Rhomberg v. McLaren

• Decision Date: 23 February 1893
• Citation: 21 S.W. 571
• Parties: RHOMBERG v. McLAREN, Tax Collector.
• Court: Texas Court of Appeals

Page 571

21 S.W. 571

RHOMBERG v. McLAREN, Tax Collector.

Court of Civil Appeals of Texas.

February 23, 1893.

Appeal from district court, Stonewall county; J. V. Cockrell, Judge.

Suit by A. L. Rhomberg against J. C. McLaren, tax collector, to enjoin the collection of a school tax. Judgment for defendant. Plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by STEPHENS, J.:

This suit was brought to enjoin the collection of a school tax levied in Stonewall county. There was a trial before the court below without a jury upon an agreed statement of facts. The assignments of error raise questions of law only. In August, 1887, while Stonewall county was an unorganized county, and attached to Jones county for judicial purposes, an election was held in the territory covered by Stonewall county, by which a school tax of 12½ cents on the $100 worth of property was voted, in pursuance of the orders of the commissioners' court of Jones county, declaring said entire territory to be one school district, and providing for an election therein to determine whether said tax should be levied. The election was duly held, the result declared, and the tax levied by the commissioners' court of Jones county. Thereafter, on the 28th day of December, 1888, Stonewall county was duly organized, and in February following the commissioners' court of the newly-organized county created two school districts out of its territory, and defined their limits and boundaries, without first obtaining the will of the majority of the voters of said districts. In March, 1889, said commissioners' court ordered an election in school district No. 1, at which a tax of 20 cents on the $100 worth of property was voted; whereupon the commissioners' court declared the result of the election, and levied the tax which appellant by this suit sought to enjoin. This election was ordered upon the petition of more than 20 qualified, property holding, taxpaying voters of said district, but the names of less than 20 of them, to wit, 19 only, appeared upon the last assessment roll of the county.

Dan M. Jones and J. F. Cunningham, for appellant.

STEPHENS, J., (after stating the facts.)

1. The first contention of appellant is that the court erred in holding that Jones county had no authority to create the unorganized county of Stonewall a school district, and order an election therein for the purpose of voting a school tax. The constitution (article 7, § 3) authorizes the legislature to provide for the formation of school districts within all or any of the counties of this state. In pursuance of the provision of the constitution, article 3731 of Sayles' Civil Statutes makes it the duty of the county commissioners' court of all counties not exempted from that section of the Revised Civil Statutes to subdivide their respective counties into convenient school districts. Article 9, § 1, of the constitution provides that territory exterior to existing counties may be divided into counties in advance of population, and attached for judicial and land surveying purposes to the most convenient organized county or counties. Section 12 of article 8, provides that lands lying in and owned by nonresidents of unorganized counties shall be assessed and taxes thereon collected at the office of the comptroller. Stonewall county never was any part of the territory of Jones county. Our conclusion is that the commissioners' court of Jones county had no authority under the constitution and laws of this state to declare the unorganized county of Stonewall a school district, and that the proceedings which resulted in the levy of the 12½ cent school tax by the commissioners of Jones county were void....