121 Tex. 72 | Tex. | 1931
delivered the opinion of the Commission of Appeals, Section A.
This is a proceeding for mandamus, instituted in the Supreme Court by the relators, the Austin Independent School District, and others, against the respondents, S. M. N. Marrs, Superintendent of Public Instruction of the State of Texas, and others. The facts may be briefly stated as follows:
The Austin district is an independent school district situated in Travis county, and contains a scholastic population of 12,421; and the control and management of the public schools of the district are committed to the Austin School Board. In July, 1930, the County Board of Education, of Travis county, acting in pursuance of and in conformity with the provisions of the Act of 1930, hereinafter set out, ordered an assessment against each school district in the county, including the Austin district, for the payment of the salary and office expenses of the County Superintendent of Public Instruction. The Austin district, through its school board, denied liability and refused to pay the assessment. The Austin district’s portion of the county available school funds, for the year 1930, as a result of instructions to that effect issued by the respondent Marrs, has never been turned over to the Austin district by the county authorities, but same still remains in the hands of the county treasurer, who refuses to make any disposition thereof pending this controversy. The Austin district’s portion of the above school funds lacks $998.48 of being of sufficient amount to satisfy said
Chapter 49 of the general laws passed at the 4th Called Session of the 41st Legislature, so far as material here, reads as follows:
“Chapter 49.
“AN ACT to provide for the maintenance of county administration of the public free schools to be prorated to all of the schools of the county and declaring an emergency.
“Be it enacted by the Legislature of the State of Texas:
“Section 1. That from and after August 31, 1930, the salary and office expenses of the county superintendent of public instruction and such assistants as he may have shall be paid out of the school funds of the common and independent school districts of the county.
“Sec. 2. That the County Board of Trustees shall annually on or before the first (1st) day of August hereafter order a scholastic per capita assessment against each school district within the County in sufficient amount to provide for the payment of the salary and office expenses of the County Superintendent and any office assistants he may have, as is now provided by law, or may hereafter be provided. And the said assessment when legally made and certified to the school districts of the County shall be paid by them for the purpose herein specified.
“Sec. 3. The State Superintendent is hereby authorized and instructed to issue and transmit to County and District School Officials all instructions necessary for the proper observance and administration of this Act.
“Sec. 4. All general laws in conflict herewith are hereby repealed, except such laws as provide for a part of the office expense to be paid from the general revenue of the county.. ?}C jji i¡í
We come now to the question as to the application of the provisions of the act to the Austin Independent School District. Article 2700 of the statutes reads in part as follows:
“The county superintendent shall receive from the available school fund of their respective counties annual salaries based on the scholastic population of Such counties, as follows:
Population Salary
3000 or less__________________________________________________________$1600.00
3001 to 4000________________________________________________________ 1800.00
4001 to 5000_______ 1900.00
5001 to 6000________________________________________________________ 2000.00
6001 to 7000________________________________________________________ 2200.00
7001 to 8000_______________________________________________________ 2400.00
8001 to 9000________________________________________________________ 2500.00
9001 to 10,000______________________________________________________ 2600.00
10,001 or more______________________________________________________ 2800.00
“In making the annual per capita apportionment to the schools, the county school trustees shall also make an annual allowance out of the State and county available fund for salary and expenses of the office of the county superintendent, and the same shall be prorated to the schools coming under the supervision of the county school superintendent. The compensation herein provided for shall be paid monthly upon the order of the county school trustees; provided, that the salary for the month of September shall not be paid until the county superintendent presents a receipt from the State Superintendent showing that he has made all reports required of him. The county board of trustees may make such further provision as it deems necessary for office and traveling expenses for the*78 county superintendent and any assistants he may have; provided that expenditures for office and traveling expenses shall not exceed three hundred dollars per annum, and the county board of trustees may make provision for the employment of a competent assistant for the county superintendent who shall, in addition to his other duties, act as attendance officer; and said board is hereby authorized to fix the salary of such assistant and pay the same out of the same funds from.which the salary and expenses of the county superintendent are paid.”
This statute was subsisting when the act of 1930 was passed. There was not then, and is not now, any statute which places under the general supervision of the county superintendent any of the public schools in independent school districts of the class to which the Austin district belongs. It is apparent, therefore, that if the provision contained in article 2700, to the effect that the burden of paying the salary of the county superintendent, and the expenses incident to that office, shall be “prorated to the schools coming under the supervision of the county school superintendent” is existing law, then the contention that the Austin district is not liable for any portion of such salary arid expenses would have a substantial foundation. But it is manifest that the provision just referred to has been superseded by the provisions of the act of 1930, for in that act it is expressly provided that said salary and expenses “shall be paid out of the school funds of the common and independent school districts of the county”; and further provides for a scholastic per capita assessment against “each district within the county” for the payment of such salary and expenses. The clear purpose of the Legislature in passing the act of 1930, was to bring all public school districts, of every character, within the scope of the provisions of that act, regardless of any relevant restrictive provision contained in pre-existing statutes, and to make the prescribed assessment lawfully payable from any available funds belonging to the respective districts. To this extent, preexisting statutes such as article 2700 and article 2827, were modified by the act of 1930.
Nothing has been found in the Constitution which restrains the Legislature from authorizing the appropriation of available funds, belonging to any school district, to the payment for benefits received by the public schools of such district. It cannot be successfully denied that all the public schools of every school district in a given county are now, and were when the act of 1930 was passed, the immediate beneficiaries of various
We therefore recommend that the writ of mandamus do issue.
The opinion of the Commission of Appeals is adopted and mandamus awarded.
C. M. Cureton, Chief Justice.