Garitty v. Halbert

• Decision Date: 29 October 1921
• Docket Number: (No. 8568.)
• Citation: 235 S.W. 231
• Parties: GARITTY et al. v. HALBERT, Mayor, et al.
• Court: Texas Court of Appeals

Page 231

235 S.W. 231

GARITTY et al. v. HALBERT, Mayor, et al.

(No. 8568.)

Court of Civil Appeals of Texas. Dallas.

October 29, 1921.

Rehearing Denied December 3, 1921.

Appeal from District Court, Navarro County; H. B. Daviss, Judge.

Proceeding by James Garitty and others against J. L. Halbert, Mayor, and others, to contest the validity of an election within the city of Corsicana. Judgment for defendants, and plaintiffs appeal. Affirmed.

Richard Mays, W. W. Ballew, and J. F. Stout, all of Corsicana, for appellants.

Hawkins Scarborough, Callicutt & Johnson, and Fred Upchurch, all of Corsicana, for appellees.

VAUGHAN, J.

This is the second appeal in this case. For opinion of this court on former appeal, see 225 S. W. 196. The former appeal, only involving contempt proceedings against appellees on account of alleged violation of writ of injunction, including motion for mandamus, and not dealing with the questions presented on this appeal, will not be further referred to in this opinion.

This is a proceeding to contest the validity of an election held within the city of Corsicana on the 18th day of May, 1920, under and by virtue of the following ordinance passed by the commission of the city of Corsicana:

"An ordinance proposing an amendment to the charter of the city of Corsicana, Texas, as the same was adopted December 11, 1917, by amending section 41 of said charter so as to authorize the commission of said city to levy a tax not exceeding 75 cents on the one hundred dollars assessed valuation of all property, or so much thereof as may be necessary, for the support and maintenance of public free schools of said city, and amending section 45 of said charter so as to authorize the commission of said city to levy and collect taxes not exceeding two and one-half per cent. of the assessed values of the property in said city, of which amount 75 cents or so much thereof as may be necessary on the one hundred dollars shall be levied for the maintenance and support of the public free schools, and five cents, or so much thereof as may be necessary, on the one hundred dollars shall be levied for the establishment, maintenance and support of a free public library.

"Be it ordained by the commission of the city of Corsicana, Texas:

"1. That sections 41 and 45 of the charter of the city of Corsicana, Texas, as the same existed after its adoption on December 11, 1917, by a majority vote of the qualified voters of said city, being a charter adopted by said city under the provisions of the Constitution and laws of the state of Texas commonly known as the `home rule bill,' in which it is provided for the government and management of the affairs of said city, that said sections 41 and 45, respectively, be so amended as hereafter to read as follows:

"`Sec. 41. The commission and officers of said city shall have nothing to do with the city schools, except the levy of taxes herein provided for, for the purpose of maintaining said schools, and the collection thereof by the city assessor and collector of taxes. The commission shall have no discretion in fixing the rate at which taxes shall be assessed and levied each year for the benefit of public free schools, provided such rate shall not exceed 75 cents on the one hundred dollars assessed valuation of all property subject to taxation within said city, but shall assess and levy the rate fixed annually by the board of school trustees, and it shall become the duty of the commission upon requisition of the board of school trustees to annually levy and collect said taxes as other taxes.'

"`Sec. 45. The commission of the city of Corsicana shall have the power, and it is hereby authorized to annually levy and collect taxes not exceeding 2½ per cent. of the assessed values of all real and personal property in the city not exempt by law, and of the taxes so levied 75 cents, or so much thereof as may be necessary, on the one hundred dollars assessed values may be for the maintenance and support of the public free schools of the city, and five cents, or so much thereof as may be necessary, on the one hundred dollars assessed value of all property in the city, subject to taxation, may be for the establishment, maintenance and support of the free public library. The balance of said taxes not levied for the maintenance and support of the public schools and library shall be apportioned as the commission shall direct.

"2. That all parts of the existing city charter of the city of Corsicana in conflict herewith, and especially sections 41 and 45, as the same now exist, are hereby repealed and sections 41 and 45 as the same herein read, be substituted therefor."

Appellants (contestants and plaintiffs below), James Garitty, Aaron Ferguson, A. J. Wareing, C. C. Walton, J. F. Stout, W. H. Barth, H. C. Ballew, W. B. Gray, J. W. A. Clark, Geo. F. Baum, Edgar T. Wareing, L. C. Polk, W. W. Ballew, T. M. Cobb, W. A. Babb, A. Weidman, C. H. Graves, Simon Daniels, G. P. Thompson, W. H. White, B. G. Whitten, W. R. Smith, Walter Brassell, Roy Canady, Joe Wilson, H. J. Breithaupt, and B. C. Fortson, filed their original statement of grounds of contest of election with prayer for injunction in the district court, Navarro county, June 12, 1920, naming appellees, J. L. Halbert, W. M. Peck, N. F. Garrett, John S. Murchison, J. L. Marshall, J. A. Harper, Geo. W. Boyd, the city of Corsicana, in its corporate capacity, and J. D. Jackson, Ed M. Polk, E. S. McGee, C. H. Delafosse, W. N. Johnson, Perry McCammon, and R. N. Elliott, and the board of school trustees of the city of Corsicana, in its corporate capacity, as contestees and defendants. Notice of said contest was served on J. D. Jackson and on J. A. Harper, secretary of the city of Corsicana, June 10, 1920, and on J. L. Marshall, commissioner and J. L. Halbert, mayor of the city of Corsicana, June 12, 1920, said original contest in part alleging:

"That on May 31, 1871, the city of Corsicana was granted a special charter by the Twelfth Legislature of the state of Texas. That on June 16, 1875, under legislative authority, said city accepted the general provisions of the law relating to cities of its class, to wit, 1,000 inhabitants and over. That in 1903, said city having a population in excess of 1,000 inhabitants, the Legislature granted it a special charter under which it was governed until December 11, 1917, on which date it adopted a new charter under the provisions of the then article 11, § 5, of the Constitution, and under which, together with amendments thereto, it has been and now is governed. That on February 1, 1881, under an act of the Legislature approved August 19, 1876, and by authority of article 11, ____, of the Constitution, said city took over and acquired exclusive control of the public schools within its corporate limits, and it has continued to be and is now a separate and independent school district of that class created under said article and section of the Constitution relating to incorporated cities only. In section 38 of the new charter so adopted it is provided that the city of Corsicana is, and shall continue to be and remain, an independent school district, and as such has, and shall continue in, the exclusive control of the public free schools within the territorial limits of the city. That the commission of the city of Corsicana by ordinance proposed that sections 41 and 45 be repealed, and instead thereof the following be adopted: [Here follows the proposed amendments to sections 41 and 45 of said charter as set out above.] That accordingly said Halbert, mayor, acting under pretended authority of the commission, issued a proclamation calling an election to be held within the corporate limits of the city on the 18th day of May, 1920, to determine whether or not the qualified voters of said city shall adopt said amendment to said existing charter as the same was adopted December 11, 1917. That in accordance with said proclamation said commission, acting in conjunction with said school board, formulated and issued the following official ballot, which was exclusively used by those voting in said election:

                              "`Official Ballot
                           "`Corsicana, Texas, May 18, 1920
                

"`Shall the charter of the city of Corsicana, as adopted on December 11, 1917, for the government and management of the affairs of said city, be amended by amending sections 41 and 45 so as to authorize the Commission of said city to levy a tax of two and one-half per cent. on the one hundred dollars assessed valuation of all property in said city, of which amount not exceeding 75 cents on the one hundred dollars shall be for the support and maintenance of the public free schools of said city, and not exceeding five cents on the one hundred dollars assessed valuation of all property in said city may be for the establishment, maintenance and support of the free public library?

                                 "`YES
                                 "`NO.'
                

"That the subject-matter of said `amendment' contained four distinct propositions, to wit: (1) Authorizing the commission to increase the ad valorem tax rate to the full constitutional limit, that is, from 1.55 to 2½ per cent. on the $100 of assessed valuation; (2) authorizing the commission to levy out of said maximum tax rate of 2½, 75 cents on the $100 of valuation, instead of 50 cents, for the support of public free schools; (3) should a less sum than 75 cents be levied for school purposes, the difference to be used and appropriated by the commission for non-school purposes; and (4) authorizing the commission to levy five cents on the $100 valuation for the support of the public library. That each of said propositions are and should have been the subject of separate amendments. That, to lawfully amend the charter, they were required to be the subject to separate amendments, in order that the voters could exercise their legal and highly important right to exercise their judgment and wish as to them separately."

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