Kuhn v. City of Yoakum

• Decision Date: 23 November 1925
• Docket Number: (No. 8722.)
• Citation: 279 S.W. 872
• Parties: KUHN et al. v. CITY OF YOAKUM et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

279 S.W. 872

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

(No. 8722.)

Court of Civil Appeals of Texas. Galveston.

November 23, 1925.

Rehearing Denied December 17, 1925.

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.

H. W. Wallace, of Cuero, for appellants.

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

GRAVES, J.

This cause is at bar for the second time. Formerly it was here on appeal from the refusal below of a temporary injunction. This time it comes in protest against a final judgment of the trial court dismissing the suit of appellants after general and special exceptions to their amended petition had been sustained.

In their present appeal, appellants rely upon the statement of the cause made by this court as before presented to it, and appearing in 257 S. W. 338, as follows:

"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."

In the interim between the determination of the first appeal and the second trial below, as indicated, the appellants amended their allegations by attacking the annexation of the territory on the additional ground that the petition for the extension "did not in fact contain a majority of the signatures of the tax-paying voters of the territory so sought and coveted by said trustees and council," elaborating this averment by charging fraud, conspiracy, secrecy, and misrepresentation in the matter of procuring signatures thereto. No other material differences appear between the former and the present records upon appeal, and, except in so far, if at all, as they may be changed by these new allegations, the questions the cause presents were all ruled adversely to appellants before. See Kuhn v. City of Yoakum (Tex. Civ. App.) 257 S. W. 337.

We have not only considered the present appeal in the light of this fresh attack upon the validity of the petition for the annexation, but, in deference to the earnest insistence of the able counsel for appellants that our former opinion was wrong, have also carefully reconsidered it.

The propositions now advanced for reversal are as follows:

"(1) The suit is one to enjoin the invasion and injury to property rights, and only incidentally involves the validity of the school district as now claimed to exist. Plaintiffs are not to be denied the right to maintain the action upon the proposition that the school district is a de facto corporation, the validity of which can only be questioned by the state, and which cannot be collaterally attacked by plaintiffs.

"(2) If, as charged by appellants, a majority of the qualified voters resident in the outside territory attempted to be added to the city of Yoakum for school purposes only, did not in fact sign the petition to the city commissioners of Yoakum, then the property of appellants by the attempted annexation, and by the terms of article 2883, R. S., would become responsible for a part of the existing indebtedness of the city of Yoakum schools, without an election by the persons affected, in violation of article 7, section 3, of the Constitution of Texas.

"(3) The subject-matter of section 148, chapter 124, Acts of 1905, to wit, authorizing a city or town having control of the public schools within its limits to add outside territory for school purposes only, is not embraced in the caption of said act, and said section 148, being article 2883, R. S., is therefore unconstitutional and void.

"(4) Article 2815, R. S., limits the power of a city council under article 2883, and it is not permissible for such city council of an incorporated city, upon petition of persons in the territory affected, to reduce the territory of an adjoining school district to less than 9 square miles.

"(5) 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.

"(6) 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, Act 1905, c. 124, by Acts 1917, c. 169, p. 380 (Vernon's Ann. Civ. St. Supp. 1918, art. 2876).

"(7) 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.

"(8) Said election was void because it submitted to the voters the special tax of 60 cents on the $100 to be assessed for the year 1922. No authority exists for submitting to an election the question for levying a tax for one year only, and, if it was intended to levy such tax as is mentioned in article 2876, then the election was void as indicating to the voters the tax would be levied only for one year.

"(9) The petition states a cause of action, in that it alleges that there...