Derrick v. County Bd. of Ed. of Donley County, 7327

• Citation: 374 S.W.2d 259
• Decision Date: 23 December 1963
• Docket Number: No. 7327,7327
• Parties: Charles F. DERRICK et al., Appellants, v. COUNTY BOARD OF EDUCATION of DONLEY COUNTY, Texas, et al., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 259

374 S.W.2d 259

Charles F. DERRICK et al., Appellants, v. COUNTY BOARD OF EDUCATION of DONLEY COUNTY, Texas, et al., Appellees.

No. 7327.

Court of Civil Appeals of Texas, Amarillo.

Dec. 23, 1963.

Rehearing Denied Jan. 20, 1964.

Underwood, Wilson, Sutton, Heare & Berry, Folley, Snodgrass & Calhoun, Amarillo, for appellants.

W. T. Link, Knorpp & Slavin, Clarendon, for appellees.

CHAPMAN, Justice.

This suit involves election contests filed by Charles F. Derrick and other residents of Clarendon Junior College District and purported district, some of whom were owners of taxable property and resided within the bounds of the district as it existed prior to the purported enlargement and some of whom were owners of taxable property and resided outside the bounds as it existed prior to the purported enlargement but within the purported enlargement.

One suit was filed contesting the election to enlarge the territory. Another was filed contesting the election to determine the power of the district to levy and collect ad valorem taxes for maintenance of public free schools in Clarendon Junior College District as purportedly extended, and thus give effect to the first election held to extend the territory of the district. The third was filed seeking to have the two elections declared null and void and for an injunction restraining appellees from attempting to give application to the elections with respect to attempting to levy, assess, or collect ad valorem taxes on any property not situated within the district prior to such elections.

Motions for summary judgments were filed by all parties and the three cases were consolidated. Upon the hearing the trial court overruled the motion for summary judgment of contestants and granted the motion for summary judgment of contestees.

Reversal is urged upon thirty-seven points involving a myriad of irregularities in the elections, including the very authority of those who called the elections and declared the results to act, and the statutory authority to extend the Junior College District to the territory purportedly annexed.

The first question with which we are faced is the contention of contestees to the effect that contestants were without authority to sue as individuals but that the contests could be made only through quo warranto proceedings.

The adoption of the constitutional amendment of 1891 gave district courts original jurisdiction to try contested elections. Article 5, Section 8, Constitution of Texas, Vernon's Annotated Texas Constitution, Volume 2. Jurisdiction is also given the district court by legislative enactment. Article 9.01, V.A.T.S., Election Code.

Contestants assert by brief that they as residents of the territory involved had authority to contest the elections under Article 5, Section 8, Constitution of Texas, as effectuated by Articles 9.30 and 9.31, V.A.T.S., Election Code. Those two articles were respectively 3069 and 3070 R.C.S.1925; 3077 and 3078 R.C.S.1911; 1804t and 1804u R.C.S.1895; and 1752 and 1753 R.C.S.1879 The articles read as follows:

Article 9.30

'If the contest be for the validity of an election held for any other purpose than the election of an office or officers in any county or part of a county or precinct of a county, or in any incorporated city, town, or vilage, any resident of such county, precinct, city, town, or villege, or any number of such residents, may contest such election in the district court of such county in the same manner and under the same rules, as far as applicable, as are prescribed in this chapter for contesting the validity of an election for a county office.'

Article 9.31

'In any case provided for in the preceding Section, the county attorney of the county, or if there is no county attorney, the district attorney of the district, or the mayor of the city, town or village, or the officer who declared the official result of said election, or one of them, as the case may be, shall be made the contestee, and shall be served with notice and statement, and shall file his reply thereto as in the case of a contest for office; but in no case shall the costs of such contest be adjudged against such contestee, or against the county, city, town, or village which they may represent, nor shall such contestee be required to give bond upon an appeal.'

All emphases herein are ours unless otherwise stated.

Thus, even though some of the predecessor articles to these just quoted were first enacted long before the 1891 amendment of Section 8, Article 5, of the Texas Constitution, it was uniformly held by our Supreme Court prior to the adoption of the 1891 amendment that the district court was without jurisdiction to try contested elections. De Shazo v. Webb, 131 Tex. 108, 113 S.W.2d 519.

In the case just cited the court held in effect that Articles 3069 [9.30, Election Code] and 3070 [9.31, Election Code] have been properly re-enacted since the adoption of the constitutional amendment of 1891, above mentioned, and that they plainly provide who can bring the contest and who shall be made the contestees. It is obvious that contestants brought their suits under such articles, naming the county attorney of Donley County, the county superintendent thereof, and the county board members as contestees.

Accordingly, the 'cases' referred to in Section 21, of Article 5, Texas Constitution, and 'suits and pleas' referred to in Section 22, Article 4, Texas Constitution, with respect to the county and district attorney and attorney general representing the State, of which free public school districts are political subdivisions, have no reference to contested elections; i e., legislative acts provided for in Section 8 of Article 5, Constitution of Texas. DeShazo v. Webb, supra.

'The capacity conferred by articles 3069 and 3070 [superseded by articles 9.30 and 9.31, Election Code] on certain parties to contest elections, other than for the purpose of electing officers, is not based on any individual property right; but upon the theory that a remedy should be furnished, legislative in its nature, whereby * * * elections may be contested * * *.' De Shazo v. Webb, supra.

In a suit contesting the authority of a wife of an impeached former governor to have her name placed upon the ballot for Governor of Texas, where the suit was brought by a person having no more interest in the subject matter than to preserve the public interest, our Supreme Court in Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1012, held: 'His lack of special interest is fatal to his capacity to maintain his suit in the absence of a valid statute authorizing him to sue.' Here we have valid statutes [Articles 9.30 and 9.31, Election Code], legislative acts, authorizing any resident or any number of residents within any county or part of a county to contest an election held for any other purpose than the election of an officer or officers.

Even if it should be said that quo warranto was an appropriate method of contesting the elections here considered, such proceeding is only cumulative of other proper methods. Rule 782, Section 6, Vernon's Ann.Texas Rules with respect to quo warranto proceedings provides: 'The remedy and mode of procedure hereby prescribed shall be construed to be cumulative of any now existing.'

Our Supreme Court in speaking of quo warranto has said '* * * it has not been held that this is the only remedy that may be pursued, nor does the statute contemplate that it should.' McAllen v. Rhodes, 65 Tex. 348.

In Parks v. West, 102 Tex. 11, 111 S.W. 726, it was urged that the attack of plaintiffs was upon the corporate existence of Merten's Independent School District in a collateral proceeding and that the validity of the incorporation could be questioned only by the State in a direct proceeding. Our Supreme Court said:

'* * * the attack of the plaintiffs is not merely upon the corporate existence of the district, but is directed against the power of the defendants to lay burdens on their property and subject them to the payment of taxes. Surely they have the right to do that although the reason they assign for the lack of power may also go to the right of the district to exist under the Constitution. Certainly a property holder has the right to say to the court that he is protected by the Constitution from the imposition of a tax by persons to whom the Constitution, in effect, denies such power. If the rule relied on by defendants should preclude plaintiffs from making the contention now, when and in what way could they make it? So far as we can see, the rule would equally apply to an effort to resist the collection of the tax by suit or otherwise. The consequence to which the contention leads is that, while the Constitution does not permit such a school district to exist and levy taxes, it may yet do both and force property owners to pay until the officers of the state see fit to intervene. Useful and convenient as is the doctrine invoked, we cannot give our assent to an application of it, which would deny to the plaintiffs the protection sought of their property rights.'

Here, as in the case from which we have just quoted, the attack of appellants is also directed against the power of the purported district to lay burdens on their property and subject them to the payment of texes.

A distinction is made in many of the cases by the acts that are merely voidable and those which are wholly invalid and void, as the acts are alleged to be in this case and as some of them clearly are. In City of Galena Park v. City of Houston, 133 S.W.2d 162, (error refused), the court held:

'It also follows as a corollary, from the construction herein given the Act under review, that appellant's initial objection to the effect that its own incorporation could not be called into question, as was done in this proceeding, without the joinder of the State under a writ of quo warranto, is unsound; this, for the reason that its attempt to incorporate that...