Love v. City of Dallas

• Decision Date: 16 May 1931
• Docket Number: No. 5633.,5633.
• Citation: 40 S.W.2d 20
• Parties: LOVE v. CITY OF DALLAS.
• Court: Texas Supreme Court

40 S.W.2d 20

LOVE v. CITY OF DALLAS.

No. 5633.

Supreme Court of Texas.

May 16, 1931.

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

Suit by Thomas B. Love, as next friend of Neota Camp, a minor, and others, against the City of Dallas. Judgment for plaintiff was reversed by the Court of Civil Appeals [23 S.W.(2d) 431], and plaintiff brings error.

Affirmed.

H. Bascom Thomas, Jr., and W. J. Rutledge, Jr., both of Dallas, for plaintiff in error.

James J. Collins, City Atty., A. A. Long, W. H. Knight, and H. P. Kucera, Asst. City Attys., all of Dallas, and Black & Graves, of Austin, for defendant in error.

CURETON, C. J.

This suit was brought as a class bill on behalf of certain minor high school students who reside in Dallas county, but outside of the city of Dallas, as one class, and on behalf of other students who reside in the counties of Rockwall, Fannin, and Tarrant as another class. None of the complaining scholastics are located in districts which have high schools or maintain high school facilities, and the purpose of the suit was to require the Dallas school board to admit both classes of students into the Dallas city high schools. The relators predicate the right asserted by them on what is known as the High School Tuition Law. The city of Dallas is a municipal corporation, chartered under the laws of the state, has assumed control of its public schools, and as such is to be regarded as an independent school district. We shall, therefore, in this opinion, as a matter of convenience, use the terms "district" and "school district" as embracing all classes of school districts, including cities, towns, and villages which have assumed control of their public schools or have been incorporated for school purposes.

The city of Dallas assumed control of its public schools many years ago, and now operates them under a special law which controls in minor respects, but in the main, in so far as here involved, the general laws are to be applied. A local school tax has been levied for the support of the public schools of the city, and many millions of dollars raised by bonds issued by the city have been invested in building sites, buildings, and equipment for the public schools, all based on local taxation, as provided by the Constitution and laws of this state. For a further statement of the case we refer to the opinion of the Court of Civil Appeals, 23 S.W.(2d) 431.

We are required at the threshold of this investigation to determine whether or not the High School Tuition Law applies to both the classes named in the bill. We are of the opinion that it was not the intention of the Legislature to make this act applicable to scholastics nonresident of the county in which they seek to attend a high school, except within the limitations of the transfer statute. Article 2697. We will not copy at length the High School Tuition Law, since it is available, but will state such of its terms as we think necessary. The act provides that the county board of school trustees at a regular meeting in May of each year shall classify the schools of the county "for the purpose of promoting the efficiency of the elementary schools and of establishing and promoting high schools at convenient and suitable places." In making the classification the board is required to give due regard to the schools already located, the distribution of population, etc. In the event any school is so classified that a resident high school student "within the free school age" cannot receive instruction in his home district, his tuition for the number of months attended "in any other high school recognized by either county or state" shall be paid by his own district. The act then provides: "If the high school attended receives the transfer of state and county funds for said student, credit shall be given for the amount of same. The rate of tuition charged said pupil shall be the actual cost of teaching service, based upon the average monthly enrollment in the high school attended, exclusive of all other current or fixed charges, not to exceed $7.50 per month." (Italics ours.) Acts 41st Leg. (1929), First Called Session, chap. 2, § 1 (Vernon's Ann. Civ. St. art. 2678a).

The law contains provisions by virtue of which, in case a district from which the high school pupil is transferred is not able to pay his tuition in the district to which he is transferred, the state shall pay the excess amount. The enactment contains some other matters which, in the main, are simply for the purpose of putting into effect the plan which we have briefly outlined. The last sentence of the measure provides that a district to which a high school pupil has been transferred "shall not be required to accept such a high school transfer as provided in this Act" until the sending district levies a certain specified tax. (Italics ours.)

The High School Tuition Act was passed by the 41st Legislature (1st Called Sess. c. 2), but is substantially the same as the Act of the 40th Legislature (chapter 181), which it repealed, except it raised the maximum tuition provided for from $5 to $7.50 per month. The effect of both acts was to substitute their provisions severally for article 2678, R. S. 1925, which was a section of chapter 36, General Laws of the 34th Legislature, codified in chapter 11, title 49, of the R. S. 1925. These acts named treated the same subject matter as article 2678; in fact, copied a portion of that article, and must be regarded as amendments only of that article and of the chapter of the Revised Statutes of which it was a part. Board of Education v. Haworth, 274 Ill. 538, 113 N. E. 939. The act of 1915, codified as chapter 11, title 49, R. S. 1925, was a comprehensive measure confiding county school affairs largely to a county board of trustees, and providing for a system of classified schools in each county. Section 3 of that measure became article 2678 of the Revised Statutes, which as amended is the act before us for review.

Section 4 of the original act of 1915 (chapter 36), which as codified became article 2681 of the R. S. of 1925, also related to, and yet relates to, the powers and duties of the county trustees with respect to subdividing counties into school districts and making changes in district lines, etc. The last sentence in this article of the statute, as originally enacted in 1915, and as it now exists in the code, reads as follows: "In providing better schooling for the children and in carrying out the provisions of article 2678, the county superintendent shall, on the recommendation of the county school trustees, transfer children of scholastic age from one school district to another, and the amount of funds to be transferred with each child of scholastic age shall be the amount to which the district from which the child is transferred is entitled to receive."

When the act of 1915 was passed, and the amendments to article 2678 enacted, the state already had a complete educational code, and these measures became a part of that code. All laws in pari materia must be construed together. 25 Ruling Case Law, p. 1060, § 285, p. 1063, § 287, p. 1067, §§ 291, 292; Ex parte Lipscomb, 111 Tex. 409, 417, 239 S. W. 1101, and cases cited; Houston Nat. Exch. Bank v. School Dist. (Tex. Civ. App.) 185 S. W. 589; Hunt v. Whiteaker & Washington (Tex. Civ. App.) 230 S. W. 1096. In view of this rule, which is one of universal acceptation, there is no escaping the conclusion that the sentence quoted from article 2681 is to govern and does apply to every scholastic affected by the terms of article 2678 as amended. It means that the benefits of article 2678 (as amended [article 2678a]) are to be received by transfer, and if the scholastic is not one subject to transfer, the provisions of the article have no application. In fact, article 2678 as amended shows this on its face. This act, among other things, declares, "if the high school attended receives the transfer of state and county funds for said student, credit shall be given for the amount of same." (Italics ours.) The last sentence in the amended act declares: "Provided that the receiving district maintaining such a high school shall not be required to accept such a high school transfer as provided in this Act. * * *" (Italics ours.) It is perfectly plain from this language that under article 2678 as amended it is contemplated that every one entitled to its benefits and subject to its provisions should be capable of receiving "such a high school transfer as provided in this Act." In addition to the transfer provisions above referred to, the statute at the time of the enactment of the law of 1915 contained, and at all times since has embraced, provisions for the "transfer of scholastics from one district to another." R. S. 1925, arts. 2695, 2696, 2697, 2698, 2699. These statutes as a part of the educational code of the state applied to article 2678 (R. S. 1925), and now apply to the statute here involved. We will not discuss all the terms of these transfer statutes. Article 2699 contains a general provision which declares: "Except as herein provided, no part of the school fund apportioned to any district or county shall be transferred to any other district or county." (Italics ours.)

Article 2699 provides for consolidation and transfer in the case of county line districts, while article 2697 permits the transfer of a scholastic from a district in one county to an adjoining district in another county, upon a showing that the school in the district in which the pupil resides, on account of distance or some uncontrollable and dangerous obstacle, is inaccessible.

It is clear, we think, from a consideration of the various transfer statutes cited above, including the quoted provision from article 2681, that scholastics cannot be transferred, under any circumstances, from the district in which they reside to another district, except under the transfer statutes.

The construction placed by...