Williams v. Glover

• Decision Date: 28 February 1924
• Docket Number: (No. 62.)
• Parties: WILLIAMS et al. v. GLOVER et al.
• Court: Texas Court of Appeals

259 S.W. 957

WILLIAMS et al. v. GLOVER et al.

(No. 62.)

Court of Civil Appeals of Texas. Waco.

February 28, 1924.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

Suit by B. F. Glover and others against C. R. Williams and others. Judgment for plaintiffs, and defendants appeal. Reversed and rendered.

Morrow & Stollenwerck, of Hillsboro, for appellants.

T. H. Jackson and Collins, Dupree & Crenshaw, all of Hillsboro, for appellees.

GALLAGHER, C. J.

B. F. Glover and J. T. Hawkins, appellees herein but plaintiffs in the court below, brought this suit in the district court of Hill county against C. R. Williams, tax collector of said county, Arthur Pratt, tax assessor of said county, the members of the commissioners' court of said county, and the several trustees of common school district No. 67 of said county, to enjoin the collection of a certain increase in the school tax of said school district, and to enjoin further levies of such tax, and to declare the school tax election purporting to authorize such increase in said tax illegal and void.

A temporary injunction was granted as prayed, which on final hearing before the court was perpetuated and said election declared illegal and void. Said tax assessor, said tax collector, and the trustees of said school district present the case to this court for review on appeal.

B. F. Glover and J. T. Hawkins, plaintiffs in the court below, are resident property taxpaying voters in common school district No. 67 of Hill county. On May 15, 1923, I. O. Underhill presented to W. L. Wray, county judge of Hill county, a petition signed by himself and other property taxpaying voters residing in said school district, asking said county judge to order an election to determine —

"whether the majority of the resident property taxpaying voters of said district desire to raise the tax of and at the rate of fifty cents on the one hundred dollars valuation of taxable property to a rate of seventy-five cents on the one hundred dollars valuation of taxable property in the above-named district, and whether this rate shall be levied and collected in said district for said purpose."

The sufficiency of said petition is not questioned. It was presented to Judge Wray in his office. He personally considered the same and wrote upon the commissioners' court docket the following:

"5-15-23. Petition heard and granted and election ordered held at schoolhouse in C. S. D. No. 67 on Saturday, June 9th, 1923, and I. O. Underhill is appointed presiding judge."

No member of the commissioners' court was consulted about such order or participated in any way in making the same, and no member of such court was present when the same was made. This order was not signed. It does not appear that Judge Wray did anything further with reference to the matter. It was the custom in such cases for the county clerk to enter an amplified order on the minutes of the commissioners' court. In doing so it was his further custom to use a printed copy of an old "Notice of School Tax Election" as a form. This old form appears to have been one prepared under section 58 of the General School Laws enacted by the Legislature in 1905 (Gen. Laws, p. 278). By the express terms of said section, application for an election to determine whether a local school tax should be levied was required to be made to the commissioners' court, and the election ordered by that body. Said section was amended by an act of the Legislature approved February 18, 1909 (Gen. Laws, p. 17) by the terms of which amendment such petitions were required to be presented to, and such elections ordered by, the county judge. The aforesaid custom was followed in this case, and an amplified order for such election was entered on the commissioners' court minutes in accordance with such form. This form, in pursuance of the law under which it seems to have been prepared, recited that the petition was presented to "the court," was considered by "the court," granted by "the court," and the election ordered by "the court." The order did not show on its face what "court" acted in the premises. There is no contention that the terms of such amplified order did not meet every requirement of the law, except that it is contended that "county judge" should have been used wherever "the court" appears therein.

The county clerk prepared three copies of this amplified order and attached to each such copy a certificate that the same was "a true and correct copy of an order of the commissioners' court of Hill county, Tex., made and entered at the May term thereof, 1923, as the same appears in the minutes of said court." These certified copies of said amplified order were delivered by the county clerk to I. O. Underhill, who personally presented said petition, and were by him posted in three public places in said district in the manner and for the length of time required by the law under which such election was applied for, ordered, and held. Judge Wray never directed the sheriff of said county to post notices of the election so ordered, nor did the sheriff authorize said Underhill to post the same. No other notice of such election was given, but it was admitted in open court on the trial of the case that —

"All the property taxpaying voters residing in said district at the time of the petition for the election and at the time the purported notice thereof was given and at the time the purported election was held, had actual knowledge of the time and place and purpose of said election."

The election was duly held and resulted in favor of the levy of the increased tax. The commissioners' court duly canvassed the returns, so declared the result, and levied the school tax for the year 1923 on all the taxable property in said district at such increased rate. Such tax was assessed against the property of plaintiffs situated in said district and entered upon the tax roll and turned over to the tax collector for collection.

Judge Wray and the county clerk were the only witnesses examined on the trial of this case. Judge Wray's testimony was in accord with the facts as above recited. The county clerk, after testifying to the facts so recited, further testified:

"When I filled in this blank order I was acquainted with the fact that the election had been ordered by Judge Wray upon the petition heretofore mentioned. * * * I made that certificate personally [referring to the certificate to copies of the amplified order delivered to Underhill and posted as notice of election]. * * * There is no provision made in the law that specifically sets out that the county judge's order has to be recorded in the minutes, but in order that there will be an order for the tax assessor to be guided by and county superintendent in submitting to the court the rates of special school taxes in the various districts, in order that there will be a record of these districts that have increased or decreased their taxes, the order of the county judge, entered at length, as we enter all orders at length, is always recorded in the commissioners' court minutes. All orders with reference to petitions for elections are recorded therein like this one. Then we make four copies of this notice and use the body of this notice as the extended order of the county judge and enter that in the minutes of the commissioners' court, and that certificate certifies that this order will be found in the commissioners' court minutes. That is the purpose of that certificate. Instead of the certificate saying that it is the order of the commissioners' court, it should state that it is an order in the commissioners' court minutes. This certificate, to be absolutely correct, should say `a copy of order of the county judge entered in the commissioners' court minutes.' This is a form that has been used for years and years. At the time I made this certificate I made it with the understanding that it was the order of the county judge. The commissioners' court doesn't have anything to do with school tax elections. They didn't have in this case; never have had in any. The law did not at one time provide for the ordering of such elections by the commissioners' court. I don't think it ever did. It has been the county judge. Well, 40 years ago it might have been otherwise. I don't know. I don't know whether or not that blank was probably printed at a time when the commissioners' court at one time ordered such elections. It is a copy of one that had been used before, and it has been the custom since 1901."

The testimony does not disclose whether the commissioners' court was in session on the 15th day of May, 1923, or not. Neither does it clearly appear therefrom whether said amplified order was entered in the body of the minutes of a term of the commissioners' court, or merely in the minute book of said court independent of the record of the proceedings of any term thereof.

Said section 58 of the General School Laws, as amended by Act February 18, 1909 (Gen. Laws, p. 17), was carried into the Revised Statutes of 1911 and constituted article 2828 thereof. In 1921 the Legislature enacted a new and independent law on the subject of local taxation by common school districts, but section 2 of said act (Vernon's Ann. Civ. St. Supp. 1922, art. 2828), except with reference to the limit of the tax which may be...