
    THOMAS et al. v. ABERNATHY COUNTY LINE INDEPENDENT SCHOOL DIST. et al.
    (No. 640-4552.)
    (Commission of Appeals of Texas, Section A.
    Jan. 12, 1927.)
    1. Officers <g^30 — Where board of aldermen , had powers over school property and regulations, offices of school trustee and alderman held incompatible (Rev. St. 1925, arts. 1015, 1067, 1071).
    Offices of school trustee and alderman held incompatible, where board of aldermen had directory or supervisory powers over school property and in respect to duties of school trustees; possibility of conflict of discretion or duty arising in respect to health, quarantine, sanitary or fire prevention regulations under Rev. St. 1925, arts. 1015, 1067, 1071.
    ■2. Officers 4⅛^30 — School trustees, who qualified as aldermen, ceased to be trustees, in view of conflicting duties (Rev. St. 1925, arts. 1015, 1067, 1071).
    School trustees, who were elected aldermen, necessarily vacated their offices as school trustees when they qualified as aldermen; positions being incompatible on account of possible conflict of discretion or duty in offices in respect to health, quarantine, sanitary and fire prevention regulations, in view of Rev. St. 1925, arts. 1015, 1067, 1071.
    3. Schools and school districts <3=>57 — Act of five of seven trustees authorizing election on issuance of bonds and tax levy held invalid, where two of five were aldermen (Rev. St. 1925, arts. 1015, 1067, 1071).
    Where five members of board of trustees, two of whom had been elected and had qualified as aldermen, ordered election to determine question .of bond issuance for school district and levying of tax therefor, and where same persons met and canvassed returns and declared results of election, issuance and sale of bonds and levy of tax thereunder held illegal, as majority of seven members of board, which was necessary to constitute quorum, were not present at either meeting; trustees who had qualified as aldermen having vacated offices as school trustees, in view of incompatibility of offices under Rev. St. 1925, arts. 1015, 1067, 1071.
    4. Schools and school districts <⅜=>111 — Taxpayer hold entitled to temporary injunction against issuance of bonds and tax levy, where quorum 'of trustees was not present at meet- - ing authorizing election (Rev. St. 1925, arts. 1015, 1067, 1071).
    In action by taxpayers for injunction against issuance and sale of bonds and levying tax and to prevent members of board of trustees, who had qualified as aldermen, from acting on board, temporary injunction should have been granted where bond issuance and tax levy were authorized by five of .board of seven school trustees, two of five having qualified as aider-men, as offices of aldermen and school trustee were incompatible, in view of Rev. St. 1925, arts. 1015, 1067, 1071, and school trustees vacated their offices when they qualified as aldermen.
    5. Schools and school districts <S^>I1I — In suit to enjoin aidermen from acting as school trustees and to invalidate acts of trustees, whether either office was office of emolument held immaterial (Const, art. 16, § 40).
    In action to enjoin persons who had qualified as aldermen from acting as members of board of trustees of school district and to enjoin issuance of bonds and levy of tax authorized by board, where aldermen were necessary to make quorum at time of authorization, whether office of school trustee or alderman was office of “emolument” under Const, art. 16, § 40, held immaterial, in view of incompatibility of offices.
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Suit by J. M. Thomas and others against the Abernathy County Line Independent School District and others, for an injunction. An order denying a temporary injunction was affirmed by the Court of Civil Appeals (278 S. W. 312), and plaintiffs bring error.
    Judgment of the Court of Civil Appeals reversed, and cause remanded, with instructions.
    M. J. Baird,_ of Plainview, for plaintiffs in error.
    Williams & Martin, of Plainview, for defendants in error.
   NICKELS, J.

Plaintiffs in error are taxpayers whose properties are situate within the territorial limits of Abernathy county line independent school district. The school district was created by special act of the Legislature, and its government is in a board of seven trustees. At the times here in question Thomas, Struve, Donnell, Ragland, and Adkinson, defendants in error, were members of the board, as were also defendants in error Smith and Lindsey, unless the latter had vacated their offices. Presence of a majority (i. e., four) members of the board is necessary to a quorum, and without the quorum the board cannot function. The incorporated town of Abernathy is within the school district territory, and it has the al-dermanic form of government. Lindsey and Smith were elected and qualified as school trustees in April, 1924; thereafter, about September 3, 1924, they were elected and qualified as aldermen of the town. Since the latter date Lindsey has claimed the right to occupy both the office of school trustee and that of alderman, and has exercised the functions of each office, as has Smith. June 9, 1925, Lindsey, Smith, Struve, Ragland, and Adkinson, purporting to act as trustees and as quorum of the board of trustees, held a meeting, and thereat considered a petition for a bond and tax election, and. thereupon ordered an election to be beld to determine whether bonds of the district should be issued to an amount of $50,000 and a tax levied sufficient to provide for interest and sinking fund. The election was held, and ■on July 13, 1925, the same persons, and purportedly in the same capacities, met and ■canvassed the returns and declared the results of the election. The returns as thus canvassed showed that the necessary majority of votes had been cast in favor of issuance of the bonds, etc. July 17, 1925, a meeting of all members, except Smith, was held,* and provision was made for issuing and selling the bonds, and the defendants in error propose to have the bonds issued and sold and to levy and collect the tax therefor.

Plaintiffs in error brought this suit July '23, 1925, for the purpose of having “said bond and tax proceedings” adjudged void, having Smith and Lindsey enjoined from further acting or claiming to act as members of the board of trustees, and having the legal members of the board to fill the vacancies, etc. Injunction pendente lite was prayed. The petition set up with detailed elaboration the facts above stated, and was duly verified. It was presented to the district judge on July 23, 1925, and, upon consideration, the order for temporary injunction was denied. This action was affirmed ■by the honorable Court of Civil Appeals, 278 S. W. 312.

In our opinion the offices of school trustee and alderman are incompatible; for under our system there are in the city council or board of aldermen various directory or supervisory powers exertable in respect to school property located within the city •or town and in respect to the duties of school trustee performable within its limits — e. g., there might well arise a conflict of discretion or duty in respect to health, quarantine, sanitary, and fire prevention regulations. See articles 1015, 1067, 1071, R. S. 1925. If the same person could be a school trustee and a member of the city council or board of aldermen at the same time, school policies, in many important respects, yould be subject to direction of the council or aldermen instead of to that of the trustees. .

The result of this incompatibility is that Smith and Lindsey vacated the offices of school trustees when they qualified as aldermen. State v. Brinkerhoff, 66 Tex. 45, 17 S. W. 109. Hence the. quorum necessary to enable the board of trustees to order an election or to canvass the returns and declare the result of an election did not exist, if the fact allegations be true, and, in such event, the issuance and sale of the bonds and levy of the tax therefor has no lawful warrant. Those allegations, as presented, are duly verified and are not challenged, and we believe the plaintiffs in error ,are entitled to the temporary injunctive relief prayed.

In view of what has been said, the question whether the office of school trustee or that of alderman is an office of “emolument” within the terms of section 40, art. 16, of the Constitution, is immaterial, and in respect to that question we do not express or imply a conclusion.

We recommend that the order of.the district judge and the judgment of the Court of Civil Appeals be reversed, and that the cause be remanded, with instructions to the district court to enter the order prayed pen-dente lite.

CURETON, C. J. Judgments of the Court of Civil Appeals and district court both reversed, and cause remanded, with direction to the district judge to. enter injunctive order prayed for pendente lite, as recommended by the Commission of Appeals. 
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