286 S.W. 264 | Tex. App. | 1926
Pursuant to the Act of the 39th Legislature, c. 59, p. 204 (Vernon's Annotated Texas Statutes 1925, arts. 2922a to 2922l, inclusive), the county board of school trustees of Taylor county, grouped common school districts Nos. 18, 19, and 22 for the formation of a rural high school district. Later a petition praying that its action be rescinded was presented to said board, and after an extended hearing, denied. This suit was then brought by the trustees of said common school district No. 22 to restrain the county board from carrying said order into effect. No appeal was prosecuted to the state superintendent. The petition alleged invalidity in the order assailed for numerous reasons, but only two, which assert that the act of the Legislature referred to is unconstitutional, can be considered.
The trial judge granted a temporary writ of injunction, which upon final hearing was made permanent, on the ground that the legislative act in question was repugnant to the "due process" clause of the Fourteenth Amendment of the federal Constitution. As to the other matters alleged, the trial court correctly held that the petition for review did not lie until after appeal to the state superintendent of public instruction. Jennings v. Carson (Tex.Com.App.) 220 S.W. 1090; Bevers et al. v. Winfrey et al. (Tex.Civ.App.)
Appeals to the state superintendent from orders of the county board creating, changing, and modifying school districts having been provided for, equity will not interfere until legal remedies are exhausted. So, the sole question presented is: Does the law challenged offend either the Constitution of Texas or of the United States? If it does, the judgment is correct, if not, the temporary injunction was improvidently granted, and perpetuated in error.
That said chapter 59, Acts of 39th Legislature, is in accord with the Constitution of Texas was affirmed by the Court of Civil Appeals for the Fifth District in a clear and concise opinion by Judge Looney. McPhail v. Tax Collector, 280 S.W. 260. This decision was approved by Supreme Court, by the refusal of a writ of error.
But appellees assert, with great vigor, that the law is repugnant to the Fourteenth Amendment of the Constitution of the United States, and that this case is ruled by the decision in Browning v. Hooper, 46 S. Ct. 141, 70 L. Ed. 330, commonly known as the Archer County Case. When it is considered that the order under review is simply one creating a high school district by grouping three common school districts, where no election to provide for the issuance of bonds has been called and no special tax has been levied, it is difficult to perceive any analogy between this case and the Archer County Case. It is only where special tax levied to provide a local improvement is challenged that the "due process" clause becomes applicable. To invoke the applicability of the Archer County Case, it would be necessary to presume that an election would be ordered, resulting favorably to an issuance of bonds. Such prophetic power is not conferred on a Court of Civil Appeals.
It would certainly not be contended that a road district created by the commissioners' court, with power to use the labor of those liable to work the road and to expend the funds raised by general taxation, would be obnoxious to said Fourteenth Amendment because of failure to provide for notice to and hearing of each individual taxpayer. It is not believed that the question of "due process" arises from consideration of the order of the board of trustees creating the objectionable rural high school district.
This determination should dispose of the case, as courts do not sit for the purpose of determining speculative or abstract questions of law, but are confined in their judicial action to real controversies wherein the *266
legal rights of the parties are necessarily involved. Thomas v. Musical Mut. Pro. Ass'n,
It is plainly declared in that case that where the local improvement territory is selected and the burden is spread by the Legislature or a municipality to which the Legislature has granted full legislative powers over the subject, the owners of property have no constitutional right to be heard on the question of benefits. Hancock v. Muskogee,
The county board of trustees is created by law as a body corporate with full power and control over common school districts, their creation and boundaries (Vernon's Annotated Texas Statutes, arts. 2676 to 2686, inclusive, and articles 2742, 2743), and plenary power as to the creation of rural high school districts. It has been uniformly held that the Legislature may delegate its authority to such agencies. Webb v. Board School Trustees,
The contention of appellees, if sustained, would destroy every common school district in Texas, including the one represented by them. A decision fraught with such dire results should have an impregnable base, and be supported by irrefragable logic, both of which we think are wanting in this case.
It is very much to be doubted whether the building of a schoolhouse is a "local improvement" within the purview of the decisions, but, believing that the position announced above is sound, a discussion of that question is pretermitted.
The judgment of the trial court is reversed and the injunction dissolved.
