant.
    Monroe R. Talley and William F. Guest, Houston, for appellee.
   COLLINGS, Justice.

Kathryn Thomas Swenson brought suit against Bailey Allen Swenson seeking dissolution of the bonds of matrimony existing between them, custody of and support for their two minor children, a division of their community property and attorneys’ fees. The case was tried before a jury and based upon some of its findings, other findings by the court and stipulations, judgment was entered granting plaintiff a divorce, custody of the two minor children and ordering defendant to make monthly contributions for the support of the children. The court also decreed a disposition of the community and separate property owned or claimed by the parties in a manner found to be fair and equitable and decreed that the defendant should pay to plaintiff $20,000.00 for attorneys’ fees. Bailey Allen Swenson has appealed.

Appellant’s points complain of the manner in which the court divided the community property between the parties and of the disposition of appellant’s separate property. He contends (1) that the court erred in invading the separate estate of appellant for the benefit of appellee, (2) that the division of the community estate of the parties was unfair and unjust and (3) that the amount of attorneys’ fees was excessive.

There were numerous items of community property owned by the parties and separate property belonging to appellant. The status of some of the property was in dispute. Issues were submitted to the jury inquiring whether or not certain items of property constituted community property of the parties with an appropriate definition of the term “community property”. Special issue number 1 inquired whether or not 2150 shares of Texas Coast Broadcasters, Inc., stock, standing in the name of appellant constituted community property, and the jury answered “We do not.” The jury found that 10,000 shares of stock in the Brazos Corporation and certain property designated as “Brazos property” were community property. The court set aside the jury’s findings with respect to the Brazos stock and the Brazos property and specifically found both of these items to constitute separate property of appellant.

Before and during the trial it was stipulated that certain items theretofore claimed by appellant as his separate property were, in fact, part of the community. Shortly before the trial appellant by stipulation admitted that 90% of the funds used to pay for the stock in Texas Coast Broadcasters, Inc., were community property and that all stock owned by him in Texas Coast Broadcasters of Beaumont, Inc., was community property. At the close of the trial appellant admitted that the stock he owned in KNUZ Television Company was community property. Based upon the findings of the jury and court and stipulations of appellant, the court awarded to appellee title to the following property, subject to such liens and claims as might then appear of record, to-wit:

“1. 967.5 shares of stock in Texas Coast Broadcasters, Inc.
2. 19.375 shares of stock in Texas Coast Broadcasters of Beaumont, Inc.
3. 50 shares of stock in KNUZ Television Company, subject to the contract of sale thereon.
4. One and one-half percent (1½%) of Hillside Apartments, 5200 Memorial Drive, Houston, Texas.
5. Land and improvements located at 1619 Castle Court, Houston, Texas, subject to the indebtedness thereon.
6. All of the paintings, objects of art and sculpture.
7.All of the furniture, furnishings, equipment, fixtures and books located at 1619 Castle Court, Houston, Texas.”

The court awarded to appellant title to the following described property, subject to such liens and claims as might then appear of record, to-wit:

“1. 1182.5 shares of stock in Texas Coast Broadcasters, Inc.
2. 19.375 shares of stock in Texas Coast Broadcasters of Beaumont, Inc.
3. 50 shares of stock in KNUZ Television Company, subject to the contract of sale thereon.
4. One and one-half (1½%) of Hillside Apartments, 5200 Memorial Drive, Houston, Texas.
5. All of the furniture, furnishings (less paintings, objects of art and sculpture), equipment, fixtures and books located at 3106 Brazos Street, Houston, Texas.
6. One 1964 Ford Stationwagon automobile.
7. All accounts receivable judgments and claims of the community, subject to all of the community indebtedness including community income taxes, to date of judgment (except the indebtedness against 1619 Castle Court, Houston, Texas.)”

The essence of appellant’s complaint is that the court abused its discretion in dividing the estate of the parties. Appellant contends that the result of the court’s division of the community assets and liabilities is that appellant is left with a net liability of $41,931.24, while appellee was awarded assets from the community of the value of $45,053.76. Appellant further contends that the court invaded his separate property and awarded to appellee therefrom 967.5 shares of radio stock of the value of $31,516.50. Appellant contends that the stock in Texas Coast Broadcasters, Inc., was found by the jury to be separate property and that the court erroneously awarded to appellee one-half of 90% of such stock.

It is noted that throughout the trial ap-pellee’s contention was that all of the Texas Coast Broadcasters stock was community property; that the capital account had been mixed together as one; that no accounting separated pre-marriage “separate” capital from post-marriage “community” capital, and that therefore such commingling caused a complete loss of identity of appellant’s separate property. Special issue number 1 submitted to the jury concerning this stock and the answer thereto are as follows:

“Do you find from a preponderance of the evidence that the interest represented by 2150 shares of stock, standing in the name of the Defendant, Bailey A. Swen-son, in the Texas Coast Broadcasters, Inc., constitutes community property, as that term is herein defined?
Answer: We do not.”

The above special issue and answer considered alone do seem to indicate a finding that all of the shares of such radio stock were the separate property of appellant. However, when the finding is considered in connection with appellee’s contention that all of such stock was community property and appellant’s stipulation that 90% of the funds used to pay for such stock were community property it is obvious that a reasonable interpretation of the answer_of. the jury to the special issue is that the radio stock was not all community property as contended by appellee, but was only 90% community as shown by the stipulation. The stipulation is, in effect, that at the time of the marriage of the parties in 1950, appellant’s interest or share in the capital account of the partnership then owning the television station was $4,263.49; that in 1962 appellant, as a result of accumulated retained earnings, had an increased interest in the capital account of $41,020.40, stipulated to be community property, in addition to the original interest of $4,263.49. By reason of the stipulation 90% of such stock was community property. The controversy concerning the status of such stock involved only the 10% thereof which appellee claimed to be community property because it was commingled. The court obviously so interpreted the finding of the jury and properly awarded 967.5 shares of the stock to appellee as her community property, which was ½ of the 90% community interest therein, and awarded 1182.5 shares to appellant, which included his community and separate interest therein.

There is a marked disagreement between the parties concerning the value of the 2150 shares of stock in Texas Coast Broadcasters, Inc. The question is material to a determination of the points urged by appellant. Appellant contends that the value of the stock at the time of the trial was $70,-090.00 as shown by the inventory filed by him. Appellee contends that the value of the stock at such time was $215,000.00 as shown by a financial statement made by appellant to the Houston National Bank, Houston, Texas, dated January 1, 1963. The evidence also shows dividends on the stock for 1962 to be $15,815.90, for 1963 to be $23,671.00 and for 1964 to be $35,-532.50.

The parties also disagree concerning the amount of the indebtedness with which appellant is burdened. The inventory filed by appellant shows him to be burdened with indebtedness in the amount of $57,-860.00. Appellee urges that appellant’s estimate of the indebtedness with which he is burdened is error and that apart from mortgages relating to real estate belonging to or awarded to the parties, the debt with which appellant is burdened amounts to only $8,683.45. Appellee accepts as true the figures shown on appellant’s supplemental inventory which shows the total indebtedness of the parties to be $49,212.23. Ap-pellee deducts from this amount $8,618.94, being the amount of the indebtedness allocated by the court to appellee secured by mortgages on the residence which was awarded by the court to appellee. Appellee also deducts $31,909.84, the amount of the indebtedness secured by a mortgage on the Brazos Street real estate which was awarded to appellant. There was also evidence to the effect that over $20,000.00 of community funds had been expended in improving the Brazos Street property.

It is appellee’s contention that the evidence shows the division of the property and the value thereof to be as follows:

We overrule appellant’s contention that the court erred in invading the separate estate of appellant for the benefit of appellee and that the division of the community estate of the parties was unfair and unjust. In our opinion the evidence does not show that the court abused its discretion in dividing the estate of the parties.

Appellant’s third point complains of the action of the court in awarding attorneys’ fees to appellee in the amount of $20,000.00. The evidence relating to this question was testimony of appellee’s attorney who stated that he necessarily contributed 547 hours to the case and that his associate had spent 187 hours. He testified that the reasonable value of such services was $20,150.00. Appellant’s contention is that it was not reasonable for appellee’s attorney to spend that much time in a divorce suit where no more property or estate was involved than that shown in this case. Appellant contends that the net value of the community estate of the parties was only $3,122.52.

Appellee contends and there is evidence in support thereof that the value of the properties in controversy was at least $347,452.00. She asserts that practically all of the properties were claimed by appellant as his separate property even at the end of three days of trial. The jury heard the evidence concerning the status of the various items of property, their values, the respective abilities of the parties and the evidence regarding the extent and value of the legal services. The jury found that it was necessary for appellee to file and maintain her suit for divorce and that she did so in good faith. The jury found that the reasonable value of the legal services rendered to appellee was $20,000.00. We overrule appellant’s point complaining of the excessiveness of the attorneys’ fees.

The judgment is affirmed.


author: MURRAY, Chief Justice.

text:
    Hattie RUSSELL, Appellant, v. EDGEWOOD INDEPENDENT SCHOOL DISTRICT and Bennie F. Steinhauser, Appellees.
    No. 14497.
    Court of Civil Appeals of Texas. San Antonio.
    July 27, 1966.
    Rehearing Denied Sept. 21, 1966.

      Sam Houston Clinton, Jr., Austin, for appellant.
    Dobbins & Howard, Roy R. Barrera, San Antonio, for appellees.
   MURRAY, Chief Justice.

This suit was instituted by Miss Hattie Russell, a school teacher, against Edgewood Independent School District and its superintendent, Bennie F. Steinhauser, alleging that they had discharged her as a teacher in said School District because she was a member and officer of the Edgewood Federation of Teachers Local 1357. Suit was not filed until Feb. 3, 1961, and Miss Russell did not seek reinstatement, but sought actual damages, exemplary damages, and damages for mental anguish and humiliation.

The trial was to a jury and, based upon the jury’s answers to the special issues submitted, judgment was rendered that Hattie Russell take nothing and pay all costs of court, from which judgment she has prosecuted this appeal.

We are met on the threshold of this case with the question whether this tort action may be maintained for damages against an Independent School District, which is a branch of the State government and has for its purpose only the education of children, and therefore has Governmental immunity from tort actions.

It will be borne in mind that this is not a suit for reinstatement of a teacher who has been discharged, or for back pay for the time during which she was discharged, but is an action sounding in tort, for actual and exemplary damages, based upon the provisions of Art. 5154c and Art. 5207a, Vernon’s Ann.Civ.St., known as the “right to work laws.”

It has definitely been held that an independent school district is an agency of the State and, while exercising governmental functions, is not answerable for its negligence in a suit sounding in tort. Treadaway v. Whitney Ind. School Dist., Tex.Civ.App., 205 S.W.2d 97; Campbell v. Hillsboro Ind. School Dist., Tex.Civ.App., 203 S.W.2d 663; Braun v. Trustees of Victoria Ind. School Dist., 114 S.W.2d 947. Here we have a damage suit sounding in tort for wrongful discharge of a teacher and not one for reemployment. The hiring and discharging of school teachers are duties of the school trustees, and in performing these duties they are performing a governmental educational function and are not answerable in a cause of action sounding in tort for the damages they may have caused by such wrongful discharge or for failure to reemploy a teacher.

It is the duty of a school superintendent, when directed by the Board of School Trustees, to recommend the employing and discharging of teachers, and he is not answerable in a cause sounding in tort for his actions while discharging this governmental educational function.

There is nothing in Articles 5154c and 5207a, supra, which changes the rule of governmental immunity extended to school districts, their trustees and superintendents.

Art. 5154c, § 4, reads as follows:

“It is declared to be the public policy of the State of Texas that no person shall be denied public employment by reason of membership or nonmembership in a labor organization.”

Art. 5207a, § 2, reads as follows:

“No person shall be denied employment on account of membership or nonmem-bership in a labor union.”

It is quite possible that Art. 5207a was not intended to apply to governmental bodies such as independent school districts, and that only the provisions of Art. 5154c were intended to apply to school districts, but be that as it may, neither of these articles provides any penalties or remedial procedures, and can therefore only be enforced by injunction or mandamus. There is nothing in either Article that would indicate that the intention of the Legislature was to destroy the governmental immunity of independent school districts and allow them to be sued for damages in tort actions, which could not theretofore be done. We know of no case holding that an independent school district can be sued for damages in tort under either of these articles. In Local Union No. 324, etc. v. Upshur-Rural Elec. Coop. Corp., Tex.Civ.App., 261 S.W.2d 484, the Court said:

“Since neither penalties nor remedial procedure is provided in the Act, the injunctive power of the courts may protect against invasion of such rights as are granted thereby. Brotherhood of Ry. and S.S. Clerks, etc., v. Texas & N. O. R. Co., D.C., 24 F.2d 426; Id., 5 Cir, 25 F.2d 873, 876, affirmed sub nom. Texas & N. O. R. Co. v. Brotherhood of Ry. and S.S. Clerks, 5 Cir., 33 F.2d 13; 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034. The right, of course, is abstract, and the applicant must show himself entitled to equitable relief by bringing himself within the statutory requirements, art. 4642 et seq., R.S. of Texas, as they have been construed by the courts.”

This suit sounding in tort cannot be maintained against Edgewood Independent School District because of the governmental immunity existing in this State in favor of independent school districts. Treadaway v. Whitney Ind. School Dist., supra; Campbell v. Hillsboro Ind. School Dist., supra; Braun v. Trustees of Hillsboro Ind. School Dist., supra.

This brings us to a consideration of whether appellant can maintain this suit against Bennie F. Steinhauser as the school’s superintendent. We must answer this question in the negative. Trustees and agents of a school district, while acting in such official capacity, enjoy the same governmental immunity as does the school district. Campbell v. Jones, 153 Tex. 101, 264 S.W.2d 425 (1954); De Levay v. Richmond County School Board, 4 Cir., 284 F.2d 340.

Appellant’s contention here is that whatever Steinhauser did in connection with the hiring or discharging of Miss Russell, he did as agent for Edgewood Ind. School Dist., and that the school district was responsible for his acts. There is no contention that he had abandoned his duties as superintendent and had become an individual and a mere intermeddler. As long as Steinhauser was acting within the scope of his employment as a school superintendent he cannot be held personally liable in a tort action, except in such cases which involve individual and separate torts, such as assault, trespass, fraud or conversion. Greyhound Corp. v. Commercial Cas. Ins. Co., 259 App.Div. 317, 19 N.Y.S.2d 239.

Even the officers and directors of an ordinary corporation, while acting as such, are not personally liable even though they recommend a breach of a valid contract. Rhine v. Sanders, 100 Ga.App. 68, 110 S.E.2d 128.

One who is in a confidential relationship with a party to a contract is privileged to induce the breach of such a contract. Lawless v. Brotherhood of Painters, Decorators, etc., 143 Cal.App.2d 474, 300 P.2d 159.

Appellee Steinhauser was not personally liable even though, while acting as Superintendent of Edgewood Ind. School Dist., he induced the trustees to breach their contract with Miss Russell and further induced them not to reemploy her as a teacher for the year 1960-1961. Campbell v. Jones, supra; De Levay v. Richmond County School Board, supra.

Under the pleadings and the evidence, appellant did not establish a cause of action which should have been submitted to the jury. If appellant had secured favorable findings from the jury on every one of her contentions, she still would not have been entitled to a judgment for damages against either the School District or Steinhauser.

It would serve no useful purpose to pass upon the various points presented by appellant as, regardless of how the jury might answer her specially requested issues, she would not be entitled to judgment against appellees in her tort action.

The contention might be made that so far as the suit for breach of the oral contract, with reference to appellant’s teaching in the second semester of the night school and the summer school of 1960, is concerned, it was nothing more than a suit for breach of contract and for back salary which had not been paid. We do not agree. Appellant makes it plain that this is a suit for damages because appellant has been unjustly discriminated against because of her membership .and activity in the teachers’ union.

In addition to what we have said above, before a discharged teacher can recover against a school district for unpaid salary she must show that at the time her contract was made there were current funds available to pay her salary. Appellant neither alleged nor offered to prove that the Edgewood Ind. School Dist. had on hand sufficient funds to pay her salary as a teacher in the night school or the summer school. The evidence shows that the teachers in the night school and the summer school are paid out of the tuition fees paid by the students, and this is known to the teachers. The evidence further shows that there were no funds available to pay Miss Russell’s salary for the second semester, and this is undisputed.

In the case of Underwood v. Sabinal Independent School Dist., Tex.Civ.App., 275 S.W. 267, Underwood was a teacher in the Sabinal school and was discharged by the trustees, but several months later he was reinstated by the State Board of Education. He then instituted suit for his back salary. In that case, Judge Fly, speaking for this Court, said:

“It must be affirmatively stated that when the suit was instituted there were funds in the hands of the trustees sufficient to pay off and discharge the claim. In the case of Watkins v. Huff (Tex.Civ.App.) 63 S.W. 922, this court held:
“ ‘The petition was subject to the general demurrer, and the error is fundamental. The court was not informed that there was any money to satisfy this contract, in whole or in part.’
“To allege that the trustees had money on hand six months before the suit was begun did not meet the demands.”

In the case at bar there is no allegation that the trustees had sufficient funds in their hands at the time the contract was made, to pay Miss Russell, or at the time the suit was filed. Further, there is no allegation that the Trustees had authorized any funds to be paid out for night school or summer school.

In 51 Tex.Jur.2d, § 209, p. 581, it is stated:

“In contracting with teachers, the trustees are limited to the fund belonging to the district for the year specified in the contract, and any debt contracted greater than that is a violation of the law and constitutes no claim against the district.”

The controlling statute is Art. 2749, Vernon’s Ann.Civ.St. See Campbell v. Jones, supra; Trustees of Crosby Ind. School Dist. v. West Disinfecting Co., Tex.Civ.App., 121 S.W.2d 661; Watkins v. Huff, Tex.Civ.App., 63 S.W. 922, and Ratcliff v. Buna Independent School Dist., Tex.Civ.App., 46 S.W.2d 459. See also Crow v. Burnet Independent School Dist., 304 S.W.2d 439, 443, and Reid v. McKinney Independent School Dist., 322 S.W.2d 647, 649, where the Court held plaintiff had failed to prove that the district had funds to pay the claim.

The judgment of the trial court is affirmed.