207 S.W. 634 | Tex. App. | 1918
The trial court sustained eight special exceptions to the petition, and refusing to hear testimony in support of those allegations, exceptions to which had been overruled, dismissed the cause.
The effect of this ruling of the trial court was to decree that the petition stated no cause of action. If the objections to the consideration of appellants assignments be sustained, still we are required by appellees' plea for an affirmance of the judgment to review the record for fundamental error, and if the ruling of the court, to the effect that the petition stated no cause of action, was error, the error is fundamental. Rishworth v. Moss,
The petition alleges that on the 1st day of January, 1917, there existed a lawful and duly constituted and existing common school district known as "common school district No. 23" of Bexar county, Tex., containing an area of more than 24 square miles, in all things legal and valid. The petition alleges that two elementary schools are maintained in the district, one in the southern end of the district, at Elmendorf, the other in the northern end, known as the Tablito school; and that there is ample valuation in the district to maintain the two schools; and that these two schools are convenient for school purposes of the district, though the Tablito schoolhouse is in need of repair and ornamentation. It is alleged that one-fourth of the school children of the district attend the Tablito school and three-fourths the Elmendorf school, and that three-fifths of the maintenance taxes are paid by the Tablito neighborhood inhabitants and two-fifths by those near Elmendorf. It is alleged that the refusal of the board of county school trustees to divide district 23 was an arbitrary exercise of power and an abuse of discretion. The facts alleged in support of this conclusion of the pleader are that the district is about seven miles long and that the school children living in the northern end of the district are unable to travel to the southern end to attend school because of the distance, the mud, and swollen streams when it rains, the cold when it freezes, and the sand encountered after leaving the northern end of the district. The petition alleges no facts that require the children of the northern end to attend the school in the southern end, save that in the opinion of the pleader the elementary school in the Tablito school will be abolished. It is alleged that, if the district is bonded for a rural high school, no division can be had. There is an allegation that the construction of a building for and the maintenance of a rural high school, as is contemplated, will require such a proportion of the revenues that the Tablito elementary school cannot be maintained. The inconvenience and inadvisability of a rural high school is alleged. The expense and insufficiency of a possible system of transportation is alleged in considerable detail. It is also alleged that, of the $15,000 proposed to be obtained from high school bonds, $6,000 will come from property owners in the northern end. These are substantially the allegations relevant to wrongs of appellants and to the relief sought, culled from the voluminous petition.
As we understand the statute enacted by the 34th Legislature, c.
It is alleged that a 2-mill tax is sufficient to maintain both the Tablito and Elmendorf elementary schools even without a division of the district. The allegation that this maintenance tax rate is to be raised to 5 mills does not lessen the resources for two elementary schools. There are children and money enough in the district, undivided, for the two elementary schools. The fact that Tablito has the money and Elmendorf the children is no reason for a division.
If the petition alleged facts that tended to show that the refusal to divide the district was such an arbitrary, harsh action of the board of county school trustees as to amount to a willful abuse of the power, then in that event the allegation that official action was being taken to incumber the district with bonds would justify the granting of an injunction, because the division of a bonded school district is forbidden by the statute. But in the present action no facts are alleged that tend to show any abuse of discretion by the board in its refusal to divide the district, hence there is no ground for the ancillary relief by injunction.
No facts are alleged that would justify an order to restrain an election to increase the revenue from the district within the legal limitation of 5 mills. On the contrary, the fact that the Tabilto school needs repairs and ornamentation justifies the increase.
Neither the fact that a rural high school in Elmendorf will enhance the values and enlarge the trade in that town, nor the fact that the children of the northern end of the district cannot attend the high school, nor the fact that the majority of the district school trustees will be elected by the majority of the voters of the district, can be considered as allegations tending to show that the refusal to divide the district was an abuse of power. The first assault made upon the common school system was that the unfortunate childless property owner would be forced to pay for the education of the children of the more fortunate penniless parents; but this contention did not prevail.
The imaginary system of transportation, upon schedules which the Tablito neighborhood children are said to be unable to meet because of speed or lack of speed, is purely hypothetical, for it is not alleged that any official action is being inaugurated for such system. In the absence of an allegation that such action has been taken, it cannot be anticipated that officials might attempt a wrongful act; but, even if attempted, there is a remedy, as heretofore indicated. A division of the district is not the remedy.
It appears from the petition that the petitioners are sorely displeased to have the surplus of their three-fifths of the taxes used for the benefit of the three-fourths of the children that are not theirs. Such facts, as well as all other facts, alleged, fail to indicate any abuse of power by the board of county trustees in its refusal to divide the district, and hence fail to show any causes for a division, or for an injunction restraining the bond election, and the petition wholly fails to show any justification for an order restraining the vote for increase of the maintenance tax.
The judgment is affirmed.