Crow v. Fails

• Decision Date: 02 November 1909
• Citation: 122 S.W. 933
• Court: Texas Court of Appeals
• Parties: CROW et al. v. FAILS et al.

122 S.W. 933

CROW et al. v. FAILS et al.

Court of Civil Appeals of Texas.

November 2, 1909.

Rehearing Denied December 2, 1909.

Appeal from District Court, Trinity County; S. W. Dean, Judge.

Mandamus by Ben Fails and others against C. H. Crow and others. From a decree for relators, defendants appeal. Affirmed.

C. H. Crow and J. P. Stevenson, for appellants. Kenley & Minton, for appellees.

McMEANS, J.

Suit by Ben Fails and others for mandamus against C. H. Crow, county judge of Trinity county, W. L. Avery, J. L. Manry, A. F. Reese, and B. F. Richardson, county commissioners composing the commissioners' court of Trinity county, and J. W. Bright, county superintendent of public instruction of said county, to compel the said judge and commissioners and said commissioners' court to recognize the school district created by order passed by said court on February 15, 1907, and to require said court to canvass the returns and declare the result of an election for school trustees held in said district on the first Saturday in April, 1908, and to require the said Bright, as such superintendent, to appoint a census trustee for said district, and, in the event that it should be held that no election for trustees had been legally held, to declare a vacancy in the board of trustees and require said superintendent to fill such vacancy.

Appellees alleged in their petition: That the community school system has been in continuous operation in Trinity county. That on February 15, 1907, at a regular term of the commissioners' court of Trinity county, the said court, on the petition of Ben Fails and 16 other qualified voters, created by its order No. 40 a common school district; the said petitioners constituting a majority of the qualified voters of said district. That thereafter, on the 13th day of May, 1907, the said commissioners' court, upon petition, attempted to create, by its order No. 8, a district a large portion of which is included within the bounds of the one previously created by its order No. 40. That the first district created by order No. 40 is a valid district, and the attempt to create another district, including a large part of the territory of the district first created, is without authority of law and void; that the district first created is entitled to all the rights and privileges of a legally created district. That there is only one trustee of the district first created, and said district is entitled to two other trustees. That on April 4, 1908, a valid election was held in the district first created, for the election of two trustees, and two trustees were elected at said election, and the election returns were made to C. H. Crow, county judge, as required by law, and said commissioners' court refused to canvass said returns; that it is the duty of J. W. Bright, superintendent of public instruction for Trinity county, to appoint one of the trustees of said district, or some other suitable person, to take the census of persons within the scholastic age in said district. That no such appointment had been made, and the census had not been taken. They prayed for judgment requiring said commissioners' court to recognize the district created by order No. 40 as a valid and subsisting district, to canvass the returns of the election held therein for school trustees and to declare the result, and requiring the county superintendent to recognize said district as one legally created and subsisting, and to appoint a census trustee therefor, and that, in the event the court should find that the election for school trustees was not legally held, that it declare a vacancy in the board of trustees, and to require the county superintendent to fill such vacancy.

The respondents, in their answer and amended answer, presented general and special exceptions to the relators' petition, all of which were overruled, and pleaded a general denial; and in their trial amendment alleged the names of school patrons living in the district created by order No. 40, and also of the patrons living in the territory sought to be created by order No. 8; admitted that a portion of the district created by order No. 40, 1½ by 4 miles in extent, was omitted from the district attempted to be created by order No. 8; but alleged that in the portion so omitted there were but two school patrons, and that they desired to be attached to another school district; and further pleaded that the district formed by order No. 8 would be more convenient for all school patrons of that neighborhood, and that a large majority living within the district created by order No. 8 are anxious to have said district remain as it is.

The case was tried by the court without a jury, and judgment was rendered in favor of the relators, adjudging that the district created by order No. 40 is a legal, valid and subsisting common school district, and has been since its creation, and requiring the county judge and the several county commissioners, composing the commissioners' court of Trinity county, and the said Bright as county superintendent of public instruction, to recognize the said district as valid and subsisting, and further requiring the said Bright as such superintendent to appoint two school trustees for said district to fill the existing vacancies. The trial court filed his findings of fact and conclusion of law, which are as follows:

"Findings of Fact.

"(1) During all of the A. D. 1907, and up to the time of the trial, C. H. Crow was county judge of Trinity county, Tex.; W. L. Avery, Com. Prec. No. 1; J. L. Manry, Com. Prec. No. 2; A. F. Reese, Com. Prec. No. 3; B. F. Richardson, Com. Prec. No. 4; and J. W. Bright, County Superintendent.

"(2) The community system of schools was in effect in Trinity county during 1907 and at the time of the trial.

"(3) On February 13, 1907, Ben Fails and 16 others, all qualified voters, residents therein, filed their petition asking for a common school district to be established by the commissioners' court with the metes and bounds as set out therein and constituting the district as claimed by relators to be the true district. The signers to said petition constituted a majority of the legal voters in said district or territory proposed to be made a district.

"(4) At the February term, 1907, of the commissioners' court of said county, the court, after examining said petition and the evidence in support of same, established the district as prayed for.

"(5) After the establishment of the district, the court were informed that there would be a dissatisfaction with the district as formed, and at the May term accepted a petition and established a district with a part of the territory formerly included and a large scope of territory not formerly included in the district.

"(6) Before making the change as made at the May term of the court, there were no efforts made to determine whether a majority or any part of the legal voters in the district as formerly established would consent to the change; but the court was informed and believed that they were not willing to have the change made and would not consent to such change.

"(7) A majority of the legal voters in the district formed at the May term of the court signed the petition for such district and consented thereto; but those in the district as formerly constituted did not sign, and were not asked to sign, the same.

"(8) The district as formed at the May term of the court embraced a larger number of children within the scholastic...