Neill v. Cook, 3597

• Decision Date: 11 November 1960
• Docket Number: No. 3597,3597
• Citation: 340 S.W.2d 315
• Parties: Ralph NEILL et al., Appellants, v. Robert COOK et al., Appellees.
• Court: Texas Court of Appeals

Page 315

340 S.W.2d 315

Ralph NEILL et al., Appellants, v. Robert COOK et al., Appellees.

No. 3597.

Court of Civil Appeals of Texas, Eastland.

Nov. 11, 1960.

Rehearing Denied Dec. 2, 1960.

Turpin, Kerr, Smith & Dyer, Midland, Hooser & Hooser, Big Spring, for appellants.

Guilford L. Jones, Big Spring, J. C. Hinsley, Austin, for appellees.

PER CURIAM.

Ralph Neill and others, individually and as trustees of the Center Point Common School District No. 7, and Ulysses Hall and others, individually and as trustees of the Gay Hill Common School District No. 6, all of Howard County, sued Robert J. Cook and others, as trustees of the County School Board of Howard County, the County Superintendent and the Trustees of the Big Spring Independent School District. They sought judgment that the orders of the Board of School Trustees of Howard County annexing said common school districts to said independent district were void. They asked for a temporary injunction restraining defendants from carrying the annexation orders into effect and from taking possession of the records, property and assets of said common school district and from interfering with their operations and that, upon a hearing, the temporary injunction be made permanent. The defendants filed a plea to the jurisdiction of the court, alleging the suit was brought under the authority of Article 2682, which provides that:

'The district court shall have general supervisory control of the actions of the county board of school trustees in creating, changing and modifying school districts.'

They called attention to Article 2686, which since 1927, provides that all appeals from the decisions of the county superintendent shall lie to said board of school trustees and that, should either party decide to further appeal such matters, they shall elect to appeal either to the court or to the state superintendent. Defendants alleged plaintiffs had appealed to the school authorities prior to filing this suit and that such action constituted an election under Article 2686 and, having so elected, the court had no jurisdiction until the administrative appeal had been determined, whereupon resort could be had only to a court in Travis County.

The court sustained defendants' plea to the jurisdiction and dismissed the case. Plaintiffs have appealed. They contend the court erred in dismissing the case for want of jurisdiction.

Prior to its amendment in 1927, Article 2686 provided that 'all' appeals from the decisions of the county superintendent 'shall' lie to the county school trustees, then to the state superintendent and thence to the state board of education. While said statute still so provided and before the amendment, in 1927, which authorized an appeal from the county board to either a court or the state superintendent, the case of Henderson v. Miller, Tex.Civ.App., 286 S.W. 501, 506 (Writ Ref.), was decided. It was there held that the district court, by virtue of Article 2682, had jurisdiction, to the exclusion of the school authorities, of a suit to enjoin the county school board from enforcing an order annexing common school districts to an independent school district when plaintiff alleged that the statute under which the school board acted was unconstitutional. The Court said:

'It is manifest that neither the board of county school trustees, nor the state superintendent, nor the state board of education, is vested with any jurisdiction to determine the constitutionality of any statute, or the question whether or not any action by any board of school trustees is violative of constitutional rights. Authority to determine such questions is exclusively the function of the judiciary, and therefore the court did not err in overruling the exception to the jurisdiction of the trial court.

'As noted above, one of the grounds for the relief prayed for was the contention that the act of the Legislature was void because in violation of section 35, art. 3, of the Constitution, which requires the subject of an act of the Legislature to be expressed in the title of the act, and that the act was further violative of the constitutional provision guaranteeing citizens equal protection of the law.

'The district court clearly had jurisdiction to determine those questions to the exclusion of the appellate agencies named in article 2686; and it is a familiar rule that when a court acquires jurisdiction of a suit for one purpose it retains jurisdiction to determine the whole controversy. It may be that the Supreme Court entertained jurisdiction of the case of Crabb v. Celeste Ind. School District [105 Tex. 194, 146 S.W. 528, 39 L.R.A.,N.S., 601], cited above under that doctrine.'

Certainly the 1927 amendment of Article 2686 which changed the apparently mandatory provision that 'all' such appeals 'shall' be to the school authorities to the right to elect to appeal either to the court or school authorities subtracted nothing from the exclusive power of the courts to determine whether such orders were made without legal authority and in violation of the constitution.

In Hale v. McMurrey, Tex.Civ.App., 22 S.W.2d 499, 501 (Writ Ref.), tried in 1929, it was held in an injunction suit, that when facts were alleged which, if true, showed the district was created without lawful authority, the district court had original jurisdiction without any appeal from the order complained of, notwithstanding Article 2686 which provided for an election to appeal to either court or school authority. The court cited Henderson v. Miller, supra, as authority for such holding. The last case it cited was Adams v. Miles, Tex.Civ.App., 300 S.W. 211, with reference to which it said:

'The last-cited case is squarely in point, notwithstanding Acts 40th Leg., 1927, c. 83, Sec. 1, amending Rev.St.1925, art. 2686.'

In Adams v. Miles, Tex.Civ.App., 300 S.W. 211, 214, the court said:

'The statutes provide that parties to controversies over the conduct of the public schools shall appeal from any action of the county superintendent to the county board of trustees, and that if either party desires to carry the appeal further he may elect, upon five days' notice of such election, to 'appeal to any court having proper jurisdiction, or to the state superintendent of public instruction.' Acts Reg.Sess. 40th Leg. 1927, p. 128. In prescribing this method of appeal, no exception is made in the character of controversies subject to the appeal. Upon its face the provision embraces all controversies subject to the appeal. Upon its face the provision embraces all controversies arising in the conduct of our public schools.

'But some of the courts have read exceptions into the statutes, as formerly embraced in article 2686, R.S.1925, which was amended by the act of 1927 above referred to. Under these authorities the rule seems to have emerged that appeals from actions administrative in their nature must be taken up through higher school authorities, as provided by article 2686, as amended, but that in matters in which the authority of the trustees to act under constitutional or statutory provisions is attacked, the parties complaining may take their causes directly to the courts, by mandamus or injunction, and there secure an adjudication of the question of whether in the action complained of the trustees have acted, or propose to act, within the authority given them under the Constitution and laws of the state. Henderson v. Miller, (Tex.Civ.App.), 286 S.W. 501; City of Dallas v. Mosely, (Tex.Civ.App.), 286 S.W. 497; Warren v. Sanger Dist., (Tex.Civ.App.,) , 288 S.W. 159; Johnson v. City of Dallas, (Tex.Civ.App.) 291 S.W. 972; Trustees v. Stiff, (Tex.Civ.App.), 190 S.W. 216.

'Under that rule, we hold that because the real question presented is whether the trustees and county superintendent have authority, under the Constitution and laws of the state, to expend the surplus school funds in their hands in the construction of a building for housing the school faculty and such other purposes as the trustees may deem best in the conduct of the local school, the courts have jurisdiction of that question, and the trial court properly entertained the petition for injunction.'

The judgment was reversed by the Commission of Appeals, 35 S.W.2d 123, 127, on other grounds, but that court held that the plea to the jurisdiction of the...