*1 al., Appellants, E. et C. PALMER NO.
DISTRICT TRUSTEES DISTRICT OF Body Corporate, Appellee.
No. 6870. Appeals of Civil of Texas.
Court
Texarkana.
March 1956.
Rehearing April 1956. Denied Looney Power, Lindsey, E. McDonald &- Gilmer,
Mell, appellants. Fulton, McClain, Hancock & Hollie G. McClain, Fulton, Gilmer, Edwin M. ap- pellee.
345
from
School
the Glenwood Common
FANNING, Justice.
the East Mountain
District-
21 to
No.
Trustees
the District
s-appellees,
Plaintiff
in the East Mountain
School located
County,
Upshur
Tex-
21 of
District No.
of
31, and
Common
District No.
School
District
School
(Glenwood
as
Common
,
-from
children to said
delivering said
order
an
set aside
21),
suit to
filed
No.
pur-
for the
East Mountain School
Upshur
Trustees
County Board
poses
said
instructed
1955,
6,
Texas,
September
entered
County,
school;
a
Board
order
Mountain
The East
Common
Com-
from Glenwood
of students
number
“2."
31, body corpo-
a
No.
Upshur
21 of
District
No.
District
mon School
rate,
it,
restraining
agents,
its
serv-
Com-
County, Texas,- to
Mountain
East
receiving
employees, from
Upshur
ants and
31 of
No.
District
mon School
any of
students
injunction
instructing
and
sought an
County,
and
above-named, (except Tommie Robert-
attempt-
from
County Board
restrain
Tucker),
and
Evans
en-
son
-and
re-
and to
into effect
put
the order
ing
Jamie
permit
not
joining
said
it
students
and
M. Bain
L.Mrs.
the defendants
strain
School.”
attend said East Mountain
up
picking
and
from
Clayton Willis
Mrs.
East
transporting said students to the.
defendants-appellants
appealed
in-
School,
sought
and also
an
Mountain
from
temporary
the above
,
the East Mountain
junction to restrain
granted
the trial court.
or in-
receiving, accepting
from
District
students,
plaintiffs-ap-
and
structing said
points
Appellants by
con
several
against defend-
damages
sought
pellees also
irrespective
wheth
tend in essence
ants.
was void
er the transfer order
not,
of the
admission
court, upon application
ap-
The trial
question by
voluntary
act
students
temporary injunction,
a
pellees
a
held
school was
ille
not
hearing,
at
the conclusion
gal,
transporting
students
said
hearing,
of the Coun-
found that
order
pri
Willis
Mrs. Bain and Mrs.
ty
September
was ’void
Board of
was
conveyances
illegal,
vate
purportedly transferred
far
so
as
authority in law
trial
was no
for the
there
appellees
Although
21 named students.
grant
court
prayed
injunction to restrain the
question.
put
County
attempting
from
Board
order,
effect,'
the trial court
transfer order
en-
court,
special meeting
County
The trial
how- tered at a
grant
did not
same.
ever,
appellees
following
special
in- Board of
granted
Trustees. Notice of the
meeting
temporary injunction,
given
junctive
relief as a
to one member
Board,
Duncan,
Mr.
C.
to-wit:
President
J.
Board,
participate
did not
he
ordered,
therefore, further
ad-
"It is
meeting.
clearly
This order was
void un-
decreed
the Court that
judged and
2687,
der
following
authorities: Art.
issue writ
of this Court
the Clerk
Ann.Civ.St.;
Tex.Jur.Supp.,
Vernon’s
1
hearing
final
injunction pending
23,’
109;
p.
sec.
Webster v. Texas & Pa-
cause
and determination
.
Co.,
Transport
131,
cific Motor
140 Tex.
against :
&
S.W.2d
Houston North Texas
75;
Freight
Johnson,
Motor
Lines v.
140 Tex.
defendants,
L. M.
“1. The
Mrs.
78;
Hildebrand on Texas
Willis,
Clayton
Mrs.
restrain-
Bain and
Corporations,
2, p. Vol.
sec. 638.
them,
them,,
each
ing
named,
Appellees
above
transporting
students
also contend that the transfer
them, (except
order was
void
contrary
the Robert-
also
pertinent
or students),
plead-
children
transfer statutes on
and Tucker
son
grounds.
unnecessary
V.A.C.S.,
ed
We deem
Article
reads
specifically
contentions
these other
follows :
discuss
clearly
in as
much
the order was
void
so
“The
shall
because
President of
Board was
*3
expended except
not be
follow-
the
meeting
not
special
of
and did
notified
the
* * *
purposes:
ing
participate
not
therein.
“2. Local school funds from dis-
though
ques-
Even
the transfer order
taxes,
trict
pupils
tuition
not
fees of
void,
as to
tion was
the
arises
entitled
and
to
tuition
other local
free
teaching
whether
chil-
voluntary
the
the
may
purposes
sources
be used for the
question by
dren in
East Mountain dis-
county
enumerated for State and
funds
unlawful,
illegal
trict
whether
and
purchasing appliances
and for
sup-
and
enjoin
trial court was authorized to
* * *
plies,
pur-
and
petition
same on the
of the Glenwood dis-
poses necessary conduct qualified tax-payer
trict
alone where no
to
schools
be determined
ac-
Mountain district assailed the
* *
Board
(Em-
Trustees
East Mountain school board as
phasis ours.)
being detrimental
to the East
to such an extent
constitute
as to
apparently recognizes
above statute
part
on
abuse of discretion
(at
that
least
certain
where
instances
ques-
East Mountain District
Board.
the local school board does
its
not abuse
trial
tion also arises
to whether
discretion in admitting
not en-
scholastics
enjoin
any authority
Mrs.
court had
titled to
tuition)
free
local school boards
voluntary
and Mrs.
Willis
Bain
their
may teach scholastics not entitled
action of
students
their
transporting the
tuition
charge
and
tuition therefor.
East Moun-
vehicles to the
motor
tain school.
City Dallas,
In Love v.
120 Tex.
it is stated:
2922-13,
1, V.A.C.S., reads
Article
sec.
as follows:
“For the same reason a school dis-
compelled
trict cannot be
render a
“ * * *
that the attend-
Provided
service to a nonresident scholastic for
whose
ance
non-resident scholastics
them
less
* * *
a reasonable tuition fee.
grades
taught
in their
dis-
are
home
say
If we should
that
teacher
shall not count towards
tricts
mandatory,
statute is
regardless
eligibility, unless
other factors which
necessary
are
approved by the
has been
scholastics
be
considered
determining what
County
Board and the State
School
fee,
would be a reasonable tuition
”
* * *
of Education.
Commissioner
city of Dallas
accept
must
pupils
it,
apparent
think it
from the above
under
then
We
we would
com-
be
pelled
Legislature
say
statutory provision
that
that
un-
the statute is
fre-
constitutional
knew that non-resident
scholastics
think,
void. We
however,
quently
attend
other than
view of
schools
do
the construction
given
act,
we have
home districts
their
without
for-
it
applies only
pupils
mally
apparently
subject
transferred thereto and
to the
statutes,
recognized
legal
certainly
same as
its validity
may be
However,
criminal.
sustained
unlawful or
extent of
re-
permitting
apply
formally
without
such attendance
sult
those districts whose
transfer would be that no
approved
finan-
trustees have decided that
accept-
from state
benefits
under the
ance
cial
nonresident scholastics at a
provisions
eligibility
of the Gilmer-
teacher
rate
excess of the statutory
would accrue
amount will
Ailcen Act
to the
dis-
not be a detriment and
may
the non-resident
be
trict
scholastics.'
of advantage to their districts
mistakably
non-resi-
facilities
knew that tuition for
compensatory for the
words,
pupils
un-
dent
schools
being charged
In other
rendered.
services
n act, in
departmental
interpretation
years
was the
our
der
statutes,
Department
construction of
with the transfer
the State
connection
Education,
to the local
Attor-
is left
under
advice of the
a sound discretion
State,
whether or
neys
of this
that such tuition
school boards
determine
General
(cid:127)
not,
circumstances
charged.
view
all the
effect
could
Also
same
districts,
admis-
their
Mc-
surrounding
following
are the
authorities: Muse v.
will be
Dist.,
scholastics
Kinney
sion
nonresident
Independent
Tex.Civ.
scholastics of
*4
prejudicial
780,
App.,
to the
authorities cited
and
statu-
districts,
whether
not the
or
therein.
The
compensatory.
tory
would be
fee
local
by the
exercised
he
discretion to
think,
Unquestionably, we
the East
which
that
quite
is
similar to
boards
the
would have
Mountain School Board
them
always permitted
statute had
the
discretionary authority
admit
ad-
with
exercise
(even
reference
and teach non-resident scholastics
scho-
under
'pupils over
mission
formally
though
of
were not
they
dis-
the
out
age,
or
lastic
either
upon
statutes)
under the
reason
control
their schools.
trict’ into
long
able terms as
as the admission
n
been
always
public schools has
our
such non-resident students
n boards,
time
no
and at
in local
prejudicial or detrimental to
would not be
pu-
right to admit
they had the
pupils
the East Mountain
the
school
free
tuition,
such
when
ad-
pils
pay
who
District.
the
prejudicial
would
mission
be
Trustees,
districts.
In
pupils
Independent
Pleasant Grove
school
free
R.S.1895,
3757;
art.
R.S.1879,
Bagsby,
Tex.Civ.App.,
Dist.
art.
237
R.S.1925,
2902;
R.S.1911,
754,
3960;
750,
it is
:
art.
S.W.2d
stated
stat-
purpose
these
2904. The
art.
application
“It is a rule of universal
only
a sound
fix
utes was
state,
every
this
as well as
-
policy,
that- the
but
make certain
jurisdiction
country,
this
that
the
properties would
funds and
free school
will not interfere with the exer-
courts
solely to
devoted
education
be
the
by
cise of discretion
school directors in
entitled thereto within
scholastics
by
matters confided-tothem the law un-
reason,
city.
basis
or
This
less
is clear abuse
there
discre-
necessary
statutes,
makes
these
of the
tion
a violation
law. Courts
a sim-
local trustees to exercise
reg-
are disinclined
interfere with
re-
authority
admission or
ilar
adopted by school
ulations
boards
who
jection
nonresident
scholastics
they will not
whether
consider
by
under the
seek admission
regulations
expedient;
wise
are
but
be
us. This discretion
act before
merely
they
whether
are a reasonable
will not
by
local boards
exercised
powers
exercise of the
and discretion
courts, except in
by the
disturbed
they
of the school authorities. When
abuse. Todd v.
cases
manifest
powers
reasonably
act
con-
within
235,
Education, 54
209
N.D.
Board of
upon
prov-
by
ferred
law
them it is the
369, 371;
Law,
24 Ruling Case
N.W.
ince of
of education to
boards
deter-
575,
(Emphasis ours.)
24.”
p.
§
is detrimental
mine what
to the suc-
management, good-order,
cessful
Cameron Inde-
well-
of Slocomb v.
case
District,
progress
un-
Tex.Com.App., 116
schools
pendent School
1064,
jurisdiction
presump-
der their
and a
that an
288
also holds
S.W.
Tex.
may charge
always indulged by
tui-
school district
tion
independent
courts in
'
scholastics. This
non-resident
favor of
reasonableness' and
Legislature'
propriety
un-
points
regulations
'oüt
rules and
opinion
grammar
duly
adjacent
edu-
school
charge
those in
made
school district
adjacent
author-
(Citing
cational institutions.”
buses .of
where costs of
ities.)
operating
paid
buses
general
were
county
transporta-
school funds and from
Miles,
In
Adams v.
Tex.Com.App.,
by state,
tion funds
'
allotted
and no
S.W.2d
it is stated:
costs were
borne
school district
plaintiffs
resided.
is,
apparent
has
“It
state,
been,
public policy
Appellees contend to the effect
Art.
organic
evidenced
law ánd
2892, V.A.C.S.,
and Article
Penal
.with,
legislative
dealing
various
acts
Code of
Vernon’s
art.
Ann.P.C.
system,
applicable
granting
authorize the
in-
districts,
permit
to common school
junction.
2892, V.A.C.S.,
Art.
reads
local authorities of these districts
part as follows:
belonging
use the local
thereto
purpose
“Every
deemed
any reasonable
child in the
sev-
State who is
years
them
en
sufficient, having relation to
and not more than sixteen
*5
years
age
required
that
conduct
the schools
district.
shall be
to attend
in
by
many
policy
public
This
is evidenced
schools in the district
its
residence,
declarations,
legislative
too numerous
or in some other district to
*
* *
opinion.
may
provid-
to
in
discuss
this
which
be transferred as
law,
period
by
ed
for a
less than
“We have not discussed
right
days.”
twenty
one hundred and
qualified tax-payer
question
a
to
authority
297,-
Texas,
of the local
Article
authorities
in
Penal Code of
reads in
part
public
common school
to
as follows:
districts
use
building
funds
teacher’s
“Every
in the
child
State who is sev-
homes, when there is no reasonable
years
en (7)
and not more
six-
than
thereof,
necessity
since the record in
years
age
required
(16)
teen
shall be
present
this
question.
case does not
public
to attend the
schools
the dis-
gives
right
law
taxpayer
residence,
trict of its
or in some other
prevent
to
using
local authorities from
may
which
public
build
teacher’s homes
funds
law,
provided by
period
as
for a
of not
where it can be shown that the discre-
twenty
less
one
(120)
than
hundred and
such authorities to so use
days annually.”’
by¡pursuing
abused
by
the course indicated
the statute on
2892, V.A.C.S.,
Article
although codified
this subject(Emphasis
ours.)
civil’statutes,
is a
of the same
comprises
act which
the compulsory school
Miles, supra,
Adams v.
was reversed on
law,
297,
which also includes Articles
299
Miles,
grounds
in Adams v.
Tex.Com.
300 of
Penal Code of Texas. Arti-
21,
App., 41 S.W.2d
wherein the Commis-
cle 299
provides
Penal Code
crim-
a
Appeals
sion of
that under
held
the facts
penalty
inal
for violation
compulsory
expend
the school board was authorized to
school law. Article
298
the Penal Code
funds in
local
the construc-
provides
exemptions
certain
from the com-
tion of the teacher’s home and affirmed the
pulsory
law,
school
which among other ex-
judgment
Appeals
the Court of Civil
emptions exempts any child in attendance
judgment
affirmed the
the trial
upon
parochial
a
school which
dissolving
question.
court
study
includes
its course a
of good citi-
Moseley
zenship
case of State ex rel.
and makes the English
language the
242,
Welch,
313,
62
218 S.C.
S.E.2d
subjects.
holds basis of instruction
all
Art.
plaintiff
2892,
297,
residents
one school
V.A.C.S. and Art.
Code,
Penal
enjoin
the furnishing
not entitled
were
also amended
1935,
were
the same act in
transportation
to pupils-attending
bus
Bill
Senate
No.
of the 44th Legisla-
Texas,
paramount
It
that the
is our view
Laws of
Gammell’s'
ture
purpose
compulsory
law is to
the-act,
emer-
school
29,
p. 409.
Vol.
Sec'.-3
compel parents,
persons standing in
.
clause,
part as follows:
gency
reads in
parental
subject
relation to children
of Texas
fact
the State
“The
law,
compulsory
such chil
to see that
appor-
capita
per
makes a substantial
school, irrespective of whether
attend
dren
year
educa-
each
to aid
tionment
pa
school, private,
public
a
such school is
years old
from seven
tion of children
school,
long
as
as
rochial or denominational
sixteen,
many children be-
and that
good citizenship and is
such school teaches
required
ages
these
are not
tween
Appar
English language.
conducted-in
schools, or other
public
attend
ently
attempt
been made
the Glen-
no
has
schools,
thereby
welfare
prosecute
or the
wood district
State
of these children are
the welfare
criminally
of the children
parents
*
injured,
emergency
creates an
the com
violation of
alleged
ours.)
(Emphasis
pulsory
We have found no
school‘law..
1939,
parents
Code,
con
was amended
case where
ever been
Penal
Art.
sending
of Tex-
children
Legislature
of a crime in
H.B.
of the 46th
victed
the word “an-
home dis
a
of their
add to
statute
school outside
so
from the
where the
omitted
without
formal transfer
had been
trict
nually”' which
accepted
have been
children
1935 amendment.
taught by
district. We are
receiving
provide
supra,
does
Article
parents
that where the
inclined
the view
any pub-
restraining
to issue
private arrangements with
make their own
*6
voluntary teaching of
from the
lic school
another
school
the school trustees of
formally
pupils
district
of another
district)
resident
their
(outside
district
any of
Nor do
to the district.
transferred
children, where no formal
to teach their
Code nor
Penal
provisions of the
the
had,
is
would be
such situation
provide.
other statute so
analogous
similar to the situation
to and
parents
arrangements
would make
where
penal
Art.
Penal Code of
the
chil
with a
school to teach their
law,
provision
compulsory
school
parents
dren and we do not believe that the
upon
places
penalty
parent
person
guilty
be
crime in doing
would
a
so and
parental
standing
relation to
the child
successfully prosecuted
could not be
for
by
compulsory
required
law to
school
doing
compulsory
so under the
school law.
attempted
penalty
No
is
attend school.
placed
compulsory
to
be
school law
We also think
trustees of
against
another
school which volun-
the East Mountain district had discre
tarily
non-resident
teaches a
scholastic not
authority
receive and
Clearly,
legally transferred to such school.
tional
teach the children
question
even though
question
teaching
of the children
wei;e
children
not transferred
a valid
the East Mountain district is not a crime
certainly
the admission and
and the East Mountain district could not
order—
question
teaching of the children
teaching
prosecuted
successfully
be
illegal
in any way.
neither
nor criminal
parents
such children. The
of the children
course,
Ordinarily,
of a
trustees
parties
not made
were
such
trial,
probably
district
charge
school
would
tui
grant a
court did not
the suit and
non-resident scholastics not formally
injunction against-
parents
not entitled
to free tuition
restraining
sending their chil-
them from
voluntary
school. Whether the
at their
Mountain school—also the
dren to the East
question by
children in
parties
teaching of the
suit
children were not
made
pay
without
restraining
Mountain district
granted
East
and no
a
would be
ment of tuition
detriment to the
attending the East Mountain
them from
‘ n
school district
and would
East
school.
part
property rights
they
on the
constitute an abuse
aré
of discretion
a
injunction.
trustees is
entitled
an
They
of the East Mountain school
cite nu-
only
be raised
matter we think that
merous
effect that where
could
authorities to the
Moun-
a
by qualified tax-payer
a
East
criminal law is unconstitutional and void
qualified tax-payer and
irrepara-
tain school district. No
its enforcement will result in
has ble
injury
property
or substantial
the East Mountain school
rights
injunctive
against
sought
relief
an
will be authorized.
complaining
appellees
Among
Mountain district trustees
the cases
cited
Conklin,
discretion
Barkley
abused their
effect
are:
trustees
v.
Tex.Civ.
teaching
App.,
405; Shupe
the children
admitting
City
101 S.W.2d
v.
justi-
question. Appellees
Stockton,
have no
Tex.Civ.App.,
would
Fort
right
ciable
to raise
Shupe
that the
and other
In
authorities.
question by
teaching
supra,
of the children
City
Stockton,
v.
of Fort
it is stated:
without the
East Mountain school district
“ * * *
a
rule the
general
As
aid
payment of
detriment to the
tuition was a
equity
of a court
be
cannot
invoked
East Mountain
abuse
school district
City
enjoin
prosecution.
criminal
of the East Moun-
discretion on the
City Cemetery
of Austin v. Austin
tain
district trustees.
school
Ass’n,
528, 47
28 S.W.
Tex.
Am.St.Rep. 114; Greiner-Kelley Drug
carefully
have also
reviewed
We
Truett,
Co. v.
97 Tex.
We have trial court would authorize Worth. Fort voluntary transporting enjoin the March 1956. question by Mrs. Willis students Rehearing April 27, 'school Mountain 1956. Bain the East Denied Mrs. We think vehicles. motor their consti Bain had the Mrs. Mrs. Willis and National right under our State
tution transport said Constitutions to par children, permission of with that, school; ents, Mountain East nor criminal neither actions were manner, the trial
illegal in grant was not authorized
court Bain. and Mrs. Willis
junction against Mrs. though the even hold that
We Mountain that the void and order benefits financial not entitled district is par- this Texas under State of order, that nevertheless
ticular the trial court cause the facts under temporary grant authorized question.
injunction in granting court the trial The judgment District
against the East Bain is Mrs. Mrs. Willis against here rendered judgment reversed temporary injunction. dissolving said *8 dis- rendered judgment Reversed injunction.
solving concurring.
HALL, J.,C. disqualified sitting.’
DAVIS, and not J., (concurring).
HALL, Chief Justice opinion in the above heartily concur I he dis- I' think FANNING.
by Justice brought issues clearly controlling
cusses correctly and, judgment, dis- my forward cáse.
poses