Kuhn v. City of Yoakum

• Citation: 6 S.W.2d 91
• Decision Date: 16 May 1928
• Docket Number: (No. 885-4544.)
• Parties: KUHN et al. v. CITY OF YOAKUM et al.
• Court: Texas Supreme Court

Page 91

6 S.W.2d 91

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

(No. 885-4544.)

Commission of Appeals of Texas, Section B.

May 16, 1928.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by W. A. Kuhn and others against the City of Yoakum and others. Judgment for defendants was affirmed by the Court of Civil Appeals (279 S. W. 872), and plaintiffs bring error. Affirmed.

H. W. Wallace, of Cuero, for plaintiffs in error.

Carothers & Brown, of Houston, and Durell Miller, of Yoakum, for defendants in error.

LEDDY, J.

Plaintiffs in error brought this suit against the city of Yoakum, its assessor and collector of taxes, and the Yoakum independent school district, attacking the legality of an extension of the limits of the city of Yoakum for school purposes only, made pursuant to the provisions of article 2883, Revised Statutes 1911. It was sought to permanently enjoin the city from enforcing the ordinances whereby the limits were so extended, and from levying, assessing, or collecting taxes for school purposes on the lands belonging to plaintiffs in error which were situated within the limits of such extension.

Upon hearing, the trial court refused to grant the temporary injunction prayed for, and upon appeal that judgment was affirmed by the Court of Civil Appeals for the First District. The allegations of the petition are fully set forth by that court (257 S. W. 338) and need not be repeated here.

After this appeal, and before the second trial in the court below, plaintiffs in error amended their petition by adding an additional ground of attack upon the annexation of the lands to said district, such allegation being that the petition for the extension "did not in fact contain a majority of the signatures of the taxpaying voters of the territory so sought and coveted by said trustees and council," the averment being made that fraud, conspiracy, secrecy, and misrepresentations were used in the matter of procuring signatures to such petition. On a final hearing plaintiffs in error were denied relief by the court sustaining general demurrer to their petition. From this judgment appeal was again taken, and the same was affirmed by the Court of Civil Appeals (279 S. W. 872).

Each of the ordinances whose validity are challenged contain the following recitation:

"Whereas, a majority of the resident qualified voters of the territory hereinafter described have petitioned the board of commissioners of the city of Yoakum to extend the corporation lines of said city so as to include the said territory within the corporate lines of the said city of Yoakum for school purposes only, and the board of school trustees of the city of Yoakum have recommended the granting of said petition by a majority vote of said trustees."

The rule has not been deviated from in this state that the validity of an extension of territory of a city or school district can only be attacked by a direct suit in the nature of a quo warranto by the state, or in a proceeding in which the state is a party. Crabb v. Celeste Independent School District, 105 Tex. 197, 146 S. W. 528, 39 L. R. A. (N. S.) 601, Ann. Cas. 1915B, 1146; Brennan et al. v. City of Wetherford, 53 Tex. 330, 37 Am. Rep. 758; El Paso v. Ruckman, 92 Tex. 86, 46 S. W. 25; Graham v. Greenville, 67 Tex. 62, 2 S. W. 742; Kuhn v. City of Yoakum (Tex. Civ. App.) 257 S. W. 337; City of Houston v. Little (Tex. Civ. App.) 244 S. W. 255; Ex parte Koen, 58 Tex. Cr. R. 279, 125 S. W. 401; State v. Dunson, 71 Tex. 65, 9 S. W. 103; Cohen v. City of Houston (Tex. Civ. App.) 176 S. W. 809; Cohen v. City of Houston (Tex. Civ. App.) 205 S. W. 757; City of Carthage v. Burton, 51 Tex. Civ. App. 195, 111 S. W. 440; Railway v. Bratcher, 54 Tex. Civ. App. 10, 118 S. W. 1091; Short v. Gouger (Tex. Civ. App.) 130 S. W. 267; Parker v. Harris County Drainage District, No. 2 (Tex. Civ. App.) 148 S. W. 351; State v. Bradshaw (Tex. Civ. App.) 228 S. W. 658.

Plaintiffs in error seek to avoid the operation of this well-settled rule by the contention that the action brought by them is not an attack upon the school district as extended, but is one to prevent the invasion of private property rights, the assertion being made that the validity of the district is only incidentally involved. It is sought to bring this case within the rule announced by our Supreme Court in Parks v. West, 102 Tex. 11, 111 S. W. 726. The distinction between ...