Garitty v. Rainey

• Decision Date: 31 January 1923
• Docket Number: (No. 3725.)
• Citation: 247 S.W. 825
• Parties: GARITTY et al. v. RAINEY, Chief Justice, et al.
• Court: Texas Supreme Court

247 S.W. 825

GARITTY et al. v. RAINEY, Chief Justice, et al.

(No. 3725.)

Supreme Court of Texas.

January 31, 1923.

Original proceeding in mandamus by James Garitty and others against Anson Rainey, Chief Justice of the Court of Civil Appeals, Dallas District, and others. Writ refused.

See, also, 225 S. W. 196, 235 S. W. 231.

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

Callicutt & Johnson, of Corsicana, for defendants.

CURETON, C. J.

This is an original proceeding for mandamus to require the Court of Civil Appeals for the Fifth District to certify to this court certain questions determined by them in the case of James Garitty et al. v. J. L. Holbert, Mayor, et al. The opinion of the Court of Civil Appeals, containing a full statement of the case, is reported in 235 S. W. 231. The relators here were plaintiffs in the trial court and appellants in the Court of Civil Appeals. The suit is the contest of an election, and the judgment of the Court of Civil Appeals is final. Revised Statutes, art. 1591.

On December 11, 1917, the city of Corsicana adopted a charter under section 5, art. 11, of the Constitution and the laws passed thereunder, which provide for what is generally known as "home rule" for cities of the class to which Corsicana belongs. Section 41 of the charter declared that the city commissioners and officers of the city should have nothing to do with the city schools, except the levying of taxes provided for for the purpose of maintaining the schools and for the collection thereof; that the commission should have no discretion in fixing the rate at which taxes should be assessed and levied each year for the benefit of the public free schools, provided that the rate should not exceed one-half of 1 per cent. of the value of property subject to taxation, but should assess and levy the rate fixed annually by the board of school trustees. Section 45 provided, among other things, that the city commission could levy taxes not exceeding 1.55 per centum of the assessed valuation of property for general purposes, including 50 cents for schools.

An election was ordered by the city commissioners of Corsicana to be held on May 18, 1920, to determine whether or not these sections of the charter should be amended. The election was held on the date named by virtue of an ordinance passed and approved April 6, 1920, with the result that the amendments were declared adopted. Upon contest of its validity by relators, the election was sustained by the trial court and the Court of Civil Appeals The material changes made in the original sections of the charter by the amendments declared adopted were that 75 cents was substituted for 50 cents in section 41, providing a limit of taxation for school purposes, and 2½ per cent. was substituted for 1.55 per cent. as contained in the original section 45 for other purposes. The original and amended sections of the charter are set out in the opinion of the Court of Civil Appeals, and we deem it unnecessary to restate them.

The city of Corsicana within its own territorial limits constituted an independent school district, the control of which was in a board of school trustees. It had the dual character which this court has previously referred to. City of Rockdale v. Cureton, 229 S. W. 852.

The contention of relators in the court below and in the Court of Civil Appeals was that taxes for school purposes could only be voted by the city, upon compliance with the Constitution and laws governing cities which had assumed control of their schools and become independent school districts; that section 10 of article 11 of the Constitution and laws passed thereunder must govern. This contention was overruled by the Court of Civil Appeals, on the ground that the provisions of section 10, art. 11, of the Constitution and the laws thereto had been superseded, in so far as the city of Corsicana was concerned, by the "home rule" amendment to the Constitution and the enabling act adopted thereunder. The Court of Civil Appeals in part said:

"The provisions of section 10 of article 11 do not apply to the holding of said election, as said election was not `to levy and collect a tax for the support and maintenance of a public institution of learning' within the meaning of said constitutional provision, but was an election held under the provisions of section 5 of article 11 to amend the charter of the city of Corsicana in the particulars hereinabove pointed out. Therefore the provision of section 10, art. 11, requiring `two-thirds of the taxpayers of such city or town to vote for such tax' did not apply to the holding of such election, and cannot be held to be a limitation upon the provisions of said section 5; for to so hold would be creating a conflict that in fact does not exist, and, if in fact any conflict did exist, section 5 of article 10 would prevail as being the last expression of the sovereign will of the people of the state. Without comment we deem it sufficient to refer to the following authorities in support of the conclusion we have reached, which requires that this assignment be sustained, namely: Const. art. 7, § 3, article 8, § 9, and article 11, §§ 5, 10; articles 1096a and 1096b, Vernon's Sayles' Texas Civil Statutes, 1914; City of Fort Worth v. Davis, 57 Tex. 225; Werner v. City of Galveston, 72 Tex. at page 29, 7 S. W. 726, 12 S. W. 159; City of El Paso v. Ruckman, 92 Tex. at page 91, 46 S. W. 25; City of Fort Worth v. Cureton, Attorney General (Sup.) 222 S. W. 531; City of Rockdale et al. v. Cureton, Attorney General (Sup.) 229 S. W. 852; State ex rel. Wayland et al. v. Vincent et al., 217 S. W. 402. We therefore hold that said election held on the 18th day of May, 1920, under and by virtue of ordinance passed by the commission of the city of Corsicana on the 6th day of April, 1920, was for the purpose of amending sections 41 and 45 of the charter of said city of Corsicana adopted December 11, 1917, and that the inhabitants of the city of Corsicana had the right to amend said charter by a majority vote of the qualified electors thereof, and further it was not necessary for a voter to be a property tax paying voter in order to participate in such election."

Relators moved the Court of Civil Appeals to certify to this court the following questions:

"(1) Whether section 10 of article 11 is applicable and controlling in so far as a vote of the school tax was concerned; and (2) whether by the adoption of section 5 of article 11 and section 3 of article 7 they operated to supersede and repeal section 10...