Drake v. Yawn

• Decision Date: 19 January 1923
• Docket Number: (No. 921.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 248 S.W. 726
• Parties: DRAKE et al. v. YAWN et al.
• Court: Texas Court of Appeals

248 S.W. 726

DRAKE et al. v. YAWN et al.

(No. 921.)^*

Court of Civil Appeals of Texas. Beaumont.

January 19, 1923.

Rehearing Denied February 21, 1923.

Appeal from District Court, Tyler County; D. F. Singleton, Judge.

Suit by John Yawn and others against Rod Drake and others. From a judgment and injunction in favor of plaintiffs, defendants appeal. Reversed, and injunction dissolved.

Coe & Combs, of Kountze, for appellants.

Coleman & Lowe, of Woodville, for appellees.

O'QUINN, J.

This is an appeal from a judgment of the district court of Tyler county, Tex., adjudging that common school district No. 2 of Hardin county and common school district No. 40 of Tyler county be and compose consolidated common school county line district No. 40 of Tyler and Hardin counties, and that the management and control of the school in said district be vested in the board of county school trustees of said Tyler county, and said judgment permanently restrained the trustees of said common school district No. 2 of Hardin county and the board of county school trustees of said Hardin county, and the county superintendent of said Hardin county, from in any manner interfering with said consolidated common school county line district No. 40, and commanded the county depository of said Hardin county and its officials to transfer the funds coming into its possession belonging to the territory designated as common school district No. 2 of Hardin county to the proper depository and officials of said Tyler county for the benefit of said consolidated common school county line district No. 40, and that no school be maintained in any part of said district and no funds expended except on order of said county school trustees of said Tyler county.

The record discloses that in the year 1915, the local trustees of common school district No. 2 of Hardin county and the local trustees of common school district No. 40 of Tyler county, the said districts adjoining, mutually agreed in writing that the two districts should be consolidated for school purposes, and that the school therein should be conducted in the Tyler county school building in district No. 40, and the management of the school to be in the hands of the authorities of Tyler county; that an additional room should be built to said schoolhouse, another teacher employed, and a transfer wagon bought and operated for the purpose of transferring the children in the territory of district No. 2 of Hardin county to and from school. The room was built to the schoolhouse, an additional teacher was employed, and a transfer wagon bought and used in the transportation of children to and from school. The school money belonging to district No. 2 of Hardin county was transferred to Tyler county and the school operated under this agreement for five years. The agreement of the local trustees of said two districts to consolidate was reduced to writing, approved by the county superintendents of both Hardin and Tyler counties, and filed with the superintendent of Tyler county, but was never placed of record at any place and could not be found at the trial. The written agreement did not contain any stipulation as to how long the agreement was to last. It was contended by appellants that it was only temporary, that the arrangement was brought about by the fact that the schoolhouse in district No. 2 of Hardin county had burned, and there being no place for them to have a school was the cause of the agreement, and that the arrangement was to continue only until they were so situated as to rebuild and have a school of their own; while the appellees contended that the consolidation was to be permanent. After five years the trustees of district No. 2 of Hardin county proceeded to make arrangements for a building and a resumption of their own district school, and gave notice of such fact to the Tyler county authorities; but the Tyler county authorities refused to recognize their right to do so, and brought this suit to restrain them, resulting as above stated.

As we view the record and construe the law, the determining question is: Was there a valid and legal consolidation of the two common school districts into a consolidated common school county line district?

Common school county line districts were first authorized by Act of the Twenty-Ninth Legislature in 1905 (Acts 1905, § 55, p. 277). This act required that a petition setting forth the boundaries of the proposed district, signed by a majority of the qualified voters within said boundaries and approved by the county superintendent of public instruction of each county in which any part of the proposed district lay, should be presented to the commissioners' court of any one of said counties, and that said commissioners' court should have authority to establish such school district according to said petition. This remained the law as to the creation of common school county line districts until 1911, when same was amended, or rather superseded, by the Act of 1911 (Acts 1911, p. 200 [Vernon's Sayles' Ann. Civ. St. 1914, art. 2815a]). This act provided:

"Sec. 50a. The commissioners' courts of the several counties of the state of Texas shall have full power and authority to create common school districts, to contain territory within two or more counties of this state. In creating a common county line school district the commissioners' courts of each county having territory in the school district sought to be created, before such district shall be created, shall each pass an order describing the territory [of the district] desired to be created into such school district by metes and bounds, giving the course and direction with the exact length of each line contained in such description and locating each corner called for upon the ground, and shall also give the acres of each survey and parts of surveys of lands contained in such district, together with a map showing the conditions upon the ground as described in the field notes, giving the number of acres of land contained in each survey and parts of survey contained in each county; also, showing the exact position and location of the county line in the territory created into a common county line school district. The said order of each commissioners' court shall also designate and name some one of the counties having territory included in the description of such common county line school district to manage and have control of the public school in such common county line school district. The said common county line school district shall have no authority or power until the said order of the commissioners' court has been passed by each commissioners' court of each county having territory included in such common county line school district; provided, that no common county line school district shall be created with a less area than 16 square miles, and shall be laid out in as near the shape of a square as is possible, and in no event shall the length of such district be greater than the width plus one-third of the width of such districts."

Thus the law remained until the Act of 1917, chapter 196, § 1 (Vernon's Ann. Civ. St. Supp. 1918, art. 2815a), which reads:

"Section 1. That section 50a, chapter 100, Acts of the Thirty-Second Legislature, be amended so as to hereafter read as follows:

"Sec. 50a. The boards of county school trustees of the several counties of the state of Texas shall have full power and authority to create common school districts, to contain territory within two or more counties of this state. In creating a common county line school district the boards of county school trustees of each county having territory in the school [district] created, shall each pass an order describing the territory desired to be created into such school district by metes and bounds, giving the course and direction with the exact length of each line contained in such description and locating each corner called for upon the ground, and shall also give the acres of each survey and parts of survey of lands contained in such district, together with a map showing the conditions upon the ground as described in the field notes, giving the number of acres of land contained in each survey and parts of survey contained in each county; also showing the exact position and location of the county line in the territory created into a common county line school district. The said order of each board of county school trustees shall also designate and name some one of the counties having territory included in the description of such common county line school district to manage and have control of the public school in such common county line school district.

"The said common county line school district shall have no authority or power until the said order of the board of county school trustees has been passed by the board of county school trustees of each county having territory included in such county common line school district; provided, that no common county line school district shall be created with a less area than nine square miles, and shall be laid out in as near the shape of a square as possible, and in no event shall the length of such district be greater than the width plus one-half of the width of such district."

"Board of county trustees" was created by Act of 1911, p. 34, § 4, and made a body corporate. This act was amended in 1915 (Acts 1915, c. 36, p. 68, § 2, now article 2749a, Vernon's Ann. Civ. St. Supp. 1918) by completely re-enacting and amending the whole subject covered by the original act. It vested the management and control of the public free schools in each county of the state in five county trustees. It also gave them the powers theretofore vested in the commissioners' courts to subdivide the county into school districts, make changes in district lines, and to consolidate two or more districts for the establishment of rural high schools. It required the county superintendent, who was made ex officio...