Frass v. Darrouzett Independent School Dist.

• Decision Date: 04 November 1925
• Docket Number: (No. 2541.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 277 S.W. 751
• Parties: FRASS v. DARROUZETT INDEPENDENT SCHOOL DIST. et al.
• Court: Texas Court of Appeals

Page 751

277 S.W. 751

FRASS v. DARROUZETT INDEPENDENT SCHOOL DIST. et al.

(No. 2541.)^*

Court of Civil Appeals of Texas. Amarillo.

November 4, 1925.

Rehearing Denied December 2, 1925.

Appeal from District Court, Lipscomb County; W. R. Ewing, Judge.

Suit by Darrouzett Independent School District and others against Henry Frass. From a judgment for plaintiffs, defendant appeals. Affirmed.

Hoover, Hoover & Willis, of Canadian, and E. C. Gray, of Higgins, for appellant.

W. H. Sewell, of Follett, and Madden, Adkins & Pipkin, of Amarillo, for appellees.

RANDOLPH, J.

The following statement of the nature and result of the suit and of appellant's defenses is taken from appellant's brief:

The Darrouzett independent school district, through its board of trustees, brought this suit against Henry Frass seeking to recover the sum of $1,397.46 consisting of taxes, penalty, interest, collector's fees, and attorney's fees alleged to have been due from defendant upon certain land and personal property situated in the said district, which had been created by a special act of the Legislature (Loc. & Sp. Acts 38th Leg. [1923] 2d Called Sess. c. 15), and judgment was recovered against said Frass in a trial without a jury for the sum of $1,317.91 and costs and foreclosing a lien upon the real estate for the taxes, from which judgment defendant duly appealed.

The defendant contended by his answer that the act of the Legislature in question did not include his lands or personal property, in that said act specifically described the metes and bounds of the district in such a way as not to include his lands and property. It was agreed upon the trial that the defendant's land and property were situated wholly without the boundaries of the district as specifically described. The defendant's contention in the case was based upon this proposition that the specific metes and bounds would govern, while the plaintiff district contended that because the act of the Legislature specified that such metes and bounds were intended to constitute the same boundaries that originally comprised common school district No. 20 in Lipscomb county, the specific metes and bounds of the legislative act would not govern, but would be treated as an error, and that the boundaries of said district No. 20 as fixed by the school officers of Lipscomb county would govern, in which event the defendant's land and property were situated within the district. The defendant contended that extrinsic evidence would not be admissible to contradict or vary the restriction of the legislative bill, and also because the district contained less than 150 scholastics, the trustees would not have the right to levy, assess, and collect the taxes, but that same should have been done by the county officers.

Appellant also contended that the act was unconstitutional if it did attempt to confer the power upon the trustees to perform the functions of tax officers; also, that the rolls were not admissible because they were not verified; that the board was guilty of discrimination in accepting the railroad property at a less ratio of valuation than they did other properties; and that in any event the board could not collect penalties, attorney's fees, and interest in excess of $1 per $100 valuation, because such exceeded the constitutional and statutory limit.

The appellant's land being situated within the limit of common school district No. 20, which the newly created independent school district superseded, appellees claim that the Legislature intended to incorporate the new district out of the exact territory occupied by district No. 20, and therefore that, notwithstanding the field notes of the new district do not appear to include defendant's land, the language of the act can bear no other construction than a complete adoption of the boundaries of the old district. The wording of the act creating the new district, relied on by appellees to sustain their contention, is as follows:

"An act creating the Darrouzett independent school district in Lipscomb county [Texas]; defining its boundaries to be the same as of common school district No. 20, etc. * * *

"Be it enacted by the Legislature of the State of Texas: Section 1. That an independent school district is hereby created in Lipscomb county, Texas, to be known as the Darrouzett independent school district, which said district shall comprise the same territory as that now embraced in common school district No. 20 of said Lipscomb county, the metes and bounds of said district to be as follows." (Italics ours.)

It will be observed that the preamble to the act creating the new district states the intention of the Legislature in defining it was that the boundaries were to be the same as the old district. This intention is clearly expressed in the preamble and in the enacting clause. Appellant insists that in section 1 of the act creating the independent district it is plainly stated that such district shall be comprised within the metes and bounds set out in the act. We cannot agree that the wording of the act is plainly susceptible of that construction. It is said in that act that an independent school district is hereby created in Lipscomb county, Tex., as the Darrouzett independent school district, which said district shall comprise the same territory as that now embraced in common school district No. 20, Lipscomb county; the metes and bounds of said district to be as follows: Setting out the field notes. Clearly the field notes here are subordinate to the reiterated declaration of the Legislature that the two districts are to be identical. The Legislature having expressly declared that the two districts are to be identical and having reiterated their purpose to create such a district, it is beyond doubt that such was their intention, and that the omission in the field notes was a mere clerical error. In this connection, our attention has been called by appellees to the fact that the field notes of the old and new districts are practically identical, except in the third call. The third call in the field notes of the common school district reads: "Thence W. to the S. E. corner of section No. 162, block 10, said county." The third call of the field notes in the new district is: "Thence west on said block line to the southeast corner of section line 152, block 10." By a mistake in writing the figure "5" instead of "6" in numbering the section called for, it could easily occur that survey 162 could become 152. This apparently was the mistake made. The particular intent of the Legislature was to create a district identical with the old district and to supersede the old in the exact territory. This is evidenced by the repeated declaration that such should be the case, and an apparent error in the field notes should not be made to override such expressed intention. Even if such error is not on its face apparent, the repeated express intention should control over an implied intention as indicated by the field notes.

The appellant further insists that the holding in the case of State v. Gunter et al., 36 Tex. Civ. App. 381, 81 S. W. 1028, is applicable here in the solution of the question before us. In that case the court was construing an act of the Legislature reserving land in Hutchins county from location. Gunter and others located certificates in Hutchinson county, and the state brought suit to cancel such locations, alleging that Hutchinson county was intended in the act forbidding locations in "Hutchins" county, there being no county by the name of Hutchins in the state of Texas, and there being a Hutchinson county within its limit; that the...