
    CITY OF FORT WORTH v. W. H. DAVIS et. al.
    SUPREME COURT,
    AUSTIN TERM, 1882.
    
      Control of public schools by cities — Authority to levy tax — Constitutionality of statutes— Validity of election — Not subject to collateral attack — Revisionary power of Supreme Court in election cases. — The statutes authorizing town taxation for the support of public schools, upon a vote of two-thirds of the taxpayers of the town, cannot be said to be clearly unconstitutional and void, and must, therefore, be held valid.
    The Constitution requires an affirmative vote of two-thirds of all the tax" payers of the town who are qualified voters, but the Legislature have adopted as a test of the number of voters in the city the number of votes cast, and there are numerous cases which seem to support their authority to do so, but the question is still deemed open.
    
      
      Where the city council have judicially determined the result of such an election, and no contest or direct proceeding having been instituted to set aside that judgment, it is not subject to collateral attack. Questions of that nature may be submitted by the political authority to such tribunals as the ■city council, wither without the right of appeal to or contest before some other tribunal.
    The validity of the various provisions in the Revised Statutes for contesting elections is still an open question, but if elections cannot be contested in the mode prescribed, and if the citizen is left in many cases powerless to institute such a contest, or at least uncertain how and before what tribunal to do so, the rights and interests involved are so vital, and the danger of gross and irremediable wrong so great, that the Supreme Court may with propriety reexamine its decisions supposed to lead to such results.
    The statute required the vote to be on a tax not exceeding one-half per cent, “as may be necessary to conduct the schools for ten months in the year.” The question actually submitted was “ whether or not the city council of said city should be allowed to levy a tax of one-fourth per cent for the support of public free schools within said city.”
    
      HM, That the city had no power to levy a tax for the support of public schools in the city, because the proper question was not submitted. A material departure, both in form and substance of the question submitted, from that authorized, is fatal to the tax.
    Appeal from Tarrant county
   Gould, C. J.

Opinion by W. H. Davis, and others, citizens of Fort Worth, brought this suit to enjoin the city and its tax collector from further proceedings to collect a tax of one-fourth of one per cent, levied for the year 1880, for maintenance of public schools in said city during the year ending April 3, 1881. The material facts alleged and agreed on by the parties maybe thus stated:

In January, 1877, the city council of Fort Worth, a city of less than ten thousand inhabitants, acting under the general incorporation act, ordered an election for the purpose of determining whether or not said city should take control of the public free schools within her limits. At that time the statute on this subject empowered an incorporated city or town to take exclusive control of the public schools within its limits, “provided, they determine to do so by a majoi-ity vote of the property taxpayers of said city or town.” * * * (Laws of 1876, p. 209.) The election was held; the proposition was, by the city council, declared to he carried in the affirmative, and the city thereupon assumed control of the public schools. On March 2, 1880, the council ordered an election to be held on April 15, 1880, to determine whether or not they should be empowered to levy a tax of one-fourth of one per cent for the support of public free schools. This election was held, the result duly canvassed and declared to be in favor of the proposition, and thereafter a tax of one-fourth of one per cent was levied — being a tax in addition to the amount authorized by law for other purposes. At the time this election was held, the following sections of the Revised Statutes were in force in regard to cities and towns which had exclusive control of the public free schools within their limits:

“Article 3786. After a city or town has assumed control of the public free schools within its limits, as provided for in article 3781, the council or board of aldermen shall also submit the question to the property taxpayers as to whether or not the additional amount, as provided for in the preceding article, shall be raised by taxation.

“Article 3787. If the vote of the taxpayers is in favor of the levy of said tax, then it shall be the duty of the council or board of aldermen annually thereafter to levy * * such additional tax as may be necessary for the support of the schools for ten months in the year, not to exceed one-half of one per cent.”

In the petition the constitutionality of article 3785, quoted above, was denied; so, also, the validity of the election of 1877 on the ques-ion of assuming control of the public schools was denied, and facts were stated in regard to the place where said election was held, and the number of votes cast compared with the number of legal votes in the city, by reason of which it was denied that the city had at that election assumed exclusive control of the public schools within its limits. The court refused to hear evidence for the purpose of reinvestigating the question of the regularity of either of the elections held, or the correctness of the result of those elections, as determined by the city council. The court, however, rendered judgment perpetuating the injunction, and, in so doing, is supposed to have proceded on the ground of the unconstitutionality of the laws under which the city council acted.

On the part of the appellee, it is claimed that the Constitution limits the taxing power of cities and towns, both as to the amount and the purpose or object of the tax, and it is denied that the Legislature have any power to authorize the levy of a tax for school purposes. The clauses of the Constitution referred to are:

“Article 8, section 9. The State tax on property, exclusive of the tax necessary to pay the public debt, shall never exceed fifty cents on the one hundred dollars valuation; and no county, city or town shall levy more than one-half of said State tax, except for the payment of debts already incurred, and for the erection of public buildings, not to exceed fifty cents on the one hundred dollars in any one year, and except as in this Constitution is otherwise provided.”

“Article 11, section 4. Cities and towns having a population of ten thousand inhabitants or less, may be chartered alone by general law. They may levy, assess and collect an annual tax to defray the current expenses of their local government, but such tax shall never exceed, for any one year, one-fourth of one per cent, and shall be collectable only in current money.” *******

In section 6 of the same article, taxes “ necessary to pay the interest and provide a sinking fund to satisfy any indebtedness heretofore legally made and undertaken are authorized.

On behalf of the city it is claimed that these clauses of the Constitution have no application to taxation by school districts. That a city which has been constituted a separate and independent school district has two distinct organizations, one a municipal corporation proper, the other as a school district; and that there is nothing in the Constitution prohibiting the Legislature from authorizing school districts to levy taxes for the support of public schools. In furtherance of this idea, section 1, article 7 of the Constitution is referred to, as follows: “A general diffusion of knowledge being essential to the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.” It is argued that this article impliedly gives the power to the Legislature to direct the levy of such taxes as may be necessary in each school district to support an efficient system of free schools. But, in our opinion, the Com-stitution, pervaded throughout as it is by a manifest-purpose of limiting the taxing power of the Legislature and of all the municipal or political subdivisions of t,hp State, lias clearly expressed-that. purpose in reference to taxation for public schools, leaving no room for any such implied authority as is claimed. In the article on education and public schools, the first section of which has just been cited, it directs “not more than one-fourth of the general revenue of the Ste, and a poll tax of one dollar,” to-be set apart annually for the benefit of the public free schools. It defines the permanent and available school funds thus: “The principal of all bonds and other funds, and the principal arising from the-sale of the lands hereinbefore set apart to said school fund, shall be the permanent school fund; and all the interest derivable therefrom, and the taxes herein authorized and levied, shall be the available school fund, which shall be applied annually to the support of the public free schools.” Clearly, the expression “taxes herein authorized” negatives any other taxation for school purposes than ~tEat expressly authorized in the Constitution. So the ninth section of the article on taxation carefully prescribes the limit to State, county and city taxation, except for the payment of debts then already incurred, “ and except as in this Constitution is otherwise provided.” These repeated and guarded constitutional limitations of the taxing power are a prominent feature of that instrument, and are inconsistent with the existence of a .legislative power to authorize additional taxation by school districts, unless some affirm"ative grant of that power be found in the Constitution itself. That fiower had been expressly granted in the Constitution of Í8F9-70, article 9, section 1. Taxation by school districts was familiar to the framers of the present Constitution. It was the system generally prevailing in other States by which the deficiencies of a general or State school fund were supplemented. The omission of a provision authorizing that system was plainly intentional; for, in addition to .what has been said, the journals of the convention show that all propositions embracing that system were voted down. Our conclusion is that the city of Fort Worth, in its capacity as a school district, had no other power to levy taxes for the support of public schools than can be found expressly authorized in the Constitution.

It is claimed that such express authority is found in section 10, article 11, of the Constitution, as follows: “ The Legislature may constitute any city or town a separate and independent' school district. And when the citizens of any city or town have a charter authorizing the city authorities to levy and collect a tax for the support and maintenance of a public institution of learning, such tax may hereafter be levied and collected, if, at an election held for that purpose, two-thirds of the taxpayers of such city or town shall vote for such tax.”

The first clause of this section is plain and unambiguous. The sys.tem of public free schools required sub-divisions of the State into school districts, and the Legislature was authorized to constitute any city or town a separate, and independent school district. There was at the time amongst the statutes of the State one authorizing incorporated cities “to assume control of the public schools within their limits,” and when they did so, substantially making them independent school districts, with the power to levy a tax of not more than one-fourth of one per cent to sustain such schools. (Acts of 1875, second session Fourteenth Legislature, p. 161.)

Does not the second clause of this section confer a like power to tax, where towns and cities, under the authority of their charters, or former laws, had assumed control, or under this section might assume control, of the public free schools within their limits ?

The construction given that clause by the first Legislature that met under the Constitution, and which has, since then, been followed by successive Legislatures, is that it does confer that power. (Acts of 1876, page 209, sections 55, 56; Revised Statutes, articles 3781 et seq./ Acts of Seventeenth Legislature [1881], pages 64 and 114). These enactments have received the approval of the distinguished ex-Judge and ex-Chief Justice of this court, who, in succession, have filled the office of Governor of this State at the time of their passage; and they have been adopted and acted on by numerous towns and cities. If this be not the correct construction of this clause, we must be clearly satisfied to that effect, or we will not be justified in pronouncing the statutes based upon it to be unconstitutional and void. But if this be the true meaning of that section tion of the Constitution, it cannot be denied that this meaning is most obscurely expressed.

The public free schools of a town or city would not ordinarily be designated as a “ public institution of learning.” But, perhaps, this expression was used as one more comprehensive than public schools, and to embrace not only public schools, but public institutions like the New Braunfels Academy, whose charter incorporated a few of the citizens of New Braunfels under that name, and empowered the corporate authorities of the city of New Braunfels to levy a sjiecial tax for the support of the institution. (See act of February 5, 1858.) Perhaps it was used with reference to the fact that at least one city in the State had a charter empowering it to incur a bonded debt of $100,000 “for educational purposes and none other.” (See Special Laws of 1873, section 17 of charter of Corsicana.) It is reasonable to presume that the framers of the Constitution were aware of the charter of the New Braunfels Academy, and of the city of Corsicana, and aware, also, that some cities in the State had assumed control of public schools, and were levying taxes for their support. To my mind, the most plausable construction is, that the convention desired to leave undisturbed such town or city taxation for educational purposes as was then in force under charters, or under the laws generally, including those towns and cities which had assumed control of public schools within their limits and were levying, under the act of 1875, taxes for their support. The reading would be: “ And where towns have a charter authorizing town taxation for educational purposes, such tax may hereafter be levied, if two-thirds of the tax payers of such town shall vote for such tax.” The expression “have a charter ” indicates a charter then inexistence, and is properly followed by the declaration that such a town may hereafter levy such tax. It must be admitted, however, that the use of the adverb “when ” favors a different construction.

Towns are authorized to become independent school districts, “ and when ” — that is, and at the time that they may have assumed charge of the public schools within their limits, and thereby have made the support of public schools a “proper town purpose, and taxation for that purpose (within the limits prescribed for towns) legitimate, “ may levy such tax,” etc. It must be confessed that the true meaning of this section is involved in doubt; and, because of that fact, we are justified in giving weight to the construction given it by legislative and executive departments. That construction is, that at whatevatever time an incorporated town may assume control of its public schools, it may thereafter levy a school tax, if two-thirds of its property taxpayers shall so vote. I am constrained to say that, in my opinion, this construction is unauthorized and wrong. But it is the opinion of the court that it cannot be said to be clearly wrong, and that the statutes authorizing town taxation for the support of public schools, upon a vote of two-thirds of the tax payers of the town, cannot be said to be clearly unconstitutional and void. Having given the subject careful examination, and being still in doubt, the opinion of the court is that the statutes in question must be held valid.

It is claimed for appellee that article 3785 of the Revised Statutes is unconstitutional, in that it allows a vote of two-thirds of the taxpayers voting to authorize the tax, whereas it is said the Constitution requires an affirmative Vote of two-thirds of all the the taxpayers of the town who are qualified voters. Our opinion is that the Constitution does require such affirmative vote. The language is: “If * * * two-thirds of the taxpayers of such city or town shall vote for such tax.” In the case of the County of Cass v. Johnson (95 U. S.,365), the constitutional requirement was that “two-thirds of the qualified voters of the * * town, at a regular or special election to be held therein, shall assent thereto.” The majority of the court held that, “ in the absence of any statutory regulation to the contrary,” voters absenting themselves are presumed to assent to the expressed will of a majority of those voting, and upheld as valid a statute which only required two-thirds of the township voting at an election called for that purpose to vote in favor of the proposition. As we understand it, the opinion of the court construes the expression “ shall assent thereto ” as consistent with the idea that voters might assent thereto by abstaining from voting.- Our Constitution precludes such implied assent, for it requires that two-thirds “ shall vote therefor.”

But the Constitution provides no means of ascertaining the numberof tax paying qualified voters in the city. The duty of doing this, and the consequent right of selecting such means and mode of doing it as they may deem best, having reference to practicability and convenience, must devolve on the Legislature. This is the express provision of the Constitution in the section authorizing counties and cities on the coast to levy a tax for the construction of sea walls and breakwaters “ upon a vote of two-thirds of the taxpayers thereon (to be ascertained as may be provided by law).” (Art. 11, sec. 1.) From the necessity of the case, a like provision must be implied in the clause we are considering. A reference to the last assessment roll would obviously be open to objection as inaccurate. Some who were taxpayers when the roll was made may have died or removed, or ceased to be taxpayers. Other taxpayers may have moved in, or have been casually omitted. Absolute accuracy in ascertaining the number of property taxpayers, who were also qualified voters, is manifestly not attainable.

The Legislature have assumed that on a question of taxation, affecting his purse, every taxpayer would be desirous of voting, and that the best test of the number of taxpaying voters on the day of the election, is the number of votes cast. Practically, this may prove a bad test. So may any other that can be suggested. The Legislature have adopted this, as, under all the circumstances, the best test, and there are numerous cases which seem to support their authority to do so. (See County of Cass v. Johnson, supra; St. Joseph Township v. Rogers, 16 Wallace, 644; Louisville and Nashville Railroad Co. v. County Court of Davidson County, 1 Sneed, 639-691; Taylor v. Taylor, 10 Minn., 107; State v. Mayor of St. Joseph, 37 Mo., 270; Anderson County v. Houston and Great Northern Railroad, 52 Texas, 239.)

The question is one of importance, and as we have not found it necessary to do so, it is not intended to pass upon it. Whatever our opinion as to the unconstitutionality of that part of the statute which we have been considering, it would not follow that that the election was invalid. (County of Anderson v. H. & G. N. R. R., 52 Texas, supra.) Rejecting that part of the statute claimed to be unconstitutional, there would still remain authority for holding an election, and of the result of that election the city council were the judges. They having judicially determined the result of that election and no contest or direct proceeding having been instituted to set aside that judgment, it is not subject to collateral attack. Questions of that nature may be submitted by the political authority to such tribunals as the city council, with or without the right of appeal to, or contest before, some other tribunal. The proper tribunal having decided that two-thirds of the property taxpayers of the city had voted for the tax, and no revision of that determination having been sought or had, that question is finally settled.

It may most appropriately be asked, how, under the decisions of this court, can a taxpayer contest the result of an election, or obtain a revision of the action of the tribunal entrusted by law with the deter mination of that result. (Ex parte Towels, 48 Texas, 413; Williamson v. Lane, 52 Texas, 336.) Referring to my dissenting opinions in those cases, I am authorized to say for the court, and each member -of the court, that notwithstanding those decisions, we regard the question of the validity of the various provisions in the Revised Statutes for contesting elections as still an open question in this court. If, indeed, elections cannot be contested in the mode provided by the Legislature, and if the citizen is left in many cases ■ powerless to institute such a contest, or at least uncertain how and before what tribunal to do so, the rights and interests involved are so vital, and the danger of gross and irremediable wrong so great, that this court may with propriety re-examine its decisions supposed to lead to such results.

It may be noted in regard to the vote of the taxpayers of a town on the question of a school tax, the law now makes provision for a subsequent vote on the question “ whether the tax shall be continued or discontinued.” (Acts Seventeenth Legislature, p. 64.)

One other question remains. The question authorized by the-statute then in force to be submitted, was: “ Shall such an amount be raised by taxation, not to exceed one-half of one per cent,' in addition to the pro rata of the school fund received from the State, as may be necessary to conduct the schools for ten months in the year.” (Revised Statutes, art. 3185.) Subsequent legislation has changed this question, and authorized a vote on a tax for a specific per cent. This change of the statute, however, does not affect the validity of action had before the change took effect. The question actually submitted was “ whether or not the city council of said city should be allowed to levy a tax of one-fourth of one per cent for the support of public free schools within said city.” These questions are not the same. The maximum prescribed by the law was one-half of one per cent.

The vote was on a tax of one-quarter. The law said that the vote shall be oh a tax of such an amount, not to exceed one-half per cent, “ as may be necessary to conduct the schools for ten months in the year.” The question did not specify for what time the public schools were to be supported. The importance of this difference is apparent by referring to article 3787, Revised Statutes. “If the vote of the taxpayers is in favor of the levy of said tax, then it shall be the duty of the council or board of aldermen, annually thereafter, to levy * * * such additional tax as may be necessary for the support of the schools for ten months in the year, not to exceed one-half of one per cent.” Clearly, the statute then contemplated but one vote, and, if that were in favor of the levy, then it required the city council to levy, annually, enough to support the schools for ten months. It is equally clear that, if the one-quarter of one per cent voted by the city of Fort Worth were not enough to support the schools for ten months, that no greater amount could be levied without another vote. The vote may have been in favor of the levy, and yet the city council may have been powerless to levy a tax sufficient to support the schools for ten months. There can be no question but that the Constitution, by giving the Legislature authority to establish an efficient, system of public schools, conferred on it ample power to regulate the details of that system, including the question to be submitted to vote and the number of months the school must be carried on. There can be but little question but that the council, in a matter affecting their power to tax, must pursue with strictness the mode prescribed by the Legislature. “ In the execution of the power to tax, municipalities must confine themselves closely within the power conferred.” (Cooley on Taxation, page 257.) “If the mode in which the authority shall be exercised is prescribed, that mode must be pursued.” (2 Dillon on M. C., section 769 [610].) “And where the power to tax is admitted, it must be strictly pursued, and all the conditions, precedent and subsequent, must be fulfilled in the exercise of the power.” (Burroughs on Taxation, page 372.)

A material departure, both in the form and substance of the question submitted, from that authorized is fatal to the tax. It matters not that possibly one-fourth of one per cent was sufficient to support the schools for ten months in the year. If that amount at any time proved insufficient, an additional tax in excess of the one voted would have been necessary, and the statute then contemplated but one vote. For is it any answer to say that the citizens were perhaps willing to pay a tax of one-fourth of one per cent only, and that one-fourth of one per cent would only support the schools for six or seven months in the year. The legislative will, as then in force and plainly expressed, was that if the city voted for the tax in the terms • required, then the schools were to be carried on ten months out of the year, if the one-half of one per cent sufficed for that purpose. Whether this provision were wise and proper is not a question for the courts. Although superceded by subsequent legislation, it was then the law, and it was beyond the power of the city council, in submitting the question to the citizens, to do otherwise than to follow the direction of the law.

In our opinion the city of Fort Worth had no power to levy a tax for the support of public schools in the city, because the proper question was not submitted to the property taxpayers and voters of the city.

The tax levied was illegal, and the judgment of the court below enjoining the collection is affirmed.  