Kuhn v. City of Yoakum

• Decision Date: 08 November 1923
• Docket Number: (No. 8394.)
• Citation: 257 S.W. 337
• Parties: KUHN et al. v. CITY OF YOAKUM et al.
• Court: Texas Court of Appeals

257 S.W. 337

KUHN et al. v. CITY OF YOAKUM et al.

(No. 8394.)

Court of Civil Appeals of Texas. Galveston.

November 8, 1923.

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

Suit by W. A. Kuhn and others against the City of Yoakum and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Bailey & Wallace, of Cuero, for appellants.

Carothers & Brown, of Houston, and Durell Miller, of Yoakum, for appellees.

GRAVES, J.

W. A. Kuhn and others, who are appellants here, filed in the district court of De Witt county their petition complaining of the city of Yoakum, its assessor and collector of taxes, and the Yoakum independent school district, who are appellees in this court, attacking an extension of the limits of the city of Yoakum for school purposes only, made pursuant to article 2883 of our Revised Statutes, at the same time seeking to permanently enjoin the appellees from enforcing ordinances of the city whereby the limits were so extended, and from levying, assessing, or collecting any taxes for school purposes on the lands taken in by such extension for school purposes only, the property of the petitioners being within the territory so added, but not in the independent school district as theretofore existing; the petition also assailed an ordinance of the city levying a 60-cent tax on the $100 valuation on all property within the limits of the city as so extended, as well as the election by which the tax was authorized.

Substantially the petition charged that prior to 1915 the city of Yoakum was incorporated under the general laws of this state, and had taken charge of the public free schools within its limits; that in 1915, under what is known as the Home Rule Amendment to the Constitution, it adopted a charter as a city of more than 5,000 inhabitants, still retaining the same control of the public free schools within its limits; that by ordinances dated May 2, 1922, and June 10, 1922, the city undertook to make the above-mentioned extension of its lines for school purposes only, taking in the lands owned by the appellants; that by ordinance dated July 22, 1922, and pursuant to R. S. art. 2876, it undertook to levy the tax of 60 cents on the $100 valuation on the lands in the city limits as so extended for school purposes only, after the property tax paying voters residing within the limits as so extended had voted in favor of such tax at an election held for that purpose on July 11, 1922.

A temporary injunction to the same purport as that finally contemplated by the pleaders was also sought and from the refusal of the district judge to grant that relief, after a hearing upon the matter, this appeal is prosecuted.

Appellants do not question the fact that the ordinances effecting the extension they complain of were enacted in response to a petition not only signed by more than a majority of the resident qualified voters of the territory thereby taken into the city for school purposes only, but also recommended by a majority vote of the trustees of the public free schools of the city, as R. S. art. 2883, provides, but by written and oral arguments in this court they attack the extension and tax levy mainly on the following grounds:

"(1) Article 2883, R. S. (Acts 1905, c. 124, § 148), is in contravention of article 7, § 3, of the Constitution, in that same authorizes property to be added to an existing school district, and automatically, and without an election by the persons affected, makes their property in the added territory liable for its `pro rata' part of the existing indebtedness of the district.

"(2) Said chapter 124, Acts 1905, by enumerating the many things to be done by the act, modifies and qualifies the general expressions in the caption or preamble, so that the subject of a city or town such as provided by article 7, § 3, of the Constitution, adding territory as provided in said section 148, is not understood as embraced within the caption.

"(3) Article 2815, R. S., as amended by Acts 1909, c. 12, providing no common school district shall have its territory reduced below nine square miles, controls article 2883, and limits the power of a city council under the latter article, so that a city council of an incorporated city, even upon petition of voters in the territory affected, may not curtail the territory of an adjoining school district to less than nine square miles.

"(4) If the territory from the common school districts was validly annexed to the city of Yoakum, then it lost the character of school district provided by Const. art. 7, § 3, to wit, a city or town having control of the schools within its limits, and became another character of district, the control and management of which are committed to the board of trustees, and the city council of Yoakum had no authority to order any election for school taxes.

"(5) The election for the tax was void in that it called for the specific rate of tax, there being no authority to submit a specific rate to an election in such district. The authority to submit a specific rate was omitted by the amendment of article 2876. Section 141, Acts 1905, c. 124, by Acts 1917, c. 169, p. 380 (Vernon's Ann. Civ. St. Supp. 1918, art. 2876).

"(6) Said article 2876, under which the election is claimed to have been ordered, was expressly repealed by Acts 1917, c. 169, p. 380, and the attempt to re-enact same in said act was not embraced in the preamble or caption, which provides for the express repeal of said article 2876, and said attempt to re-enact same is therefore void.

"(7) Said election was void because it submitted to the voters the...