On Motion for Rehearing.
Complaint is made of the statement in the opinion on original hearing to the effect that it appeared from the allegations in the petition that the signers thereof had not specifically authorized the changes proposed by the attorneys who presented it to the commissioners’ court, and that the claim of such attorneys of such authority was based solely on the general principles governing the relation of attorney and client. Attention is drawn to the allegations in the petition which must be taken as true as against a general demurrer that—
When the petition for road district No. 1 came on for hearing, “the signers of said petition, through their attorneys, thereunto duly authorized, requested the court in writing for leave to amend the petition. * * * That the court would not countenance any course of action with respect thereto looking to a change, except upon the consideration that the petitioners. wholly withdrew their former petition and filed another petition in lieu thereof, * * * and at this time informed the plaintiffs and their said attorneys that it was the opinion of the court that the request for leave to amend said petition should be made by the petitioners personally, and that they had no right to be represented by counsel, and that the-*178court did not know whether counsel representing petitioners had authority to act for them; thereupon the attorneys for plaintiffs requested the court to grant them time within which to present written credentials from the plaintiffs and other petitioners for said road district.”
It is further pointed out that before the commissioners’ court granted the petition for road district No. 2, the petitioners for road district No. 1 “filed with the court, bearing the signatures of more than 50 of the resident property taxpaying voters of road district 1, a written confirmation of the request theretofore made by their attorneys to change and amend the petition for said district, and in said written confirmation ratified and confirmed the act of their said attorneys in requesting said change and amendment.”
Appellant also contends, in that connection, that the petition for the establishment of such a district may or may not mention the amount of the bonds proposed to be issued, since that is a matter for determination by the commissioners’ court, and the fixing of the amount of the bonds in the petition for a sum in excess of what would be legal is immaterial, citing in support of that contention article 627, Rev. Statutes; Robertson v. Kay (Tex. Civ. App.) 240 S. W. 1013; Moore v. Commissioners’ Court of Bell County (Tex. Civ. App.) 175 S. W. 849; 17 R. C. L. 1033. Article 627 clearly requires the petition for the establishment of a road district to be in writing. That requirement seems at least to include the entire petition; and under the decision of our Supreme Court in Haverbekken v. Hale, 109 Tex. 106, 204 S. W. 1162, and other authorities cited in our original opinion, the filing of such a petition was necessary to vest the commissioners’ court with jurisdiction to grant the petition and order the election.
Even though it be conceded that the attorneys who first presented the petition for road district No. 1 had parol authority from the signers of the petition to make the radical change therein to a petition for the issuance of bonds for $100,000 instead of bonds for $325,000, and the rate of interest thereon from 5% per cent, to 5 per cent., yet we cannot say that the refusal of the commissioners’ court to allow such an amendment was such an abuse of discretion as to require the granting of the relief prayed for in this suit. And the same can be said of the action of the court in granting the petition for road district No. 2 after attorneys for road district No. 1 had presented written authority from 50 of the signers of the petition therefor to them to so change the original petition as to fix the amount of the bond issue at $100,000 instead of $325,000, and the rate of interest at 5 per cent, instead of 5% per cent., in the absence of any statute requiring the petition for road district No. 1 to be given priority of hearing over the petition for road district No. 2.
The motion for rehearing is overruled.