City of Houston v. Little, (No. 8346.)

• Decision Date: 11 July 1922
• Docket Number: (No. 8346.)
• Citation: 244 S.W. 247
• Parties: CITY OF HOUSTON v. LITTLE et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

244 S.W. 247

CITY OF HOUSTON v. LITTLE et al.^*

(No. 8346.)

Court of Civil Appeals of Texas. Galveston.

July 11, 1922.

Rehearing Denied October 5, 1922.

Appeal from District Court, Harris County; W. E. Monteith, Judge.

Suit by R. N. Little and others against the City of Houston and others. Judgment for plaintiffs, and the named defendant appeals. Affirmed.

Sewall Myer, W. Ray Scruggs, and T. J. Harris, all of Houston, for appellant.

Louis, Campbell & Nicholson, Maurice Hirsch, Allen Hanney, and Kenneth Krahl, all of Houston, for appellees.

LANE, J.

R. N. Little, T. H. Dixon, W. W. Dedman, and 12 others, for themselves and others entitled to the relief sought, brought this suit against the city of Houston and its mayor and its other officials, and against A. S. Cleveland, C. H. Hurlock, and others, composing the board of school trustees for the city of Houston and the independent school district, the territory of which lies partly within the corporate limits of said city and partly within the boundaries which formerly composed common school district No. 25 of Harris county.

Plaintiffs alleged that the city of Houston is duly incorporated and operating under a charter granted to it by a special act of the Legislature of the state of Texas; that in the year of 1920 and prior to the 31st day of August of said year there had been legally created a common school district, designated as No. 25, in Harris county, Tex., within which public free schools were being maintained for the use and benefit of the children residing within said district; that plaintiffs and those for whose benefit they sue are citizens and residents of the territory formerly embraced in said common school district No. 25; that they have children residing with them in said territory who are entitled to attend the public free schools in said territory; that plaintiffs own real and personal property in said territory subject to taxation for school purposes and upon which taxes have been annually levied, assessed, and collected for such purposes; that prior to said last mentioned date common school district No. 25 had voted a school tax of 50 cents on the $100 valuation of the property within said district, and bonds of said district had been issued and were outstanding, and taxes were being regularly levied and collected within said district to provide a fund to pay the interest on said bonds, as well as to provide a sinking fund for the retirement of the same, and that prior to said date the city of Houston was, as now, an incorporated city, and had taken charge of the public free schools within its limits, and was on said date conducting, maintaining, and operating said schools, as it had been for a number of years, and said city at that time constituted an independent school district.

That on or about the ____ day of ____, 1920, a petition signed by a majority of the resident qualified voters of the territory within the boundaries of said common school district No. 25, which said territory adjoined the city of Houston, was presented to the city council of the city of Houston, praying that the corporate lines of said city be extended for school purposes only, so as to take in and embrace the territory then constituting said common school district 25; that upon the recommendation of a majority of the trustees of the public free schools of Houston, that is, the school board of the independent school district within the city of Houston, the city council of said city of Houston did, on or about the 7th day of September, 1920, pass and adopt an ordinance by which the city limits and corporate boundary lines of the city of Houston were extended for school purposes only, so as to include and take in the territory theretofore constituting common school district No. 25, and that by the passage and adoption of said ordinance the territory formerly constituting common school district No. 25 was added to the Houston independent school district theretofore existing, and it became and is now a part of said independent school district; that after the passage of said ordinance the city of Houston and all of its officers, agents, and representatives, treated said territory as being within and a part of said city of Houston for school purposes, and within and a part of said independent school district of the city of Houston, and took over all the funds then in the hands of the duly constituted officers of said common school district No. 25, and asserted ownership and control thereof; and also took over all of the property, both real and personal, which had theretofore been owned, claimed, and used by said common school district for school purposes, and took charge, control, and supervision of the public free schools within said territory as the same had theretofore been conducted by said common school district, and thereafter conducted, maintained, and operated such schools, and began to assess, levy, and collect the school taxes within said new territory for and on behalf of the city of Houston and the independent school district thereof, the same being the school taxes regularly provided by law, as well as the special ad valorem tax which had theretofore been voted for the city of Houston by the voters thereof, and had also been voted for said annexed territory by the voters thereof, as aforesaid; the city of Houston and the voters thereof having theretofore voted a special ad valorem school tax of 50 cents on the $100 valuation of property within said city and school district, and said city of Houston and the independent school district thereof thereafter asserted ownership, control, and disposition of said school taxes as so collected from said newly annexed territory, as well as other portions of the city of Houston.

That thereafter, continuously, said city of Houston and said independent school district, and the officers thereof, also collected and received from the state of Texas, and said state, recognizing the validity of such annexation, paid to it and them the per capita apportionment of state school funds which was made for and based upon the children within the scholastic ages of and within said annexed territory, and used such money so collected for the benefit of the schools throughout the entire city of Houston as constituted for school purposes, and throughout said independent school district thereof; that as a part of the property belonging to said common school district which was taken over by said city of Houston, as aforesaid, there was $3,524.99 in cash and Liberty Bonds of the United States of the face value of $5,000, and War Savings Stamps of the United States of the face value of $5,000, as well as other property of great value not necessary to mention.

That by reason of the foregoing facts and conditions the territory heretofore embraced within and constituting said common school district No. 25 is now a part of the city of Houston, and within its lines and corporate limits for school purposes, and is within and a part of the said independent school district of and constituted by said city of Houston, and plaintiffs, as well as others similarly situated within said territory, for themselves and their children, are entitled to all of the benefits and privileges for school purposes which are accorded to the residents of other portions of the city of Houston, and are entitled to have said city of Houston and its officers function for school purposes within said territory, and continue to assess, collect, and use for school purposes the taxes legally assessed for school purposes within such territory, and continue to collect and receive from the state of Texas the per capita apportionment for school purposes based upon the scholastic census of children within said territory, and continue to maintain, conduct, and operate the public free schools within said territory as in other portions of the city of Houston, so that the children residing therein, including those of these defendants, may have the privilege and benefit of attendance therein and thereon, as they are legally entitled to.

That notwithstanding the facts and conditions which are hereinbefore set out, said city of Houston, and the duly constituted authorities of and for the city of Houston for both municipal and school purposes, including the defendants herein, who constitute the school trustees and school board of and for the city of Houston for school purposes, and of and for said independent school district thereof, are now questioning and denying the legality of the annexation to the city of Houston for school purposes, and to the independent school district thereof, of the territory which formerly constituted common school district No. 25, and are openly asserting and declaring that the territory of former school district No. 25 has never been properly and legally annexed thereto and taken within the corporate limits of the city of Houston for school purposes and of said independent school district, and is not a part thereof, and are failing and refusing to function for said territory for school purposes, and are failing and refusing to make the proper and necessary preparations, arrangements, and contracts for the maintenance, operation, and conduct of public free schools within said territory, and especially for the next common school term and for the city of Houston and said independent school district; and openly declare and assert that they and said city of Houston and said independent school district, and the proper officers thereof, will not continue to function for school purposes within or for said territory formerly constituting school district No. 25, and will not maintain, operate, and conduct public free schools of and for the city of Houston and its independent school district within or for said territory for the benefit of plaintiffs and others similarly situated, and their said children, and will not make contracts, arrangements, or...