Boesch v. Byrom

• Decision Date: 19 November 1904
• Citation: 83 S.W. 18
• Parties: BOESCH et al. v. BYROM et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

83 S.W. 18

BOESCH et al. v. BYROM et al.^*

Court of Civil Appeals of Texas.

November 19, 1904.

Appeal from District Court, Hill County; W. Poindexter, Judge.

Action by Ed Boesch and others against W. K. Byrom and others for an injunction. From a judgment for defendants, plaintiffs appeal. Affirmed.

Thos. Ivy and A. P. McKinnon, for appellants. Spell & Phillips, for appellees.

BOOKHOUT, J.

This suit was instituted by the appellants in the district court of Hill county to enjoin the defendants, in their capacity as trustees of the Whitney independent school district of Hill county, from levying and collecting a tax in said district for school purposes. The grounds set out in the petition as a basis for such relief are in substance as follows: (1) That prior to March 25, 1903, the town of Whitney, in Hill county, Tex., was incorporated and existed as an independent school district, and that upon that date a petition was presented to the board of trustees seeking to enlarge the district in accord with the provisions of the act of 1903 (Acts 28th Leg. c. 27, p. 32); and that in line with the provisions of that act the board annexed the territory and extended the limits of the district. (2) That the board ordered an election for trustees to be held on May 2d following, in which election voters resident in the district as thus extended were permitted to participate, and at which were elected appellees John Schmidt and R. H. Hampton, who did not reside within the limits of the old district, but resided in the territory that had been annexed, and W. T. Herrick, who resided within the limits of the old district. (3) That because the action had by the board on March 25th in annexing the additional territory was premature, in that on that date the act in question had not gone into effect, the election for trustees held on May 2d was invalid, in that voters resident within the annexed territory were permitted to vote. (4) That on August 15th following, pursuant to an order theretofore made by the board, an election was held for the purpose of determining as to the levy of a tax and the issue of bonds, resulting in favor of the tax and bonds, which were in fact issued and sold to Hill county, Tex., and $8,500 realized therefrom. (5) That for the reasons set forth in subdivision 3, above, and because the trustees elected at the May 2d election were without power and authority, there was no legal order for the bond election held August 15th, and in consequence the levy of the tax that had been made and the issue of the bonds thereunder by the trustees pursuant to that election were invalid, and entitled to be so declared in this, an injunction proceeding. (6) It is disclosed from the allegations of the petition that on July 7, 1903, at which time the act of the Twenty-Eighth Legislature, above referred to, had gone into effect, the board, by appropriate and proper proceeding for that purpose, in conformity with the provisions of that act, annexed the same territory they had attempted to annex by the proceedings had on March 25th, and extended the limits of the district in the same manner as had been attempted by their previous action; and that this action was prior to the ordering of the bond election. (7) It is to be inferred from the petition that appellees herein, Byrom, Greenwade, Faulkner, and Mayes, were members of the old board as it existed prior to March 5th, and prior to the trustee election of May 2d. (8) Hill county, to which it is alleged the bonds in question had been sold by the board, was not made a party to this suit. It was alleged that the petitioners are taxpayers and patrons of the school. Defendants demurred generally and specially to the petition. The demurrers were sustained, and, plaintiffs declining to amend, the suit was dismissed, and plaintiffs prosecute this appeal.

1. It is insisted that the action of the board of trustees on March 25, 1903, enlarging the independent school district of the town of Whitney, was void for the reason that the law authorizing the same had not at that time gone into effect. The town of Whitney, prior to this election, was incorporated into an independent school district under the authority conferred by Rev. St. 1895, art. 616a. When the Twenty-Eighth Legislature enacted the statute of March 5, 1903, authorizing the enlargement of independent school districts, the trustees of Whitney district sought to take advantage of the act by enlarging that district. A petition duly signed was presented to the board of trustees, praying that the boundaries of the Whitney independent school district be enlarged by taking in additional territory therein described. The board acted upon the petition, and passed a resolution ordering an election to determine whether the district should be enlarged. The election resulted in favor of enlarging the district, and it was so declared. The act contained the emergency clause, and for this reason, it is to be presumed, the trustees believed it took effect on passage. It did not, however, receive the requisite vote to have that effect. The act did not go into effect until the 1st of July following. This election having, then, been held without any authority of law, was absolutely void.

2. The next question presented is, was the election of May 2, 1903, for school trustees, valid? Appellants contend that this election was void for the reason that there was no such incorporated territory for school purposes as that for which trustees were elected at such election. In other words, the election in March to enlarge the district being void, and the election in May for trustees, including, as it did, not only the territory of the Whitney independent school district, but also the territory supposed to have been added, was for that reason void. This contention is not sustained. The act of the Twenty-Sixth Legislature, p. 18, c. 7, approved February 21st, 1900 (1st Called Session), providing "the method of selecting school trustees, in independent school districts, defining the duties of such trustees, the time and manner of election," required that the election for trustees should be held on the first Saturday in May, and the board to consist of seven trustees. The election...