
    GARITTY et al. v. RAINEY, Chief Justice, et al.
    (No. 3725.)
    (Supreme Court of Texas.
    Jan. 31, 1923.)
    1. Maintain ¡is <§=ol0 — -Court of Civil Appeals not compelled to> certify to Supreme Court decision in conflict with decisions of Supreme Court.
    Rev. St. art. il623, requiring Courts of Civil Appeals, whenever they reach a conclusion in conflict with an opinion of another Court of Civil Appeals, to certify such conflict to the Supreme Court, cannot be invoked to secure a writ of mandamus compelling the Court of-Civil Appeals to certify decisions which are in conflict with decisions of 'the Supreme Court; there being no duty to certify in such case.
    2. Mandamus <|t=>57(l) — Writ will not lie to compel certification of decision of Court of Civil Appeals on the ground of apparent conflict unless the decisions are on the same facts.
    Under Rev. St. art. 1623, requiring Courts of Civil Appeals, whenever they reach a conclusion in conflict with an opinion of another Court of Civil Appeals, to certify such conflict to the Supreme Court, the Supreme Court has no jurisdiction to issue a writ of mandamus to compel á Court of Civil Appeals to certify a decision which is apparently inconsistent with prior decisions of another Court of Civil Appeals, unless the conflict is upon the same state of facts.
    Original proceeding in mandamus by James Garitty and others against Anson Rainey, Chief Justice of the Court of Civil Appeals, Dallas District, and others.
    Writ refused.
    See, also, 225 S. W. 196, 235 S. W. 231.
    Richard Mays, W. W. Ballew, and J. F. Stout, all of Corsicana, for plaintiffs.
    Callicutt & Johnson, of Corsicana, for defendants.
   CURETON, C. J.

This is an- original proceeding for mandamus to require the Court of Civil Appeals for the Fifth District to certify to this court certain questions determined by them in the case of James Garitty et al. v. J. L. Holbert, Mayor, et al. The opinion of the Court of Civil Appeals,, containing a full statement of the ease, is reported in 235 S. W. 231. The relators here were plaintiffs in the trial court and appellants in the Court of Civil Appeals. The suit is the contest of an election, and the judgment of the Court of Civil Appeals is final. Revised Statutes, art. 1591.

On December 11, 1917, the city of Corsi-cana adopted a charter under section 5, art. 11, of the Constitution and the laws passed thereunder, which provide for what is generally known as “home rule” for cities of the class to which Corsicana belongs. Section 41 of the charter declared that the city commissioners and officers of the city should have nothing to do with the city schools, except the levying of taxes provided for for the purpose of maintaining the schools and for the collection thereof; that the commission should have no discretion in fixing the rate at which taxes should be assessed and levied each year for the benefit of the public free schools, provided that the rate should not exceed one-half of 1 per cent, of the value of property subject to taxation, but should assess and levy the rate fixed annually by the board of school trustees. Section 45 provided, among other things, that the city commission could levy taxes not exceeding 1.55sper centum of the assessed valuation of property for general purposes, including 50 cents for schools.

An election was ordered by the city commissioners of Corsicana to be held on May 18, 1920, to determine whether or not these sections of the charter should be amended. The election was held on the date named by virtue of an ordinance passed and approved April 6, 1920, with the result that the amendments were declared adopted. Upon contest of its validity by relators, the election was sustained by tbe trial court and tbe Court of Civil Appeals Tbe material changes made in tbe original sections of tbe charter by tbe amendments declared adopted were that 75 cents was substituted for 50 cents in section 41, providing a limit of taxation for school purposes, and 2½ per cent, was substituted for 1.55 per cent, as contained in tbe original section 45 for other purposes. Tbe original and amended sections of tbe charter are set out in the opinion of the Court of Civil Appeals, and we deem it unnecessary to restate them.

Tbe city of Corsicana within its own territorial limits constituted an independent school district, tbe control of which was in a board of school trustees. It bad the dual character which this court has previously referred to. City of Rockdale v. Cureton, 229 S. W. 852.

The contention of relators in the court below and in the Court of Civil Appeals was that taxes for school purposes could only be voted by the city, upon compliance with the Constitution and laws governing cities which had assumed control of their schools and become independent school districts; that section 10 of article 11 of the Constitution and laws passed thereunder niust govern. This contention was overruled by the Court of Civil Appeals, on the ground that the provisions of section 10, art. 11, of the Constitution and the laws thereto had been superseded, in so far as the city of Corsicana was concerned, by the “home rule” amendment to the Constitution and the enabling act adopted thereunder. The Court of Civil Appeals in part said:

“The provisions of section 10 of article 11 do not apply to the holding of said election, as said election was not ‘to levy and collect a tax for the support and maintenance of a public institution of learning’ within the meaning of said constitutional provision, but was an election held under the provisions of section 5 of article 11 to amend the charter of the city of Corsicana in the particulars hereinabove pointed out. Therefore the provision of section 10, art. 11, requiring ‘two-thirds of the taxpayers of such city or town to voto for such tax’ did not apply to the holding of such election, and cannot be held to be a limitation upon the provisions of said section 5; for to so hold would be creating a conflict that in fact does not exist, and, if in fact any conflict did exist, section 5 of article 10 would prevail as being the last expression of the sovereign will of the people of the state. Without comment we deem it sufiicient to refer to the following authorities in support of the conclusion we have reached, which requires that this assignment be sustained, namely: Const. art. 7, § 3, article 8, § 9, and article 11, §§ 5, 10; articles 1090a and 1096b, Vernon’s Sayles’ Texas Civil Statutes, 1914; City of Fort Worth v. Davis, 57 Tex. 225; Werner v. City of Galveston, 72 Tex. at page 29, 7 S. W. 720, 12 S. W. 159; City of El Paso v. Ruckman, 92 Tex. at page 91, 40 S. W. 25; City of Fort Worth v. Cureton, Attorney General (Sup.) 222 S. W. 531; City of Rockdale et al. v. Cureton, Attorney General (Sup.) 229 S. W. 852; State ex rel. Wayland et al. v. Vincent et al., 217 S. W. 402. We therefore hold that said election held on the 18th day of May, 1920, under and by virtue of ordinance passed by the commission of the city of Corsicana on the 6th day of April, 1920, was for the purpose of amending sections 41 and 45 of the charter of said city of Corsicana adopted December 11, 1917, and that the inhabitants -of the city of Corsicana had the right to amend said charter by a majority vote of* the qualified electors thereof, and further it was not necessary for a voter to be a property tax paying voter in order to participate in such election.”

Relators moved the Court of Civil Appeals to certify to this court the following ques-. tions:

“(1) Whether section 10 of . article 11 is applicable and controlling in so far as a vote of the school tax was concerned; and (2) whether by the adoption of section 5 of article 11 and section 3 of article 7 they operated to supersede and repeal section 10 of article 11.”

In the motion it wa.s claimed by the re-lators that the construction given-to section 10 of article 11 was in conflict with the cases hereafter referred to. The court declined to grant the motion to certify, and the relators, upon leave, filed their petition for mandamus in this court.

The grounds upon which we are urged to issue the writ are; (1) That the opinion of the Court of Civil Appeals is in conflict with opinions of other Courts of Civil Appeals in other cases; and (2) that it is in conflict with the opinions of this court.

Article 1623, Revised Statutes, requires Courts of Civil Appe.als, whenever in any cause pending they reach a conclusion in conflict with an opinion theretofore rendered by another Court of Civil Appeals, and with which they decline to concur, to certify such conflict to the Supreme Court. It is not made the duty of the Court of Civil Appeals to certify any conflict which their opinion may present with the opinions of the Supreme Court. Therefore the insistence that we should grant a writ of mandamus in this case because the opinion of the Court of Civil Appeals may be in conflict with opinions of this court cannot be sustained. Mandamus does not lie when the conflict alleged is with the opinions of the Supreme Court. In such case the duty to certify does not devolve upon the Court of Civil Appeals; and, having no duty to perform, we have no jurisdiction to grant the writ of mandamus. Smith v. Conner, 98 Tex. 434, 84 S. W. 815; Texas & Pacific Ry. Co. v. Willson, 101 Tex. 269, 106 S. W. 325; McKay v. Conner. 101 Tex. 313, 107 S. W. 45; Warren v. Willson, 108 Tex. 262, 192 S. W. 529.

However, in this case the relators claim that the opinion of the Court of Civil Appeals is in conflict with the opinions of other Courts of Civil Appeals in the following eases, to wit: Cummins v. Gaston, 109 S. W. 476; Snyder v. Baird Independent School District, 109 S. W. 472; Jenkins v. DeWitt, 115 S. W. 610. The first two cases were decided by the Courts of Civil Appeals in 1908, and the last one in 1909, and all three of the decisions were prior to the adoption of the “home rule” amendment to the . Constitution (section 5, art. 11), which was in 1912. We have examined the cases carefully, and there is no such conflict as gives this court jurisdiction to require the certification.

The conflict in decisions of Courts of Civil Appeals which will authorize this court to issue a writ of mandamus and require certification must he upon a question of law involved and determined, and such that one decision would overrule the other if both were rendered by the same court. The conflict must be well defined. An apparent inconsistency in the principles announced, or in the application of recognized principles, is not sufficient. The rulings must be so far upon the same state of facts that the decision of one case is necessarily conclusive of the decision in the other. In other words, the rulings alleged to be in conflict must be upon the same question, and, unless this is so, there can be no conflict. Coultress v. City of San Antonio, 108 Tex. 150, 179 S. W. 515, 187 S. W. 194; McKay v. Conner, 101 Tex. 313, 107 S. W. 45.

What the Court of Civil Appeals really held in this ease was that, by virtue of section 5, art. 11, of the Constitution, and the enabling act thereunder, the inhabitants of the City of Corsicana had the right to amend their charter by a majority vote of the qualified electors, and in doing so levy a tax for school purposes, and that it was not necessary for a voter to be a property tax paying voter in order to participate in such an election: No such question was an issue in any of the cases with which it is alleged this opinion conflicts. In fact, the three cases with which it is said the opinion in this case conflicts were rendered long before the “home rule” section 5, art. 11, of the Constitution was adopted. Therefore, in the nature of things, there could not be a conflict. However, we desire to be understood in this matter. We are not deciding that the opinion of the Court of Civil Appeals here involved is correct or incorrect. That question is one we are not passing on, but reserve our decision fully and completely until it is presented in a cause over which we have jurisdiction. What we are deciding is that we have no jurisdiction to issue a mandamus in this case, because no such conflict is shown as warrants the granting of this extraordinary writ against a Court of Civil Appeals. The merits of the controversy as to the correctness of the opinion of the Court of Civil Appeals is not here involved.

The mandamus is refused. 
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