Edwards v. Roberts

• Decision Date: 26 July 1950
• Docket Number: No. 4758,4758
• Citation: 233 S.W.2d 592
• Parties: EDWARDS et al. v. ROBERTS, County Attorney.
• Court: Texas Court of Appeals

Page 592

233 S.W.2d 592

EDWARDS et al. v. ROBERTS, County Attorney.

No. 4758.

Court of Civil Appeals of Texas, El Paso.

July 26, 1950.

Rehearing Denied Sept. 20, 1950.

Joe E. Briscoe, Devine, for appellants.

Kampmann & Burney, San Antonio, for appellee.

PER CURIAM.

This is an appeal from the judgment of the District Court of Bandera County, 38th Judicial District, refusing to sustain a contest of an election as to the annexation of Pike Creek Common School District No. 21, of Bandera County, to the Bandera Rural High School District No. 1.

In substance we shall adopt as a preliminary statement the statement of appellants J. B. Edwards and Milton Lewis as to the nature of the case. This is a proceeding by J. B. Edwards and Milton Lewis, President and Secretary respectively of Pike Creek Common School District No. 21 of Bandera County, contesting as property owners and tax payers the election wherein their school district was annexed for High School purposes by Bandera Rural High School District No. 1, the voting being 155 for annexation and 151 against. Upon the trial judgment was entered upholding the annexation and holding the election carried in favor of annexation by a vote of 153 to 150.

The points complain of the rejection of evidence that the election was invalid because Art. 2806, R.S., Vernon's Ann.Civ.St. art. 2806, was not complied with as to petition of 20 voters, and that Art. 2922aa governing consolidation of rural high school districts with common school districts must be construed together with Art. 2806; that the notices required by Art. 2806 were not prepared in accordance with law; that they were altered beyond a reasonable possibility of understanding them; that they had been prepared for grouping, or consolidation of districts, and were altered to show an annexing; that the court should have found by the over-whelming evidence that the proper notices were not posted for full twenty days. Complaint is made of the court permitting that the vote of Walter Buck should be counted in favor of contestee. That the court erred in not permitting the vote of Mrs. G. L. Vawter to be counted because she was a lawful voter. She voted against annexation; the court committed error in permitting the votes of Vane and Vida Stevens to be counted. Each of them voted in favor of annexation.

The authority for the District Court to entertain jurisdiction in election contests such as we have here is found in Section 8 of Art. 5 of our Constitution as same was amended in 1891, Vernon's Ann.St. Statutory authority and provisions relating to the procedure are to be found in Articles 3069, 3070. By reference Articles 3042, 3044 relating to election contests are, insofar as applicable to an election such as this, made a part of the procedure.

There is grave doubt in our mind as to whether there is jurisdiction here to consider this appeal. This on account of the fact that the transcript fails to show notice was served on contestee as required by Art. 3070, R.S. It is true the petition was properly filed in due time, and contestee answered, but it does not appear from the transcript that notice as required by 3042 and 3044 was ever served on the contestee. It has been held that without a showing of actual service, even though contestee answered, the District Court is without jurisdiction to hear the contest. Adamson v. Connally, Tex.Civ.App., 112 S.W.2d 287; Maddox v. Commissioners' Court of Palo Pinto County, Tex.Civ.App., 222 S.W.2d 475.

In view of the cases of Sewell v. Chambers, Tex.Civ.App., 209 S.W.2d 363, and Cain v. Farris, Tex.Civ.App., 212 S.W.2d 250, we have decided to consider this appeal on the merits. It is to be borne in mind that here the only evidence that notice was served as required is to be inferred from the fact that contestee answered.

The trial court made up and filed findings of fact and conclusions of law which intrinsically evidence great care and attention to the trial of the case and a clear grasp of the legal principles involved. Finding of Fact No. 10 is as follows: 'I find that the election for the annexation of the School District was called by the County Board of Trustees of Bandera County upon their own motion and there was no petition presented to said Board requesting that said election be called.'

Under this finding contestants contend that judgment should have been rendered in their favor. The contention is that Art. 2806, R. S., required such a petition, that in Art. 2922aa, R. S. it is provided that when there is a consolidation between a rural high school already formed and a consolidation with a contiguous common school district upon an election being held in their respective districts, said election is to be held in conformity with Art. 2806. However, here there is not a consolidation involved. It is elementary in cases of consolidation of a common school or elementary school district that same lose their identity. In case of the formation of a rural high school district by a grouping of districts or by the annexation of such districts the elementary school districts do not lose their identity. Later on in this opinion we shall briefly discuss this matter. In case of grouping districts to form a rural high school district or the annexation of a district or districts Art. 2806 has no application. See Mt. View Common School Dist. et al., v. Blanco County Board of Trustees, Tex.Civ.App., 149 S.W.2d 224.

Here the County Board of Trustees beyond any question relied on Art. 2922a and 2922c as authorizing the procedure taken. Each of the foregoing Articles was amended by the 50th Legislature. The portion of Art. 2922a deemed applicable here is as follows: 'In each organized county in this state, and in any county which shall hereafter be organized, the county school trustees shall have the authority to form one or more rural high school districts, by grouping contiguous common school districts having less than four hundred (400) scholastic population and independent school districts having less than two hundred fifty (250) scholastic population, for the purpose of establishing and operating rural high schools; provided, also, that the county school trustees may annex one or more common school districts or one or more independent school districts having less than two hundred fifty (250) scholastic population to a common school district having four hundred (400) or more scholastic population, or to an independent district having two hundred fifty (250) or more scholastic population.'

The part of Art. 2922c, R. S., Vernon's Ann.Civ.St. Art. 2922c, deemed applicable here is as follows: 'No rural high school district, as provided for herein, shall contain a greater area than one hundred square miles, or more than ten elementary school districts, except that the county school board of school trustees may form rural high school districts, as provided in Article 2922a, containing more than one hundred square miles, upon a vote of a majority of the qualified electors in the said proposed rural high school district voting at an election called for such purpose'.

Art. 2922b provides: 'Rural high school districts as provided for in the preceding article shall be classed as common school districts, and all other districts, whether common or independent, composing such rural high school district shall be referred to in this Act as elementary school districts'.

Finding of Fact No. 2 of the trial court is as follows: 'I find that the Pike Creek Common School District No. 21 was common school district contiguous to the Bandera High School District No. 1 and County Board of School Trustees ordered an election to be held to determine if said common school district should be annexed to said rural high school district; that said proposed new district did not contain an area of more than 100 square miles nor as many as seven elementary school districts.'

The case of Countz v. Mitchell, 120 Tex. 324, 38 S.W.2d 770 authoritatively establishes that the county Board of Trustees was authorized to call this election, eanvass the returns and declare the result. See also Trinity Independent School District v. Dist. Trustees, District 24, Tex.Civ.App., 135 S.W.2d 1021. It is true these cases were before the 1947 amendment to Art. 2922a and Art. 2922b, but the amendment does not forbid such...