
    GOODHUE et al. v. CITY OF BEAUMONT et al.
    (No. 1173.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 4, 1925.)
    Municipal corporations &wkey;>IOOO(3) — Taxpayers may enjoin performance of contract by city without first requesting city attorney to act.
    Taxpayers of city of Beaumont held entitled to sue to enjoin city from performance of contract in suit in their own name and behalf without first requesting city attorney to bring action, notwithstanding provisions of Charter, § 59, pars. 3, 6, that city attorney shall bring action upon request of taxpayers, and that they may bring action on his failing to do so, as charter applies only to suits brought in behalf of city, and provides an additional remedy.
    cgs^Por other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and IndexeB
    Appeal from District Court, Jefferson County; J. D. Campbell, Judge.
    Suit by John F. Goodhue and others against the City of Beaumont and others. From an order dismissing suit on a plea in abatement, plaintiffs appeal.
    Reversed and remanded, with directions.
    Nall & King, of Beaumont, for appellants. Morris & Barnes and F. J. & C. T. Duff, all of Beaumont, for appellees.
   HIGHTOWER, C. J.

This suit was filed by the appellants John F. Goodhue and others against the appellees City of Beaumont and Texas & New Orleans Railroad Company in the Sixtieth district court of Jefferson county, the obj'ect of the' appellants being to obtain an injunction preventing the perform-anee of a certain written contract between tbe city of Beaumont and tbe railroad company, wbicb contract, appellants alleged, in substance, was illegal and beyond tbe power and .authority of tbe city to make, and that, if performed, it would grea'tly damage appellants, wbo are citizens and large property taxpayers of tbe city, and they brought tbe suit as citizens and property taxpayers in tbe city. When tbe appellants presented their petition to Hon. J. D. Campbell, judge of tbe Sixtieth judicial district, a temporary writ of injunction was granted as prayed, but subsequently appellees filed answer containing, among other things, a plea in abatement, and, upon bearing of tbe plea in abatement, the same was sustained and appellants’ suit dismissed, and from that order this appeal has been prosecuted.

It would serve no useful purpose to here set out at length the nature of the contract between tbe city of Beaumont and tbe.rail-road company, tbe performance of which was sought to be enjoined, since the case on its merits is not before us, but the only question is as to whether appellants were entitled to prosecute tbe suit as made by their petition without having first requested the city attorney of the city of Beaumont to bring tbe suit, and bis declining to do so.

' The plea in abatement filed by appellees was based upon paragraphs 3 and 6 of section 69 of tbe city charter. Paragraph 3 of section 59 provides as follows:

“The city attorney shall apply, .in the name of the city, to a court of competent jurisdiction for an order of injunction to restrain the misapplication of funds of the city, or the abuse of its corporate powers, or the execution or performance of any contract made in behalf of the city in contravention of law, or which was procured by fraud or corruption.”

Paragraph 6 provides:

“In case the city attorney, upon written request of any taxpayer of the city, fails to make any application provided for in the preceding sections, such taxpayer may institute suit or proceedings for such purpose in his own name on behalf of the city. No suit or proceeding shall be entertained by any court until such request to the city attorney shall first have been made, nor until the taxpayer shall have given security for the costs of the proceeding.”

It is tbe contention of appellants here that paragraphs 3 and 6 of tbe charter just copied were not intended to and do not prohibit them as taxpayers and citizens in tbe city of Beaumont from proceeding in equity in their own name and in their own behalf to cancel the alleged unlawful contract between tbe city and tbe railroad company involved in this suit, and to enjoin tbe city from in any manner performing such contract. They contend that these provisions of tbe charter only have application to a suit instituted in tbe name of the taxpayer on behalf of the city, and constitute an additional remedy given to appellants by law. After very careful consideration of appellants’ contention as to tbe purpose of these sections of the charter, we have reached tbe conclusion that their contention is correct, and that tbe trial judge was in error in sustaining tbe plea in abatement.

. Without confessing error on tbe part of tbe trial judge in sustaining the plea in abatement, attorneys for appellees have filed in this court, since the submission of this cause, a motion stating to the court that they have filed in tbe court below a waiver of tbe plea in abatément, and praying this court/to reverse tbe judgment of the trial court and remand the cause for trial upon its merits.

Our .holding that tbe appellants in this case were authorized to prosecute this suit without requesting the city attorney to do so is based upon the facts of. this particular case, as made by appellants’ petition. We are not unmindful that the provisions of paragraphs 3 and 6 of the charter, requiring, in some circumstances, that a taxpayer of tbe city of Beaumont shall first request the citj^ attorney to bring a suit to enjoin the performance by tbe city of illegal contracts, were intended to serve, and may in many instances serve, a useful purpose in preventing the city from being annoyed by vexatious litigation, and in cases where those paragraphs of the charter have application, according to tbe nature of the suit, we would unhesitatingly uphold and enforce them. But upon the facts of this case, as made by the petition of appellants, we hold that the provisions of tbe charter upon which tbe plea in abatement in this case is based have no application.

It is ordered that the trial court’s judgment in sustaining the plea in abatement be reversed and the cause remanded, with instructions to the trial court to set aside its order sustaining tbe plea in abatement, and to permit appellants, as plaintiffs there, to proceed with a ■ trial of the case upon its merits.  