Gerhardt v. Yorktown Independent School Dist.

• Decision Date: 22 February 1923
• Docket Number: (No. 8361.)
• Citation: 252 S.W. 197
• Parties: GERHARDT et al. v. YORKTOWN INDEPENDENT SCHOOL DIST. et al.
• Court: Texas Court of Appeals

Page 197

252 S.W. 197

GERHARDT et al. v. YORKTOWN INDEPENDENT SCHOOL DIST. et al.

(No. 8361.)

Court of Civil Appeals of Texas. Galveston.

February 22, 1923.

Rehearing Denied March 22, 1923.

Appeal from District Court, De Witt County; John M. Green, Judge.

Suit for injunction by Robert Gerhardt and others against the Yorktown Independent School District and others. From judgment denying injunction, plaintiffs appeal. Reformed and affirmed.

J. F. Murray, of Runge, for appellants.

LANE, J.

This is a suit brought by the appellants, Robert Gerhardt, John Burda, and Max Gross, to restrain the trustees and the assessor and collector of taxes of the Yorktown independent school district from collecting the school tax assessed against their properties situated within the boundaries of said district.

The plaintiffs alleged the creation of the Yorktown independent school district by a special act of the Thirty-Seventh Legislature of 1921 (Sp. Laws 1921, c. 45), and also alleged that the territory embraced within the boundaries of said district is the territory constituting the former Yorktown independent school district and adjacent territory which was by said special act added to and taken into the present district, which said added territory included lands owned by them. They alleged that their said properties are subject to the payment of taxes levied and assessed for school purposes by said Yorktown independent school district. They then allege that the special act of the Thirty-Seventh Legislature incorporating the Yorktown independent district was and is unconstitutional and void for the following reasons: First, because said act was passed without the local notice required by the Constitution for the passage of special laws having been given; second, because it is an attempt to impose upon the taxpayers of the new district the payment of a bonded indebtedness created and owing by the former school district, without allowing them to vote upon questions involving taxation of their properties; third, because it is in violation of the federal Constitution and section 16 of article 1 of the Texas Constitution, in that it attempts to suspend the binding effect of the outstanding bonded lien on the property embraced in the old district and leave it to a vote of the taxpayers of the new district as to whether they will assume the payment of such bonded indebtedness, thereby impairing the obligations of the contract of the old district.

They further alleged that, acting upon a petition signed and presented by 59 tax-paying voters residing in said new district, on the 3d day of September, 1921, the trustees of the new district at their regular meeting on the 5th of September, 1921, passed an order directing that an election be held within said new district on the 6th day of October, 1921, to determine whether or not said board of trustees should be authorized to annually levy and collect a tax of 40 cents on the $100 valuation of all taxable property within said district for the year 1921, and annually thereafter to maintain the public schools therein, and whether or not they should be authorized to annually levy and collect 13 cents on the $100 valuation of all property within said district for the year 1921, and annually thereafter, for the purpose of creating a sinking fund to pay the current interest and retire certain bonds that were outstanding and due by the old or original Yorktown independent school district, prior to the passage of the said special act, and also to determine whether or not the new Yorktown independent district should assume the payment of the outstanding bonded indebtedness due and owing by the old district; that said election was held on the day specified in the said call or order, and the result thereof declared by the said board of trustees to be in favor of all said propositions mentioned in said order of election; that they are informed and believe that the defendant Ben Kolodzey, who has been appointed assessor and collector of taxes for said school district, is about to advertise, seize, and sell the real and personal property belonging to them in payment of said taxes for 1921; that the election so held was and is void in that the petition therefor did not state the amount of the unpaid bonds, their due date, or the rate of interest they bore, so that the voters might be advised as to the amount of indebtedness they were asked to assume and pay; that, unless the defendants are restrained as prayed for, the board of trustees will levy a tax for school purposes on their properties for the year 1921 and attempt to force collection thereof, to their damage. Their prayer was for an injunction restraining and enjoining each of the defendants from collecting or attempting to collect taxes levied and assessed, or which may be levied or assessed, against their properties for the year 1921 or subsequent years for school purposes. The petition was duly verified by Robert Gerhardt.

The defendants answered: First, by general demurrer; second, by special exception to all portions of the petition wherein the unconstitutionality of the special act of the Thirty-Seventh Legislature creating the Yorktown independent school district was alleged; third, by demurrer to the petition, upon the grounds that the suit is a collateral attack upon the corporate existence of a school district created by the Legislature, and therefore not maintainable by an individual, but can be maintained by the state only; and fourth, by general denial.

The special act of the Thirty-Seventh Legislature (Special Acts Regular Session Thirty-Seventh Legislature, p. 122) incorporating the new Yorktown independent school district, omitting the caption, the description of the territory to be incorporated, and the emergency clause, reads as follows:

"Be it enacted by the Legislature of the state of Texas:

"Section 1. That an independent school district is hereby created in De Witt county, Texas, to be known as the Yorktown independent school district, containing within its limits all territory inclosed by the following metes and bounds: [Described by metes and bounds.]

"Sec. 2. The management and control of the public free schools of the Yorktown independent school district is hereby vested in a board of seven school trustees elected, and to be elected under the general laws of this state applicable to such independent school district; provided that the trustees now serving as such in the Yorktown independent school district shall contain in office till the expiration of their respective terms.

"Sec. 3. The Yorktown independent school district shall have and exercise, and is hereby vested with all the rights, powers, privileges and duties conferred and imposed by the general laws of this state, now in force or hereafter enacted, upon the trustees of independent school districts incorporated and organized for free school purposes, including the right to levy taxes and issue bonds of said district to the extent, for the purposes, and subject to all of the limitations and conditions under which powers may be exercised, or may hereafter be exercised, under the general laws of this state by the trustees of independent school districts incorporated and organized under the general laws of this state; and all laws applicable to towns and villages, incorporated for free school purposes only, are hereby declared to be in full force and effect, with respect to said Yorktown independent school district.

"Sec. 4. The title to all school property in the Yorktown independent school district is hereby vested in the trustees of said district and their successors in office, provided that the trustees of the district, created by this act, shall provide according to law for the assumption by the district of its pro rata part of all outstanding bonded indebtedness of school districts or parts of school districts included in the territory of the district created by the act.

"Sec. 5. All laws and parts thereof in conflict herewith are hereby repealed in so far as they affect the validity of this act."

In creating this new district the lands of appellants' were added to the old school district. Prior to the creation of the new district the former, or old district, had issued bonds in the sum of $30,000. Of the bonds so issued $22,000 remained unpaid at the time the controversy in this case arose.

On the 3d day of September, 1921, after the creation of the new district, 59 tax-paying voters residing therein presented to the trustees thereof the following petitions:

"First. We, the undersigned tax-paying voters of the said Yorktown independent school district (as created by an act of the Thirty-Seventh Legislature of Texas, at its regular session), hereby petition your honorable body to order an election, as provided by the laws and Constitution of Texas, to determine whether the board of trustees of said district shall have power to annually levy and collect a tax upon all taxable property in said district to pay current interest and provide a sinking fund sufficient to pay the principal at maturity of the outstanding bonds issued by the old Yorktown independent school district, which old district is now included in the present Yorktown independent school district, of and at the rate of 13 cents on the one hundred 00/100 ($100.00) dollars valuation of taxable property in the Yorktown independent school district (as created by the said act of the Texas Legislature), and for the assumption of the outstanding bonds of the old Yorktown independent school district by the present Yorktown independent school district.

"Second. We, the undersigned tax-paying voters of said Yorktown independent school district (as created by an act of the Thirty-Seventh Legislature of Texas at its regular session), hereby petition your honorable body to order an election, as provided by the laws and Constitution of Texas, to determine whether the board of trustees...