Parks v. West

• Decision Date: 08 February 1908
• Citation: 108 S.W. 466
• Parties: PARKS et al. v. WEST et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 466

108 S.W. 466

PARKS et al. v. WEST et al.^*

Court of Civil Appeals of Texas.

February 8, 1908.

Rehearing Denied February 29, 1908.

Appeal from District Court, Navarro County; L. B. Cobb, Judge.

Action by J. W. Parks and others against R. C. West and others, trustees of the independent school district of Mertens. Judgment for defendants, and plaintiffs appeal. Affirmed in part, and reversed and rendered in part.

Frost & Neblett and R. R. Owen, for appellants. McClellan & Prince, Morrow & Smithdeal, and C. L. Black, for appellees.

TALBOT, J.

This suit was instituted by the appellants to restrain, by injunction, the appellees, who are the trustees of the independent school district of Mertens, from issuing bonds in the sum of $5,500 for school purposes and levying taxes to pay the same. The said school district includes within its limits portions of Hill, Ellis, and Navarro counties, and the village of Mertens, which is situated wholly within the said Hill county. It was alleged that the district had not been legally incorporated, that the bond election was not held in conformity to the statute, that said election had been ordered within 12 months from the holding of a prior election at which the proposition to issue bonds and levy a tax for school purposes was defeated, and that the tax voted was in excess of 20 cents on the $100 valuation. The case was tried without a jury, and judgment rendered in favor of appellees, from which appellants have appealed.

The facts are uncontroverted, and appear in the trial judge's conclusions of fact filed, which are adopted by this court, and are as follows: "(1) The village of Mertens is wholly within Hill county. The plaintiffs reside in Navarro county, and own land in Navarro county embraced within the said district and subject to taxation. (2) On February 16, 1905, 20 or more qualified petitioners residing in said village presented to the county judge of Hill county an application for an order for an election to determine whether or not said village, together with certain territory of Hill, Ellis, and Navarro counties, should be incorporated under the name and style of the `Independent School District of Mertens.' The order for election was made February 17, and the election was held March 16, 1905, at the village of Mertens and no other place, participated in by voters of the three counties; returns being made to said county judge, who on March 23, 1905, entered his order declaring the incorporation of the district. (3) On June 6, 1905, an election was held in the district upon the question of issuing bonds to build a schoolhouse and levying taxes to pay same, and the measure failed to carry. On May 7, 1906, a petition was presented the trustees for another bond and tax election, which was by them ordered on May 12, to take place on June 16, 1906, at Mertens, `to determine whether bonds of said district be issued in the sum of $5,500 bearing 5 per cent. per annum interest payable annually in twenty equal installments, first payment due one year from date of bonds, for the purpose of constructing a public school house of brick and wood and buying a site therefor within the limits of said district, and whether there should be levied and collected an annual tax of not more than 25 cents on the $100 valuation, on all taxable property in said district, sufficient to pay interest on said bonds and provide a sinking fund to redeem them at maturity.' Notice of said election was given, reciting that, in conformity with an order passed on May 12, 1906, `notice is given that an election will be held at the public school house at Mertens, Hill county, Texas, in said district on June 16, 1906, for the purpose of determining whether the bonds of said Mertens independent school district shall be issued in the sum of $5,500.00, bearing interest at the rate of 5 per cent. per annum payable annually, said bonds payable in twenty equal installments, the first annual payment due one year after date of bonds, for the purpose of constructing a public free school building of brick and wood, and purchasing a site therefor, within the limits of said district, and whether or not an annual tax shall be levied and collected, sufficient to pay said bonds and interest thereon, according to their terms.' The notice was signed by six trustees. The election was held June 16, 1906, polls being opened at 8 o'clock a. m., and 30 votes were cast before 10 o'clock a. m. On June 23d, the trustees canvassed the vote and found and declared that over two-thirds of the ballots were `for the bonds and tax.' (4) No notice of any of the elections was posted in Ellis or Navarro counties, but three notices were duly posted in Hill county within the limits of the district. The area of Navarro county territory in the district is 1,650 acres. (5) The tax roll of 1906 was used at the election of June 16, 1906, for determining the eligibility of voters; that is, whether they paid taxes in the district. (6) At plaintiffs' suggestion, I further find that, prior to the organization of the independent district, the same territory had constituted a county line common school district, having been established by the commissioners' court of Hill county, and that in March and April, 1906, the commissioners' court of Navarro county made orders the effect of which, if valid, was to sever the Navarro portion of the district from the balance and to embrace it within a common school district of Navarro county, the trustees of said independent district being represented in the matter before said court. (7) I find for defendants, so far as pertinent, the following issues upon which there was no proof, viz.: It was not shown that any voter failed to cast his ballot at any of the elections, nor that a different result would have been reached had polls opened at 10 instead of 8 o'clock; nor if the votes from Ellis and Navarro counties had been excluded or had been counted against the bonds and tax; nor that any one not on tax roll of 1905 as taxpayer voted, nor what was the assessed valuation of property in the district."

Appellants' assignments of error challenge the correctness of the trial court's conclusions of law, and they insist, in effect, upon the following propositions: (1) That the Legislature has not the constitutional power to authorize the incorporation of an independent school district embracing parts of different counties, independent of the will of the voters residing in the different counties to be affected by the district, and therefore the attempted incorporation of the district in question by the voters of Hill county, without meeting the essential requirements of the statute in such cases, is void and incapable of validation by any subsequent healing act. (2) That the election for the incorporation of the district for school purposes only was null and void, because the district could not be incorporated without a vote of the qualified electors residing in the respective counties, and such electors living in the Navarro and Ellis county portions of the district could not legally vote at Mertens in Hill county, the only voting place at said election, for the reason that under the Constitution and laws of this state they were required to vote in the election precinct of their residence. (3) That the election to determine the bond issue and tax levy sought to be enjoined was void because the order for the same was made, in violation of the statute, within a year of the holding of a former election for that purpose. (4) That the election to determine whether or not the bonds should be issued and the tax levied to pay same was void because the petition and order for said election failed to describe the bonds as "coupon bonds." (5) That the order for the election is void because it does not specify the rate of tax which it was proposed to levy; that an order for an election to determine whether a tax not to exceed 25 cents on the $100 valuation shall be levied does not submit for determination the levy of a tax of 25 cents or of any tax; that if such an order authorizes a tax of 25 cents it is in excess of the constitutional limit of 20 cents on the $100 valuation.

That the Legislature has the power to create by special law incorporated independent school districts, or to authorize the incorporation of such districts having territory in more than one county by general statute, there seems to be little or no doubt. "The legislative department of a state government may make any law not prohibited by the Constitution of the state or that of the United States. Therefore, the rule is that in order for the courts to hold an act of the Legislature unconstitutional, they must be able to point out the specific provision which inhibits the legislation. If the limitation be not express, then it should be clearly implied." State of Texas v. Brownson, 94 Tex. 436, 61 S. W. 114. No such specific provision inhibiting the legislation under consideration can be found in the organic law of this state, nor can such a limitation be implied from any of its provisions. Moreover, section 3 of article 7 of the Constitution, as amended in 1883, expressly authorizes the "formation of school districts within all or any of the counties of this state, by general or special law, without the local notice required in other cases of special legislation"; and in the case of State of Texas v. Brownson, supra, after quoting these provisions, Judge Gaines says: "Four Legislatures had assembled under the Constitution when this amendment was submitted to the popular vote; and it seems obvious that, when submitted, it was considered that, under the then existing limitations upon the Legislature with reference to the public schools, the varied need of special localities could not be met, and that the purpose of the provision quoted was to give the Legislature a free hand in establishing independent school districts." It is manifest, we think,...