5 S.W.2d 805 | Tex. App. | 1928
This suit was instituted in the district court by W. R. Wilson and 11 others, residents and property taxpayers in Marx Chapel common school district in Limestone county and patrons of the school maintained in said district, against the county board of school trustees in and for said county, to enjoin said board from consolidating said Marx Chapel common school district with Ben Hur, another common school district of said county. No other relief was sought. A temporary injunction was granted.
The case came on for hearing in term time and was tried before the court without a jury upon an agreed statement of facts. Said agreed statement shows that Marx Chapel, a common school district, and Ben Hur, a common consolidated rural high school district, are contiguous common school districts situated in said county; that both said districts *806 have less than 400 scholastic population; that Marx Chapel district has an indebtedness of $3,000 and Ben Hur an indebtedness of $1,500; that the trustees of Marx Chapel district presented to the county board of school trustees a petition signed by two of them, the same being a majority of such trustees, requesting said board to consolidate said district with said Ben Hur district to form a rural high school to be known as Ben Hur consolidated rural high school; that the trustees of Ben Hur district presented to said county board of school trustees a petition signed by 7 of them, being all of such trustees, requesting said board to consolidate Marx Chapel and Ben Hur school districts to form a consolidated rural high school; that an election had theretofore been held in Marx Chapel district, for the purpose of determining whether or not said district should be consolidated with Ben Hur district, at which election 18 votes were cast, 10 of which were for and 8 against consolidation; that said election was ordered by the county judge of Limestone county, Tex.; that the returns were never canvassed by the commissioners' court because no election was held in Ben Hur district, as the law provides, and that no such election was ever ordered for said district; that said county board of school trustees met in called session, four members thereof being present, together with the county superintendent, the secretary of said board, and unanimously voted to consolidate Marx Chapel and Ben Hur districts, thereby forming the Ben Hur consolidated rural high school; that said board then appointed 7 trustees for said new district, 5 of whom were trustees of said former Ben Hur district and 2 of whom were trustees of said former Marx Chapel district; that said county board of school trustees were proceeding as rapidly as possible under their general power and under the request of the trustees of the districts affected, to consolidate Marx Chapel and Ben Hur districts, thereby forming the Ben Hur consolidated rural high school, when the temporary injunction was granted restraining them from proceeding further with such consolidation. The court rendered judgment perpetuating the temporary injunction and permanently enjoining said board from further attempting to enforce said order of consolidation of said districts so made as aforesaid.
"The court erred to the prejudice of the appellant in rendering judgment for appellees perpetuating the injunction previously issued, restraining them from proceeding with the formation of a school district, and in not rendering judgment for appellant dissolving said injunction and thus permitting them to proceed with their duty in respect to said school district."
Appellant's first proposition under said assignment is as follows:
"The county board of school trustees of Limestone county was and is authorized to form a rural high school district out of the Ben Hur consolidated rural high school district and the Marx Chapel common school district, both having less than 400 scholastic population, upon the approval of the board of trustees of each of said districts affected, as it was proceeding to do when restrained by order and judgment of the court."
Article 2922a of the Revised Statutes as amended by the act of June 8, 1927 (Gen. Laws 1st C.S. 1927, p. 206 et seq.), confers upon county school trustees authority to form one or more rural high school districts by grouping contiguous common school districts having less than 400 scholastic population for the purpose of establishing and operating rural high schools. Said article also confers authority on county school trustees to annex one or more common school districts to a common school district having 400 or more scholastic population upon the approval of the board of trustees of each school district affected. The authority to annex contiguous common school districts to such a nuclear common school district upon the approval of a majority of the trustees of each district affected is the authority relied upon by appellant to sustain its action in the premises. According to the express terms of said statute, contiguous common school districts can be annexed to another common school district for the purpose of forming a rural high school only when such nuclear district contains more than 400 scholastic population. The agreed statement of facts in this case shows that Ben Hur district has less than 400 scholastic population. The provision of said article so relied on by appellant did not authorize it to annex said Marx Chapel district to said Ben Hur district to form a rural high school district, notwithstanding the approval of such action by a majority of the trustees of each of said districts.
Appellant's second and last proposition under said assignment is as follows:
"The county board of school trustees was and is authorized to form a rural high school district out of the Ben Hur consolidated rural high school district and the Marx Chapel common school district and the territory therein, upon the majority vote of the qualified taxpaying voters residing within the Marx Chapel common school district having voted so to do, by dissolving said Marx Chapel common school district and annexing the territory contained therein to the contiguous Ben Hur consolidated rural high school district, as it was proceeding to do when restrained by order and judgment of the court." *807
Appellant here invokes, to sustain its action in consolidating said districts, the authority conferred by section 3 of the Act of June 8, 1927 (Gen. Laws 1st C.S. 1927, pp. 228, 229). Said section provides, in substance, that when a majority of the legally qualified property taxpaying voters residing within any common school district shall vote so to do, the board of trustees may abolish said common school district and annex the territory contained therein to one or more contiguous school districts. It is, however, further provided in said section that such election shall be ordered by the county judge and the returns canvassed and the results declared, as provided by law for other elections pertaining to common school districts. Appellant's action in the premises cannot be sustained on such ground. The election referred to in the agreed statement of facts was not to abolish Marx Chapel district, but to consolidate it with the Ben Hur district. While the result of the vote at such election was shown, it was further shown that such election had been held illegal and that the returns thereof had never been canvassed nor the result declared. Said purported election did not abolish said district and conferred no authority upon appellant to consolidate it with Ben Hur or any other school district.
Appellant contends in argument under the foregoing propositions that authority to consolidate said districts was conferred by the provisions of article 2922a, above recited, which authorize county school trustees to form rural high school districts by grouping contiguous common school districts having less than 400 scholastic population. The authority conferred by such provision is general in its nature and may be exercised in the discretion of such trustees without either a petition from the trustees of the districts to be affected or any kind of an election by the voters residing therein. McPhail v. Tax Collector of Van Zant County (Tex.Civ.App.)
Associate Justice STANFORD took no part in the consideration and disposition of this case. *808