Kimbrough v. Barnett

• Decision Date: 05 February 1900
• Citation: 55 S.W. 120
• Parties: KIMBROUGH v. BARNETT.
• Court: Texas Supreme Court

55 S.W. 120

KIMBROUGH v. BARNETT.

Supreme Court of Texas.

February 5, 1900.

Certified questions from court of civil appeals of First supreme judicial district.

Action by W. W. Barnett against W. H. Kimbrough. From a judgment for plaintiff, defendant appealed to the court of civil appeals, which certified questions for the opinion of the supreme court.

Ross & Wood, W. C. Oliver, and J. M. Coleman, for appellant. Fisher, Sears & Sherwood and John S. Stewart, for appellee.

BROWN, J.

The court of civil appeals for the First supreme judicial district has certified to this court the following statement and questions:

"Upon August 21, 1899, W. W. Barnett brought suit in the district court of Harris county, for the 55th judicial district, against W. H. Kimbrough for the office or position of superintendent of the public schools of the city of Houston. Barnett recovered judgment October 2, 1899, for the office and its emoluments, and Kimbrough has appealed. The contest arose out of the construction of an act of the 26th legislature concerning school trustees of independent districts; being chapter 51 of the General Laws of that body, approved March 30, 1899. Barnett claims that the law in question does not apply to the city of Houston, or that, if it does apply, its provision as to the election of trustees does not go into effect until the year 1901, and that he is entitled to the office by reason of (1) his nomination thereto by the mayor and confirmation by the city council; and (2) his election thereto by a majority of the legally constituted board of public-school trustees of the city of Houston. Kimbrough claims that the law does apply, and that he was regularly elected superintendent of the public schools by the board of trustees lawfully constituted under the act of March 30, 1899. There were two bodies, each claiming to be the legal board of public-school trustees of the city of Houston. The questions in the case arise upon the constitutionality and construction of the act of March 30, 1899, above referred to. The city of Houston assumed exclusive control of the public free schools within its limits on December 5, 1876, by virtue of an election held under the school law of 1876; and when the law of March 30, 1899, went into effect it was conducting its schools in accordance with its charter and the law applicable to such control, and had been so conducting them ever since December 5, 1876. After the passage of the act of March 30, 1899, a difference of opinion arose in the board of trustees as to the construction of the law, which resulted in the formation of two boards, one of which elected Kimbrough, and the other Barnett, as superintendent of the schools. At the date of the passage of the act the board was composed of the following members, to wit: J. R. Cade, C. P. Bloxsom, Fred Fenwick, Rufus Cage, and James Charlton; also S. H. Brashear, mayor of the city of Houston, as ex officio member. On April 17, 1899, Henry F. Fisher was appointed by the mayor, and confirmed by the city council, as a trustee in the place of Rufus Cage; and the board as thus constituted continued to act without objection until July 4, 1899, when it met, and, the question of electing a superintendent for the public schools having come up, it appeared that Cade, Shearn, Bloxsom, and Fenwick were in favor of retaining Kimbrough, who was the incumbent; and Brashear, Charlton, and Fisher were in favor of electing Barnett. The board adjourned without an election. Cage, Shearn, and Cade had been appointed as members of the board by the mayor, and confirmed by the council, on May 17, 1897; Charlton, Bloxsom, and Fenwick were thus appointed and confirmed June 6, 1898. The term of office of trustees was two years under the law as it existed when the act of March 30, 1899, was passed. At the meeting of the city council July 10, 1899, the mayor, S. H. Brashear, nominated as trustees of the public schools Andrew Dow and George Jones, who were confirmed by the city council. A majority of the board thus constituted by the appointment of Dow and Jones in lieu of Shearn and Cade, to wit, Charlton, Fisher, Dow, and Jones, with whom acted Brashear, met on July 13, 1899, and elected the appellee as superintendent of the public schools of the city; and afterwards, on July 17, 1899, the appellee was appointed by the mayor, and confirmed by the city council, as such superintendent for the term of two years. The trustees Shearn and Cade did not resign their offices, but, acting with Bloxsom and Fenwick, on July 14, 1899, organized with Shearn as president, and elected the appellant, Kimbrough, as superintendent for the ensuing two years. Prior to the passage of the act of March 30, 1899, the school superintendent was required by the charter to be appointed by the mayor and confirmed by the council. The salary attached to the position is $2,500. Kimbrough had been duly appointed superintendent, and was acting as such at the time of his election, and was elected at the expiration of the term for which he had been appointed. On July 19, 1899, the Shearn board brought a suit in the district court of Harris county for the 11th judicial district against the Brashear board and Barnett for an injunction, and a temporary order was granted restraining them from interfering with the plaintiffs in the management of the schools or school property, and restraining them from acting as trustees and superintendent, respectively. That suit is still pending, and the temporary restraining order is still in force.

Out of the foregoing facts, the following questions of law arise, which are certified to the supreme court for decision: "(1) Is the position of superintendent of the public schools of the city of Houston an office for which a suit may be maintained in the district court? (2) Was it necessary for the plaintiff to submit his contention to the state superintendent of public instruction or the state board of education before he could maintain this suit? (3) Does chapter 51 of the General Laws of the 26th Legislature, concerning school trustees and independent districts, approved March 30, 1899, apply to the control of the public schools of the city of Houston? (4) Did said act, in its application to the city of Houston, if it applies, take effect, with respect to the election or appointment of school trustees, on March 30, 1899? What action in accordance with said act was required with respect to the election or appointment of public-school trustees for the city of Houston? Was the mayor ex officio a member of the board of trustees after March 30, 1899? (5) Is said act of the legislature constitutional, with respect to the term of office fixed by it for public-school trustees? If not, does its want of constitutionality in this respect invalidate the entire law? (6) Were conflicting provisions of the charter of the city of Houston repealed by the said act of March 30, 1899? (7) Does the provision for the appointment of school superintendent by the mayor in section 7 of the charter of the city of Houston apply only to the first appointment after the grant of the power? Does the charter empower the board of trustees to make subsequent appointments?"

We answer the first question in the affirmative. The position of superintendent of the free schools in the city of Houston is an office, and the lawful incumbent of it would have a right of action to recover it or its emoluments in case he was unlawfully deprived of the benefit. State v. Catlin, 84 Tex. 48, 19 S. W. 302.

The superintendent of public education for the state has no jurisdiction of the questions involved in this case, and it was not necessary for the plaintiff below to present his claim to the office to the superintendent before bringing suit.

Under question 5, we will answer all the other questions that we deem necessary. The act of March 30, 1899, in so far as it relates to the election of trustees for public schools in independent school districts, and fixes the term of office of such trustees, is void; being in conflict with article 16, § 30, of the constitution, which reads as follows: "The duration of all offices not fixed by this constitution shall never exceed two years; provided, that when a railroad commission is created by law, it shall be...