County Board of School Trustees v. Wilson

• Decision Date: 28 February 1929
• Docket Number: (No. 713.)
• Citation: 15 S.W.2d 144
• Parties: COUNTY BOARD OF SCHOOL TRUSTEES OF LIMESTONE COUNTY et al. v. WILSON et al.
• Court: Texas Court of Appeals

15 S.W.2d 144

COUNTY BOARD OF SCHOOL TRUSTEES OF LIMESTONE COUNTY et al. v. WILSON et al.

(No. 713.)

Court of Civil Appeals of Texas. Waco.

February 28, 1929.

Rehearing Denied March 28, 1929.

Appeal from District Court, Limestone County; W. R. Boyd, Judge.

Suit by W. R. Wilson and others against the County Board of School Trustees of Limestone County and another. From an adverse judgment, defendants appeal. Reversed and rendered.

J. E. & B. L. Bradley and Mr. & Mrs. C. S. Bradley, all of Groesbeck, for appellants.

L. W. Shepperd, of Groesbeck, for appellees.

STANFORD, J.

W. R. Wilson and nine other individuals, residents, patrons, property owners, and taxpayers of Marx Chapel common school district No. 58, brought this suit against the county board of school trustees of Limestone county, and Mrs. Cora Ferguson, secretary of said board. W. R. Wilson and T. H. Hayes, as trustees of said Marx Chapel district, also intervened as such trustees, and complained against the same parties, alleging they were a majority of the board of trustees of said Marx Chapel district, and for cause of action plaintiffs and interveners alleged, in substance, that, at a called session of said county board, on January 14, 1928, said county board entered an order attempting to consolidate Marx Chapel common school district No. 58 with Ben Hur consolidated rural high school No. 11, which attempt was enjoined, as shown by appeal therein, 5 S.W.(2d) 805; that, on April 14, 1928, said county board in a called session passed another order attempting to group Ben Hur consolidated rural high school district No. 11 with Marx Chapel common school district No. 58 for the purpose of establishing and operating a rural high school district to be known as Ben Hur rural high school district No. 11, and appointing seven trustees therefor; that said Ben Hur consolidated rural high school district was already in existence and functioning as such, and that said county board was without authority to make the order of April 14, 1928; that, unless said county board was restrained, it would proceed to enforce said illegal order of April 14, 1928. A temporary injunction was granted. Appellants answered by general demurrer, special exceptions, and that the suit was prematurely and improperly brought, in that such suit could not be maintained by appellants, and could be maintained only by the state, or under its authority; also that appellees failed to appeal from the action of the county board to the state superintendent of public instruction, or to give notice that they elected to resort to the courts, and that they acted in good faith, etc. The case was tried on its merits before the court, and said temporary injunction perpetuated, from which judgment of the trial court this appeal is prosecuted.

Under their first proposition, appellants contend that appellees, as individuals, taxpayers, and as trustees of Marx Chapel common school district No. 58, were without authority to prosecute a suit to annul or vacate the order of the county school board grouping said district with Ben Hur school district No. 11; the only remedy therefor being by quo warranto proceedings for that purpose. Upon the authority of Freeport Independent School District et al. v. Common School District No. 31 et al., 115 Tex. 133, 277 S. W. 97, and cases there cited, we think appellees have the right to maintain this suit. It is probably true, if appellees had remained passive and permitted the county board to complete the grouping of the Ben Hur and Marx Chapel districts, and the trustees of said new rural high school district had taken charge of said new district, enumerated the scholastics therein, established schools, assessed and were collecting taxes, etc. — in other words, if said grouping had become an accomplished fact, and said new district become a quasi municipal corporation, organized and acting under color of law — its legality could be determined only by a suit brought for that purpose against the trustees of said district by the state, or under its authority. Crabb v. Celeste Ind. School Dist., 105 Tex. 194, 146 S. W. 528, 39 L. R. A. (N. S.) 601, Ann. Cas. 1915B, 1146; City of Houston v. Little (Tex. Civ. App.) 244 S. W. 247; Martin v. Grandview Ind. School Dist. (Tex. Civ. App.) 266 S. W. 607. But a different question is here involved. No new district including the Marx Chapel district was created, organized, and put into operation. No quasi municipal corporation including the Marx Chapel district was ever created and put into operation. It was alleged by appellees that appellants the county school board had passed an order grouping the Marx Chapel common school district No. 58 with the Ben Hur rural high school district No. 11, and that said order was void because there was no law authorizing said board to make such order, but, unless restrained, said board would put said order into effect. We think appellees, at least the two trustees of the Marx Chapel district, clearly had the right to maintain this suit to restrain this alleged illegal action on the part of the county board, in the protection of the best interests of Marx Chapel district, of which they were trustees. Parks et al. v. West et al., 102 Tex. 11, 111 S. W. 726; Freeport Ind. School Dist. v. Common School Dist. No. 31, 115 Tex. 133, 277 S. W. 97. The distinction above pointed out is recognized in Kuhn et al. v. Yoakum et al. (Tex. Com. App.) 6 S.W. (2d) 91. We overrule this contention.

Under their second proposition, appellants contend that appellees, as individuals and taxpayers and as trustees of Marx Chapel common school district No. 58, were without power to prosecute a suit to annul or vacate the order of the county school board grouping said district and Ben Hur school district No. 11, until they appealed the controversy to the state superintendent of public instruction; there being no constitutional issue involved. Under articles 2656, 2686, and 2682, Revised Statutes, the rule has become well settled by the decisions of our appellate courts that while, in questions of administration, appeals are required to be taken to higher school authorities, but that, where the acts of the trustees or the county board are claimed to be without authority under our Constitution or statutory provisions, the complaining party may resort in the first instance to the courts. Henderson v. Miller (Tex. Civ. App.) 286 S. W. 501 (writ refused); Warren et al. v. Sanger Ind. Dist., 116 Tex. 183, 288 S. W. 159; Colin County School Trustees v. Stiff (Tex. Civ. App.) 190 S. W. 216. See, also, article 2686, amended by Acts of the Fortieth Legislature (1927) c. 83, § 1. There is no merit in this contention of appellants, and it is overruled.

Under their third proposition appellants contend, in effect, that, when the Ben Hur common school district No. 11 was grouped with the Nus common school district No. 78, in 1926, thereby forming the Ben Hur rural high school No. 11, said Ben Hur rural high school district as thus constituted continued to be a common school district within the purview of article 2922a, and that, as the...