BLACK et al. v. STRENGTH, County Judge, et al., 246 S.W. 79

GREENWOOD, J. On March 10, 1919, the commissioners’ court of Harrison county entered an, order for an election, to be held'on April 19, 1919, to determine whether or not the bonds of the county should be issued for $1,450,000, bearing interest at the rate of 5 per cent, per annum, maturing not later than. 40 years as might be fixed by the court, for the purpose of constructing and maintaining, macadamized, graveled, or paved roads throughout the county. Notice of the election was given by publication of a copy of the order in a newspaper for four weeks.

At a regular term of the commissioners’ court, on April. 14, 1919, the following order was adopted and entered on the minutes of-the court, viz.: “It is moved and carried that if the bond issue should carry that the Hynson Springs road be improved from Marshall to the intersection of the Longview and Jefferson road, and that the Longview and Jefferson road be improved from said point of intersection to the Gregg county line, and the Hallville and Harleton road be improved from Hallville to Harleton.

It is also moved and carried that if the bond issue should carry that the road from Harleton to the county line by way of Smyrna be improved, and that the road from Harleton to the county line by way of Eagle creek be im-, proved.” On April 19, 1919, the.election resulted in 1,740 votes for the issuance of the bonds to 162 votes against their issuance. The result was declared and some of the bonds were issued and sold.

The commissioners’ court, on December 8, 1919, made an order for certain road construction to take precedence over the improvement of the roads mentioned in the order of April 14, 1919, in pursuance of a plan which would probably exhaust the proceeds of the bond issue, leaving unimproved the roads mentioned in said order of April 14, 1919.

Plaintiffs in error, owning property subject to taxation in Harrison county and on the roads specified in the order of April 14, 1919, brought this suit t.o secure an injunction to compel the commissioners’ court to improve said specified roads and to desist from expending on other highways the entire proceeds of the bonds. The trial in the court below resulted in a judgment granting the injunction. The honorable Court of Civil Appeals reversed this judgment and rendered judgment that plaintiffs in error take nothing by their suit. 226 S. W. 758.

Two of the justices were of the opinion that the voters were entitled to act on the assumption that nothing not embodied in the order for the election nor in the notices thereof, though embraced in a duly recorded order of the commissioners’ court, could be effective to control the particular roads to be constructed or improved, because the statutes contemplated'that the purpose of the election be disclosed alone by the order for the election, and by the notices, and because any order attempting to bind the commissioners’ court to exercise its discretion in a particular way was void as contrary to public policy.

It. is ably argued in behalf of defendants in error that these conclusions are sound and should be sustained. Associate Justice Levy dissented from che opinión of the majority, holding that the order of April 14, 1919, was a valid exercise of the power of the commissioners’ court to designate the particular roads to be improved, consistent with the purpose of the .election as stated in the order therefor and in the notices thereof, and having been relied on by the voters in authorizing the issuance of the bonds, was binding on the commissioners’ court, and sustained the injunction awarded by the trial court.

The two views, with the reasoning supporting each, are clearly stated in the opinion of the Court of Civil Appeals, and we deem it necessary to do little more than announce that careful consideration leads ns to agree with Justice Levy’s view. It .was within the power of the commissioners’ court to designate, by appropriate order, passed at a regular session' and entered on the minutes, what roads were to be improved with the proceeds of legally authorized bonds.

Not only is there nothing inconsistent between the order for the election and the subsequent order, but some such order as the latter was essential to attain the end which the election was designed to accomplish. That the order was made before the election, conditioned on the bonds being voted, cannot he urged as a just ground of attack on the order. As pointed out in Moore, County Judge, v. Coffman, 109 Tex. 96; 200 S. W. 374, the fairest course towards the voters was to announce the court’s decision in advance of the election. The court was not binding itself to a certain course of action in the future.

It was, instead, making a present designation of highways to he improved with the proceeds of the bonds, should same be voted, issued, ahd sold. The order could have had but one purpose, and that was to remove uncertainty as to the specific use to be made of some of the money to be provided by the taxpayers. The order would not have-been made save with a view to its being relied on by the voters. With the bond issue-authorized by votes cast in .reliance on the order, as must be assumed, it could not be arbitrarily ignored or repudiated without involving the perpetration of fraud or its equivalent on the voters.

To prevent such a result was the injunction granted by the trial court. We are not unmindful that it might be possible to use the power lodged in the commissioners’ courts to designate highways for improvement in such a way as not to aid, hut to defeat, the will of the qualified voters. No-such case is before us. Here the court’s action in' designating the highways to be' improved appears to have reflected the conscientious exercise of discretion in the open, performance of official duty. The bonds appear to have been voted to provide funds for use in accordance with the court’s action.

We hold that the will of those having to bear-the bond burden should not be defeated by a mere change of mind on the part of the-members of the commissioners’ court with respect to the particular roads needing improvement.

Any other rule would tend to undermine-public confidence in the acts of public officers, for, as said by the Court of Appeals of Kentucky with reference to an order of a fiscal court in Kentucky, exercising similar powers-to our commissioners’ courts: “Since the order was made prior to the election and at a time when the voters were interested in knowing on what roads the proceeds of the bonds would be used, it cannot be doubt-efi that the voters had the right to rely on the fact that the order expressed the final determination of the fiscal court and to cast their ballots accordingly.

Under these circumstances, the order was, in effect, a contract with 'the-people, and good faith requires that the contract be kept. A contrary rule would permit fiscal courts to apply money, voted by the people for one purpose, to another and different purpose for which it would not have been voted had the people been apprised in advance of such intended action.” Scott v. Forrest, 174 Ky. 672, 192 S. W. 693.

The judgment of the Court of Civil Appeals is reversed, and that of the district court is affirmed. <gaa>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Rehearing denied January 10, 1923.