Sawyer v. Bd. of Regents of Claredon Junior College

Decision Date06 July 1965
Docket NumberNo. 7512,7512
Citation393 S.W.2d 391
PartiesEdward D. SAWYER et al., Appellants, v. BOARD OF REGENTS OF CLAREDON JUNIOR COLLEGE et al., Appellees.
CourtTexas Court of Appeals

Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellants.

Simpson, Adkins, Fullingim & Hankins, Amarillo, Knorpp & Slavin, Clarendon, for appellees.

DENTON, Chief Justice.

This is an election contest. This appeal is from a judgment entered after the consolidation of two cases filed in the trial court. In Cause No. 3139 appellant, Edward D. Sawyer, filed suit against the Board of Regents of Clarendon Junior College and the County Attorney contesting an election held on January 28, 1964, which the Board had called for the purpose of determining whether the Board should have the power to levy and collect an ad valorem tax on taxable property in the junior college district for the maintenance of the college at a rate not to exceed 85cents on the $100.00 valuation. Cause No. 3164 was filed by appellant Sawyer and other resident taxpayers against the Board of Regents and junior college district contesting the same election and seeking an injunction to prohibit the defendants from giving effect to such election by levying, assessing, or collecting taxes authorized by such election. The election resulted in authorizing the Board of Regents to levy and collect the proposed ad valorem tax by 535 votes for to 319 votes against. The trial court, without a jury, entered judgment denying the election contest and the injunctive relief sought and declared the election valid.

Appellants' first contention is that the election of January 28, 1964, is invalid for the reason it was called and held at a time when litigation involving two previous elections were pending in the courts. The previous elections were held on December 21 and on December 27, 1962. The election of December 21, called by the County School Trustees of Donley County, was to determine whether or not the territory in the Clarendon Consolidated Independent School District should be annexed and included in the junior college district for junior college purposes only. The December 27 election, called by the Junior College Board of Trustees, was to determine the power of the junior college district to levy and collect ad valorem taxes on taxable property within the district. Both elections carried and were subsequently contested by three suits which were later consolidated. The trial court's judgment declaring these elections valid was appealed to this court. On December 23, 1963, this court reversed the trial court and rendered judgment that the two elections were void and of no effect. See Derrick v. County Board of Education of Donley County, 374 S.W.2d 259. Appellee's motion for rehearing was denied January 20, 1964, and on March 25, 1964, the Supreme Court dismissed appellee's application for writ of error, and this court issued its mandate on May 15, 1964. The election under consideration here was called by the Junior College Board of Regents on January 3, 1964. This election was called after the decision of this court was announced in the prior case and before the motion for rehearing was acted upon. That decision did not become final until the Supreme Court dismissed appellee's application for writ of error.

As we understand it, appellants take the position the pending litigation deprived appellees of the power and jurisdiction to call and hold the election on January 28, 1964. The argument is that jurisdiction of this court had attached and pending a final judicial determination of the validity of the first elections, which result would determine the boundaries of the junior college district, the appellees had no authority to call and hold the election involved here.

In support of this contention appellants cite State ex rel. George v. Baker, 120 Tex. 307, 40 S.W.2d 41; Lynn County School Board v. Garlynn Common County Line School District (Tex.Civ.App.) 118 S.W.2d 1070, (Error Refused); Wichita Common School District No. 11 v. Dickens Independent School District (Tex.Civ.App.) 206 S.W.2d 885 (Error Refused); Singleton v. Smithers (Tex.Civ.App.) 359 S.W.2d 152 (Refused, NRE); among others. In the Baker case the County Judge of Hidalgo County had ordered an election to determine whether a certain common school district should be incorporated as an independent school district. After the election had been ordered and before it was held, the County Board of Trustees of that county ordered a redistricting of the common school district so as to place a portion of that district into two other adjacent common school districts. In holding the Board of Trustees' order invalid, the Supreme Court enunciated the general rule as follows:

'It is the rule of this state and practically the universal rule that, where co-ordinate jurisdiction over a particular subject-matter is vested in two distinct tribunals, the tribunal first acquiring jurisdiction has the right to retain jurisdiction until it has completely disposed of all matters and issues so presented to it, and no co-ordinate tribunal has any right to interfere with the tribunal first acquiring jurisdiction.'

This same rule was followed in the cases cited above in which conflicting actions were taken by various officials or school boards. It is appellants' position this rule is applicable here and that such rule of law makes the election of January 28 invalid. We are unable to agree. The cases are distinguishable on the facts and the issues involved. In the first place the election of December 21, 1962, was an election to determine whether the Junior College District was to be expanded. No such question was presented in the election here under consideration. The election of December 27, 1962, was to determine the power of the Junior College District to levy and collect ad valorem taxes within the expanded area; whereas the election here dealt with the power of the Junior College District to levy and collect ad valorem taxes on property lying within the old Junior College District or that area constituting the district before the 1962 election was called and held. The 1962 election was for the purpose of setting the rate of tax as not to exceed 60cents per $100.00 valuation; and the 1964 election authorized a rate not to exceed 85cents per $100.00 valuation. The subject matter of the 1962 elections and the 1964 election was related but not identical.

We specifically held in the Derrick case that the elections of 1962 were void and of no effect. There were no conflicting actions taken by the Junior College Board of Regents and the Donley County Board of Education. The elections of December 21 and 27 being void are subject to collateral attack. Mesquite Independent School District v. Gross, 123 Tex. 49, 67 S.W.2d 242. In view of the facts and circumstances of this case, we are of the opinion this question is determined by the reasoning and holding in Stephens v. Dodds (Tex.Civ.App.) 243 S.W. 710. There the Royston Independent School District, upon petition, called an election on June 22, 1921, to be held on July 14 to determine whether or not there should be a tax levied not to exceed $1.00 on the $100.00 valuation of taxable property to supplement the state school fund. The election was held and the votes were canvassed on July 16, and it was declared that the election carried. An election contest was filed on August 3. The Board of Trustees, after notice of the contest and while it was still pending, passed an order that the election was illegal and void; and after procuring another petition, called for another election on the same subject to be held September 3, 1921. This election also resulted in the proposition being carried. On September 5 the District Court held the July 14 election illegal and void. The contestants petitioned the court to declare the second election void on the ground the Board of Trustees had no authority to declare the election void and that such Board had no authority to call another election until the previous election had been declared void by the courts. The Court of Civil Appeals agreed that it was the exclusive authority of the courts to declare an election void and that the Board's order calling the first election, if not authorized by law, 'was simply a nullity, and no tax could be levied or collected by virtue thereof. This would be true whether the election was ever contested or not. It was subject to collateral attack any and every where. The trustees were not bound by it more than any other person, and could ignore the void order and under proper petition order an election for the purpose which the law specifically empowered them to order.' The fact that the Clarendon Junior College Board of Regents did not recognize the illegality of the former elections would not nullify the effect of the holding of the Stephens case. In the Derrick case, supra, we held the County School Trustees 'were wholly without authority to act in the calling of the election or in canvassing the returns thereof and their acts were void and of no effect.' As stated in Stephens v. Dodds, supra, 'An order for an election which is void for want of power to make cannot be valid for any purpose even as a shield protecting owners of property in a district from a valid order lawfully entered. That which is void can never be valid.' We therefore conclude the election of January 28, 1964, was not void because of the pending litigation involving the two previous elections.

Appellants next challenge the January 28 election because Article 2790, Vernon's Ann.Civ.St., prohibits another election to authorize the levying and collecting of ad valorem taxes to be held until the expiration of two years from December 22, 1962. The appellees were authorized to conduct elections for maintenance taxes under the provisions of Articles 2815h, Section 7, and 2815h-3b, V.A.C.S....

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8 cases
  • Honts v. Shaw
    • United States
    • Texas Court of Appeals
    • 8 de setembro de 1998
    ... ... Page 822 ... w.o.j.); see also Sawyer v. Bd. of Regents of Claredon Junior College, 393 S.W.2d ... ...
  • Little v. Alto Independent School Dist. of Alto, Cherokee County
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    ...Eastland, 1956, n.w.h.); Minthorn v. Hale, 372 S.W.2d 752 (Tex.Civ.App., Beaumont, 1963, n.w.h.); Sawyer v. Board of Regents of Claredon Junior College, 393 S.W.2d 391 (Tex.Civ.App., Amarillo, 1965, n.w.h.). While it is true that statutory enactments concerning elections must be strictly en......
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