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of error should be mixed up with a state-, which empowers the Legislature to pass laws, ment, which should follow a proposition either general law or special law, without the which should follow an assignment. The notice required in other cases of special legisbrief is not only in total disregard of the lation, and in order that there might be no rules, but has entailed much labor upon this ground for contention that the authority was court to discover assignments buried in state- given only as to districts lying partly in one ments. No objection, however, has been 'urg- county and partly in another it describes the ed to the brief by appellees, and, as the as- districts as those "composed of districts wholsignments have been correctly copied into the ly within a county" and those “in parts of brief, we have considered those not violating two or more counties.” In spite, however, of other rules, but this action will not be con- that clear and explicit declaration, it is the sidered as a precedent to guide in the briefing contention of appellant that the amendment of cases.

The rules are simple, and when was made “looking alone to county line disfollowed assist the court in arriving at a con- tricts.” Even if the definite description of clusion as to the points sought to be raised. the districts affected by the amendment had

The judgment is attacked, through the not been given, it would have been clear from first assignment of error, because the notice the other language used that all school dis

tricts were in view, for "such" and "said of election was not posted for 20 days before the date of the election. In the special law school districts,” of course, refer back to the creating the Charco independent school dis- to form, whether in one county alone or

districts that the Legislature is authorized trict it is provided that, when it becomes nec- 'parts of two or more counties.” essary to borrow money to purchase grounds

[3] It is clear that by the amendment the and erect, furnish, and equip school build- Legislature is authorized by general or speings, the amount shall be ascertained as cial law to create school districts, to provide well as the rate of tax to be levied, and for the assessment and collection of taxes the board of trustees "shall then immediate- therein and for the management and control ly cause an election to be held on some sec of their schools, and to authorize the levy ular day, not a legal holiday, within twenty and collection of additional ad valorem taxes, days after the date of ordering such elec- not only in such districts as then existed, tion, of which ten days prior notice shall be

but those thereafter formed. These extra given by the board of trustees by written

powers conferred upon the Legislature do not notice duly posted at three public places in any wise conflict with section 56, art. 3, within said district.” That law was strictly because the inhibition in that section is made complied with, and, if not unconstitutional, subject to any exception "otherwise providwas sufficient to sustain the election.

ed.” It made provision for any amendment [2] It is the contention, however, through to the Constitution as to regulating the affairs the third assignment of error, that the law of counties, cities, towns, wards, or school is unconstitutional, because antagonistic to districts, giving the power to regulate such section 56 of article 3 and section 3 of arti- affairs. Undoubtedly the amendment "othercle 7 of the state Constitution. In section 56 wise provided" for such regulation by "local of article 3 it is provided that the Legisla- or special law.” The broad powers given by ture shall not, except as otherwise provided the amendment to the Legislature authorized in the Constitution, pass local or special the passage of the special law creating the laws, as to a number of things, among the Charco independent school district, and under number being "regulating the affairs of coun- the power granted “to pass laws for the asties, cities, towns, wards or school districts.” sessment and collection of taxes in all said Section 3 of article 7 of the Constitution is districts and for the management and control an amendment adopted by the people in of the public school or schools of such dis1909, the parts added to the original section trict” the Legislature could by "a special law, 3 being:

without the local notice required in other That such "school districts, whether created cases of special legislation," authorize the by general or special law, may embrace parts assessment and collection of taxes and manof two or more counties. And the Legislature shall be authorized to pass laws for the as- age and control the public schools in the dissessment and collection of taxes in all said dis- trict as fully as could be done through a genertricts, and for the management and control of al law. No one can reasonably contend that the public school or schools of such districts, the powers granted the Charco school diswhether such districts are composed of territory wholly within a county or in parts of two trict could not have been given through a or more counties.”

general law, and the amendment adopted in These quotations form the parts added to 1909 extends the authority to the Legislature the section in question in 1909, with the to give such districts such powers through exception of the words "heretofore formed or special laws without the necessity of the hereafter to be formed,” which were added as usual notice required in other cases of special descriptive of the districts in which an ad- legislation. It may be that the desire to ditional ad valorem tax may be authorized authorize the formation of school districts by the Legislature. Appellant quotes the composed of parts of two or more counties language deemed by him applicable to school was what primarily prompted the submission districts, but omits the gist of the amendment of the amendment to the people, but the

language of the amendment went further livered through Associate Justice Moursund, and granted to the Legislature authority fully treated the subject of special laws in theretofore denied to it by the Constitution. connection with independent school districts,

[4] Section 10 of article 11 of the Constitu- and arrived at the conclusion: tion empowers the Legislature to constitute "That if the authority to legislate by special any city or town a separate and independent act upon a certain subject is given by a proschool district and authorizes certain school vision of the Constitution other than section districts to levy and collect taxes under cer- right to enact all provisions which could legittain conditions, and, as said in State v. imately be embraced in the bill if such section Brownson, 94 Tex, 436, 61 S. W. 114, the pow- 56 was not a part of the Constitution. The er granted to the Legislature would not have frame the provisions of the special act as it been necessary except for the provisions of would if it was framing a general law to acsection 56 of article 3. In 1883 an amendment complish the same purpose. Its inherent powto section 3 of article 7. was adopted which er would not be affected by the fact that it gave the power to create school districts by availed itself after privilege to use a special special laws without notice, and then in 1909 stitution. The power to create a district car

act pursuant to authority conferred in the Conthe same authority over school districts that ries with it the power to deal with school could be exercised by general law was given property in the territory, and to regulate the by and through special laws. Having the school affairs of the entire new district, and

make all provisions germane to the purpose of power to create them, the Legislature per- creating the new district, and all of this may haps had the authority under the amend- be done by a special act without notice. ” ment of 1883 to manage and control the Houston v. Gonzales Independent School Dist., schools of districts created by it, but, if such 202 S. W. 963, not yet officially published. authority did not exist, it was clearly granted The conclusion reached in that case is by the voters of Texas in 1909, and the Legis- irresistible and is fully sustained by all the lature can exercise the same authority over a authorities. The Charco independent disschool district through a special law, with- trict is legally and constitutionally establishout notice, as through a general law. Snyder ed, and the bond question was duly presented v. Baird, 109 S. W. 472; Cummins v. Gaston, to the people of the district in compliance 109 S. W. 476; Parks v. West, 102 Tex. 11, with a constitutional law, and the issue of the 111 S. W. 726; Gillespie v. Lightfoot, 103 Tex. bonds legally authorized. 359, 127 S. W. 799; Glass v. Pool, 106 Tex. [5] Having been invested by the Constitu266, 166 S. W. 375. As said by the Supreme tion with the power to control and manage Court in the case next to last cited:

public schools by special or local legislation, "The amendment of the Constitution is an and to authorize the assessment and levy of exertion of the sovereign power of the people taxes through special or local legislation, the of the state to give their expressed will the force of a law supreme over every person and Legislature had the right as it would by generevery thing in the state so long as it does not al legislation to provide the manner in which conflict with the Constitution of the United notice should be given as to bond elections, States. and supplants all other laws and rules that and if such provision as to notice is in conare inconsistent with it. In determining rights flict with a general law, the latter would controlled by it we therefore have only to as- give way in the district created by the local certain what it means and give it full effect, law. Dallas County v. Plowman, 99 Tex. 509, so long as it encounters

no opposition in the 91 S. W. 221. There is nothing sacred about higher law of the federal Constitution."

The amendment to the Constitution adopted the provisions as to notice in articles 2857 in 1909 gave certain authority to the Legisla- to create a district by a local law, the Legis

and 2859, Rev. Stats., and, having the power ture it had not possessed before, and when to create a district by a local law, the Legissuch authority was given it gave the power to lature had the authority to provide for a enact any and all laws that it could enact that prescribed in the articles cited.

different notice of election for bonds than had there been no such provision in the Constitution as that embraced in article 3,

The cases of Hall v. Bell County, 138 S. § 56. , Dallas v. Electric Co., 83 Tex. 243, 18 W. 178, and Bell County v. Hall, 105 Tex. S. W. 552; Altgelt v. Gutzeit, 187 S. W. 220. 558, 153 S. W. 121, cited by appellant, were

In the case of Eagle Lake Independent in regard to a law passed before the constiSchool District v. Hoyo, 199 s. W. 352, the tutional amendment of 1909 was adopted, identical points raised as to the constitu- and further were in connection with a law tionality of special or local laws in regard to about a county auditor, and had nothing to which notice has not been given are discussed, do with school districts, with which the and the conclusion reached:

amendment is alone concerned. The case of "That the Constitution, by this very simple Cain v. Garvey, 187 S. W. 1111, is a liquor and plain language, confers on the Legislature local option case and is not applicable to the power to make any provisions for such this case. None of the numerous authorities school districts by special law, without the local notice, that it might make with it, or by cited by appellant are pertinent to the facts general law.”

before this court. All the Texas authorities on the subject [6] The second contention of appellant is are fully reviewed and distinguished in that that, as the property valuation of the school case.

district shows that it is not sufficient to sus

tion is invalid, and bonds in no amount can others issued whenever the property values be issued. The excess of bonds voted on had sufficiently increased to justify it. City doubtless occurred from a miscalculation of of Austin v. Valle, 71 S. W. 414, writ of error the interest and sinking fund required and denied; Cohen v. City of Houston, 176 S. W. the amount the property values would pro- 809. In the Valle Case it was held that: duce, or the property values were not correct- The "bonds will be valid, although the bonds ly ascertained. At any rate, it is not claim-would have been excessive if all of them had ed that a fraud was intended or attempted, been issued at the time the election was held.” and it is agreed that no attempt had been,

In the Cohen Case it was stated: or would be, made to issue any more of the then, is whether the city can lawfully issue

“The question presented by this state of fact, bonds than would be covered and protected the bonds in annual installments running for by a tax of 25 cents on the $100 of the taxa- a period of five years. We think the answer ble property in the district. No bonds had should be in the affirmative, provided that at received the Attorney General's approval, has available a margin of taxing power and

the time of issuing each installment the city and none been registered by the comptroller, property values sufficient to raise, by taxation, and of course could not be put on the market the sum of money necessary to pay the interest until those things were done. No debt had upon and to create a sinking fund of at least

2 per cent. for the redemption of such installbeen created against the district, and none ment at maturity.” would be created until the approved and

In the same case, following other authoriregistered bonds had been sold. There are ties, it was held that the debt was not creat18 of the 20 $500 bonds authorized by the ed until the bonds were sold as obligations vote of the people to be issued that can be against the city or district issuing them. . lawfully sold, being amply secured by the Speaking on this subject, it was said in necessary interest and sinking fund arising the Valle Case: from a legal tax on the property valuation.

“We are of the opinion that, although the Can that proportion of the voted bonds taxable values may not be sufficient at the be legally issued that can be protected by a time the election is held, yet if at the time the legal tax on the present valuation of prop- the taxable values are sufficient to pay the

bonds actually become debts against the city erty in the school district? We are of opin- interest and provide the sinking fund, the bonds ion that such issue can be legally made. The will be valid." people were fully informed of the matters

In the case of Wells v. Sioux Falls, 16 S. concerning the bond issue, and voted that a D. 547, 94 N. W. 425, forcefully and properly bond issue of $10,000 should be made, and it it was held: cannot be presumed that an issue of $9,000 in "The contention that the defendants are bonds would meet with their disapproval. The without power to issue these bonds to the sanction of a bond issue for a larger amount amount of $50,000 because the proposition subwould necessarily include the issue of a to the extent of $210,000' is untenable, espe

mitted to the voters provided for 'issuing bonds less amount of bonds. In other words, the cially as it appears that they intended to issue people authorized the trustees to issue a the remaining portion as they may be required certain number of bonds of a certain value The mere statement of the contention is suffi

by the contemplated municipal improvement. each, and it would be unreasonable to sup- cient to show its fallacy. It would be conpose that such authority would not give au- trary to the dictates of reason to hold that the thority and discretion to issue a less number city authorities are bound to sell more bonds

than are needed for the intended purpose, or if for any reason they deemed such less that they are required to dispose of all of them number should be issued. The trustees could, at one and the same time." not increase the amount voted, but would be To the same effect are Dillon, Mun. Corp authorized to lessen the amount if deemed 8 203, and Daviess County v. Dickinson, 117 expedient and proper. The maximum amount U. S. 657, 6 Sup. Ct. 897, 29 L. Ed. 1026; City of the bond issue was voted by the people, of Laredo v. Looney, 108 Tex. 119, 185 S. and although that issue was excessive at the W. 556. time, a less amount could be issued, and the The judgment is affirmed.

MEMORANDUM DECISIONS

ESQUIVEL V. STATE. (No. 5039.) (Court ALTMAN V. ASBURY & SULLIVAN. (Suof Criminal Appeals of Texas. May 22, 1918.) preme Court of Arkansas. March 4, 1918.) Appeal from Criminal District Court, Nueces Appeal from Circuit Court, Craighead County, County; Walter F. Timon, Judge." Urbano Jonesboro District; W. J. Driver, Judge. Esquivel was convicted of burglary, and he ap- PER CURIAM. Affirmed on appellees' mopeals. Affirmed. E. B. Hendricks, Asst. Atty. tion, pursuant to rule 7. Gen., for the State.

PRENDERGAST, J. The conviction is for burglary, and the punishment assessed at two

BEAL v. BAYNE et al. (Supreme Court of

" Appellant entered a plea of guilty, and sought Arkansas. March 18, 1918.). Appeal from Pulto obtain a suspended sentence. The facts prov

aski Chancery Court;

John E. Martineau,

Chancellor. ed are not brought up by the record, nor do we find any bills of exceptions. Motion for new PER CURIAM, Appeal dismissed on appeltrial complains of misconduct of the jury, but lant's motion. there is absence of any bills of exception or statement of facts disclosing the evidence upon which the trial judge overruled the motion. The BEAN V. STATE. (Supreme Court of Arrecord discloses no error, and the judgment is af- kansas. Feb. 25, 1918.) Appeal from Circuit firmed.

Court, Garland County; Scott Wood, Judge.

PER CURIAM. Appeal dismissed for failure to lodge transcript within the time limited

by statute. PAUL V. SWEENEY et al. (No. 363.) (Court of Civil Appeals of Texas. Beaumont. May 17, 1918. Rehearing Denied June 5, 1918.)

BRITT et al. v. ROAD IMPROVEMENT Appeal from District Court, Harris County DIST. NO. 1 OF POINSETT COUNTY. Wm. Masterson, Judge. Action by Allen Paul (Supreme Court of Arkansas. May 6, 1918.) against J. J. Sweeney and others. Judgment on Appeal from Circuit Court, Poinsett County; directel verdict for defendants, and plaintiff ap-1 w. J. Driver, Judge. peals. Affirmed. A. C. Allen and Cooper & PER CURIAM. Appeal dismissed, pursuant Merrill, all of Houston, for' appellant. Moody

to stipulations. & Boyles, of Houston, for appellees.

KING, J. This appeal has been perfected by appellant from a judgment of the Fifty-Fifth BROWN V. EVANS, Circuit Judge. (Sudistrict court of Harris county; the judgment preme Court of Arkansas. Jan. 14, 1918.) being based upon the following verdict of the

PER CURIAM. Mandamus to Hot Springs jury, returned in obedience to a peremptory Circuit Court. Petition for mandamus denied. instruction by the court, to wit: Gentlemen of the Jury: In this case, the plaintiff having utterly failed to establish, in the opinion of the court, his allegations of conspiracy upon the CLAIBORNE v. STATE. (Supreme Court part of the defendants, and the same being essen- of Arkansas. Feb. 25, 1918.) Appeal from Cirtial to his right of recovery herein, you are in-cuit Court, Garland County; Scott Wood, structed to return a verdict in favor of defend- Judge. ants." The action of the court in thus instruct- PER CURIAM. Appeal dismissed, for failing the jury is assigned as error by appellant. ure to lodge transcript within the time limUpon a former trial of this cause, the trial judge ited by statute. sustained the following special plea to plaintiff's petition: “They specially except to all the allegations in said petition which undertake to DENTON V. PROTHNO. (Supreme Court join in the same action a claim for damages for of Arkansas. Feb. 25, 1918.) _Appeal from breach of a contract of rental with a claim for Circuit Court, Pulaski County, Third Division; damages for slander, because the same would G. W. Hendricks, Judge. constitute a misjoinder of causes of action."

· PER CURIAM. Appeal dismissed, for nonPlaintiff refused to amend, and appealed to the Court of Civil Appeals at Galveston, which court compliance with rule 9. reversed and remanded the cause, the report of which may be found on page 525, 188 S. W. We will not copy plaintiff's original petition,

FLICK V. FISH et al. (Supreme Court of as the material part of same is contained in Arkansas. Jan. 1, 1918.) Appeal from Circuit the report of the former appeal. A careful con

Court, Polk County; Jefferson T. Cowling,

; sideration of the pleadings forces us to the same Judge. conclusion that was reached by the Galveston PER CURIAM. A motion of the appellees to Court, that plaintiff bases his right to recover dismiss the appeal was overruled, and, the face for the wrongful acts, statements, declarations, of the record showing no error, the judgment etc., upon the theory that such acts were done, was affirmed. made, and declared with the common design of appellees for the purpose of defaming his character and destroying his business, and with

GILLS et al. v. J. C. ROGERS et al., out quoting the testimony, we have carefully Com’rs of Waterworks Improvement Dist. No. considered the pleadings of the plaintiff, and the 1 and Sewer Improvement Dist. No. 1 of Town evidence introduced upon the trial of the case,

of Rector. (Supreme Court of Arkansas. and find that plaintiff failed to establish any March 4, 1918.) Appeal from Clay Chancery conspiracy upon the part of appellees, as alleged, Court, Eastern District; Archer Wheatley, and therefore the trial court did not err in giv

Chancellor. ing a peremptory instruction in their favor, and PER CURIAM. Appeal dismissed, pursuthe judgment of the lower court is therefore af- ant to section 5706, Kirby's Digest, for failure GOLDEN v. STATE. (Supreme Court of MEYER v. FEIBELMAN. (Supreme Court Arkansas. Feb. 25, 1918.) 'Appeal from Cir- of Arkansas. April 1, 1918.) Appeal from Circuit Court, Garland County; Scott Wood, cuit Court, Chicot County; Turner Butler, Judge.

Judge. PER CURIAM. Appeal dismissed, for fail- PER CURIAM. Appeal dismissed, for nonure to lodge transcript within the time limited compliance with rule 9. by statute.

JAMES v. STATE. (Supreme Court of Ar

PINE BLUFF SPOKE CO. v. TAYLOR. kansas. May 6, 1918.) Court, Jefferson County; W. B. Sorrells, Judge. Appeal from Circuit Court, Jefferson County ;

Appeal from Circuit (Supreme Court of Arkansas. March 18, 1918.) PER CURIAM. Appeal dismissed, for fail- W. B. Sorrells, Judge. ure to lodge transcript within the time limited

PER CURIAM. Appeal dismissed, on appelby statute.

lant's motion,

LUTTRELL V. STATE. (Supreme Court of Arkansas. April 22, 1918.) Certiorari to Cir

POWERS v. STATE. (Supreme Court of cuit Court, Poinsett County; W. J. Driver, Arkansas. Feb. 25, 1918.) À ppeal from Circuit Judge.

Court, Garland County; Scott Wood, Judge. PER CURIAM. Lower court's action in re- PER CURIAM.. Appeal dismissed, for failfusing bail affirmed.

ure to lodge transcript within the time limited by statute.

McCUNE V. McCUNE. (Supreme Court of Arkansas. March 11, 1918.) Appeal from

WILKIN et al. v. BOYCE et al. (Supreme Washington Chancery Court; B. F. McMahan, from Prairie Chancery Court, Southern District.

Court of Arkansas. April 8, 1918.) Appeal Chancellor. PER CURIAM. Appeal dismissed, for non-ed, on appellant's motion.

PER CURIAM. Settled, and appeal dismisscompliance with rule 9.

MASON et al. v. COOPER. (Supreme Court YOUNG v. STATE. (Supreme Court of Arof Arkansas. Dec. 17, 1917.) Appeal from kansas. May 13, 1918.) Appeal from Circuit Prairie Chancery Court, Southern District; Court, Jefferson County; W. B. Sorrells, Judge. John M. Elliott, Chancellor.

PER CURIAM. Appeal dismissed, for failure PER CURIAM. Appeal dismissed, on motion to lodge transcript within the time limited by of the appellants.

statute.

END OF CASES IN VOL. 203

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