
    HARBIN INDEPENDENT SCHOOL DIST. et al. v. DENMAN.
    (No. 731.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 8, 1917.
    Rehearing Denied Jan. 17, 1918.)
    1. Schools and School Districts <§=>24 (1) —Enjoining Taxation — Collateral Attack.
    A petition to enjoin assessment and collection of taxes in a school district, on the ground that plaintiff’s land was not lawfully within its boundaries, but within the boundaries of another legal district, was not demur-rable on the ground that it was a collateral attack upon the incorporation of defendant district; there being no attack on the corporate existence of defendant district or its right to tax lands properly within its boundaries.
    2. Schools and School Districts <§=>24 (2) —Incorporation—Collateral Attack.
    In a suit to enjoin assessment of taxes on plaintiff’s land by defendant school district, on the ground that the land was in another lawful district, defendant’s answer that the incorporation of the latter district was void was a collateral attack upon its corporate existence.
    3. Schools and School Districts <§=>44r— Abolishing — Nonuser.
    Where a school district was declared duly incorporated by an order of the commissioners’ court reciting that an election had been held, etc., and was operated for some time, it could only be abolished by an election held for that purpose, as provided by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1077, 1078, 2856b, and not by nonuser.
    4. Schools and School Districts <§=>102— Redistricting — Validity.
    Where the matter of redistricting was not under consideration by the commissioners’ court when it established a new independent school district, and there was no attempt to change the boundaries of the school district in which plaintiff’s land was situated, and which was at the time of the order operating as an independent school district, the order cannot be held to have the effect of redistrieting under the statute, so as to place plaintiff’s land in defendant school district for purposes of taxation, though the description of the boundaries of the new district embraced plaintiff’s land.
    5. Schools and School Districts <§=>102— Redistricting — Procedure.
    That the Attorney General approved an issue of bonds for defendant school district, where the orders of the commissioners’ court included therein lands of another district, would not have the effect of redistricting under the statute.
    6. Schools and School Districts <§=>27— Creation — Inaccuracies in Description.
    Slight inaccuracies in description of the boundaries of a school district are insufficient to render its incorporation void.
    Appeal from District Court, Erath County ; W. J. Oxford, Judge.
    Suit by H. V. Denman against the Harbin Independent School District and others. Decree for plaintiff, and defendants appeal.
    Affirmed.
    Chandler & Pannill, of Stephenville, for appellants. Hickman & Bateman, of Stephen-ville, for appellee.
   HARPER, C. J.

.Appellee filed this suit against the Harbin independent school district, a corporation, A. A. Alexander and its other trustees, and W. C. Cook, tax assessor, and John Purvis, tax collector, of the district, to enjoin the assessment and collection of taxes against plaintiff upon the lands described in the petition. Its allegations are as follows:

“Plaintiff shows the court: That he owns about 236 acres of land out of the E. D. Tar-ver survey, in Erath county, Tex. That said land is situated in the Cottonwood independent school district. That said Cottonwood independent school district is a corporation duly and legally incorporated under and by virtue of the laws of the state of Texas. That same was incorporated in the year .1888, the election for such purpose having been held on the 2d day of June, A. D. 1888,- and the order declaring such incorporation was duly entered in the minutes of the commissioners’ court, Erath county, Tex., on the 20th day of June, A. D. 1888; the territory included in said Cottonwood independent school district being described as follows: * * * That in the month of December A. D. 1911, an election was held at Harbin, Erath county, Tex., for the purpose of declaring certain territory in and near the said village to be incorporated for free school purposes only. That the territory sought to-be incorporated in said election included plaintiff’s 236 acres of land above referred to, and the defendant Harbin independent school district has continuously since said time, particularly since January 1, 1915, been levying, assessing, and collecting taxes from the plaintiff upon his land. That such attempted incorporation, in so far as same seeks to affect this plaintiff’s said land, is illegal and void. That at said time, and continuously since said time, plaintiff’s said land was and is in the Cottonwood independent school district, and could not be detached from said Cottonwood independent school district and placed in another district in the manner attempted in said election. That the defendants have levied, assessed,' and collected, and intend hereafter, year after year, to levy, assess, and collect, taxes for the said Harbin independent school district at the rate of 50 cents per $100 valuation against plaintiff’s said land above described. Assessment and collection of taxes are wholly unwarranted and unauthorized by law. That plaintiff’s said land is not within the corporate limits of said Harbin independent school district, for the reason that the same is within the Cottonwood independent school district, and is not and cannot be subject to taxation by said Harbin independent school district. That the levy and assessment of taxes against plaintiff’s land constitute and will constitute a cloud upon his title thereto. That if such taxes are continued to be levied, assessed, and collected, as it is the purpose of the defendants to do, and which they will do unless restrained by this court, plaintiff will suffer irreparable injury, for which he has no adequate remedy at law, to the amount of $150. Wherefore, plaintiff prays the court that the defendants, and each of them, be cited to appear and answer this petition, that upon final hearing hereof a writ of injunction issue by this honorable court forever enjoining the defendants and each of them from hereafter attempting to levy and assess said taxes against this plaintiff, and for such other and further orders and relief, general and special, at law or in equity, to which he may show himself entitled.

Defendants answered by general demurrer and general denial, and specially: That June 2, 1888, an attempt was made to create the Cottonwood independent school district, but that such attempted incorporation was void, because no map of the district was filed for record in the county clerk’s office as required by law. That its boundaries were not described with that certainty required by law. That the field notes are vague and uncertain — therefore said attempted incorporation is of no force or effect. That, if it should be held that said order of incorporation of the Cottonwood district is valid upon its face, it nevertheless is of no force ¿nd effect, because the inhabitants thereof have never exercised or attempted to exercise the powers of a corporation, in that they have failed to elect trustees, and have not established or maintained an independent school; failed to certifs' to the department of education the record of such incorporation, and have set over to it its portion of the school funds, have levied no tax, issued no bonds as a district, but at all times since its attempted organization have conducted it as a common school district, and elected only three trustees, etc., submitted to the supervision of the county school superintendent, etc., and therefore by nonuser forfeited its right to claim any rights as an independent district; prayed for forfeiture. That the Harbin independent school district was duly and legally incorporated as provided by law. That thereafter bonds were voted and issued and sold. That the effect of this suit, if successful, would be to reduce the valuation of taxable property in the district. That said bonds are outstanding and constitute a lien upon the taxable property in the district. Therefore plaintiff is not entitled to recover.

The cause was tried by court without a jury, and judgment entered declaring that the Cottonwood district is a valid corporation, that the lands described are within its boundaries, and granted the writ of injunction restraining the Harbin independent school district and its trustees and officers named as defendants from assessing, levying, and collecting taxes upon property described, from which it has been appealed to us for review.

Findings of Facts.

June 20, 1888, Cottonwoodl independent school district was incorporated by order of the commissioners’ court, of Erath county and the lands in question were situated within its declared boundaries. Trustees were elected and the schools began operation as in an independent school district. As to how long or for what years it was so operated the evidence is indefinite, but the proof is positive that fpr most of the time up to 1909 it was operated as a common school district, with three trustees, under the supervision of the county school superintendent. At the latter date, after- the constitutional amendment validating old districts, the district was operated as an independent school district with seven-trustees. In 1904 a special tax was voted for this district in accordance- with the boundaries as declared by the order of the commissioners’ court of 1894. Other than-this, the record is silent as to what lands were considered within the Cottonwood district, as operated after 1894.

In 1893 the commissioners’ court directed a surveyor to subdivide the whole county into convenient school districts. The divisions were made, map filed and the said court, at May term, 1S94, entered its order declaring the boundaries in accordance therewith. By this order of redistricting, the lands sought to be taxed were placed in the Harbin district, then a common school district. In 1911, after an election for the purpose, the court declared the then Harbin district to be an independent school district. It has voted special taxes and bonds. The bonds have been sold and are unpaid.

The first assignment is that the petition is subject to general demurrer, because it constitutes a collateral attack upon the validity of the Harbin school district as incorporated as an independent school district, and that this could only be done by the state upon direct attack. It seems apparent from the pleadings and evidence, above noted, that the question to be here determined is: Is the land sought to be taxed by the Harbin district lawfully within its boundaries, or is it within the boundaries of the Oottonwood district? In respect to its corporate existence, and its right to tax lands properly within its boundaries, it is not questioned; but the appellee says that, because the land sought to-be taxed by it was long prior to its organization lawfully within the Cottonwood district, where it is now taxed, it has never been taken from the Cottonwood district, therefore is not and could hot become a part of the said Harbin district, and therefore not subject to taxation by it.

The record discloses that by an order of the commissioners’ court entered- June 20, 1888, the Cottonwood independent district was declared to be incorporated, which order recites that an election has been held, etc. And the record discloses that it was so operated for some time, and that the land of appellee was situate within its boundaries. So, unless the latter district had no- legal existence, because it was not lawfully incorporated, or that by some proceeding authorized by law the land in question has been taken from it, it was not, at the time of the institution of this suit, a part of the appellant corporation, and, not being lawfully within its boundaries, could not be taxed by it. Judge Gaines, in City of El Paso v. Ruckman, 92 Tex. 86, 46 S. W. 25, said:

“The rule is well established that when the creation of a public corporation — municipal or quasi municipal — is authorized by statute, and a corporation has been organized under the color of such authority, its corporate existence cannot be inquired into by the courts in a collateral proceeding. The validity of the incorporation can only be determined in a suit brought for that purpose in the name of the state, or by some individual under the authority of the state, who has a special interest which is affected by * * * the corporation” — citing many authorities.

So it follows tliat, in sustaining- appellants’ proposition that its incorporation cannot be questioned, we must hold that its defense is bottomed upon a collateral attack upon the incorporation of the Cottonwood district. This corporation could only he abolished or changed in the manner provided by law', by an election held for the purpose (article 2856b, 1077, and 1078, Vernon's Sayles’ Statutes of Texas), and there is no pretense that the corporation has been abolished in this way; and it could not be accomplished by nonuser as contended by appellants’ second assignment (State v. Dunson et al., 71 Tex. 65, 9 S. W. 103; Gillespie v. Lightfoot, 103 Tex. 359, 127 S. W. 799).

Had the boundaries of the districts been changed, as now provided by statute may be done by the commissioners’ court, so as to take the land out of the Cottonwood district and place it within the boundaries of the Harbin district prior to its assessment for taxes by the latter, as urged by appellants’ third and fourth assignments? It being contended that the order of the commissioners’ court entered in 1912, which designated the boundaries of the I-Iarbiu independent school district, the call for the election to determine whether it should be incorporated and the final order declaring its incorporation and its boundaries, within which boundaries the lands in question lie, is in compliance with the statute authorizing the commissioners’ court to change the boundaries of independent districts, and that by this order the land was legally transferred to the Harbin district. These orders were entered at a time when the Cottonwood district was being actively conducted as an independent school district, haying resumed operation as such in 1909. The matter of redistricting these districts under the statute was not under consideration by the court, nor is there anything in the record to indicate that the court intended to redistrict; but, on the other hand, for all the record discloses, the lands in question may have been incorporated within the Harbin district by mistake, and without any knowledge that it was incorporated in and being taxed by another — Cottonwood district. Besides, there was no attempt by order to change or re-establish the boundaries of the Cottonwood district, which would leave, if this order should be held effective as a redistricting order, the latter district without well-defined boundaries. Therefore it cannot he held that this order had the effect to redistrict under the statute. Nor would the fact that the Attorney General of the state approved an issue of bonds for the Harbin district, where the orders of the commissioners’ court included the lands therein, have this effect.

The fifth assignment is that the Cottonwood independent school district was not duly and legally incorporated, because its boundaries are not set out with sufficient certainty. We do not find this to be the case from a careful examination of the record. There is a slight inaccuracy of description, hut this is not sufficient to render its incorporation void. Wilson v. Brown, 145 S. W. 639. Eor the reasons above assigned, the assignments are overruled, and cause affirmed.

Upon a former date, we rendered an opinion reversing and remanding this cause, upon the ground that a valid order of the commissioners’ court had been entered redistricting these independent school districts, but at that time our attention was not called to the fact that the statute authorizing the act had not been passed when the order of redistricting was passed. So the former opinion is withdrawn, and the above is entered as the opinion of the court.

WALTIUALL, J., not sitting, being absent on committee of judges assisting the Supreme Court. 
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