Jennings v. Carson

• Decision Date: 15 March 1916
• Docket Number: (No. 919.)
• Citation: 184 S.W. 562
• Parties: JENNINGS, County Judge, et al. v. CARSON.
• Court: Texas Court of Appeals

184 S.W. 562

JENNINGS, County Judge, et al. v. CARSON.

(No. 919.)

Court of Civil Appeals of Texas. Amarillo.

March 15, 1916.

Rehearing Denied March 29, 1916.

Appeal from District Court, Hemphill County; Frank Willis, Judge.

Suit for injunction by L. M. Carson against J. L. Jennings, as County Judge, and others. Decree for the plaintiff, and defendants appeal. Affirmed.

H. E. Hoover, of Canadian, for appellants. Baker & Willis, of Canadian, for appellee.

HALL, J.

Appellee, as plaintiff below, filed this suit in the district court of Hemphill county, against appellant Jennings, as county judge and ex officio secretary of the county school board, including as defendants F. R. Jamison, president of said board, C. A. Gilly, H. T. Holland, Frank Merry, and R. T. Alexander, trustees, constituting the entire board, alleging, in substance, that school districts Nos. 4 and 5 each contained more territory than was required by law, each having their schoolhouse beyond the reach of many children of scholastic age residing therein; that on the 27th day of July, 1915, plaintiff had four children of scholastic age, and, joined by 19 other parties interested in the school affairs of the neighborhood, all residing within the territory of the proposed new district, by written petition to the county board of trustees prayed for the formation of a third district, to be so constructed as to take a strip of territory six miles long and three miles wide from the west side of said district No. 4 and certain territory described in the petition from district No. 5, and that said new district should be numbered 17. It is further alleged that if said new district was created, it would leave ample territory in districts Nos. 4 and 5, with sufficient population to maintain schools, and having schoolhouses easily accessible to the children in the districts as then created; that the trustees to whom the petition was presented, refused to grant the prayer; and that such refusal was tantamount to a denial of educational opportunities to the children within the proposed new district, which is alleged to be a gross abuse of their power and authority on the part of such trustees. The petition further sets out certain inconveniences to plaintiff, and other residents in the district, suffered on account of the present location of the schoolhouses therein; that a petition is being circulated in school district No. 5, to vote an issue of bonds to the amount of $1,000, for the purpose of building a schoolhouse therein; that if the election is ordered, the bonds will be issued when, under the law, no change can be made in the district. The prayer is that the district court take supervisory control of the action of the county board of trustees in rejecting the petition; that the court exercise its authority and correct the abuse of power on the part of such trustees and enter a decree, forming and establishing a new district, to be numbered 17, for a writ of mandamus, compelling the trustees to create such district, and for an injunction restraining Jennings, as county judge, from calling the election to vote upon the bond issue in district No. 5. A temporary writ of injunction was granted, and at the time ordered by the trial judge the appellants appeared, filing their joint answer to the original petition. The answer consists of a general demurrer and various special exceptions, a general denial and special answer, to the effect that the petition for a new school district was presented to the defendants as a county board; that in acting upon the same they were fully advised of the matters pertaining thereto, and, in the exercise of their discretionary powers, looking to the good of all the people in the district, concluded that it was to the best interest of the majority of the patrons in the district, and to the educational advantages of the children therein, to reject the petition; that in so doing they acted without prejudice or bias, and in no wise abused the discretion vested in them, and, so acting, saw fit to reject the petition, and that their action was not subject to supervision by the district court. Upon a trial the same day, at a regular term of the district court, without a jury, judgment was entered, forming school district No. 17, perpetuating the injunction, and granting the mandamus prayed for.

Acts 34th Leg. 1915, ch. 36, p. 68, amending Acts 32d Leg. ch. 26 (Vernon's Sayles' Ann. Civ. St. 1914, arts. 2849a-2849o), vests in the county board of trustees all the authority theretofore vested in the county commissioners' court with respect to subdividing the county into school districts and to making changes in school district lines, and to such other matters as pertain to the location, conduct, maintenance, and discipline of schools, the terms thereof, and other matters of interest in school affairs in the county. (Section 4.)

Some of the provisions of this act are confusing. Section 10 provides that all appeals from the decisions of the county superintendent of public instruction shall lie to the county school trustees, and from the said county trustees to the state superintendent of public instruction, and thence to the state board of education. Section 8 of the act requires the county school trustees to appoint the county superintendent as their secretary and executive officer. His duties, under the various sections of the act, are purely clerical and ministerial. All matters requiring the exercise of discretion, and which under previous laws were under the jurisdiction of the county superintendent, are, by this act, vested in the county trustees. Since the county superintendent has no discretionary powers, it is difficult to conceive of any action on his part from which it would ever be necessary for any one to appeal. The amended act did not provide that the district court should have general supervisory control of the actions of the county trustees in creating, changing, and modifying school districts. The amendment, however, has this provision (section 4a), and under it this suit was instituted. Upon original consideration of this case we applied the rule announced in McCollum v. Adams, 110 S. W. 526, to the effect that appellant could not seek relief in the court until his remedy of appeal to the state superintendent and the state board of education had been exhausted. Upon reconsideration we have concluded that by reason of the uncertain provisions of the act, relating to appeals from the county superintendent and the addition of section 4a, giving the district court general supervisory control, it is not necessary, under the facts alleged, to first appeal to the state superintendent and the state board of education, but that in a proper case the aggrieved party may seek relief in the district court; but is this such a case?

The action complained of here is not the action of the board in creating, changing, and modifying districts, but appellant complains because the board refuses to act and to create a new district by changing two existing districts. The power herein conferred upon the district court is a special authority, and the rule, according to the weight of authority, is that where special powers are conferred on the court, either of otherwise or general limited jurisdiction, it is rigorously restricted to those granted, and the grant itself is strictly construed. The court can take no additional power from its general jurisdiction. In the exercise of such special powers it is precisely limited to those plainly delegated. Nothing is to be presumed which is not expressly given. 2 Lewis' Sutherland's Statutory Constr. § 564. The act in question nowhere gives the district court authority to create districts, either originally or in the event of a refusal on the part of the county board to do so. Under section 4a, the district judge can do nothing more than supervise and control the acts of the county trustees, in the event they undertake to create, change, or modify districts. Therefore, if the district court can, by mandamus, compel the county school trustees to create a new district, as has been done in this case, the authority for such action must be looked for outside of the act in question. This act vests the county school trustees with all the authority heretofore exercised by commissioners' courts, with respect to subdividing counties into school districts and making changes in school district lines, but does not, in express terms, make their decision final. Acts of 1913, p. 259, § 1, Vernon's Sayles' Civil Statutes, art. 2815,...