
    FREEPORT INDEPENDENT SCHOOL DIST. et al. v. COMMON SCHOOL DIST. No. 31 et al.
    (No. 561-4305.)
    
    (Commission of Appeals of Texas, Section B.
    Nov. 18, 1925.)
    1. Schools and school districts <&wkey;32 — Special act creating school district held not to authorize extension of boundaries fixed therein.
    Acts 35th Leg (Loe. & Sp. 1917) c. 5, incorporating the Freeport independent school district with an area of 33 square miles, granted it no authority to extend its boundaries beyond those fixed by the act, though providing that “said district is not and shall not be limited to size or extent as under general law” this not amending Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2865, but being inserted to prevent repug-nancy with articles 2851, 2865, or any such laws thereafter enacted.
    2. Schools and school districts <@=»39 — Common school district trustees could maintain suit against independent school district to enjoin and declare void acts of latter in unlawful attempt to extend its boundaries.
    Where independent school district, a district created by Acts 35th Leg. (Loc. & Sp. 1917), c. 5, unlawfully attempted to increase its boundaries to include a common school district, trustees of the latter could bring suit against such independent school district and its trustees to enjoin further proceedings for such annexation, and to declare acts of trustees and officers -of such school district in attempted annexation void.
    Certified Questions from Court of Civil Appeals of First Supreme Judicial District.
    Suit by F. P. Lake and others,- as trustees of Common School District No. 31, and others, against the Freeport Independent School District and others. Decree for plaintiffs below reversed, and judgment rendered for defendants by the Court of Civil Appeals and questions certified.
    Certified questions answered.
    W. P. Dumas, of Dallas, for appellants.
    W. S. Sproles and Rucks & Enlow, all of Angleton, for appellees.
    
      
      Rehearing denied January 20, 1926.
    
   POWELL, P. J.

This cause is before the Supreme Court upon the following certificate from the honorable Court of Civil Appeals of the First District:

“The 35th Legislature by a special 'act (Act 35th Leg. p. 22) incorporated the Freeport independent school district, in Brazoria county, Tex:-, with an area of 33 square miles; said area being described by metes and bounds. By the fifth section of said act it is provided as follows :
“Said Freeport independent school district shall have and exercise, and is hereby vested with all the rights, powers, and privileges and duties of a town or village incorporated under the general.laws of the state for free school purposes only, and the board of trustees of said Freeport independent school district shall have and exercise, and áre hereby vested with all the rights, powers, privileges and duties conferred and imposed by the general laws of this state, now in force or hereafter enacted, upon the trustees of independent school districts, including the right and power to levy taxes and issue bonds of said district, to the extent, for the purposes and subject to the provisions, limitations, and conditions under which said powers may now be exercised, or may hereafter be exercised under the general laws of this state by the trustees of independent school districts incorporated and organized under the general laws of this state, and all the general laws of this state applicable to towns and villages incorporated for free school purposes only are hereby declared to be in full force and effect with respect to said Freeport independent school district, except that said district is not and shall not he limited in sine or extent as under the general loaos.” (Italics ours.)
“In the month of May, 1923, after the incorporation of said Freeport district by the Legislature, the lawful authorities of said district proceeded in manner and form, as is provided by the general law for extending the boundaries of independent school districts (article 2865, Vernon’s Sayles’ Civil Statutes 1914), to annex to said Freeport district about 60 square miles of territory, a portion of which was within the boundaries of common school district No. 31, as these boundaries were established by the county school trustees of Brazoria' county.
“After said territory had been annexed to said Freeport district, F. P. Lake, Henry Skueius, and Mrs. Bertha Walker, as district trustees of common, school district No. 31, of Brazoria county, Tex., and A. B. Eollett, A. L. Woollam, and T. E. Siebel, designated as citizens and patrons and qualified voters and taxpayers, residing in said common school district, brought this suit against the Freeport independent school district, and W. A. Randle, S. I. Stratton, J. H. Ross, Ben D. Kannon, C. L. Bushnell, and J. E. Reed, as trustees of said Freeport district, and against W. A. Randle, as president, and J. E. Reed, as secretary, of the board, of trustees of said Freeport district, to enjoin the Freeport district, its trustees, and officers from ordering an election within said district, as extended, for the purpose of voting upon the issue as to whether or not bonds of said district should-be issued, and from canvassing returns or declaring the result of any election that had been theretofore ordered or held for such purpose. They also prayed for judgment declaring void all acts of the trustees and officers of said Freeport district, whereby the boundaries of said Freeport district were extended so as to include the annexed territory, and that they have judgment fixing and establishing the boundaries of said common school district as the same was established by the school trustees of Brazoria county.
“It was not alleged nor shown that any of the plaintiffs owned any property in the territory annexed to the Fteeport district, nor that they claimed any rights not common to the taxpaying citizens, generally, who resided in said common school district No. 31.
“Upon the trial the court rendered judgment decreeing that all the proceedings by which the territory involved was annexed to the Freeport district, in so far as they affect the boundaries and area of common school district No. 31, be canceled, set aside, and held of no force and effect. From the judgment so rendered the defendants have appealed.
“It was and is the contention of the appellants: First, that by the special act of the 35th Legislature, above mentioned, the trustees of the Freeport district were authorized to extend 'the boundaries of said district and add additional-territory thereto without the limitation imposed by article 2865,"R. S. of Texas; second, that in any event such extension as was made was made under color of law and became a de facto extension and the annexed territory became a de facto annexation as a part of the Freeport district, and therefore appellees cannot in a private action, such as the one brought by them, question the regularity of the acts of the trustees in mailing such annexation; and, third, that whether such de facto annexation was regularly and lawfully made can only be questioned by the state of Texas in a direct proceeding, or by some one under its authority, having a special interest affected by reason of such annexation.
“On the other hand, it was and is the contention of appellees that the trustees of the Freeport district, as well-as the trustees of all independent school districts, are authorized to extend the boundaries of such districts and annex additional territory only when the territory embraced in their boundaries is less than 25 square miles, and that, as the boundaries of the Freeport district as established and fixed by the Legislature embrace 33 square miles of territory, its trustees were without authority to extend its boundaries and take in any additional territory, and therefore the attempt of said trustees to do so was and is void and is subject to attack by appellees as they have done.
“We adopted the views entertained by appellants, and held that the special act incorporating the Freeport district authorized the trustees of said district to enlarge the same. We also held that, whether the extension of the boundaries of said district was made regularly, or irregularly and unlawfully, appellees could not question its regularity in the private action brought by them, and, so holding, we reversed the judgment of the trial court and rendered judgment for appellants.
“Appellees have filed their motion for rehearing and the cause is now pending in this court upon that motion.
“We are now in some doubt as to the correctness of our construction of the special act, which incorporated the Freeport district, and also as to the correctness of our holding that appellees could not, even if it be conceded that the extension was unlawfully made, attack the same in their private action. We therefore deem it advisable to submit to your honors the following questions:
“First. Were the trustees of the Freeport district authorized by the special act, creating said district, to extend the boundaries thereof beyond those established by the special act?
“Second. If it be conceded that the trustees were not authorized by said special act to make the extension mentioned above, can appellees maintain their private suit as brought?”

In quoting the fifth section of the special act incorporating the Freeport independent school district, we have underscored the 'last two lines thereof. It is the construction of those words which has given rise to any difficulty in this case. The question for determination is, What was the legislative intent in using them? We think they were employed for the sole purpose of avoiding any repugnancy between the special act and the general laws which were also being written into the special act. If the Legislature had stopped short of the underscored words, the situation would have been most confusing. In one part of the special act there was being created an independent school district with an area of 33 square miles. In another part of the same act was a provision making effective the general laws, “now in force or hereafter enacted,” governing the incorporation of independent districts. Those general laws already in force, both in article 2851 and 2865, expressly provided that the independent districts should not contain more than 25 square miles. Of course, the Legislature passing this special act could not know what some future Legislature might do with the general laws upon this subject. So, it will be seen that, but for the underscored words, a direct repugnancy would already have existed in portions of the special act and might have arisen therein at any time in the future passage of general laws. It was wise, of course, for the lawmakers to avoid this present or possible' future conflict in the provisions of the special act They did it by stating that the 33 square miles of territory embraced in the special act should govern the Freeport district now and that such area should not be changed by general laws in the future. The Legislature could, of course, itself change the boundaries of the district at any time by special act. These underscored words merely state that the area as provided therein is not limited in size or extent by the general laws already in force or hereafter to be enacted. With those words included in the special act therve is no conflict in the provisions of same as written.

It is the contention of appellants that article 2865 of the general laws was being amended and that as to the Freeport district that article would be changed in several of its material provisions so as to provide for unlimited extensions of territory. We do not think any such far-reaching amendment was intended by the Legislature. It could so easily have been stated if that had been the intention of the lawmakers. For instance, there could have been added to section 5 of the special act the words: “And its extent may be enlarged by means provided in article 2865.” If these words had been added, the intent, from the entire context, might have been clear. Before it could be presumed that the Legislature intended to surrender its own control of the size of independent districts, that intention should be free from any reasonable doubt, it seems to us. The general policy of the law was to limit the size of such districts to 25 square miles. In certain cases the Legislature, by special act, had incorporated larger districts; but even then it could determine the extra size and control it. Adjoining school districts would at least have an opportunity to protect themselves by attempting to defeat the passage of such a measure or getting the Governor to veto it. We do not believe the Legislature intended to permit the Freeport independent school district, of its own volition only, to extend its boundaries in this way. In this very case the district, acting for itself, was attempting _ to add nearly twice as much territory as the Legislature itself had given it.

We do not think the special act gave any authority to the'Freeport district to extend its boundaries, and we are of the view that its attempt to do so was void; therefore we recommend that the first question certified b« answered in the negative.

We think the second question should bo answered in the affirmative and we so recommend. This question, it seems to us, is relieved of any difficulty because of the answer we have recommended to the first question. In other words, we have an attack, not upon a de facto body acting under color of law, but upon the attempt of a district, the validity of whose legislative charter is recognized, to do a thing without any warrant of law and thereby commit a void act. We have here a direct proceeding, promptly instituted, before the rights of any bondholders or others had intervened, by the school trustees of common school district No. 31 against the school trustees of the Freeport independent school district. These parties appear in the suit officially. One of its purposes was to set aside all orders by which the territory of the common school district had been invaded. The district court granted this very relief. We have found no decision which holds that a suit of this kind can be brought only by the state, or under its authority. We fail to see any reason why these local officers should be forbidden to protect their districts. They are charged by law with the management of the affairs of their districts and the protection of their best interests. The issue involved was of vital interest to them. It meant nothing to the state. It was solely a question of which local district would reap the benefit of local taxes derived from certain territory.

We are not unmindful of that line of authorities illustrated by the cases of Crabb v. Celeste Independent School District, 105 Tex. 194, 146 S. W. 528, 39 L. R. A. (N. S.) 601, Ann. Cas. 1915B, 1146, and Common School District No. 16 v. Keeling, 113 Tex. 523, 261 S. W. 364. But, these two cases do not conflict in any way with our holding here. In the Crabb Case, the plaintiffs were individuals suing in their private capacity. There were several issues in that case. One was an attempt to declare void the annexation, of «ertain territory, including the homes of plaintiffs; another was an attempt, on account of certain irregularities in the method of annexation, to take their homes out of the territory so annexed; a third was an attempt to enjoin the collection of the tax of 20 cents on the $100 of valuation of their individual properties. Judge Dibrell held that the territory generally was lawfully annexed; that, since that was true, the district was acting under color of law; and that mere irregularities in making the annexation could not be relieved against except upon suit by the state, or under its direction. Judge Dibrell did give the injunctive relief to these individuals as prayed for. He held that the tax was void. He clearly thought that individuals, adversely affected, could sue to prevent the commission of a void act.

In the Keeling Case, Chief Justice Cureton held that, under this very article 2865, the Evant district had followed the law in every way. Then, he said:

“Their action was not void, but at least constituted a de facto annexation, which could only be questioned by the state in a direct proceeding brought for that purpose.”

He cited the Crabb Case and others of that kind.

If we had held that the special act gave the Freeport district authority to annex additional territory, then we might have been confronted with a situation such as that before the. court in the Crabb and Keeling Oases, supra. We do not determine this question. It is not before us. We take no issue with the many authorities upon quo warranto proceedings, but simply hold that, under our answer to the first question herein, this suit was properly brought to set aside orders which were void and without any basis in law. No de facto government by the Freeport district was ever set up in this disputed territory, nor was its authority thereover ever recognized by any one.

The decisions of our Supreme Court upon quo warranto proceedings are very interesting and we think sound in each instance. But we are glad to note a disposition on the part of the court, as far back as tl^e case of McAllen v. Rhodes, 65 Tex. 348, to construe these statutes liberally and in such a way as not to deprive any man of his substantial rights. In the Rhodes Case, a plaintiff was .trying to recover his office from a usurper. It was an ordinary suit between the parties. Chief Justice Willie speaks feelingly and holds that, while quo warranto was one proper method of procedure in such cases, it was not an exclusive onethat the statute had declared, in cases of that kind, that the quo warranto procedure was merely cumulative. He bespeaks a liberal construction of such statutes in order to protect individuals from losing their rights. He went on to state that those two individuals were much more vitally interested in the office than the state could possibly be.

For the reasons indicated, we recommend, as already stated, that the first question certified be answered in the negative and the second in the affirmative.

CURETON, C. J.

The opinion of the Commission of Appeals answering certified questions is adopted and ordered certified to the Court of Civil Appeals. 
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