Opinion
No. 3916.
February 20, 1931. Rehearing Denied February 26, 1931.
Error from District Court, Dallas County; Joel R. Bond, Judge.
Action by the City of Dallas and others against G. T. Smith and others. Judgment for plaintiffs, and defendants bring error.
Affirmed.
The action was by the city of Dallas, in virtue of the authority of its charter, seeking relief by injunction against G. T. Smith and six other named persons, the Mercantile Bank Trust Company, the tax assessor, and the tax collector of Dallas county. As set up, in substance, in the petition, the Cement City independent school district, existing as such and with boundaries adjoining the corporate limits of the city of Dallas, was in all the requirements of law duly consolidated with the city public schools of the city of Dallas, and, notwithstanding the Cement City school district had legally ceased to exist independently and separately, that G. T. Smith and the other named six persons, the former trustees of the Cement City independent school district were attempting to continue the exercise of the power and duties of trustees of such former school district and were also wrongfully withholding the possession of the money, documents, and other school property which the board of education of the city of Dallas should have and control. The bank and trust company was the depository of the school fund of the Cement City independent school district, and was, as alleged, wrongfully withholding the funds; the county tax assessor and the county tax collector were attempting, respectively, to assess and to collect taxes, as alleged, in behalf of the former independent school district of Cement City. The prayer was for permanent injunction perpetually restraining the defendants and each of them "from interfering with the plaintiffs' management and control of the public schools within the aforesaid territory and from exercising any authority whatsoever in the premises; and compelling them to deliver to the proper authorities all of the public school property and money that they have in their control and possession." The defendants, the former school trustees, moved to dissolve the temporary injunction theretofore granted because the petition was not properly sworn to and because the city of Dallas did not execute and file an injunction bond. The defendants, the former trustees, pleaded, besides general denial, as a defense, in substance, that the act of the Legislature authorizing the consolidation of the school districts by the county board of trustees was violative of stated provisions of both the Federal and State Constitutions; that certain requirements of the statute, stating them in detail, were not followed nor complied with in effecting the consolidation; that, because of "laches" or delay in putting into operation the new district, the city of Dallas was estopped from seeking to enforce the grouping or consolidation; that the Cement City independent school district was fully equipped and able, setting out at length the details, to maintain a continuous term of school each year; and that it was for the best interest of the children in such district that the district be independently and separately maintained and operated and not grouped or consolidated. The defendants, the former trustees, further, by way of cross-action, sought an injunction to compel the city of Dallas to restore to them certain property and to refrain from interfering with them in the management and control of the school in the Cement City school district.
After hearing the evidence, the court peremptorily instructed the jury to return a verdict in favor of the city of Dallas, and, in keeping with the verdict, the court entered judgment in favor of the city of Dallas granting a permanent injunction as prayed for. The defendants, the former trustees, are the defendants who have appealed.
The Cement City independent school district adjoined the corporate limits of the city of Dallas and was regularly organized as a school district prior to 1928, when the matters in controversy arose. The defendant trustees named in the present suit were the regularly elected and acting trustees of the district. The district in 1928 had 131 girls and 130 boys, and in 1929 had 124 girls and 140 boys between the scholastic ages of 7 and 17. The annual school tax in the district aggregated $16,963.50. On August 24, 1928, as appears, the county board of trustees of the public schools of Dallas county upon due call regularly met at the office of the county superintendent with all seven members of such school board present at the meeting. At this meeting of August 24th, there was presented a petition addressed to the county board of trustees signed by 178 voters within the Cement City independent school district asking that the Cement City independent school district be added to and consolidated with the city public schools of the city of Dallas for school purposes. At the same meeting a petition was also presented to the county board of trustees, signed by 159 voters within the Cement City independent school district protesting against the consolidation of the two school districts. A number of the citizens of the Cement City independent school district were personally present at the meeting; some of whom made speeches for, and some against the proposed consolidation. Thereupon the county board of trustees of the public schools duly passed, and had entered in the minutes, the following motion: "A motion was made by B. F. Tisinger, Jr., seconded by C. A. Nichols, and was unanimously passed that notices be posted for a hearing on the annexation of Cement City Independent School District to the City of Dallas to be held in the office of the County Superintendent on September 5th."
The county board then, after transacting other business, formally adjourned to meet again "at 2:00 P. M., September 5, 1928." On September 5, 1928, at 2 p. m. the county board of trustees of public schools of Dallas county duly met; all members of the board being present. At this meeting many people were present, including the trustees of the Cement City independent school district. At the meeting, the matter of consolidation of the school district "was discussed by both sides," and, after "about a three-hour session," the county board of school trustees of the public schools of Dallas county duly passed and had entered upon its minutes the following:
"Upon motion duly made by B. F. Tisinger, Jr., and seconded by S. N. Parks, the following resolution and order was unanimously adopted and made:
"Whereas notices of hearing on the proposed consolidation of Cement City Independent School District with the Independent District of the city of Dallas for school purposes have been duly posted as required by law in the following places for more than ten days prior to this meeting:
"In Independent Dist. of City of Dallas:
"1. Corner of Rosemont and Ninth
"2. Corner of Beckley Bishop
"3. Corner Kessler Blvd Edgefield
"4.
"In Cement Independent School District:
"1. Telephone Post in front of Cement School
"2. Crossroads where road turns off to Oriental Oil Company Road from Eagle Ford Road going south.
"3. Telephone post at railroad crossing on Oriental Oil Company Road,
and,
"Whereas, pursuant to said notices and at the time and place therein stated, an open hearing has been held at which all interested persons were given full opportunity to be heard, and were heard,
"Now, Therefore, Be It Resolved by this County Board of School Trustees, by authority vested in it under Chapter 82 of the General Laws of Texas, passed at the regular session of the 40th Legislature, 1927 and the Constitution and Laws of Texas, that the territory embraced in the field notes of Cement City Independent School District, which field notes follow, be annexed and added to and consolidated with the Independent District of the City of Dallas for school purposes, with a restriction that the high school of said Cement City Independent School District be retained and taught for the term 1928-29 as has heretofore been done, and as had been planned by the Board of Trustees and superintendent of said Cement City Independent School District, permitting all high school children to attend the said Cement City Independent School District high school for the year 1928-29 who might so desire, and also granting the privilege to such other high school children in said Cement Independent School District to attend any of the high schools in the City of Dallas for the term 1928-29:" (Here follows description of the school district by field notes.)
The notice of the meeting as given and posted reads:
"The State of Texas, County of Dallas.
"Pursuant to an order of the County Board of School Trustees of Dallas County at a meeting held August 24th, 1928, notice is hereby given that a meeting of said Board has been called to be held in the office of the County Superintendent of Schools on September 5th, 1928, at 2:00 P. M. o'clock for the purpose of consolidating the following districts for school purposes:
"Cement City Independent School District
"Dallas Independent School District at which time all interested persons will be given full opportunity to be heard as to any changes or objections which might be had.
"Done by order of the County Board of School Trustees."
Thereafter, on November 15, 1928, the board of education of the city of Dallas duly passed and entered of record the following:
"Whereas, at a regular meeting of the County Board of School Trustees, held September 5, 1928 by authority vested in them under Chapter 82 of the General Laws of Texas, as passed at the regular session of the 40th Legislature of the State of Texas, the said County Board of School Trustees annexed to and consolidated with the Dallas Independent School District the Cement City Independent School District of Dallas County, Texas, with a restriction that the high school of Cement City Independent School District be retained and taught for the term 1928-29 as has heretofore been done, and as had been planned by the Board of Trustees and Superintendent of said Cement City Independent School District, permitting all children to attend the said Cement City Independent School District high school for the year 1928 who might so desire, and also granting the privilege to such other high school children in said Cement City Independent School District to attend any of the high schools in the City of Dallas for the term 1928-29, and
"Whereas, it is necessary that the Board of Trustees of the Dallas Independent School District give their consent to said consolidation under the terms of the above named law, and
"Whereas, it is the opinion of the Trustees of the Dallas Independent School District that said consolidation with the above named restrictions for the year 1928-29 is for the best interest of the schools of the Cement City Independent School District and the future of the Dallas City Schools,
"Therefore, Be It Resolved by the Board of Education of the City of Dallas, Who are the trustees of the Dallas Independent School District that they consent to and ratify the action of the County Board of School Trustees in the Consolidation of the Cement City Independent School District to the Dallas Independent School District, and the same is hereby agreed to, ratified and confirmed for all intents and purposes as set forth in chapter 82 of the laws of the Regular Session of the 40th Legislature of the State of Texas with the special provisions as passed by the County Board of School Trustees applicable to the school term of 1928-29."
The board of education of the city of Dallas is composed of seven members who have the management and control of the city public schools. All of the above evidence is without dispute.
There is ample evidence, oral and record, of the due posting of the notices in three public places within the Cement City school district and the city of Dallas for more than ten days before the above order was passed and entered on September 5th consolidating the two school districts in evidence. There is evidence given by witnesses in behalf of the former school trustees, in substance, that they had never noticed or seen any notices published. The trustees though so testifying further admitted that they were present at the meeting of September 5, 1928, and before the day of the meeting knew that it was to be held and knew of the purpose of the same. One witness for the trustees testifying that he had never noticed nor seen any posted notice further stated: "I was over here in Dallas and attended the meeting of September 5, 1928. The reason I happened to come was that I got notice just from the town gossip out there (in Cement City); what one knows out there everybody knows, and so we all got there" (to the meeting). There is no pretense in the evidence that any of the residents of Cement City were deprived of an opportunity to attend the meeting through lack of notice of the time and purpose.
It appears without dispute that the trustees of the Cement City independent school district within ten days after the passage of the order of consolidation filed written notice of appeal with the county board of trustees of the public schools. The appeal though, as admittedly proven, was never perfected nor further prosecuted by the Cement City independent school district to any school authority or to any district court. It appears that in 1928, and before the passage of the consolidation order of September 5th, a map was made showing a full arrangement of the school districts of Dallas county. The boundaries of the Cement City independent school district appeared thereon. There was not entered thereon afterwards the boundaries of the new district as affected by the consolidation.
On December 12, 192S, the board of commissioners of the city of Dallas finally passed an ordinance, and which was duly approved by the mayor, annexing the Cement City independent school district to the city of Dallas for school purposes only. The ordinance, so far as material, is here set out:
"Ordinance No. 1927."An ordinance annexing the hereinafter described territory, the same being a part of Cement City independent school district of the county of Dallas, Texas, to the city of Dallas for school purposes only, as provided by the laws of the state of Texas.
"Whereas, a majority of the resident qualified voters of the hereinafter described territory comprising a part of Cement City Independent School District of Dallas County, Texas, have duly petitioned the Board of Education, and the Board of Commissioners of the City of Dallas, Texas, and the County Board of School Trustees of the County of Dallas, State of Texas, to cause said territory to be annexed to said City of Dallas for school purposes only and said territory to be thereafter under the control and supervision of the Board of Education of the City of Dallas, Texas; and,
"Whereas, the trustees of said Cement City Independent School District have by unanimous vote petitioned the Board of Education and the Board of Commissioners of the City of Dallas and the County Board of School Trustees of Dallas County, Texas, to annex said territory to the City of Dallas for school purposes; and,
"Whereas, the Board of Education of the City of Dallas, Texas, has duly approved said petition and has in writing recommended by unanimous vote to the Board of Commissioners of the City of Dallas that said Board of Commissioners cause to be annexed by ordinance the said territory hereinafter described to be thereafter under the control and jurisdiction of the Board of Education of the City of Dallas for school purposes; and,
"Whereas, the County Board of School Trustees of Dallas County, Texas, had duly approved said petition of the resident qualified voters of said territory and district, and also the application of the trustees of said Cement City Independent School District, and have consented to add the hereinafter described territory to the City of Dallas for school purposes only; and,
"Whereas, the Board of Commissioners of the City of Dallas is of the opinion that said territory should be annexed to the City of Dallas for school purposes only, Now, Therefore,
"Be it ordained by the board of commissioners of the city of Dallas:
"Section 1. That the hereinafter described territory, the same being a part of the Cement City Independent School District of Dallas County, Texas, being located adjacent to the present corporate limits of the City of Dallas for school purposes and over which the Cement City Independent School District has heretofore exercised jurisdiction, be, and the same is hereby annexed to the City of Dallas, Texas, for school purposes only; and the jurisdiction of the City of Dallas, acting by and through its Board of Commissioners, is hereby extended over said territory and shall be exercised over said territory for public school purposes only, and which said territory so annexed is hereby described by metes and bounds as follows:" (Here follows description by field notes.)
In this connection it was shown by the evidence that, at the time of the colsolidation order of September 5th, teachers for the term following had been employed in the Cement City independent school district. The teachers, including the superintendent, continued to teach for the term ending in June, 1929. The children in the Cement City school district were permitted to attend either the Dallas city schools or the school in Cement City district. This continuation of the school term in the Cement City district was under the terms of the order of the county board of trustees of September 5, 1928. This present suit was filed on October 8, 1929.
Reid Erhard, of Dallas, for plaintiffs in error.
J. J. Collins, W. Hughes Knight, H. P. Kucera, and A. A. Long, all of Dallas, for defendants in error.
By assignments of error Nos. 1, 2, and 3, the complaint is made of peremptorily instructing the jury to return the verdict in favor of the city of Dallas permanently "enjoining the defendants, the School Board of Cement City Independent School District, from further participation in the school affairs of said district." It is pointed out that the legal existence of the Cement City independent school district was never dissolved nor abandoned, and the plaintiffs in error in their capacity of school trustees and as tax-paying inhabitants were authorized to enforce the rights of such school district in the present suit, because the attempted consolidation of the territory of the two school districts in evidence was invalid and not in compliance with the statutory provisions relating thereto. It is not open to question whether there is any provision in the statute by which territory in adjacent established independent school districts can be consolidated into a single school district. The Legislature by the Acts of 1927, p. 124, c. 82 (Vernon's Ann.Civ.St. arts. 2815a-2815g), has expressly vested in the county board of trustees of public schools the power to so alter and consolidate the two existing adjacent school districts. They are affirmatively authorized to act at a time whenever it becomes "necessary for the best interests of the school children." The exercise of the authority to so act is made subject only to the proviso contained in section 1 of the act (Vernon's Ann.Civ.St. art. 2815a) reading: "Provided that the territory of no Independent school district having more than five hundred (500) scholastics shall be changed without the consent of its Board of Trustees."
It is evident, therefore, as conclusively appearing, that in passing the order of consolidation of September 5, 1928, the county board of trustees of Dallas county were undertaking to carry out the statutory authority given to them. In that view, the first inquiry is as to the right of the plaintiffs in error to have reviewed, and the authority of the courts to interfere with the action of the county board of trustees. The plaintiffs in error did not perfect the appeal from the action of the county board of trustees as authorized by section 9 of the act referred to. There is no claim nor allegation that the county board of trustees in consolidating the two school districts in any wise acted in fraud or corruption. It follows that, in order to warrant any contest by the plaintiffs in error and review by the courts, the proceedings by which the consolidation was claimed to have been made must have been in force and effect, not merely irregular, but void. Stephens v. Buie, 23 Tex. Civ. App. 491, 57 S.W. 312. The legality of the formation of the consolidated school district cannot be attacked collaterally. Kuhn v. City of Yoakum (Tex.Com.App.) 6 S.W.2d 91. The formation of the district can be attacked, however, if the proceedings relative thereto were legally void. Parks v. West, 102 Tex. 11, 111 S.W. 726. As was affirmatively shown by its official records in all things correctly kept, the county board of trustees of Dallas county duly passed the order of consolidation at its meeting of September 5, 1928. This meeting was pursuant to the regular authorized call therefor, which fixed the time, place, and purpose of the meeting, and after notice given in public places within the territory of each of the two districts for the specified number of days before the meeting. The contents of the notices of such meeting as publicly given of the territory affected was on its face plainly sufficient for the purpose. This official record becomes conclusive, and with all formality of a judgment at law, in the absence of fraud or corruption, showing, as it does, a full compliance with all the required terms of the statute. And consent to such consolidation or union was expressly given by the board of education of the city of Dallas by its order of record of November 15, 1928. This consent became necessary and indispensable under the statute, since the Dallas city school district contained more than 500 school children. Under article 5 of the Charter of the City of Dallas, the board of education of the city had authority to give the consent, as such board has exclusive control and management of the city public schools. As was further shown, in addition to this order of consent, the Dallas city board of commissioners, by ordinance of December 10, 1928, formally annexed the Cement City independent school district to the city of Dallas "for school purposes." The preamble of that ordinance shows that "the trustees of said Cement City Independent School District have by unanimous vote petitioned the Board of Education and the Board of Commissioners of the City of Dallas and the County Board of School Trustees of Dallas County, Texas, to annex said territory to the City of Dallas for school purposes." The preamble of that order further shows that "a majority of the resident qualified voters" of the Cement City independent school district had petitioned to have the territory of that district annexed to the city of Dallas "for school purposes." Evidently there was consent to have consolidation of the two districts.
The provision in the order of consolidation of September 5, 1928, and which provision was consented to by the city board of education November 15, 1928, that the consolidation or union of the two school districts should not become complete and effective until the expiration of the school term "of 1928-29," would not operate or have the legal effect to make the consolidation ineffective or void. The statute does not provide that the time of taking effect of the consolidation shall be at once and not otherwise. The statute prescribes no time for the consolidation to take effect. Making the consolidation effective at the expiration of the school term stated was, in the facts, both reasonable and expedient, and was not contrary to the policy and spirit of the law. At the time of filing the present suit on October 8, 1929, the consolidation was manifestly in effect and complete.
It is further pointed out that there was failure to make a map showing the boundaries of the new district as provided in section 2 of the above act (Vernon's Ann.Civ.St. art. 2815b). The failure to file the map would not in special facts of this case operate to invalidate the formation of the consolidated or new school district. School District No. 4 v. School District No. 2, 135 Ill. 464, 28 N.E. 49.
It is believed in the record presented that the trial court did not err in giving the peremptory instruction to the jury. In the facts shown, the city of Dallas was entitled to the relief asked to be granted, for, as a matter of pure law, the jurisdiction over the consolidated territory in question had become vested in the city of Dallas at the time of the present suit, because the territory in the Cement City independent school district had been legally separated from that district and consolidated with the Dallas City school district. Its right to the control of the schools and to the school property therein vested when the consolidation of the two school districts into a single school district was complete, which was fully so at the time of the suit.
It is urged as error of the refusal of the court to dissolve the temporary injunction issued in the case because of insufficient affidavit of the petition and of the failure of the city to give bond. The affidavit we think is sufficient. The city of Dallas was not required to give bond. Section 12, article 14, Charter of Dallas; articles 1174, 2072, R.S.; City of Dallas v. Springer (Tex.Civ.App.) 8 S.W.2d 772, 774. The present permanent injunction, awarded on trial of the merits, would be regarded legally and properly granted although the affidavit for temporary injunction was defective and although there was failure of the city to give bond therefor
The Judgment is affirmed.