78 Tex. 591 | Tex. | 1890
—This was a suit for a mandamus, brought in the name of the State upon the relation of certain citizens of Taylor County, to compel the appellant, as county judge of that county, to appoint trustees for a certain new school district designated as No. 17. The petition alleged that relators were residents and tax payers of that district, and- that each of them was the parent of children within the scholastic age. It alleged also that district No. 17, together with another numbered 16, had been carved out of the territory originally belonging to district No. 11 by an order of the Commissioners Court passed on the 13th day of May, 1889, but that there was no election for trustees of district No. 17 on the first Saturday in June, 1889, as the law required. It was also averred that upon the failure to hold the election the respondent, as county judge of Taylor County, had been petitioned to appoint such trustees as the law made it his duty to do, but that he had refused to do so. It was also alleged that an appeal had been taken to the Superintendent of Education, and that he had ruled that the respondent was not bound to make an appointment, and that thereupon an appeal was prosecuted to the Board of Education, and that they had reversed the ruling of the Superintendent, and held that district No. 17 had been legally constituted, and that the respondent should appoint the trustees; but that notwithstanding all this he still refused to do so.
The' respondent filed a general demurrer and special exceptions to the petition, and a special answer in the nature of a return to the writ. His demurrer and exceptions wrere overruled and a demurrer was sustained to his answer. He declined to amend, and judgment was entered awarding the peremptory writ of mandamus as prayed for.
Appellant’s first proposition is that the general demurrer to the petition should have been sustained, because the Commissioners Courts have no power under the statute to subdivide a school district once established and to carve out of it one or more new districts. Section 29 of the “Act to establish and maintain a system of public free schools for the State of Texas,” etc., passed February 6,1884, is as follows: “It shall be the duty
The contention is that this section authorized the court to change the boundaries of existing districts, but not to subdivide a district and to establish in its territory two or more districts. But we see nothing in the language quoted which justifies such a construction. It is not demanded by the letter of the law and is contrary to its spirit. When the act was passed there were, as there are still, many sparsely settled counties in the State in which both population and wealth were making a rapid increase, and it was doubtless anticipated that by reason of increasing taxable values and of denser populations it would be desirable to divide and even to divide again the districts as first established. Ho reason suggests itself to our minds why this should not be done, provided a majority of the legal voters of the district to be divided should not object.
It is also insisted that the petition does not show that the power of the Commissioners Court to change district Ho. 11 was properly called into exercise. The statute confers upon the court the immediate power to alter the districts, and its exercise is not made dependent upon any precedent act or condition. It is to be exercised, however, only in the event that a majority of the voters consent.
The petition alleges in substance that the order creating the new districts was passed with the consent of a majority of the legal voters. The method by which the will of the majority is to be determined is not prescribed by the act but is left to the discretion of the court, and the court had the power to adopt any method satisfactory to themselves and to those to be affected by the change. Graham v. City of Greenville, 67 Texas, 63. From the face of the petition it is to be presumed that a reasonable and just method was adopted.
The petition alleging that the relators were parents of children within the ages of eight and sixteen years and were residents in school districtHo. 17, showed such an interest in the subject matter of the suit as enabled them to prosecute it. The exception to the petition on that ground was not well taken.
We are also of opinion that the court did not err in sustaining the exceptions to respondent’s answer. That answer alleged that if the district was divided the funds to be apportioned to the new district Ho. 11 would not be sufficient to maintain the public schools for six months in the year, and, as stated in the appellant’s brief, “that school district Ho. 11 was a taxing district, and that the tax had never been increased nor diminished,
The alleged facts so stated in the answer were very proper for the consideration of the court while deliberating upon the proposition to divide the district. They would tend to shoAv that it may have been impolitic to pass the order. But if true, they did not invalidate the action of the court. The determination of that body was final upon all those questions, and its action can not be reviewed in this proceeding.
The answer also avers that the Commissioners Court, in determining whether or not a majority of the legal voters in district .No. 11 consented to the change, acted upon the petitions presented for and against the proposition, and attempts to shoAv that they erred in deciding who Avere legal voters and in determining the result. It may be doubted Avhether their action in that particular can be reviewed in a collateral action except, possibly, for fraud; but, conceding that it may be, we are of opinion that the allegations in the answer in regard to that matter are not sufficient to present any defense to this action. It is alleged that, against the protest of the relator, the court counted as legal voters only those who Avere qualified to vote at the last election, but itis not averred that all the voters then qualified to vote had not been counted, or that if they had been the result would have been different. It is averred that by direction of the Commissioners Court, at the request of a petitioner against the division of the district, the clerk proceeded to count all the legal voters whose names were subscribed to the respective petitions, and that in pursuance of such direction he made out in presence of the court lists of those for and of those against the division, Avhich shoAved 49 for and 52 against the proposition for dividing the district; but it is not alleged that the lists so made were correct. All the averments in reference to this matter may be true, and yet the court may have correctly determined that a majority of the legal voters favored the establishment of the new districts.
There was no error in commanding the respondent not only to appoint the trustees, but to apportion the school money belonging to old district No. 11 among the three new districts. He is required by law to apportion the State and county school fund among the several districts or communities in proportion to the scholastic census. Act of Feb. G, 1884, Laws 18th Leg., sec. 46, p. 47.
The Legislature must have known that when old districts were changed
The assignments we have considered raise all the questions worthy of discussion.
We find no error in the judgment, and it is affirmed.
Affirmed.
Delivered November 21, 1890.