Opinion
No. 4070.
March 9, 1932. Rehearing Denied March 24, 1932.
Appeal from District Court, Panola County; R. T. Brown, Judge.
Proceeding by S. M. N. Marrs and others against Stanley Orr and others, constituting the board of trustees of De Berry Rural High School District No. 1 of Panola County, for a peremptory writ of mandamus. From a judgment granting the writ, defendants appeal.
Affirmed.
On September 8, 1930, the state superintendent of public schools and certain taxpayers and patrons of the school in De Berry rural high school district No. 1 of Panola county joined in the present proceeding against certain named persons, constituting the board of trustees of the school district, seeking by way of remedy a peremptory mandamus to compel the board to certify the proceedings of a bond issue to the Attorney General for examination and certificate, which are claimed to be duties of the board which result from the office and expressly enjoined by law as absolute and official. Upon a hearing, in a regular trial on the merits, the court granted and adjudged the issuance of a writ of peremptory mandamus to enforce the acts and legal rights as set up in the plaintiffs' petition. The defendants have appealed from the judgment.
On April 28, 1928, an election was duly held to determine whether or not rural high school district No. 1 of Panola county should be formed by grouping certain named common school districts. At the election there was cast 323 votes for and 95 votes against forming the high school district. The result of the election was duly declared, and the order establishing the high school district was timely made on May 7, 1928, and entered of record by the county board of school trustees. It was agreed in the trial as a fact "that the De Berry High School District No. 1, as grouped by the Board of Trustees, is a valid and existing High School District." On May 18, 1928, some forty-four resident property taxpaying voters of the school district petitioned the board of trustees to order an election for the purpose of authorizing the issuance of bonds of the high school district in the amount of $65,000 with which to take up the outstanding bonded indebtedness of common school district No. 1 in the sum of $2,000 and of common school district No. 2 in the sum of $800, and of common school district No. 46 in the sum of $640.00, and, further, "for the purpose of paying accounts legally contracted in constructing and equipping public free school buildings of material other than wood, and purchasing a site therefor in said Rural High School District."
The petition further asked for the levy and collection of an annual tax of 85 cents on the $100 valuation of property for payment of the interest of the bonds and provide a redemption fund, and for the maintenance of the public school of the district. On May 21, 1928, the board of trustees in session duly made and entered of record an order for the election in the terms as asked, to be held on June 16, 1928, designating the places, naming the election officials, and providing the form of ballots. Notice of the election was duly and timely given. The election was timely and duly held at the time fixed, and 218 votes were cast with the following result: For the levy and collection of the tax, 129 votes, and against, 89 votes; for the issuance of bonds of the high school district, 128 votes, and against, 90 votes; for assumption by the high school district of the outstanding bonded indebtedness of the common school districts, 121 votes, and against, 97 votes. On June 18, 1928, the board of trustees made and entered an order declaring the result of the election. On June 23, 1928, the board of trustees in regular session made and entered of record an order providing for the issuance of the bonds of the high school district, describing them in detail, adopting the form and fixing the rate of interest, and levying a tax to pay the interest and provide a sinking fund for their redemption. A transcript of all the proceedings was duly made up and delivered to the Attorney General, end, after such official indicated that the proceedings would be approved by him, the bonds were directed to be printed. But there appears no formal order made and entered of approval by the Attorney General. It seems that the bonds were printed as directed and sent to the Attorney General's department to be formally approved, but, before the formal approval was made, it appears the transcript and the bonds were all recalled from the Attorney General's department. The bonds and the transcript were at the time of the trial on deposit in the First State Bank at Carthage, but merely for safe-keeping. The high school district has collected between $11,000 and $12,000 in taxes of the authorized tax levy. On May 8, 1929, the board of trustees made and entered of record the order reading:
"At a meeting of the Board of Trustees of the DeBerry Rural High School District No. One of Panola County, Texas, held on this the 8th day of May 1929, a quorum being present, came on to be heard and considered the petition of S. B. Wallace and 617 others, property tax paying voters of said District, asking that the bonds of the District heretofore voted and issued for the purpose of erecting a school building in said District be cancelled, and which bonds are in the sum of $65,000.00;
"And it appearing to the Board, after a hearing on said petition and after considering the same, that the said petition is signed by a majority of the property tax paying voters of said DeBerry Rural High School District;
"And it further appearing that it is impossible for the Trustees and tax payers to agree upon a proper site for said building and that the County Board of School Trustees has not selected a site for same;
"And it further appearing that most of the roads in said District are not graded and that during the winter months it is almost impossible for the children to leave their respective school districts and go several miles to another school, and that the one highway through the district has not been hard surfaced as contemplated when the bonds were voted, and consequently there are days and weeks when this highway can not be traveled by school children in a car;
"And it further appearing that a majority of the qualified tax paying voters of the district have repudiated their action in voting for said bonds by the election of trustees opposed to the issuance and sale of said bonds, and which trustees were so elected because of the fact that they were opposed to the issuance and sale of said bonds, all of which was well known to the voters at the time;
"And it further appearing that several of the common school districts composing the grouped high school district have patrons who intend to transfer their children outside of the district, not permitting them to attend school in the district;
"And it further appearing to the Board that it will be to the best interest of the tax payers of the district and the children of school age in the district, that such bonds be now declared cancelled and of no further force;
"Therefore, it is ordered by the Board of Trustees of said DeBerry Rural High School District No. One of Panola County, Texas, that the said bonds of the District in the sum of $65,000.00 issued for the purpose of constructing and equipping a school building in said district be and the same are hereby in all things cancelled, annulled and held of no further force or effect, and that the President and Secretary of this Board be and they are hereby directed to possess themselves of such bonds and cancel them on their face.
"B. L. Ray, Marvin Gulley,
"Secretary. President."
The grounds as stated in the above order for the cancellation of the bonds were proven to have existed in fact. There was a petition presented, signed by a large majority of the taxpaying voters, to cancel the bonds; the trustees were elected by the voters of the district upon the issue of whether or not the bonds authorized should be issued and sold; and there was evidence showing a changed condition of the roadways such as contemplated would not be when the bonds were voted in the first instance. It was shown, though, that in April, 1929, the then local board of trustees, before retiring from office, acquired and located a site upon which to erect the school building. The county board refused to approve the location of the site as selected, but on appeal to the state board of education the decision of the county board was not sustained, and the location of the site as done by the local board of trustees was approved. As proven, there is no building at present in the district suitable to hold and carry on the high school. There are between fifty and sixty pupils entitled to attend the high school in the high school district.
Woolworth Baker, of Carthage, for appellants.
Brachfield Wolfe, of Henderson, for appellees.
The record presents only questions of law. There is no dispute of facts. At an election duly called and regularly held and conducted according to the requirements of the statute, at which the proposition of issuance of bonds of the high school district was submitted, the qualified taxpaying voters voted in the required numbers and gave their assent to the proposition to issue bonds of the high school district to raise money to pay for the school site and to construct a suitable school building thereon, and to pay off the outstanding bonded indebtedness of the three common school districts in the grouping. The board of trustees duly ascertained the result and entered the order for the issuance of the bonds, and a transcript of all the proceedings were duly certified to the Attorney General who indicated his approval of the validity of the issuance. The transcript, however, was withdrawn from the Attorney General's department before his formal certificate was entered on the bonds by reason of an order from the board of trustees entered on May 8, 1929, nearly a year after the date of the order of issuance of the bonds. This order of the board rescinded the former action of the taxpayers in voting the issuance of the bonds and annulled the bond issue. After the qualified voters of the high school district in the required number have given their assent to the issuance of bonds at an election held and conducted according to the requirements of the statute, as here shown, the board of trustees, acting through their proper officers, are bound, under usual situations, as an absolute and official duty of the office, to certify a transcript of all the proceedings to the Attorney General for his examination and certificate of the legal validity of the bond issue. Articles 2670, 2786; Cameron v. Baker (Tex.Civ.App.) 13 S.W.2d 119; Baker v. State (Tex.Civ.App.) 26 S.W.2d 324; Id. (Tex.Sup.) 40 S.W.2d 41; Sykes v. District (Tex.Civ.App.) 14 S.W.2d 124. The board of trustees, in effect agents of the taxpayers, have authority only as is conferred by statute as respects an election duly held for the issuance of bonds. They are clothed with the authority only in such situation with the ascertainment and promulgation of results of the election. The promulgation of the result of a fair election regularly held and conducted is the final thing, and it becomes mandatory upon the board to enter the order and forthwith certify the proceedings to the Attorney General. But the question is not so simple as that above stated, in view of the situation shown by the special circumstances. It affirmatively appears that the board of trustees entered their order of annulment of the bond issue in accordance with the petition signed by three-fourths of the taxpaying voters of the high school district, asking that their former action of voting for and assent to the issuance of bonds be rescinded and the bond issue annulled. Therefore, the real question is, What legal effect is to be given to the order rescinding the former vote of the taxpayers authorizing the issuance of bonds and annulling such bond issue? For the awarding or refusing of the mandamus depends upon the legal validity of such order of the board of trustees. If the order of rescission was made under authority of law, then mandamus would not lie, but, if the order was without authority of law, then it would be treated as a nullity and the case would stand as if no such order were passed and entered, and the right to relief by mandamus would obtain. The statute had expressly provided that a bond issue shall be authorized by expression of the popular will of the taxpaying voters given only by an election, as prescribed by law, and duly called for the purpose. By its terms this method of proceeding to obtain a bond issue is exclusive. And having once expressed their will as provided by law in assent of a bond issue, the taxpaying voters are not clothed with authority of any statutory provision to rescind that vote and annul the bond issue, although the bonds be not certified nor contracted to be sold. Neither is there any provision of law for taking such action by petition signed by the taxpaying voters. After the will of the voters shall have been expressed and ascertained as provided by the law by an election, nothing remains, under the terms of the statute, but to carry it into effect. It is fundamental that voters of a district can only exercise such powers as are conferred by statute, either expressly or by implication. All powers not expressly or by implication conferred are excluded. The power to rescind the former vote for the bond issue not being expressly given by the statute, it may not be, it is believed, reasonably implied. The power to vote on a bond issue implies the power to vote against it, but not to vote to rescind it after it has been regularly authorized. As well may it be implied that power to vote for or against a person for office confers the power to rescind his election regularly made by a subsequent vote of voters. If the Legislature had intended to grant the right of withdrawal of the vote, it could easily have been expressed. For, as respects a maintenance tax for schools, the statute (article 2790) expressly provides that: "An election to revoke, modify or increase such maintenance tax, when permissible, may be obtained and held substantially as herein provided for an election to authorize such tax; provided, however, that no changes or modification in such maintenance tax shall ever affect any bond tax authorized by such district." It is only by like proceeding and express authority of statute, it is believed, that the bond issue, authorized only by an election for the purpose, can be revoked and annulled. The courts cannot give a remedy in the circumstances that the Legislature has not authorized. The fact that conditions in the district have changed is of no effect, as a factual element, in determining the validity of the board's order. The validity must rest entirely upon legal rights, and cannot be predicated solely upon equitable conditions.
In the case of Jackson v. McAllister (Tex.Civ.App.) 196 S.W. 671, 673, the bonds had been issued and had been approved by the Attorney General and registered by the comptroller. Although several points were generally discussed in the opinion, as involved in the case, yet the decision was, in effect, narrowed to and predicated entirely upon the factual elements that "the county judge, by correspondence with dealers in such securities and perhaps otherwise, made efforts to sell the bonds, but was unable to sell or secure an offer therefor at par, as was specifically required by article 632 of the Revised Statutes." The opinion merely applied the legal principle that, the county judge having the legal power to determine the methods to be adopted in order to effect a sale of the bonds, a mandamus would not lie to compel official inaction, because there did not appear to have been an abuse of discretionary powers. We regard that as the extent to which the ruling in the case can be regarded as a precedent. The opinion was so construed in the case of Edens v. Road Dist. No. 1 (Tex.Civ.App.) 211 S.W. 791, 792, wherein it was cited as supporting the refusal to enjoin acts committed within vested discretionary powers where the evidence "fails to show a flagrant and gross abuse of discretion and authority in ordering the road in controversy built," etc.
As shown by the record, the plaintiffs were, it is thought, legally entitled to have the bond issue certified as prayed for, and the trial court has correctly so decided.
The judgment is affirmed.
On Motion for Rehearing.
The appellants argue with much force the implied authority, under the circumstances of this case, of the board of trustees to enter the order canceling the bonds. The grounds and situation set up and proven for canceling the bonds manifestly afford good cause for giving the redress, and the only objection that can be urged to the action of the board of trustees is that they were wholly without any authority to meet the situation. The Legislature alone can confer authority to the people of the district to revoke the bond issue. The bonds cannot be revoked or canceled by any agency unless the power to do so is conferred by legislative authority, and any doubt as to the existence of such power is, under well-established principles, resolved against its existence.
The case of Jackson v. McAllister, supra, cited and referred to in the original opinion, cannot be regarded as ruling the present suit, it is believed by this court, and the motion should be overruled.