Culver v. Miears

• Decision Date: 15 April 1949
• Docket Number: No. 2719.,2719.
• Citation: 220 S.W.2d 200
• Parties: CULVER et al. v. MIEARS et al.
• Court: Texas Court of Appeals

220 S.W.2d 200

CULVER et al. v. MIEARS et al.

No. 2719.

Court of Civil Appeals of Texas. Eastland.

April 15, 1949.

Rehearing Denied April 29, 1949.

Appeal from District Court, Comanche County; R. B. Cross, Judge.

Taxpayers' suit by S. E. Miears and others against C. V. Culver and another to cancel an oil and gas lease granted by school district. From a judgment for plaintiffs the defendants appeal.

Judgment affirmed.

Wilkinson & Griffin, of Brownwood, Wynne & Wynne, of Wills Point, and Gist & Wilson, of Tyler, for appellants.

Turner & Seaberry, of Eastland, for appellees.

LONG, Justice.

On the 18th day of March, 1948, the trustees of Leon Common School District No. 70 in Comanche County, with the consent and approval of the County Board of School Trustees of said County, executed and delivered to C. V. Culver and S. S. Powers an oil and gas lease covering three acres of land belonging to said common school district. This suit was instituted by S. D. Miears as a tax paying land owner, joined by other interested parties, to cancel said oil and gas lease on the ground that the provisions of Article 5400a, Vernon's Revised Civil Statutes, were not complied with in making said lease and that the same was therefore void. In a trial before the court without a jury, judgment was entered sustaining the position of plaintiffs and cancelling said lease. The defendants have appealed.

The facts are undisputed. The question here presented is, was it necessary for the trustees, in making the oil and gas lease, to comply with the provisions of Article 5400a which, beginning with the caption of the Act, are as follows:

"An Act authorizing political subdivisions of the State of Texas to lease lands owned by such subdivisions for mineral development purposes and prescribing the method and manner of making such leases, and declaring an emergency.

"Art. 5400a, Section 1. Political subdivisions which are bodies corporate with recognized and defined areas, are hereby authorized to lease for mineral development purposes any and all lands which may be owned by any such political subdivision.

"Sec. 2. The right to lease such lands shall be exercised by the governing board, the commission or commissioners of such political subdivision which are by law constituted with the management, control, and supervision of such subdivision, and when in the discretion of such governing body they shall determine that it is advisable to make a lease of any such lands belonging to such district of subdivision, such governing body shall give notice of its intention to lease such lands, describing same, by publication of such notice in some newspaper published in the county, having a general circulation therein, once a week for a period of three (3) consecutive weeks, designating the time and place after such publication where such governing body will receive and consider bids for such mineral leases as such governing body may determine to make. On the date specified in said notice, such governing board or body shall receive and consider any and all bids submitted for the leasing of said lands or any portions thereof which are advertised for leasing, and in the discretion of such governing body shall award the lease to the highest and best bidder submitting a bid therefor, provided that if in the judgment of such governing body the bids submitted do not represent the fair value of such leases, such governing body in their discretion may reject same and again give notice and call for additional bids, but no leases shall in any event be made except upon public hearing and consideration of said bids and after the notice as herein provided.

"Sec. 2a. Provided that all such leases may be granted by public auction and that no leases shall be executed in any case except and unless the lessor shall retain at least one-eighth royalty, provided further that in no case shall the primary term of said lease be for more than a period of ten (10) years from the date of execution and approval thereof." Acts 1937, 45th Leg., p. 568, ch. 279.

It was agreed between the parties upon the trial of this case that (a) said District No. 70 was a political subdivision and a body corporate with a recognized and defined area; (b) the trustees in making said lease did not comply with the provisions of art. 5400a; (c) the trustees did not publish or cause to be published any notice of intention to lease the land for oil and gas development in any newspaper published in Comanche County; (d) at all times during 1948 there were two newspapers being published in said county; (e) the trustees of said school district had control and management of said political subdivision.

It is the contention of defendants that it was not necessary for the trustees to comply with the provisions of art. 5400a in making the lease; that they complied with art. 2753, said article reading as follows: "The trustees of any school district, upon the order of the county trustees prescribing the terms thereof, when deemed advisable, may make sale of any property belonging to said school district, and apply the proceeds to the purchase of necessary grounds, or to the building or repairing of schoolhouses, or place the proceeds to the credit of the available school fund of the district."

It will be observed that under Article 2753 the trustees of any school district, upon the order of the county trustees prescribing the terms thereof, may make sale of any property belonging to said school district. It is the contention of the defendants that an oil and gas lease being an interest in real estate, that the trustees had the right to make said lease by virtue of the above Article.

At the time Article 5400a was enacted, Article 2753 was in effect. Article 5400a did not repeal Article 2753. The defendants contend, therefore, that Article 5400a had no application to common school districts and did not supersede Article 2753 relating to the sale of property belonging to said districts and that the...