Crabb v. Celeste Independent School Dist.

• Decision Date: 01 May 1912
• Citation: 146 S.W. 528
• Parties: CRABB et al. v. CELESTE INDEPENDENT SCHOOL DIST.
• Court: Texas Supreme Court

Page 528

146 S.W. 528

CRABB et al. v. CELESTE INDEPENDENT SCHOOL DIST.

Supreme Court of Texas.

May 1, 1912.

Error to Court of Civil Appeals, Fifth Supreme Judicial District.

Action by S. C. Crabb and others against the Celeste Independent School District. A judgment for defendant was affirmed by the Court of Civil Appeals (132 S. W. 890), and plaintiffs bring error. Reversed and rendered in part.

R. D. Thompson, of Greenville, and C. E. Mead, of Austin, for plaintiffs in error. Looney & Clark, of Greenville, for defendant in error.

DIBRELL, J.

Long prior to January 1, 1907, the Celeste independent school district, in Hunt county, was duly incorporated in accordance with law; and, while Celeste was an incorporated town, it had never assumed charge or control of the public free schools within its limits as such. Several years prior to January, 1907, the exact time not appearing from the record, the property tax paying voters of this independent school district voted a tax of 20 cents on the $100 valuation of the property subject to taxation therein, and for some years had annually levied and collected such tax for the support and maintenance of its public schools.

On May 24, 1907, upon the petition of a majority of the inhabitants qualified to vote for members of the Legislature, certain new and additional territory was annexed to said independent school district as originally formed. The plaintiffs who reside in this additional territory brought this suit against the defendant, Celeste independent school district, for the twofold purpose of declaring void the action of the board of trustees of defendant in annexing the territory in which plaintiffs reside to such independent school district, and to enjoin the collection of the special tax of 20 cents on the $100 valuation of their property subject to taxation in such territory, which had been assessed by the proper authority for the year 1908.

It will be sufficient, for the purpose of this opinion, to state in a general way that the grounds upon which plaintiffs seek to rid the territory of their residence from its connection with the Celeste independent school district were certain irregularities in the method of annexation. This subject was fully discussed, and we think properly disposed of, by the Court of Civil Appeals in its holding that, under the pleadings and upon the evidence, the additional territory was lawfully annexed. Crabb et al. v. Celeste Independent School District (Tex. Civ. App.) 132 S. W. 890. By reason of this view, it will not be necessary to discuss that feature of the case, further than to suggest that, since the Celeste independent school district, a quasi municipal corporation, was acting under color of law, its legality could only be determined by a suit brought for that purpose in the name of the state, or by some one under the authority of the state, who has a special interest affected by the existence of such corporation. Plaintiffs, in the capacity in which they sued, could not maintain a cause of action for the purpose of annulling the independent school district. Brennan v. City of Weatherford, 53 Tex. 337, 37 Am. Rep. 758; Graham v. City of Greenville, 67 Tex. 62, 2 S. W. 742; City of El Paso v. Ruckman, 92 Tex. 89, 46 S. W. 25.

The only question raised by the pleadings and evidence which this court can properly adjudicate relates to the authority of said independent school district to levy and collect the tax of 20 cents on the $100 valuation of the property subject to taxation within the annexed territory.

It is conceded by all parties that the tax sought to be collected of plaintiffs was voted by a two-thirds majority of the taxpaying voters of the Celeste independent school district before the territory in question was annexed, and that after the annexation no vote was had authorizing the tax. The proposition presenting this issue is stated by plaintiffs' counsel as follows: "Where territory has been added to a school district, pursuant to chapter 124, § 153, of the Acts of Twenty-Ninth Legislature, and where, before such addition is made, such district has voted a tax of 20 cents on the $100 worth of property situated in such district, in order to subject the property in the added territory to such tax, the matter must be submitted to the qualified voters of the said school district so increased, and two-thirds of the qualified taxpaying voters of such district, as enlarged, must vote in favor of such tax."

The tax sought to be collected of plaintiffs was by virtue of section 3, art. 7, of the state Constitution, as follows: "One-fourth of the revenue derived from the state occupation taxes, and a poll tax of one dollar on every male inhabitant of this state between the ages of twenty-one and sixty years, shall be set apart annually for the benefit of the public free schools, and, in addition thereto, there shall be levied and collected an annual ad valorem state tax of such an amount, not to exceed twenty cents on the one hundred dollar valuation, as, with the available school fund arising from all other sources, will be sufficient to maintain and support the public free schools of this state for a period of not less than six months in each year; and the Legislature may also provide for the formation of school districts within all or any of the counties of this state, by general or special law, without the local notice required in other cases of special legislation, and may authorize an additional annual ad valorem tax to be levied and collected within such school districts for the further maintenance of public free schools and the erection of school buildings therein; provided, that two-thirds of the qualified property taxpaying voters of the district, voting at an election to be held for that purpose, shall vote such tax, not to exceed in any one year twenty cents on the one hundred dollars valuation of the property subject to taxation in such district, but the limitation upon the amount of district tax herein authorized shall not apply to incorporated cities or towns constituting separate and independent school districts."

It is an accepted rule of construction that, where a power is expressly given by the Constitution, and the mode of its exercise is prescribed, such mode is exclusive of all others. Parks et al. v. West et al., 102 Tex. 11, 111 S. W. 726.

By the terms of section 3, art. 7, of the Constitution, above quoted, the power is given independent school districts to levy and collect a tax of 20 cents on the $100 valuation of all the property subject to taxation situated within its limits; and the mode of levying and collecting such tax is limited to a vote of two-thirds of the qualified property taxpaying voters of the district, voting at an election held for that purpose. The mode thus prescribed excludes all others; and it may be said that, not only is no authority conferred by the Constitution to otherwise levy and collect such special tax, but that any other method of so doing is positively prohibited. Making a practical application of this rule, where an independent school district is incorporated with a fixed area, and as thus formed votes the tax, and afterwards takes in additional territory and levies a tax on the property in such territory, it seeks in effect to collect a special tax by the method of territorial extension. This is clearly in violation of the Constitution; and hence cannot be done. The language of the Constitution is clear that independent school districts are permitted to levy the tax of 20 cents on the $100 valuation of property within its limits by submitting the proposition to the qualified taxpaying voters of such district, and then only upon a vote of two-thirds of such qualified voters. If the tax may be levied and collected on the property subject to taxation within the new territory without submitting the proposition to a vote of the qualified taxpaying voters of the district as altered and enlarged, then that which may not be done directly may be done indirectly. This is true, for the reason that, under the law, additional territory may be taken in by the independent school district by a petition, signed by a bare majority of the inhabitants of such new territory qualified to vote for members of the Legislature. Sayles' Supp. to Texas Civ. Stat. 1906, p. 441.

It is no answer to this objection to say that two-thirds of such qualified voters have signed such petition (although such was not shown to be the fact in this case), for the reason citizens residing in such district are entitled, under the Constitution, to have this issue determined by the ballot, with its safeguard of ascertaining the qualification of the electors, its secrecy, so essential to a free and untrammeled expression of opinion, freedom from intimidation and persuasion at the time of voting, and many other substantial rights growing out of the regulation of the polls. This principle was approved in the case of In re House Roll, 31 Neb. 505, 48 N. W. 275, in construing a constitutional provision of that state to the effect that county authorities shall never assess taxes beyond a certain maximum amount, unless authorized by a vote of the people. As a substitute for this provision of the organic law, the Legislature undertook to authorize the county authorities to assess the additional tax upon a petition, signed by a majority of the electors of the county, which was made by such legislative act equivalent to the popular vote required by the Constitution. The Supreme Court of that state held, in effect, that such act was a subterfuge and an an abridgment of an essential right given the citizen by the supreme law of the state. The reasons assigned by the Chief Justice, who wrote the opinion in that case, for so holding are in part these: "Where an election is duly called and advertised, the reasons for and against the proposition are discussed and considered, and the electors vote upon such...