Whitmire v. State

• Decision Date: 18 June 1898
• Citation: 47 S.W. 293
• Parties: WHITMIRE et al. v. STATE ex rel. VAUGHAN et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

47 S.W. 293

WHITMIRE et al. v. STATE ex rel. VAUGHAN et al.¹

Court of Civil Appeals of Texas.

June 18, 1898.

Appeal from district court, Hill county; J. M. Hall, Judge.

Quo warranto on relation of J. W. Vaughan and others against Charley Whitmire and others. From a judgment for relators, the respondents appeal. Affirmed.

This is a quo warranto proceeding brought by the state, upon the relation of J. W. Vaughan, J. W. Beavers, and A. L. Peak, against appellants, Charley Whitmire, J. P. Orr, and J. B. Orenbaum, to test the organization of a certain school district, and the right of said last-named parties to hold the offices of trustees of said district. Plaintiffs alleged that they were the trustees of Ross school district, No. 5, in Hill county, sometimes designated also as "School District No. 91"; that the same was a legally constituted school district; that the commissioners' court of Hill county had attempted to cut off a part of this district, and form a new district; and that the defendants were attempting to act as the trustees of this new district, known as "District No. 80." It was charged that the action of the commissioners' court in creating a new district was void, for the reason that the court attempted to create the new district at a called session of the court, and for the further reason that the commissioners' court, in forming the new district, changed the old, without procuring the consent of the majority of the legal voters affected by the change. It was alleged that the voters of this new district had elected defendants as trustees, and that the said trustees had intruded themselves into the office, and were attempting to exercise its functions. The prayer was that defendants be enjoined from acting as trustees, and that upon hearing they be ousted from the said office. Upon application the court granted the writ in chambers. The defendants answered by exceptions, a general denial, and specially pleaded that the new district, No. 80, was legally constituted by the commissioners' court, and that they were the duly elected, qualified, and acting trustees of said district. Upon trial before the court, October 16, 1897, judgment was rendered in favor of plaintiffs. Defendants gave notice of appeal, and have duly perfected their appeal. The trial judge filed conclusions of fact and law, as follows:

"Conclusions of Fact. (1) I find that the commissioners' court of Hill county, Texas, on July 2, 1884, subsequent to their former action had on May 17th of the same year, divided Hill county, Texas, into school districts, conformably with the requirements of the act of the legislature of 1884 (Sayles' Rev. Civ. St. arts. 3731, 3732). (2) I find that the action of said commissioners' court in attempting to describe said school districts to some extent was irregular, in failing to give the acreage of whole surveys and approximate acreage of parts of surveys of each district; and I find that said commissioners' court of Hill county, Texas, ordered a delineation of said school districts upon a map furnished it, which gave the names of the surveys, but failed to state the number of acres in each survey, or parts of acres in each survey, and that said map was adopted on July 2, 1884, by the commissioners' court of Hill county, Texas, as a description and delineation of Hill county school districts, including the district involved in this case. (3) I find as a matter of fact that the school district, the territory whereof is involved in this action, as originally designated by the commissioners' court of Hill county, Texas, was known as `District No. 91,' or `No. 5,' and was sometimes known as the `Ross District,' and that each of said designations applied to the school district as delineated and identified on said map, and is the same as is designated as such by said order of July 2, 1884, of said commissioners' court of Hill county, Texas. (4) I further find as a fact that said school district No. 91, or No. 5, or said Ross school district, in its creation and designation into a school district by said commissioners' court on July 2, 1884, thereafter held public schools in said school district, and has continuously from that time to the present time elected and had acting for it trustees as provided by law, and that the plaintiff J. W. Vaughan and the other two plaintiffs suing on relationship herein are the duly elected and acting trustees for said original Ross district, or district No. 91, or No. 5, as the same is sometimes called and designated. (5) I find as a matter of fact that the commissioners' court on April 29, 1897, attempted to divide said school district known as the `Ross District,' and sometimes called `No. 91,' or `No. 5,' as it had previously existed and was previously known, into two districts. (6) I find as a fact that at the time said commissioners' court of Hill county, Texas, attempted to change said school district by making two districts out of said original district, that there were 132 legal, qualified voters residing in said old original district. (7) I further find as a fact that said commissioners' court of Hill county, Texas, in changing said original district, and making said new district out of a part of the territory of the old one, did so without having the consent of but 38 of the legal voters of said original district, and therefore did not have the consent of a majority of the legal, qualified voters in said original district. (8) I find as a fact that the defendants were elected as trustees...