Handley v. Coker

• Decision Date: 03 April 1952
• Docket Number: No. 4730,4730
• Citation: 248 S.W.2d 814
• Parties: HANDLEY et al. v. COCKER, County Judge.
• Court: Texas Court of Appeals

Page 814

248 S.W.2d 814

HANDLEY et al. v. COCKER, County Judge.

No. 4730.

Court of Civil Appeals of Texas, Beaumont.

April 3, 1952.

Rehearing Denied April 30, 1952.

Rehearing Denied on Second Motion for Rehearing May 21, 1952.

Ross Hightower, M. M. Feagin, Livingston, J. Austin Barnes of Barnes & Barnes, Beaumont, for appellants.

Clem Fain, Livingston, for appellee.

WALKER, Justice.

The suit is for a mandamus against the County Judge of Polk County, requiring him to order an election in Hortense Common School District No. 9 of Polk County upon the question whether this district should be consolidated for school purposes with Chester Common School District No. 17 of Tyler County.

Plaintiffs, who are the appellants, alleged that they were resident voters of the Hortense District and had presented to the defendant a lawful petition for this election, which the defendant had wrongfully denied. They alleged further that a lawful petition for an election in the Chester District had also been presented to the County Judge of Tyler County and that he was willing to order this election whenever the defendant did so.

The defendant, among other matters, plead that he could not grant the plaintiffs' petition for the reason that the County Board of School Trustees of Polk County, before the plaintiffs presented their petition to him, had begun a proceeding to consolidate the Hortense District with other districts in Polk County.

The cause was tried before the court without a jury, and a judgment was rendered in behalf of the defendant denying the mandamus, one of the grounds being that the County Board of School Trustees had taken prior jurisdiction of the Hortense District, as the defendant had alleged. From this judgment the plaintiffs have appealed.

The following statement is based on the trial court's findings of fact:

1. Hortense Common School District No. 9, situated wholly in Polk County, is contiguous to Chester Common School District No. 17, situated wholly in Tyler County.

2. Hortense District is also contiguous to Leggett Independent School District but is not contiguous to Corrigan Independent School District. The Leggett and Corrigan Districts are wholly in Polk County.

3. On June 24, 1949, the Hortense District was a dormant school district within the meaning of Art. VIII, Acts of 1949, 51st Legislature, page 625, now codified as Art. 2922-18, Vernon's Ann.Civ.St. The trial court's 12th finding of fact reads in part: 'I find that the County School Board of Polk County, Texas, met on June 24th, 1949, when, as recited by the Minutes of said Board 'The next business of the County School Board was to consolidate dormant school districts within the County as permitted and required under the provisions of the 51st Legislature. As defined in of the k1st Legislature. As defined in said bill, Hortense Common School District #9 was a dormant district. Representatives of the Hortense Common School #9 were present, or had indicated their wish that the Hortense District be divided and the sectional parts be consolidated to Leggett Independent School District of Polk County and Chester Common School District #17 of Tyler County. A discussion of their request followed. A motion was made by Carl Bergman and seconded by Lewis Sory, and carried by unanimous vote, that no territory within Polk County be consolidated to any district or districts out of Polk County. It was then ordered that Hortense Common School District #9 be consolidated with the Corrigan Independent School District of Polk County and the Leggett Independent School District of Polk County. The County School Board requested that Mr. Floyd Manry, superintendent of the Corrigan Independent School District and Mr. Sherman Laird, superintendent of the Leggett Independent School District, cooperate with the patrons of the Hortense School District in dividing said territory and to present field notes designating divided territory to the County School Board at its next meeting.

"The County School Board instructed that field notes describing metes and bounds of each new created school district be written into the minutes of the meeting of the County School Board and be kept as a permanent record of same.

"A motion was made and duly seconded and passed by unanimous vote that the School Board adjourn and meet again Friday, July 1, 1949."

4. The next meeting of the County Board of School Trustees of Polk County did not occur until July 1, 1949. In the meantime, to-wit, on June 29th, the plaintiffs presented to the defendant their petition for an election in Hortense District upon the question whether Hortense District should be consolidated with the Chester District; and on the same day a petition was presented to the County Judge of Tyler County for a corresponding election in the Chester District. These petitions were legally sufficient to require the two county judges, under Art. 2806, R.C.S., as amended, Vernon's Ann.Civ.St. art. 2806, to order this election unless they had been deprived of jurisdiction to act by the earlier proceeding of the County Board of School Trustees of Polk County. The County Judge of Polk County, that is, the defendant, denied the petition presented to him. The County Judge of Tyler County was willing to grant the petition presented to him if defendant took similar action on the plaintiff's petition.

5. We infer that the defendant denied the plaintiffs' petition before the County Board of School Trustees next met, and as we have stated, the Board's next meeting was on July 1, 1949. The trial court's 12th finding of fact reads in part: 'That 'The County School Board of Polk County met July 1, 1949. The Minutes of the previous meeting were read and approved as read. After the County School Board was informed that the Corrigan Independent School District of Polk County and the Hortense Common School District #9 of Polk County were not contiguous districts, which was required, a motion was made by Jim Freeman and seconded by Carl Bergman that the Hortense Common School District #9 of Polk County, Texas be consolidated with Leggett Independent School District of Polk County, Texas. This motion received a vote of three (3) Yes and one (1) No.''

"A motion was made by Carl Bergman and seconded by Lewis Sory and carried by unanimous vote that all moneys credited to the accounts of the Hortense Common School District #9 be transferred to the accounts of the Leggett Independent School District of Polk County, Texas when the proper field notes, giving metes and bounds of the Leggett Independent School District after consolidation, were filed with the County Superintendent."

Opinion

A. It is held that Art. 2806 was not repealed by Art. 2922-18. Breckenridge Independent School District v. Moran Independent School District, Tex.Civ.App., 228 S.W.2d 189. Therefore the County Board of School Trustees and the County Judge of Polk County were coordinate authorities of that county for the consolidation of Hortense District with other districts, within the meaning of the rule of decision stated in State ex rel. George v. Baker, 120 Tex. 307, 40 S.W.2d 41; and whether the defendant should have ordered or refused to order the election prayed for by plaintiffs depends (at least in the first instance) on whether a proceeding for the consolidation of the Hortense District had been instituted by the County School Board before the plaintiffs filed their petition.

B. In City of Fort Worth v. State ex rel. Ridglea Village, 186 S.W.2d 323, at page 328, the Court of Civil Appeals said: 'The doing of the first thing required by the statutes marks the beginning of the proceedings.'

This rule has been applied in: London Independent School District v. Thomerson, Tex.Civ.App., 223 S.W.2d 314; and in: School District of City of Birmingham v. School No. 2, 318 Mich. 363, 28 N.W.2d 265; Town of Greenfield v. City of Milwaukee, 259 Wis. 77, 47 N.W.2d 292.

For other decisions giving effect to a prior assumption of jurisdiction by an agency of government which is not a court, see: Lynn County School Board v. Garlynn Common County Line School District, Tex.Civ.App., 118 S.W.2d 1070; Wichita Common School District No. 11 v. Dickens Independent School District, Tex.Civ.App., 206 S.W.2d 885; Garrett v. Unity Common School District, Tex.Civ.App., 211 S.W.2d 238; State ex rel. Binz v. City of San Antonio, Tex.Civ.App., 147 S.W.2d 551; City of El Paso v. State ex rel. Town of Ascarate, Tex.Civ.App., 209 S.W.2d 989; Beyer v. Templeton, 147 Tex. 94, 212 S.W.2d 134, 135; City of Terrell Wells v. City of San Antonio, Tex.Civ.App., 216 S.W.2d 657; Anderson v. Hancock County Board, 137 Ohio St. 578, 31 N.E.2d 850. Also, see: West End Rural High School District v. Columbus Consolidated Independent School District, 148 Tex. 153, 221 S.W.2d 777.

The rule which we have quoted from City of Forth Worth v. State ex rel. Ridglea Village is not necessarily a limitation upon the rule declared in State ex rel. George v. Baker, protecting a prior assumption of jurisdiction. The rule quoted from City of Fort Worth v. State ex rel. Ridglea Village was declared, and has been applied in cases where the facts made this rule appropriate, that is, where statutes or a charter prescribed a definite course of procedure to be followed, and it need not, therefore, be given the effect of precluding an application of the rule declared in State ex rel. George v. Baker to the case where no statute prescribes a procedure for the exercise of a power. The court said in State ex rel. George v. Baker (120 Tex. 307, 40 S.W.2d 42): '* * * the right of the people to vote on incorporation, having been first lawfully invoked * * *,' and similar language is used in others of the decisions cited above. This language suggests that where a power has actually been brought into exercise and use, the time when this first occurred could be regarded as the time when jurisdiction to exercise the power was first...