dissenting.
I respectfully dissent from the holding of the majority of the Court that the Court of Civil Appeals erred in enjoining the expenditure of public funds of the City of Austin for the holding of the unauthorized election. The decision of the majority is that, notwithstanding the fact that it was the duty of the City Council under the charter to assume the responsibility and exercise the power of selecting a councilman to fid the vacancy and that the Council was without authority to delegate this responsibility and power by ordering an election, nevertheless suit cannot be maintained by a taxpayer to prevent the unauthorized expenditure of public funds in holding the election. Thus the taxpayers are left wholly without remedy to prevent the unauthorized expenditure.
*649The erroneous decision results from the application to this case of the general rule against enjoining elections, when there are two important facts, ignored by the majority, which make the rule inapplicable. The first of these is the fact that there was not even color of authority for ordering or holding the election and was not intended to be effective as an election; it was a mere recommendation to the City Council in the nature of a straw vote. The decision of the majority is directly contrary to Roper & Gilley v. Lumpkins, 111 Texas 107, 230 S. W. 144.
I agree with the conclusion of the majority that the ordinance ordering the election was wholly unauthorized and was contrary to the express provision of the charter.
The courts of this State, at the suit of a taxpayer, will enjoin the illegal or unauthorized expenditure of public funds. Terrell v. Middleton, 187 S. W. 367, application for writ of error refused, 108 Texas 14, 191 S. W. 1138; Foster v. City of Waco, 113 Texas 352, 255 S. W. 1104; Osborne v. Keith, 142 Texas 262, 177 S. W. (2d) 198. It seems to follow that since the ordering of the election was without lawful authority and the expenditure of public funds to hold the election was also unauthorized, the taxpayers should be permitted to maintain suit to enjoin the unauthorized expenditure. The opinion of the majority, however, permits this well settled rule, which affords the taxpayers a remedy to protect public funds from waste, to be overridden by the general rule that the holding of an election is a political proceeding which cannot be enjoined. The opinion reasons that since elections cannot be enjoined, the expenditure of public funds for holding them cannot be enjoined. The opinion rests primarily upon City of Dallas v. Dallas Consolidated Street Railway Company, 105 Texas 357, 148 S. W. 292, and also upon several decisions of the Commission of Appeals and of the courts of civil appeals which follow that case.
Since the opinion of the majority treats the election which was held in Austin as an election and denies to the taxpayers the right to maintain suit to prevent the unauthorized expenditure of public funds, on the theory that preventing the expenditure would interfere with an election, the case will be considered first as if the election was in fact an election and was intended to be effective as an election.
It has been said many times that there can be no . valid election if the same has not been called by lawful authority, *650and that an election held without lawful authority behind it is universally recognized as a nullity. Countz v. Mitchell, 120 Texas 324, 334, 38 S. W. (2d) 770, 774; Smith v. Morton Independent School District, 85 S. W. (2d) 853; 857; State ex rel Van Amringe v. Taylor, 108 N. C. 196, 12 S. E. 1005, 12 L. R. A. 202; People ex rel Lynch v. Budd, 114 Cal. 168, 45 Pac. 1060, 34 L. R. A. 46, 48; Howell v. Bain, 176 Ore. 187, 156 Pac. (2d) 576, 578; 29 C. J. S. p. 90, Sec. 66; 18 Am. Jur. p. 243, Sec. 100; 42 Am. Jur. pp. 975-976, Sec. 130.
Many cases deal with the question of enjoining elections, an examination of them reveals conflicts of decision and some confusion and shows that the general rule that elections may not be enjoined is not without its exceptions. See 18 American Jurisprudence, pp. 254-256, Sec. 117, and Annotations in 33 A. L. R. pp. 1376-1388; 70 A. L. R. pp. 733-740; 1 A. L. R. (2d) pp. 588-612. Perhaps the most important of the reasons given for the general rule are, first, that holding an election, canvassing the returns and certifying the result are political powers or functions with which a court of equity will not interfere, and second, that usually there is an adequate' remedy at law, as by contest of the election or other procedure provided by statute or by quo warranto. The second of these reasons is usually deemed sufficient of itself to defeat an effort to enjoin an election of a public official, for the remedy of contest or quo warranto is regarded as adequate. City of Murray v. Irvan, 170 Ky. 290, 185 S. W. 859; City of Macon v. Hughes, 110 Ga. 795, 36 S. E. 247, 251. But as to the first it seems, on principle and in view of the authorities which have been cited above, holding that an election wholly unauthorized by law is of no effect whatever, that the holding of an election without lawful authority is not the exercise of a political power or function, and that injunction should issue at the suit of a taxpayer to prevent the expenditure of public funds therefor, when there is no other adequate remedy. A contest or other suit after the election would not restore the public funds spent in holding it. Once spent they usually cannot be recovered from those to whom they have been paid.
Many carefully considered cases hold that where there is no authority whatever for holding an election a taxpayer may maintain a suit to enjoin the election, in order to prevent the unauthorized expenditure of public funds. Solomon v. Fleming, 34 Neb. 40, 51 N. W. 304; Harnett v. Sacramento County, 195 Cal. 676, 235 Pac. 445; Dennis v. Prather, 212 Ala. 449, 103 So. 59; Cascaden v. City of Waterloo, 106 Iowa 673, 77 N. W. *651333; City of Macon v. Hughes, 110 Ga. 795, 36 S. E. 247; De Kalb County v. City of Atlanta, 132 Ga. 727, 65 S. E. 72; Talbert v. Long, 134 Ga. 292, 67 S. E. 826, 137 Am. St. Rep. 222; see also Springs v. Clark, 45 Wyo. 62, 14 Pac. (2d) 667, 83 A. L. R. 1364; Griffith v. Board of Education, 183 N. C. 408, 112 S. E. 10; Duval County v. Jennings, 121 Fla. 584, 164 So. 356; City of Murray v. Irvan, 170 Ky. 290, 185 S. W. 859; Hawke v. Smith, 253 U. S. 221, 64 L. Ed. 871, 40 Sup. Ct. 495; 18 Am. Jur. pp. 255-256, Sec. 117.
The opinion in City of Macon v. Hughes, above cited, contains this query: “But if a court of equity will enjoin a municipal corporation from issuing bonds or erecting buildings- and similar acts, when they are unauthorized, why may it not enjoin the holding of an election for which there is no warrant in law?”
The foregoing decisions in my opinion announce a reasonable rule which we should follow, that is, that when there is no lawful authority whatever for ordering or holding an election, injunction should issue to prevent the waste of public funds in a proceeding which is unauthorized and, being unauthorized, can have no effect. The opinion of the majority, however, goes so far as to hold that when there is no authority for holding an election, and even where to hold it is contrary to fundamental law, here the city charter, a court can neither enjoin the holding of the election nor the expenditure of public funds in holding it. The decision is directly contrary to the decision and judgment of this Court in Roper & Gilley v. Lumpkins, 111 Texas 107, 230 S. W. 144, where the Court reversed the judgments of the district court and the Court of Civil Appeals, and “proceeding to render such judgment as should have been rendered,” granted the injunction in the terms of the prayer of the plaintiffs’ petition, enjoining the holding of the election and the creation and payment of any debt therefor. The Act under which the election was ordered had not been held unconstitutional by the Supreme Court when the judgments of two lower courts were rendered. Roper & Gilley v. Lumpkins, read in the light of the judgment rendered by the Court and entered in its minutes, holds that an election may be enjoined when there is no lawful authority whatever for holding it. The election enjoined by the Supreme Court in that case was ordered under a statute that was unconstitutional and the unconstitutionality of the statute had not been determined by the Supreme Court at the time when, according to the decision and judgment of the Supreme Court, injunction against the holding *652of the election and the payment of any debt therefor should have been issued.
The opinion of the majority deprecates Roper & Gilley v. Lumpkin by referring to it as a memorandum opinion and by ignoring the judgment entered on the Court’s minutes in that case, which clearly discloses the opinion of the Court that the election should have been enjoined by the district court and by the Court of Civil Appeals. The “memorandum opinion” was written by Chief Justice Phillips and the judgment was doubtless entered under his direction. Either he and the other members of the Court intended to qualify the sweeping language of the opinion in the Consolidated Street Railway Company case or they recognized basic differences between the two cases.
There are valid ground for distinguishing the two cases, some of which are discussed in the briefs in the Roper & Gilley case, which were before Chief Justice Phillips. The opinion in City of Dallas v. Consolidated Street Railway Company, 105 Texas 337, 342, 148 S. W. 292, points out that “the election was had under color of authority”. The implication is that the ruling might have been different had the election been held without any authority whatever. In the case before us the election was ordered without any authority whatever and contrary to the provisions of the city charter. It was neither ordered nor held under color of authority. This being true, the election was not the exercise of a political function, and the unauthorized use of public funds to hold the election should be enjoined.
The election involved in this case has been treated above as of it were a true election, for the opinion of the majority refuses to enjoin the unauthorized expenditure of public funds on the theory that the expenditure is a part of or is incidental to an election. But was this in fact an election? The election that is protected from injunction as a political power or func- • tion, is not required to be one held at least under color of authority, must be one that is meant to be effective as an election.If it is for the selection of an officer, it should intend that the one chosen at the election be entitled to the office in virtue of the election. In an election the right to the office is established by the result of the election and does not depend upon the issuance of the commission, which is merely a ministerial act. Conger v. Gilmer, 32 Cal. 75, 80.
The election ordered by the City Council of Austin would not be, and according to the terms of the ordinance calling it *653was not intended to be, a true or effective election. The ordinance recites that “The City Council desites to receive nominations from the qualified voters of the City in order that the person receiving the highest number of votes may be named by the Council to fill said vacancy.” Here the Council recognized the fact that the election would not and could not fill the vacancy, but that after the election the Council would still be required to “name”, that is, to appoint, the councilman. After the recital, the ordinance proceeds to ordain that, an election be held, “at which, election there shall be nominated at large by the qualified voters of the City of Austin a Councilman fot the unexpired term,” etc. Another section of the ordinance provides that “the candidate receiving the highest number of votes in said election shall be the nominee for Councilman; and the City Council will name said nominee as Councilman.” The election as ordered was for the purpose of obtaining from the voters a nomination or a recommendation of a councilman for the vacancy. The person receiving the highest number of votes at such an election would not be entitled to the office in virtue of the election. He could not compel the City Council to appoint him. The Council could not bind itself to make the appointment in accordance with the result of the election, because the duty and the authority to make the appointment on its own judgment still rested upon it. The election therefore would not be in fact an election. It was merely a means of obtaining from those who went to the polls the expression of their choice or recommendation, which the Council was free to follow or to disregard.
We find in the charter no authority for thus using public funds to hold an election for the purpose of getting advice or recommendation from the voters as to what the Council should do in the performance of its duty to make the appointment. If the public funds could be used in this manner and for this purpose, then the City Council, whenever it desired to do so, could use public funds for an election in order to be advised what to do in making appointment of any official that it is authorized by the charter to appoint, or in the performance of any other duty imposed upon it.
Since the election was ordered without authority, and would not be, and according to the terms of the ordinance was not intended to be, effective as an election, the use of the public funds for holding it was unauthorized and injunction to prevent such a use of the public funds would not be an interference with a political function. The expenditure of the public funds would *654not be merely incidental and unimportant. It is of the substance of the taxpayer’s complaint and the holding of the unauthorized and ineffective election is the incident.
Te judgment of the Court of Civil Appeals should be affirmed.
Opinion delivered March 23, 1949.
Associate Justices Brewster, Folley and Harvey join in this dissent.
Rehearing overruled April 20, 1949.