Yett v. Cook (115 Tex. 175, 1926)

Mr. Chief Justice CURETON

delivered the opinion of the court.

This case is before us on motion by W. D. Yett, Mayor of the City of Austin, and other officials of the City, relators, for leave to file an original petition for writs of prohibition, mandamus, procedendo and injunction against Charles B. Cook, the Honorable George Calhoun, Judge of the Fifty-third District, and A. S. Philquist, Clerk of the District Court of Travis County.

It appears from the petition and exhibits that Mr. Cook filed a petition for mandamus in the District Court of Travis County, Fifty-third District, against the relators in this action and two other named parties as officers of the City of Austin, seeking a mandamus for the purpose of requiring them in their respective official capacities to call an election to fill certain offices as provided for in the charter of the City of Austin on the first Monday in February, 1925, and for other relevant purposes. This petition was presented to the Honorable George Calhoun, Judge of the Fifty-third District, on the 2d day of January, who set the same for hearing on the 6th of January, 1925, at two o’clock P. M. Notice of the hearing was issued and served, and in response to this notice the relators here who contested the application appeared, and after certain proceedings, not necessary to be here noted, a hearing was had in chambers, and on the 8th of January, 1925, a peremptory mandamus was granted against the relators in this action in their respective official capacities. The mandamus required them in effect to do and perform all things directed by the statutes of the State and the charter of the City of Austin necessary to the end that a general election be held in the City of Austin on the first Monday in February, 1925, for the purpose of electing five councilmen, who shall constitute the City Council of the City of Austin; and especially requiring “and commanding such respondents, and each of them, in their respective official capacities, to forthwith call such election for such date and issue and have posted notices thereof and at the times when such acts and things are required by law to be done respectively, to select election judges and other officials, designate voting boxes, furnish election supplies, and generally to do and perform all other acts required by law to be done and performed by them in their respective official capacities to the end that such election may be held upon such date.” This judgment was rendered on the 8th day of January, 1925. On the same day, in the same cause, Charles B. Cook filed a petition, wherein he prayed that the judge “issue forthwith and immediately a temporary injunction requiring and commanding the said respondents in said mandamus proceeding (naming them) to immediately and forthwith call said election for the first Monday in February, 1925, and immediately and forthwith take all steps and do all things that may be requisite or necessary in order that the said election may be properly and duly held in accordance with law, and further commanding and directing and ordering them forthwith and immediately to carry out, perform and obey the order and mandate of said writ of mandamus above referred to, until and unless they shall be otherwise ordered by the judge of this court or by some other court having superior jurisdiction.” This petition for temporary injunction, which in its legal effect was a motion for an injunction ■in the same case, was immediately heard and granted by Judge Calhoun. A bond was required, which was given,' and the injunction we presume issued. At any rate, the fiat endorsed on the petition providing for a bond named the respondents there, who are the relators in this action, and said that said respondents “are hereby ordered and commanded,