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 first assignment of error, because the notice of election was not posted for 20 days before the date of the election. In the special law the date of the election. In the special law creating the Charco independent school district it is provided that, when it becomes necessary to borrow money to purchase grounds not been given, it would have been clear from the other language used that all school disschool districts," of course, refer back to the tricts were in view, for "such" and "said school districts," of course, refer back to the districts that the Legislature is authorized to form, whether in one county alone or "parts of two or more counties." [3] It is clear that by the amendment the Legislature is authorized by general or special law to create school districts, to provide for the assessment and collection of taxes therein and for the management and control of their schools, and to authorize the levy and collection of additional ad valorem taxes, not only in such districts as then existed, but those thereafter formed. These extra powers conferred upon the Legislature do not and erect, furnish, and equip school buildings, the amount shall be ascertained as well as the rate of tax to be levied, and the board of trustees "shall then immediately cause an election to be held on some secular day, not a legal holiday, within twenty days after the date of ordering such election, of which ten days prior notice shall be given by the board of trustees by written notice duly posted at three public places in any wise conflict with section 56, art. 3, within said district." That law was strictly complied with, and, if not unconstitutional, was sufficient to sustain the election. [2] It is the contention, however, through the third assignment of error, that the law is unconstitutional, because antagonistic to section 56 of article 3 and section 3 of article 7 of the state Constitution. In section 56 of article 3 it is provided that the Legislature shall not, except as otherwise provided in the Constitution, pass local or special laws, as to a number of things, among the number being "regulating the affairs of counties, cities, towns, wards or school districts." Section 3 of article 7 of the Constitution is an amendment adopted by the people in 1909, the parts added to the original section 3 being: because the inhibition in that section is made subject to any exception "otherwise provided." It made provision for any amendment to the Constitution as to regulating the affairs of counties, cities, towns, wards, or school districts, giving the power to regulate such affairs. Undoubtedly the amendment "otherwise provided" for such regulation by "local or special law." The broad powers given by the amendment to the Legislature authorized the passage of the special law creating the Charco independent school district, and under the power granted "to pass laws for the assessment and collection of taxes in all said districts and for the management and control of the public school or schools of such district" the Legislature could by "a special law, 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 district 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 or more counties." trict could not have been given through a 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 "That if the authority to legislate by special act upon a certain subject is given by a provision of the Constitution other than section right to enact all provisions which could legit56, art. 3, such authority carries with it the imately be embraced in the bill if such section 56 was not a part of the Constitution. frame the provisions of the special act as it Legislature would have the same right to would if it was framing a general law to accomplish the same purpose. Its inherent power would not be affected by the fact that it availed itself after privilege to use a special act pursuant to authority conferred in the Constitution. The power to create a district carries with it the power to deal with school property in the territory, and to regulate the school affairs of the entire new district, and make all provisions germane to the purpose of creating the new district, and all of this may be done by a special act without notice." Houston v. Gonzales Independent School Dist., 202 S. W. 963, not yet officially published. 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 any city or town a separate and independent school district and authorizes certain school districts to levy and collect taxes under certain conditions, and, as said in State v. Brownson, 94 Tex. 436, 61 S. W. 114, the power granted to the Legislature would not have been necessary except for the provisions of section 56 of article 3. In 1883 an amendment to section 3 of article 7. was adopted which gave the power to create school districts by special laws without notice, and then in 1909 the same authority over school districts that could be exercised by general law was given by and through special laws. Having the power to create them, the Legislature perhaps had the authority under the amendment of 1883 to manage and control the schools of districts created by it, but, if such authority did not exist, it was clearly granted by the voters of Texas in 1909, and the Legislature can exercise the same authority over a school district through a special law, without notice, as through a general law. Snyder v. Baird, 109 S. W. 472; Cummins v. Gaston, 109 S. W. 476; Parks v. West, 102 Tex. 11, 111 S. W. 726; Gillespie v. Lightfoot, 103 Tex. 359, 127 S. W. 799; Glass v. Pool, 106 Tex. 266, 166 S. W. 375. As said by the Supreme Court in the case next to last cited: "The amendment of the Constitution is an exertion of the sovereign power of the people of the state to give their expressed will the force of a law supreme over every person and every thing in the state so long as it does not conflict with the Constitution of the United States. The rule so established bears down and supplants all other laws and rules that are inconsistent with it. In determining rights controlled by it we therefore have only to ascertain what it means and give it full effect, so long as it encounters no opposition in the higher law of the federal Constitution." The amendment to the Constitution adopted in 1909 gave certain authority to the Legislature it had not possessed before, and when such authority was given it gave the power to enact any and all laws that it could enact had there been no such provision in the Constitution as that embraced in article 3, § 56., Dallas v. Electric Co., 83 Tex. 243, 18 S. W. 552; Altgelt v. Gutzeit, 187 S. W. 220. In the case of Eagle Lake Independent School District v. Hoyo, 199 S. W. 352, the identical points raised as to the constitutionality of special or local laws in regard to which notice has not been given are discussed, and the conclusion reached: "That the Constitution, by this very simple and plain language, confers on the Legislature the power to make any provisions for such school districts by special law, without the local notice, that it might make with it, or by general law." All the Texas authorities on the subject are fully reviewed and distinguished in that The conclusion reached in that case is irresistible and is fully sustained by all the authorities. The Charco independent district is legally and constitutionally established, and the bond question was duly presented to the people of the district in compliance with a constitutional law, and the issue of the bonds legally authorized. [5] Having been invested by the Constitution with the power to control and manage public schools by special or local legislation, and to authorize the assessment and levy of taxes through special or local legislation, the Legislature had the right as it would by general legislation to provide the manner in which notice should be given as to bond elections, and if such provision as to notice is in conflict with a general law, the latter would give way in the district created by the local law. Dallas County v. Plowman, 99 Tex. 509, 91 S. W. 221. There is nothing sacred about the provisions as to notice in articles 2857 and 2859, Rev. Stats., and, having the power to create a district by a local law, the Legislature had the authority to provide for a different notice of election for bonds than that prescribed in the articles cited. The cases of Hall v. Bell County, 138 S. W. 178, and Bell County v. Hall, 105 Tex. 558, 153 S. W. 121, cited by appellant, were in regard to a law passed before the consti tutional amendment of 1909 was adopted, and further were in connection with a law about a county auditor, and had nothing to do with school districts, with which the amendment is alone concerned. The case of Cain v. Garvey, 187 S. W. 1111, is a liquor local option case and is not applicable to this case. None of the numerous authorities cited by appellant are pertinent to the facts before this court. [6] The second contention of appellant is that, as the property valuation of the school district shows that it is not sufficient to sus case. tion is invalid, and bonds in no amount can be issued. The excess of bonds voted on doubtless occurred from a miscalculation of the interest and sinking fund required and the amount the property values would produce, or the property values were not correctly ascertained. At any rate, it is not claimed that a fraud was intended or attempted, and it is agreed that no attempt had been, or would be, made to issue any more of the bonds than would be covered and protected by a tax of 25 cents on the $100 of the taxable property in the district. No bonds had received the Attorney General's approval, and none been registered by the comptroller, and of course could not be put on the market until those things were done. No debt had been created against the district, and none would be created until the approved and registered bonds had been sold. There are 18 of the 20 $500 bonds authorized by the vote of the people to be issued that can be lawfully sold, being amply secured by the necessary interest and sinking fund arising from a legal tax on the property valuation. Can that proportion of the voted bonds be legally issued that can be protected by a legal tax on the present valuation of property in the school district? We are of opinion that such issue can be legally made. The people were fully informed of the matters concerning the bond issue, and voted that a bond issue of $10,000 should be made, and it cannot be presumed that an issue of $9,000 in bonds would meet with their disapproval. The sanction of a bond issue for a larger amount would necessarily include the issue of a less amount of bonds. In other words, the people authorized the trustees to issue a certain number of bonds of a certain value each, and it would be unreasonable to suppose that such authority would not give authority and discretion to issue a less number if for any reason they deemed such less number should be issued. The trustees could not increase the amount voted, but would be authorized to lessen the amount if deemed expedient and proper. The maximum amount of the bond issue was voted by the people, and although that issue was excessive at the time, a less amount could be issued, and the others issued whenever the property values had sufficiently increased to justify it. City of Austin v. Valle, 71 S. W. 414, writ of error denied; Cohen v. City of Houston, 176 S. W. 809. In the Valle Case it was held that: The "bonds will be valid, although the bonds would have been excessive if all of them had been issued at the time the election was held." In the Cohen Case it was stated: then, is whether the city can lawfully issue "The question presented by this state of fact, the bonds in annual installments running for a period of five years. We think the answer should be in the affirmative, provided that at has available a margin of taxing power and the time of issuing each installment the city property values sufficient to raise, by taxation, the sum of money necessary to pay the interest upon and to create a sinking fund of at least 2 per cent. for the redemption of such installment at maturity." In the same case, following other authorities, it was held that the debt was not created until the bonds were sold as obligations against the city or district issuing them. Speaking on this subject, it was said in the Valle Case: "We are of the opinion that, although the taxable values may not be sufficient at the time the election is held, yet if at the time the the taxable values are sufficient to pay the bonds actually become debts against the city interest and provide the sinking fund, the bonds will be valid." In the case of Wells v. Sioux Falls, 16 S. D. 547, 94 N. W. 425, forcefully and properly it was held: "The contention that the defendants are without power to issue these bonds to the amount of $50,000 because the proposition subto the extent of $210,000' is untenable, espemitted to the voters provided for 'issuing bonds cially as it appears that they intended to issue the remaining portion as they may be required The mere statement of the contention is suffiby the contemplated municipal improvement. cient to show its fallacy. It would be contrary to the dictates of reason to hold that the than are needed for the intended purpose, or city authorities are bound to sell more bonds that they are required to dispose of all of them at one and the same time." To the same effect are Dillon, Mun. Corp § 203, and Daviess County v. Dickinson, 117 U. S. 657, 6 Sup. Ct. 897, 29 L. Ed. 1026; City of Laredo v. Looney, 108 Tex. 119, 185 S. W. 556. The judgment is affirmed. MEMORANDUM DECISIONS ESQUIVEL v. STATE. (No. 5039.) (Court of Criminal Appeals of Texas. May 22, 1918.) Appeal from Criminal District Court, Nueces County; Walter F. Timon, Judge. Urbano Esquivel was convicted of burglary, and he appeals. Affirmed. E. B. Hendricks, Asst. Atty. Gen., for the State. PRENDERGAST, J. The conviction is for burglary, and the punishment assessed at two years' confinement in the state penitentiary. Appellant entered a plea of guilty, and sought to obtain a suspended sentence. The facts proved are not brought up by the record, nor do we find any bills of exceptions. Motion for new trial complains of misconduct of the jury, but there is absence of any bills of exception or statement of facts disclosing the evidence upon which the trial judge overruled the motion. The record discloses no error, and the judgment is affirmed. PAUL v. SWEENEY et al. (No. 363.) (Court of Civil Appeals of Texas. Beaumont. May 17, 1918. Rehearing Denied June 5, 1918.) Appeal from District Court, Harris County; Wm. Masterson, Judge. Action by Allen Paul against J. J. Sweeney and others. Judgment on directe verdict for defendants, and plaintiff appeals. Affirmed. A. C. Allen and Cooper & Merrill,, all of Houston, for appellant. Moody & Boyles, of Houston, for appellees. ALTMAN v. ASBURY & SULLIVAN. (Supreme Court of Arkansas. March 4, 1918.) Appeal from Circuit Court, Craighead County, Jonesboro District; W. J. Driver, Judge. PER CURIAM. Affirmed on appellees' motion, pursuant to rule 7. BEAL v. BAYNE et al. (Supreme Court of Arkansas. March 18, 1918.) Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor. PER CURIAM. Appeal dismissed on appellant's motion. BEAN v. STATE. (Supreme Court of Arkansas. Feb. 25, 1918.) Appeal from Circuit Court, Garland County; Scott Wood, Judge. PER CURIAM. Appeal dismissed for failure to lodge transcript within the time limited by statute. BRITT et al. v. ROAD IMPROVEMENT DIST. NO. 1 OF POINSETT COUNTY. (Supreme Court of Arkansas. May 6, 1918.) Appeal from Circuit Court, Poinsett County; W. J. Driver, Judge. PER CURIAM. Appeal dismissed, pursuant to stipulations. BROWN V. EVANS, Circuit Judge. (Supreme Court of Arkansas. Jan. 14, 1918.) PER CURIAM. Mandamus to Hot Springs Circuit Court. Petition for mandamus denied. PER CURIAM. Appeal dismissed, for failure to lodge transcript within the time limited by statute. DENTON V. PROTHNO. (Supreme Court of Arkansas. Feb. 25, 1918.) Appeal from Circuit Court, Pulaski County, Third Division; G. W. Hendricks, Judge. · PER CURIAM. Appeal dismissed, for noncompliance with rule 9. KING, J. This appeal has been perfected by appellant from a judgment of the Fifty-Fifth district court of Harris county; the judgment being based upon the following verdict of the jury, returned in obedience to a peremptory 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 instructing the jury is assigned as error by appellant. Upon a former trial of this cause, the trial judge sustained the following special plea to plaintiff's petition: "They specially except to all the allegations in said petition which undertake to join in the same action a claim for damages for breach of a contract of rental with a claim for damages for slander, because the same would constitute a misjoinder of causes of action." Plaintiff refused to amend, and appealed to the Court of Civil Appeals at Galveston, which court 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, as the material part of same is contained in the report of the former appeal. A careful consideration of the pleadings forces us to the same conclusion that was reached by the Galveston Court, that plaintiff bases his right to recover for the wrongful acts, statements, declarations, etc., upon the theory that such acts were done, made, and declared with the common design of appellees for the purpose of defaming his character and destroying his business, and without quoting the testimony, we have carefully considered the pleadings of the plaintiff, and the evidence introduced upon the trial of the case, and find that plaintiff failed to establish any conspiracy upon the part of appellees, as alleged, and therefore the trial court did not err in giving a peremptory instruction in their favor, and the judgment of the lower court is therefore af FLICK V. FISH et al. (Supreme Court of Arkansas. Jan. 1, 1918.) Appeal from Circuit Court, Polk County; Jefferson T. Cowling, Judge. PER CURIAM. A motion of the appellees to dismiss the appeal was overruled, and, the face of the record showing no error, the judgment was affirmed. GILLS et al. v. J. C. ROGERS et al., Com'rs of Waterworks Improvement Dist. No. 1 and Sewer Improvement Dist. No. 1 of Town of Rector. (Supreme Court of Arkansas. March 4, 1918.) Appeal from Clay Chancery Court, Eastern District; Archer Wheatley, Chancellor. PER CURIAM. Appeal dismissed, pursuant to section 5706, Kirby's Digest, for failure GOLDEN v. STATE. (Supreme Court of Arkansas. Feb. 25, 1918.) Appeal from Circuit Court, Garland County; Scott Wood, Judge. PER CURIAM. Appeal dismissed, for failure to lodge transcript within the time limited by statute. JAMES v. STATE. (Supreme Court of Arkansas. May 6, 1918.) Appeal from Circuit Court, Jefferson County; W. B. Sorrells, Judge. PER CURIAM. Appeal dismissed, for failure to lodge transcript within the time limited by statute. LUTTRELL v. STATE. (Supreme Court of Arkansas. April 22, 1918.) Certiorari to Circuit Court, Poinsett County; W. J. Driver, Judge. PER CURIAM. Lower court's action in refusing bail affirmed. McCUNE v. McCUNE. (Supreme Court of Arkansas. March 11, 1918.) Appeal from Washington Chancery Court; B. F. McMahan, Chancellor. MEYER v. FEIBELMAN. (Supreme Court of Arkansas. April 1, 1918.) Appeal from Circuit Court, Chicot County; Turner Butler, Judge. PER CURIAM. Appeal dismissed, for noncompliance with rule 9. PINE BLUFF SPOKE CO. v. TAYLOR. (Supreme Court of Arkansas. March 18, 1918.) Appeal from Circuit Court, Jefferson County; W. B. Sorrells, Judge. PER CURIAM. Appeal dismissed, on appellant's motion. POWERS v. STATE. (Supreme Court of Arkansas. Feb. 25, 1918.) Appeal from Circuit Court, Garland County; Scott Wood, Judge. PER CURIAM. Appeal dismissed, for failure to lodge transcript within the time limited by statute. WILKIN et al. v. BOYCE et al. (Supreme from Prairie Chancery Court, Southern District. Court of Arkansas. April 8, 1918.) Appeal PER CURIAM. Settled, and appeal dismissAppeal dismissed, for non-ed, on appellant's motion. PER CURIAM. compliance with rule 9. MASON et al. v. COOPER. (Supreme Court of Arkansas. Dec. 17, 1917.) Appeal from Prairie Chancery Court, Southern District; John M. Elliott, Chancellor. PER CURIAM. Appeal dismissed, on motion of the appellants. YOUNG v. STATE. (Supreme Court of Arkansas. May 13, 1918.) Appeal from Circuit Court, Jefferson County; W. B. Sorrells, Judge. PER CURIAM. Appeal dismissed, for failure to lodge transcript within the time limited by statute. END OF CASES IN VOL. 203 |