I respectfully dissent from the action of the majority in affirming the judgment of the trial court.
The plaintiff's petition in the court below sought to restrain the members of the highway commission, R. L. Bobbitt, Attorney General, Gib Gilchrist, state highway engineer, and Callahan, Coffey, and Carpenter, alleged to be a special commission appointed by the county judge of Gray county, from opening a road through his premises and condemning his land for state highway purposes. In his petition he alleges that the defendants are abusing, their discretion in certain particulars, and attacks the Act of the Forty-First Legislature, Third Called Session, chapter 10, page 243 (Vernon's Ann.Civ.St. art. 6674n), under which the highway commission was proceeding, as being unconstitutional and void; that no effort has been made by defendants to agree with him upon the amount of his damages. It is further alleged that appellant was not given an opportunity to agree upon commissioners, and that defendants and the county judge have acted unfairly and in effect fraudulently in appointing the commissioners. It is further alleged that defendants have failed to comply with certain jurisdictional requirements of the statutes. He reviews the history of this act, and, if he is correct in his contention, the state highway commission has no right whatever to institute and prosecute the proceedings which he seeks to enjoin. In my opinion, this is not a suit against the state of Texas, which requires the consent of the state before it can be maintained, but, according to his allegations, the members of the highway commission, with the Attorney General and other defendants, are acting without authority, and are attempting to condemn his land under a void statute and contrary to the constitutional provisions, and are abusing their authority, and they are therefore trespassers, and the case does not come within that line of authorities which prohibits the individuals from suing the state without the consent of the latter. Haverbekken v. Hale, 109 Tex. 106,204 S.W. 1162; Benat v. Dallas County (Tex.Civ.App.) 266 S.W. 539; Gulf Coast Irrigation Co. v. Gary (Tex.Com.App.) 14 S.W.2d 266, 270; Wilson v. Donna Irrigation District (Tex.Civ.App.) 8 S.W.2d 187, 189; O'Keefe v. Hudspeth County (Tex.Civ.App.) 25 S.W.2d 625. *Page 747
That state officers, when acting under a void statute or exceeding their powers, may be sued, and that an action against them is not a suit against the state which requires legislative consent, is well established. Cochran v. Cavanaugh (Tex.Civ.App.) 252 S.W. 284; Stanley v. Schwalby, 85 Tex. 348, 19 S.W. 264; Lossing v. Hughes (Tex.Civ.App.)244 S.W. 556; Conley v. United Daughters of Confederacy (Tex.Civ.App.)164 S.W. 24; Imperial Sugar Co. v. Cabell (Tex.Civ.App.) 179 S.W. 83; Philadelphia Co. v. Stimpson, Secretary of War, 39 U.S. (14 Pet.) 448,10 L. Ed. 535; 36 Cyc. 917.
The judgment first sustains the plea of the highway commission and Gilchrist and Bobbitt, and dismisses them from the suit, and further recites:
"The Court after hearing the pleadings, evidence and argument of counsel finds that the law and the facts are with the defendants, and is of the opinion that the temporary restraining order heretofore entered herein should be in all things dissolved as prayed for in defendants' answer, and,
"It is, therefore, ordered, adjudged and decreed that the temporary restraining order heretofore issued on the 9th day of June, 1930, be and the same is hereby in all things dissolved, and,
"The Court is further of the opinion that the temporary injunction prayed for by plaintiff be denied,"
— and the judgment further continues the temporary restraining order in effect, pending the appeal.
It will be seen that the judgment in effect disposes of all the material issues in the case, of which the court could have jurisdiction, and is in effect a final judgment.
The court first granted a temporary restraining order on June 9, 1930, and set the hearing for five days later. There was no prayer for a restraining order, so it was improperly granted. But, there having been a hearing of the application for temporary injunction, the error is harmless.
The proceedings are the same as in James v. E. Weinstein Sons (Tex.Com.App.) 12 S.W.2d 959, 960, where it is said:
"It seems that the trial judge, upon presentation of this petition, required a hearing to be had before granting a writ of injunction and entered an order setting the same down for hearing on August 30, 1927, being the day after the petition was filed. It also appears that a trial was had on the 30th, the parties defendant having filed their respective answers without the necessity of the usual notice being served upon them. On this hearing, the trial judge did not confine his decree to determining the issues as to whether a temporary injunction should be issued, but decided the case on its merits, filing findings of fact and conclusions of law and effectually disposing of the entire controversy. * * *
"Plaintiff in error insists that the hearing was one on the application for a temporary injunction, and not a final trial, and therefore the trial court was without authority to decide the case on its merits; that it had no right to effectually dispose of all the issues in the case on this character of hearing. While defendants in error contend that the hearing was not before the judge in chambers, but was a trial by the court on the issues presented; hence it was entirely proper to finally dispose of the questions involved.
"The petition, as before stated, was filed on August 29, and the statement of facts shows that the hearing held was begun on the following day. The judgment which purports to be a final one was rendered September 14, 1927. It contains the following recital:
" `Plaintiff's petition for injunction having been presented to the court in the above entitled and numbered cause, and same having been set down for hearing by order of the court, all parties appearing in person or by attorney, and evidence having been fully heard on the merits of such application and the law having been presented by the attorneys for the respective parties to the court for his consideration, the court is of the opinion and finds as follows,' etc.
"This recital, taken in connection with the plaintiffs' prayer for the immediate issuance of a temporary injunction, shows clearly that the hearing held by the court was a preliminary one before the judge and not a trial before the court. * * *
"The law is well settled in this state that the purpose of the issuance of a temporary injunction is to maintain the status quo in regard to the matter in controversy, and not to determine the respective rights of the parties under the cause of action asserted or defenses urged. Stolte v. Karren (Tex.Civ.App.) 191 S.W. 600; Crossman v. City of Galveston,112 Tex. 303, 247 S.W. 810 [26 A.L.R. 1210]; City of Texarkana v. Reagan,112 Tex. 317, 247 S.W. 816; Lane v. Jones (Tex.Civ.App.) 167 S.W. 177; Galveston W. R. Ry. Co. v. City of Galveston (Tex.Civ.App.)137 S.W. 724; 22 Cyc. 740; Joyce on Injunction, § 109.
"If the effect of the granting of a temporary injunction does more than preserve the status of the property as it had theretofore existed, and accomplishes the whole object of the suit, it would be improper for the court to grant same, as the legitimate purpose of the temporary injunction is merely to preserve the existing condition until a final hearing can be had on the merits. The court is without authority to divest a party of property rights without a trial and any attempt to do so is void. 1 Beach on Injunction, p. 128; Calvert *Page 748 v. State, 34 Neb. 616, 52 N.W. 687; Arnold v. Bright, 41 Mich. 207,2 N.W. 16."
In Welsh v. Carter (Tex.Civ.App.) 30 S.W.2d 354, 355, it is said:
"Four propositions for reversal are contained in appellants' brief, each of which presents an interesting question of law, but only one of which we find it necessary to consider. This proposition reads as follows:
" `When a temporary injunction would have the force and effect of accomplishing the whole purpose of the suit, without a trial upon the merits, the same should be refused.'
"That is a correct proposition of law, which is applicable to the case before us. * * *
" `An interlocutory or preliminary injunction is a provisional remedy granted before a hearing on the merits, and its sole object is to preserve the subject in controversy in its then existing condition, and without determining any question of right, merely to prevent a further perpetration of wrong or the doing of any act whereby the right in controversy may be materially injured or endangered, until a full and deliberate investigation of the case is afforded to the party. This is so whether the injunction is prohibitory or mandatory. * * * Ordinarily, where the issuance of a preliminary injunction would have the effect of granting all the relief that could be obtained by a final decree and would practically dispose of the whole case, it will not be granted.'
"Many Texas cases are cited in support of the text, including the following: Dallas Hunting, etc., Club v. Dallas County Bois D'Arc Island Levee Dist. (Tex.Civ.App.) 235 S.W. 607; Oil Lease, etc., Syndicate v. Beeler (Tex.Civ.App.) 217 S.W. 1054; John Dollinger, Jr., Inc., v. Horkan (Tex.Civ.App.) 202 S.W. 978; I. G. N. Ry. Co. v. Anderson County (Tex.Civ.App.) 150 S.W. 239; Id., 106 Tex. 60, 156 S.W. 499; Allen v. Knox (Tex.Civ.App.) 195 S.W. 1169.
"Many cases could be added to this list, including the following: S.W. Tel. Tel. Co. v. Smithdeal, 104 Tex. 258, 136 S.W. 1049; Galveston W. Ry. Co. v. City of Galveston (Tex.Civ.App.) 137 S.W. 724; Ort v. Bowden (Tex.Civ.App.) 148 S.W. 1145; City Council of Fort Worth v. Fort Worth Associated Master Plumbers Heating Contractors, Inc. (Tex.Civ.App.) 8 S.W.2d 730; James v. Weinstein Sons (Tex.Com.App.)12 S.W.2d 959, 960; Rogers v. Day (Tex.Civ.App.) 20 S.W.2d 104." Duncan v. Boyd (Tex.Civ.App.) 288 S.W. 281.
I think the trial court erred in sustaining the plea of the state highway commission and the Attorney General and dismissing them from the case because they were necessary parties defendant, and for the further reason that a decision of that matter is improper in a proceeding and hearing for a temporary injunction only, since it finally disposes of the case as to them. I am also of the opinion that, since the petition attacks the constitutionality of the very acts of the Legislature under which the defendants are proceeding in their effort to condemn his land, under the rule of the "balance of convenience," the temporary injunction should have been continued in force pending a final disposition of the case. Burrell v. Michaux (Tex.Com.App.) 286 S.W. 176.
The rule is announced in 32 C.J. 79, § 65:
"On an application for a preliminary injunction, the court, in the exercise of its discretionary powers, will consider what is commonly described as the balance of convenience, that is to say it will consider whether a greater injury would be done by granting the injunction than would result from a refusal thereof. If it is shown that the refusal of the injunction would cause complainant great inconvenience and injury, and that the granting thereof would result in but little injury or inconvenience to defendant, the court will ordinarily grant the injunction, although complainant's rights may be doubtful or not clearly established. But on the other hand, a temporary injunction will usually be denied in a doubtful case where the granting of it would cause greater detriment to defendant should he ultimately prevail than would be caused to complainant by its refusal if he should ultimately prevail. The doubt may relate either to the facts or the law of the case or both."
The fact that there are other streets which the public can use as a highway takes that issue out of the case. I think the record conclusively shows that the balance of convenience is in Watts' favor, and the judge evidently thought so too, as is indicated by his order in continuing the injunction in force pending the appeal. "If more damage is likely to result from granting a temporary injunction than by refusing it, it should not be granted; but any doubt as to whether greater injury will result in refusing than in granting it should be resolved in favor of the plaintiff." Matagorda Canal Co. v. Markham Irr. Co. (Tex.Civ.App.)154 S.W. 1176; Rosenfield v. Seifert (Tex.Civ.App.) 270 S.W. 220, 223, holding also that all that is required to warrant granting a temporary injunction is a case of probable right and danger to that right, unless the injunction is granted. City of Beaumont v. Sam's Loan Office (Tex.Civ.App.) 4 S.W.2d 586; Snow v. Bostrom (Tex.Civ.App.) 21 S.W.2d 582.
In my opinion, the judgment should be reversed in all things and here rendered, maintaining the status quo by temporarily restraining the defendants from opening and constructing the highway through Watts' land, pending a hearing upon the merits. *Page 749
I think the appointment of commissioners is void under article 6674n and chapter 2, title 116, R.S. 1925; O'Keefe v. Hudspeth County (Tex.Civ.App.) 25 S.W.2d 625.
Whether the status quo should be maintained was the only question properly before the trial court, and it follows that it is the sole question we should decide.