Collin County School Trustees v. Stiff

• Citation: 190 S.W. 216
• Decision Date: 11 November 1916
• Docket Number: (No. 7773.)
• Parties: COLLIN COUNTY SCHOOL TRUSTEES et al. v. STIFF et al.
• Court: Court of Appeals of Texas

190 S.W. 216

COLLIN COUNTY SCHOOL TRUSTEES et al. v. STIFF et al.

(No. 7773.)

Court of Civil Appeals of Texas. Dallas.

November 11, 1916.

Rehearing Denied December 16, 1916.

Appeal from District Court, Collin County; M. H. Garnett, Judge.

Information by J. H. Stiff and others against the Collin County School Trustees and others, to enjoin a redistricting of school districts in Collin county. From judgment enjoining action by respondents pendente lite, they appeal. Affirmed.

G. R. Smith, of McKinney, for appellants. R. C. Merritt and W. R. Abernathy, both of McKinney, for appellees.

RASBURY, J.

This is a proceeding by the county attorney of Collin county in behalf of the state on information by and at the instigation of the trustees of 48 common school districts in Collin county and of certain taxpayers and patrons of the schools in said districts, to enjoin the county school trustees from concluding a proposed and threatened redistricting of such school districts by disestablishing, consolidating, and rearranging the existing districts. Upon hearing in chambers the trial judge enjoined the respondents as prayed pendente lite. From such action this appeal is perfected.

Any necessary statement of the pleadings or of the facts deducible from the evidence will be appended to our discussion of the several assignments of error.

Appellants' first assignment is that the court erred in not sustaining their general demurrer to appellees' petition. The first proposition thereunder is that the petition omits necessary parties. This proposition is bottomed upon the fact, appearing from the petition, that only 48 of the 137 districts joined in the suit. The contention is that all were necessary parties. It is, as contended, the well-settled rule that all parties, plaintiffs or defendants, necessary to the final disposition of the main issue in a suit should be joined therein. When it appears that such parties have been omitted, it "will require either a dismissal of the suit or a stay of proceedings until such party can be brought in." Townes' Texas Pleading, 288. The inquiry then is, Were the other common school districts necessary parties to this proceeding? Appellants maintain they were under authority of Minear et al. v. McVea et al., 185 S. W. 1048. We are persuaded, however, that that case is without application in this proceeding. The purpose sought in the case cited was to enjoin the collection of certain taxes. Those taxes were levied in order to create a sinking and interest fund, as well as to supplement the state school fund to defray the expense of a school for a common school district created prior to the levy of the tax and the commencement of the suit. The ground upon which the collection of the tax was sought to be enjoined was that the common school district had not been created and established in the manner provided by law. The suit was against the county judge and the county commissioners, who at that time were clothed with authority to create common school districts, while now that authority rests with the county school trustees. General Laws, 34 Leg. c. 36. It was held that since the purpose was the destruction of the common school district and since it was a body corporate, the trustees were necessary parties. The purpose of the present case is not to destroy the common school districts not parties to the suit, but to prevent the destruction of those districts which instituted the suit, and incidentally to maintain the status quo of those which were not parties. Had the other districts been parties they could only have done that which appellees sought to do. In that case they are protected fully by the action of the district judge. If, on the other hand, they desired to support the proposed action of the county school trustees, they were not necessary parties, since those districts which opposed the proposed change would nevertheless be entitled to maintain the suit under the allegations of their petition.

It is next urged that the general demurrer should have been sustained for the reason that the legality of the acts of the county school trustees as such could only be reviewed in a proceeding by quo warranto by the state of some one by its authority upon information, which, it is claimed, was not done in this suit. In support of the foregoing it is asserted that petition for leave to file information in the nature of quo warranto was not filed by the county attorney, and hence such permission has not been granted, nor the information ordered filed. The record supports the claim. The suit as we have stated purports to be by the county attorney on the relation of the district trustees, taxpayers, and patrons of the schools complaining, and is an ordinary proceeding by petition to restrain certain proposed and threatened acts, and is signed by counsel, but not by the county attorney, and filed by the clerk as in ordinary cases. Hence it cannot be said that the necessary steps to constitute the proceeding one technically by quo warranto have been observed. Without determining the issue here raised, but proceeding on the assumption that the proceeding is not technically in compliance with the statute, we nevertheless conclude that it will not result in an abatement of the suit, but that the same can be maintained as an ordinary suit between the interested parties. It has been held that an office may be recovered from a usurper by the party entitled to it in an ordinary suit and without proceeding by an information in the nature of a quo warranto. McAllen v. Rhodes, 65 Tex. 348. In that case it was said that quo warranto was a proper proceeding to recover office, but that it had never —

"been held that this is the only remedy that may be pursued, nor does the statute contemplate that it should be. The sixth section declares that the remedy and mode of procedure therein prescribed shall be cumulative of any then existing. If, therefore, there was, previous to the passage of the act, any method of recovering an office withheld from the true owner by an intruder, that method may be still pursued, notwithstanding the act provides the remedy by quo warranto."

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