DAVIS v. PAYNE. (No. 800.) 1910, the qualified voters of the independent school district voted a special tax, not to exceed 50 cents on the $100 valuation of all property situated within said district. At the time of the formation of the St. Jo 1. SCHOOLS AND SCHOOL DISTRICTS 106 independent school district, there was situANNEXATION TAXATION CONSTITUTIONAL PROVISIONS. - Const. art. 7, § 3, authorizes an ad valorem tax on property within a school district at a certain rate provided that two-thirds of its qualified voters shall vote such tax. The whole territory of a common school district, which had previously voted a special school tax of 20 cents on each $100, was annexed, by Acts 29th Leg. c. 124, § 148, to an independent school district subsequently organized within its territory and which had previously voted a special school tax of 50 cents on $100. Held, that the merger did not destroy the special tax previously voted by the common school district, and that the new district might collect the 20-cent tax applicable to land situated in the common school district before the merger. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 149, 248-252; Dec. Dig. 106.] 2. STATUTES 212-CONSTRUCTION- - PRESUMPTION AGAINST ABSURDITY. The presumption against absurd consequences of legislation is no more than the presumption that the legislators are gifted with ordinary common sense, and applies only where there is room for construction by reason of the obscurity or ambiguity of a law. ated, adjoining and around the independent school district, a common school district, No. 6, of Montague county, Tex.; and some time prior to the 1st day of April, 1912, certain qualified voters of said common school district, residing within that territory, presented to the board of trustees of the St. Jo independent school district a petition, soliciting the annexation of the territory embraced within the bounds of the common school district to the said independent school district. This petition, upon the date mentioned, by ordinance of the city council of the city of St. Jo, was adopted, and the limits of the St. Jo independent school district were, by virtue of chapter 124, § 148, Acts of the 29th Legislature, extended so as to comprehend the territory of the common school district within the bounds of the independent school district for school purposes only. Prior to the merger, and the annexation to the independent school district, the common school district had voted, and there was existent, a special school tax of 20 cents on 181-CONSTRUCTION-INCON- the $100 valuation; and subsequent to said [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 289; Dec. Dig. 212.] 3. STATUTES VENIENCE. The argument of inconvenience results where the language of the law is not clear, either express or implied, and extends to Constitutions and statutes. 181.] [Ed. Note. For other cases, see Statutes, Cent. Dig. §§ 259, 263; Dec. Dig. 4. SCHOOLS AND SCHOOL DISTRICTS TAXATION-INJUNCTION-PARTIES. 106 merger there had been no special election for the creation of any other special school tax than those previously mentioned-the 50 cents special tax previously voted by the independent school district as it was originally constituted, and the special tax of 20 cents on the $100 valuation previously voted by the common school district, as originally constituted. In a suit by the owner of lands liable to a special school tax of 20 cents, voted by a common school district after its annexation to The appellant, A. M. Davis, is the owner an independent school district subsequently or- of 140 acres of land, situated within the addganized within the same territory, to enjoined the collection of a 50-cent tax voted by independent district previous to annexation, the independent school district itself was a necessary party. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 149, 248-252; Dec. Dig. 106.] ed territory, annexed to the independent school district, and for the purpose of preventing the collection of the 50 cents special school tax, originally voted by the old independent school district, he applied to the district judge for an injunction, which upon hearing was partially granted and partially Appeal from District Court, Montague refused, the trial judge denying the injuncCounty; C. F. Spencer, Judge. Action for injunction by A. M. Davis against H. H. Payne, ex officio assessor and collector of St. Jo, Texas. Judgment for plaintiff in part and for defendant in part, and plaintiff appeals. Affirmed. A. L. Scott, of St. Jo, and W. W. Alcorn, of Montague, for appellant. T. H. Yarbrough, of St. Jo, and W. W. Cook, of Montague, for appellee. tion as to 20 cents on the $100 valuation but granting the same as to 30 cents; and the appellant contends that, after the addition of the territory in the common school district to the independent district, there could be no collection of any tax whatever upon the property in the additional territory unless a new election was held and a special school tax was voted by a majority of the qualified tax paying voters of the whole district, voting at an election to be held for that purpose, by virtue of section 3, art. 7, of the Constitution adopted September 24, 1909. HENDRICKS, J. On the 7th day of April, A. D. 1891, the city of St. Jo, Montague county, Tex., became an independent school It is clear that an independent school disdistrict, by an election held for that purpose.trict, which has previously voted a tax for Thereafter, on the 14th day of June, A. D. school purposes, cannot, by a subsequent ex * * tension of its limits, including additional | absolutely void. We do not so construe the territory, acquire the right to levy and col- law. Unless the express prescription of the lect such tax on the property in the annex-law, or the clear negation of the same, or ed territory without another election by the the necessary implication, by construction, is qualified voters of the whole district, as such, we do not think it was the intention of merged, to determine the tax. The Supreme the lawmakers to produce a result amountCourt, in the case of Crabb v. Celeste Inde- ing to a total destruction of the taxes for pendent School District, 105 Tex. 195, 146 S. one year, or until another election, where W. 528, 39 L. R. A. (N. S.) 601, Ann. Cas. the annexation is such that another could 1915B, 1146, announced the doctrine follow-not be voted and collected to meet the necesing the holding of the Court of Civil Appeals sities of the school for that particular year. of the Fifth District, in the case Eagle Lake "The presumption against absurd consequencV. Lakeside Sugar Refining Co., 144 S. W. es of legislation is no more than the 709, construing section 3, art. 7, of the state presumption that the legislators are gifted with ordinary good sense. Constitution, before the amendment of 1909, other presumptions, It is applicable, like all *only where there which, however, as applicable to the par- is room for construction by reason of the obticular question, is practically the same, ex- scurity or ambiguity of the law." Black on Incept that the old article provided that the terpretation of Laws, § 46, p. 130. special tax should be voted by two-thirds of the qualified property tax paying voters of the district, instead of a majority of such voters, as required by the amendment. The Supreme Court applied the familiar rule that where a power is expressly given by the Constitution, and the mode of its exercise expressly prescribed, such method of the exercise of the power is exclusive; but does the principle of the cases cited apply to the status of case presented here? * The argument of inconvenient results, where the language of the law is not clear, either express or implied, has always been a principle of construction, both as to Constitutions and statutes. In the case of Rockwall County v. Roberts County, 103 Tex. 407, 128 S. W. 369, it is disclosed that Roberts county, prior to December 30, 1888, was unorganized and attached to Wheeler county for judicial purposes. Roberts county organized, detaching itself from Wheeler, on the date mentioned, and before any action of the commissioners' court of the new county (Roberts) or by its officers, with reference to assessment and taxation of property in that county, a contract for jail and courthouse was made, and the district court and Court of Civil Appeals held that the issue of bonds for Roberts county for the purposes stated was not wholly valid, "unless the valuation was assessed in the county which is sought to be taxed by the issue of the bonds," and that said bonds could not be based upon the assessed valuation made by Wheeler county of the property situated in Roberts county, when Roberts was attached to Wheeler, on the theory, we presume, that the assessment by Wheeler of the land in Roberts became nuga [1-3] The trial judge evidently attempted to enforce 20 cents of the 50-cent levy, upon the theory that such an amount is a legal tax upon the property in the added territory, with the change of agency under the law, for the purpose of collecting the same; and that said tax having been legally voted may be enforced by the new agents of the annexed territory until a new election is held for the collection of a new special tax for school purposes. Appellant's argument is, if we properly interpret the same, that the common school district (the territory of which was added to the independent school district) having been disorganized, on account of all the property in that district being merged in the other district, the special tax, previously voted by the common school district, was destroyed as a result of the annex-tory when the latter was organized. ation. Upon this record, we presume that the 20 cents special tax previously voted in the common school district for school purposes was, when voted, a constitutional tax. If this tax could be enforced by the new agency created by the taxpayers of the common school district (the board of school trustees of the independent school district), and if the 50-cent levy, attempted to be enforced by the independent school district, could be said to legally include the 20-cent tax, legally existent, then the action of the district court is correct. The logic of appellant's position is, if the whole territory of an adjoining district becomes annexed to an independent district, properly and legally under the statute, the result of this annexation is to make the The Supreme Court, however, held it could be used, and, while the analogy between the two cases is rather remote, there is some application we think of that case to this. In the Crabb Case, and the Eagle Lake Case, supra, the independent school districts were attempting to apply a tax to the added territory which had never been voted by the whole district. Though it may be said that the independent district in this instance was attempting to do the same thing, the district judge restricted its acts to an amount, and to a tax, which had legality when voted, as against the constitutional contention here presented, and was legally applicable to the land in that district, unless annexation destroys it; and we are inclined to think that, in case of a merger of two whole districts, Cent. Dig. §§ 1104, 1110-1114, 1124, 1242; 4. CARRIERS 316-PASSENGERS-INJURIES— by the voters of each district, could be col-ed only to assist the others, and was intending lected by the agents of the whole district to leave the train. after annexation. The logical consequences of appellant's doctrine is that the independent school district could not collect the 50cent special tax upon property solely situated in that district, which we believe does If the agency of the independent district could collect the 50-cent tax as against the land in that district, as originally constituted, why could not the same agency collect the 20-cent tax applicable to land situated in the common school district as originally existent? We do not see any special inhibition by the Constitution of such a procedure, and the inconvenient and harsh results, ensuing to the community, and the maintenance of the public schools, are such as to induce that construction. [4] Appellant, in his application for the particular injunction, did not make the independent school district a party to his suit; he only sued the ex officio and city assessor and collector, for the purposes of determining the validity of the tax. The independent school district of itself is a necessary party to this suit, and, that being so, any judgment in this proceeding could not be properly operative against it. Vance v. Miller, 170 S. W. 838; Renshaw v. Arnett, 158 S. W. 1197; Voss v. School District, 18 Kan. 471. Upon the whole, we think this judgment should be affirmed. Affirmed. TRAIN. One entering a train, with the knowledge of the railroad company, to render necessary assistance to passengers in the interest of the company, does so by implied invitation, and the company must hold the train for a time reasonably sufficient to allow such person to render such assistance and leave the train. [Ed. Note. For other cases, see Carriers, Cent. Dig. 88 1104, 1110-1114, 1124, 1242 Dec. Dig. 304.] 2. CARRIERS 304-PERSONS ASSISTING PASSENGERS KNOWLEDGE OF CARRIER. A carrier who has no knowledge that one is entering its train to assist passengers only, and with the intention of thereupon alighting, may assume that such person boards the train as a passenger, and may start the train after giving him a reasonable time to get aboard. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1104, 1110-1114, 1124, 1242; Dec. Dig. 304.] 3. CARRIERS 304-PERSONS ASSISTING PAS SENGERS-STATEMENT TO BRAKEMAN-EF FECT. Where one entering a train to assist his two daughters to a seat answered the brakeman's question as to destination by saying, "They are going to H.," the brakeman was not charged with knowledge that such person enter [Ed. Note. For other cases, see Carriers, Cent. Dig, §§ 1261, 1262, 1283, 1285-1294; Dec. Dig. 316.] 5. CARRIERS 304-PERSONS ASSISTING PAS SENGERS-CUSTOM-NEGLIGENCE. Where it appeared, in an action for injuries received in alighting from a moving train, that plaintiff entered the train at a station to of thereupon leaving the train, but without assist his daughters to a seat with the intention knowledge of such intention on the part of the defendant company; that the company had no custom of holding its trains at such point to allow such assistance to passengers, but stopped only long enough for passengers to get on and off without regard to time-there was no negligence in failing to hold the train a reasonable time to allow plaintiff to perform the service and leave the train in safety. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1104, 1110-1114, 1124, 1242; Dec. Dig. 304.] 6. CARRIERS 336-PERSON ALIGHTING FROM MOVING TRAIN-STATEMENT BY BRAKEMAN -EFFECT. Where plaintiff left the train, which he had entered only to assist passengers to get on board, as it was getting under way and while descending the steps of the coach told the brakeman that he was going to alight, the reply of the brakeman to "jump with the train" was no invitation or command by the company constituting the inducing cause to plaintiff to alight, as the direction was merely in the nature of information or advice. [Ed. Note. For other cases, see Carriers, Cent. Dig, §§ 1357-1362; Dec. Dig. 336.] 7. CARRIERS 304 - PERSON ALIGHTING FROM MOVING TRAIN-DUTY OF CARRIER. The plaintiff having started down the coach steps without hesitation declaring his intention to alight and without asking that the train be stopped at a time when the train was getting under way, it was neither the company's duty to stop the train, nor to prevent his alighting until the train could be stopped; its only duty being to use ordinary care in permitting him to leave the train. Cent. Dig. §§ 1104, 1110-1114, 1124, 1242; [Ed. Note. For other cases, see Carriers, Dec. Dig.304.] 8. CARRIERS 336-PERSON ALIGHTING FROM MOVING TRAIN-ACT OF BRAKEMANEFFECT. The fact that the brakeman gave plaintiff room on the car steps to pass was not an invitation to plaintiff to jump from the train. Cent. Dig. §§ 1357-1362; Dec. Dig. 336.j [Ed. Note.-For other cases, see Carriers, Appeal from District Court, Donley County; Jas. N. Browning, Judge. Action by T. H. Allen against the Ft. Worth & Denver City Railway Company, to recover damages sustained while alighting [ from a car. From a judgment for plaintiff, defendant appeals. Reversed. Thompson & Barwise, of Ft. Worth (G. W. Wharton, of Ft. Worth, of counsel), and H. B. White, of Clarendon, for appellant. A. T. Cole, of Clarendon, and Odell, Turner & Powell, of Ft. Worth, for appellee. HUFF, C. J. T. H. Allen, appellee, sued appellant for damages received by breaking his leg at Clarendon, a station of appellant on its line of road. It is alleged that appellee's two daughters and his granddaughter were desirous of boarding appellant's train at the station above named; that they had considerable baggage, and that for the purpose of assisting them, he boarded the train with them, carrying the luggage, and when they reached the seat intended for occupancy, the train began to move, and he sought to leave the train, and then he alleges the facts up to his fall. The negligence alleged is: (1) That it was the custom, and usual, to stop the train at the station five minutes, but on this occasion it only stopped two minutes and not longer than one minute after the employés permitted the passengers to enter; and it was negligent to start without remaining its customary time and without giving appellee an opportunity to seat the parties mentioned and to leave the car in safety. (2) It was negligent, when its servants learned that he desired to leave the train, in not bringing it to a standstill. (3) And for its servants to invite appellee to alight therefrom and tell him to jump with the train as it moved. The trial court submitted two grounds of negligence: (1) If appellant "negligently failed to cause said train to remain standing a reasonable length of time for plaintiff to accomplish his purpose and to disembark safely from the same, and you further believe from the evidence that the said servants and employés of defendant caused the said train to start before the same had stood a reasonable and sufficient time for plaintiff to safely alight therefrom in the exercise of ordinary care and diligence on his part, etc.; (2) or if you believe from the evidence that defendant's brakeman, by word or act, made it reasonably to appear to plaintiff that he was invited to leave the train at the time he did, and acting under such invitation," etc. The facts show that on the 21st of May, 1911, the appellee, with a married daughter and her little girl, and another daughter about 14 or 15 years old, went to the depot of appellant, for the purpose of taking the train to visit another daughter of appellee near Hedley, on defendant's line of road. They had one ordinary suit case and a folding baby buggy, which the married daughter was taking with her to present as a present to her sister living at Hedley. Appellee accompanied his daughters to the train for the purpose of putting them on the train. It is shown by the testimony that there were but few passengers who left the train or got on the train that morning; but as soon as the passengers getting off at that point had alighted, the appellee and his daughters boarded the train. He stated: * * * * "My recollection is the coach we went on was attached to the smoker, up next to the how many there were. I got on where the pasfront-that is my recollection. I did not notice sengers generally were getting on and off and where the others got on; that is the only place When the train stopped, as I said a while ago, I noticed them getting on and off. * we got to the train or depot just about the time the train slowed up, and I spoke to my daughter and said-well we walked up there and stopped and stood there until the passengers got off, and there was probably one in ahead of us, but as soon as we could get to the step we went on the train. * We walked right on down the aisle to the back end of the coach, I think right on the back end, where we found a vacant seat and stopped, and just about the time we got there I felt the train move, and I said to my daughter, 'I have got to get off. I set the grip down and turned and walked back to the entrance. *** I walked back to the platform and back on the platform of the car, and there was a brakeman standing on the lower step of the car, and I asked him if the train was going to stop at the coal chute, and he said 'No' and I said, 'I want to get off;' and I think that is the words I used as he walked up the steps and I walked down to the lower step and jumped off. He walked up and I down. I never heard anything else said at all, except just as I got on the lower step to get off I heard him-I suppose it was himsome one in the car said, 'Jump with the train.' * ** When I told the brakeman I wanted to get off he never said anything at all that I heard, except what I have told you. That is all that was said. I just asked him the question if he was going to stop at the coal chute, and he said, 'No,' and I said, 'I have got to get off. Of course I had gone on there with the calculation of getting off and done that. I had went up there with the calculation of seating them and getting off. I do not think there got on the step there. There was no one else on the platform at the time I stepped down the steps, except the brakeman, that I saw. The from about where the brakeman stood, voice that said, 'Jump with the train,' came * We find no allegation that appellee notified the servants of appellant that it was his pur-was anything else said at all; nothing until I pose to assist his daughters to a seat and then disembark, and that he only boarded the car for that purpose, and that it was his intention to leave the train upon performing the service at the time he entered the car, or before he did so. The only allegation of notice given was after the train had started and just before he left the train, when it is alleged, as set out in ground (2) of negligence, when the servants learned he desired to leave the train, and in not bringing the train to a full stop. It will be observed this ground of alleged negligence was not submitted by I just stepped down on the lower step and jumped off. When I jumped off I lit on my feet, and I fell. This leg gave way and I kind o' tumbled on that side and caught on my hand and tried to get up, and my leg gave way and I did not try any more." On cross-examination he testified: that I would not take the time to get the tick"I told my daughters as we got to the depot ets; that they could pay on the train. We I ley. I do not know whether he said 'we' or 'they.' I do not exactly know what he said about it. If I remember right Mr. Allen was in his shirt sleeves; it was Sunday. I did not know he was going to get off the train." The facts show that Mr. Allen did not board the train with the expectation of going to Hedley or as a passenger, but only for the purpose of assisting his daughters. The jury returned a verdict in favor of the appellee for $5,000, and upon which judgment was rendered. The appellant requested the court to instruct a verdict for the appellant, which was refused. The action of the court in this particular is the ground for several assignments of error, which will now be noticed in order. in, but we got there just about the time it came | where he was going, and he said he was going in. * * My recollection is that my daugh- to Hedley, and he said they were going to Hedters were in ahead of me, but now I would not be positive about that matter. We all were right together there, and I think they went in first. They were just going down to my daughter's to stay a few days on a visit. The brakeman was at the steps when we got there, and I think his name is Mr. Burnsides. I don't think my daughters said anything about where they were going. I don't think it is a fact that Mr. Burnsides asked me then where they were going and that I, or my daughters said, 'Hedley. I would not be positive about that. do not think that is true. I did not tell him where we were going. I don't remember saying a word about that. * * It seems that he just swung on there. He was right on the lower step, I asked him if the train would stop at the coal chute, and he said it would not, and I said, 'I have got to get off.' I think those were the words I used, and he never said a word. * *He told me to jump with the train just about the time I hit the bottom step. You might say that I was just turning loose at the time he told me to jump with the train. *** In jumping from the train my recollection is that I went out pretty near straight from it. I may have gone a little at an angle, but my memory is that I went mighty nearly straight. If jumping with the train means jumping the way it is going, I did not jump with the train. You might say I was in a hurry to get off. I did not want to go further. I wanted off as soon as I could get off. It is a fact that I was in a hurry to get off and from the time I came out and got on the vestibule and saw the brakeman there was no pause, but I kept on going. * * * I did not ask the brakeman to stop the train for me." The brakeman, Burnsides, testified that he saw appellee and his daughters getting on the train at the time above mentioned. "I first saw him at the station at Clarendon on the ground near the footstool at the front coach is the last coach day passengers ride in, ahead of the diner and two sleepers. Plaintiff came to the train to get on. I helped his folks on the train, and asked them where they were going, and they said, 'Hedley.' I suppose it was him and his two daughters. I took it to be his two daughters. I knew one was his daughter, and the other I did not know whether it was or not, The one that I knew was named Mrs. Robertson. The ladies got on the train first; there was one little child with them. I suppose we had been there some three or four minutes; that is as near as I can guess at that. There were not a great many passengers that got off the train at Clarendon at that time. When I asked Mr. Allen where he was going he was just getting up in the vestibule, and he said he was going to Hedley, and he went into the car with his folks. He said nothing else to me at that time. *The next time I saw Mr. Allen was after the train started and had gone a couple, or probably three car, lengths. He came out into the vestibule and said he was going to get off. He came out and said that, and I told him not to get off, that he might hurt himself, and to go to the conductor and he would let him off. He asked me if we would stop at the coal chute, and I told him that I did not know whether we would or not. He said, 'I am going to get off,' and he dropped off. During that conversation he was going down the steps. ** Plaintiff just went down the steps and took the handrail with his right hand and stepped off backwards." end of the rear coach. What we call the rear * * * On cross-examination he stated: [1, 2] There is no evidence that we are able to find in the record that the appellee went into the train in conformity with the practice or custom at that station, approved or acquiesced in by the railroad; that is, to render necessary assistance to a passenger in the interests of the railway, and therefore an implied invitation. If one so enters, we understand the rule to be that under such circumstances a party so entering has the right to render the necessary assistance and to leave the car. A railroad so permitting him to enter with knowledge of his purpose is presumed to agree that he may execute it, and is bound to hold the train a reasonable time therefor. The duty is dependent upon the knowledge by the carrier of his purpose or by those in charge of the train. Without such knowledge, they may reasonably conclude that the entry was made for the purpose of becoming a passenger, and that the carrier may cause the train to be moved after giving time reasonably sufficient for him to get aboard. [3] In this case the appellee does not testify or claim that he gave the brakeman, or any of the train crew, notice that he was entering to assist those in his charge. The only pretense of any verbal notice is the testimony of the brakeman on cross-examination, in which he stated that appellee answered his inquiry as to where they were going that "we," or "they, are going to Hedley." He could not remember positively whether appellee said "we" or "they." stated above, appellee does not pretend to have given any sort of notice of his purpose in entering the car. We can see nothing in the manner in which appellee and his daughters boarded the car that would charge the train crew with knowledge that the appellee was entering to assist those accompanying him, and that he intended to leave the car upon performing that assistance. If it shall be conceded that the jury found appellee stated, "They are going to Hedley," and in doing so he referred to his daughters, this does not still charge the brakeman with knowledge that appellee was not then enter |