Weaver v. Bd. of Trustees of Wilson Ind. , 184 S.W.2d 864 ( 1944 )

I think it is proper to make the following statements in chronological order about this case in order to justify the delay in making a final disposition of the same by this court as well as for any other purpose, if any, that such statements may serve:

On June 19, 1944, the original opinion in this case was announced;

On September 11, 1944, appellants' motion for a rehearing was overruled;

On September 26, 1944, appellants' motion to certify certain questions to the Supreme Court was filed in this court;

On September 30, 1944, the same being the last Saturday of September, the last term of this court adjourned;

On October 2, 1944, the same being the first Monday in October, a new term of court (the present term) opened;

On October 2, 1944, appellants' motion to certify certain questions to the Supreme Court was submitted in this court;

On November 6, 1944, a majority of this court, with the undersigned dissenting, set aside on their own motion the former order of this court overruling appellants' motion for a rehearing;

On November 6, 1944, appellants' motion to certify certain questions to the Supreme Court was granted;

On November 15, 1944, this court certified three questions to the Supreme Court and the same was filed in the Supreme Court on November 17, 1944;

On November 22, 1944, the Supreme Court dismissed the certificate;

On this date a majority of the court in the foregoing opinion have set aside the order affirming the judgment of the trial court and withdrawn the original opinion with the undersigned dissenting.

I cannot agree with my associates in the disposition made by them of this appeal. I concur in their holding that the Morgan Independent School District was annexed to the Wilson Independent School District and that the annexation had been twice subsequently validated by Acts of the Legislature, however, I do not share in the doubt expressed by my associates as to whether or not the issue of a valid annexation was raised by the pleadings. In my opinion appellants have sufficiently raised for our consideration the said issue in their pleadings, together with the exhibits attached thereto.

I cannot agree with the holding of my associates to the effect that the Board of Trustees of the Wilson Independent School District had no authority to sell the property they proposed to sell and I adhere to the original opinion handed down by this Court and reported in182 S.W.2d 140, with additional reasons herein given.

It has been held that a liberal and practical interpretation should be given statutes relating to creating and changing school districts in order that pupils in rural districts may have proper school advantages. County School Trustees of Runnels County et al. v. State et al., Tex.Civ.App. 95 S.W.2d 1001, and County Board of School Trustees of Limestone County et al. v. Wilson et al., Tex.Civ.App. 15 S.W.2d 144.

A careful analysis of the facts of this case and a careful study of the law reveals to me that the trial court properly held that the order of the Lynn County School Board of date June 20, 1938 annexing the Morgan Independent School District to the Wilson Independent School District did not fully comply with any particular statute authorizing annexation or joining the districts together in any other manner for school purposes. But it appears to me from the said order that an attempt in good faith was made and that the Morgan Independent School District was annexed to the Wilson Independent District for all purposes and without any restrictions, reservations, or limitations. It further appears that the evidence supports the findings of the trial court to the effect that the new district had been recognized by all authorities and persons dealing with it since it was created as being one district which embraced the two former independent districts and that the new district was known by all as the Wilson Independent School District with the trustees thereof being elected by the voters of the enlarged district. It appears from the record that there was a contemplation in the beginning to abolish the Morgan District by election if the new arrangement proved satisfactory and, although prior to the holding of the elections there had been an agreement between the trustees of the two districts to maintain a grammar school in the Morgan District unless it was abolished by election, nothing was said about such agreement in the order annexing the Morgan District to the Wilson District and no request was ever made to the school board of the new district that a grammar school be held at Morgan and no complaint was ever made to the said board because a grammar school was not being held at Morgan. The record discloses that a grammar school was maintained at Morgan the first year after the annexation but thereafter discontinued and obviously it was discontinued by mutual consent and only one school was conducted at the Wilson School thereafter by mutual agreement, thus eliminating any need for an election to be held, if such was ever necessary, on the question of maintaining a grammar school at Morgan, since it appears that the new arrangement proved satisfactory. And for a period of five years prior to the filing of this suit the school board of the new enlarged Wilson Independent School District maintained only one school in the district for all pupils and for all grades and provided daily bus transportation for all of the pupils from the former Morgan District to the new Wilson Independent School District. During all of the five-year period the patrons of the enlarged district paid their taxes, pooled their funds, and pooled their efforts in support of the one school maintained and it appears from the record that such was done agreeably and harmoniously. The record does not reflect any bad feeling existing between the patrons of the new district or between the patrons and the school board at the time of the trial of this case. The school seats and some books were moved from the old Morgan School to the new Wilson School for use in the new school and some two years prior to the trial of the case a garage and coal house were moved from the old Morgan School to the new Wilson School by the Wilson School Board and used there in building a shop or an agricultural building to be used by the new school and no complaint was made about such until this suit was filed and then no patrons nor party to the suit made any complaint about either of such acts as a witness before the trial court.

It is my opinion that the patrons of the two schools, the school boards, and the county school board of Lynn County felt the need in 1938 of affording better school advantages for the pupils of the two districts, attempted to make such a change lawfully, and through their efforts effected for all purposes a consolidation in reality by joining, without limitation, restriction, or reservation, the Morgan Independent School District to the Wilson Independent School District and supported the new district and operated only one school with at least a de facto existence for some two years before the new district was validated as it then existed by an Act of the Legislature in 1941 and again in 1943, and that they have since had a valid consolidated independent school district for all purposes regardless of any irregularities that may have existed in the procedure of the county school board in joining the two districts together.

It has been held in the case of State ex rel. Flores et al. v. Bravo, County Judge, et al., Tex.Civ.App. 162 S.W.2d 1052 (Writ Refused) that before a school district can be validated by Legislative Act, there must have been a bona fide attempt by the proper authority to lay out and establish such a district and thereafter such a district must have been recognized by the state or county authorities. In the instant case the record shows conclusively that there had been a bona fide attempt by the proper authorities to establish the Wilson Independent School District by joining the Morgan District to the former Wilson District and certainly the record discloses conclusively that the new Wilson Independent School District was thereafter recognized as such by both the state and county authorities and all others who had dealings with it for a period of, at least two years before the passing of the Validating Act of 1941 and for four years before the passing of the Validating Act of 1943.

I have found no case reported parallel to this case and none has been cited. I do think the principles of law enunciated herein are sound and are strongly supported by the case of Wilson et al. v. Reed et al., Tex.Civ.App. 74 S.W.2d 415, 416, and authorities there cited, which case was cited by appellees. In that case the controversy was over the annexation of a common school district to a high school district as a result of elections ordered by the county judge instead of the county school trustees. In that case the court said, "We think the holding of such election under the circumstances was a colorable compliance with the requirements of the statute." In that case the new district had existed and had been recognized for nearly four years before the original suit had been filed and the court held that there was at least a de facto existence which was validated by Legislative Act. In the instant case, I think there was a colorable compliance with the requirements of the statutes in holding the elections, in the procedure of the county school board, and in the acts and conduct of the patrons and parties to this suit all of which established the existence of a de facto independent school district that was subsequently twice validated by Acts of the Legislature and that such a district had existed and been recognized for more than five years before this suit was filed.

It seems that a consolidated district is recognized as a single district composed of two or more districts joined together, each of which has lost its separate identity, unless it be for certain limited purposes in connection with taxation. In such a district elementary schools may be located within the consolidated district by the board of trustees as the need for the same may appear. While in the case of grouping or annexation under the Rural High School Act, each district composing the new district retains its identity and separate elementary schools must be maintained therein unless the average daily attendance for the preceding year was less than 20. Article 2922f, R.C.S.; County Board of School Trustees of Limestone County v. Wilson et al., Tex.Civ.App. 5 S.W.2d 805; and 37 Tex.Jur. 901, sec. 41.

In the instant case the new Wilson Independent District was recognized as one single district, the Morgan District had lost its identity except that the tax receipts issued to the local taxpayers who lived within the bounds of the old Morgan District showed that the taxes in such cases were collected from the Morgan District for the Wilson District, and no elementary school was maintained in the Morgan District for a period of five years prior to filing this suit.

The record discloses that the property offered for sale had been standing idle for more than five years deteriorating and bringing no revenue for the school; that it had a fair salable value at the time it was offered for sale but would have no value within a few years and that the purpose of the Wilson trustees in selling the property was to protect the best interests of the school and the patrons thereof. It further appears that there is no issue of conversion in the instant case as was found by the court to be the only issue in the case of Chastain et al. v. Mauldin, Tex.Civ.App. 32 S.W.2d 235, which case is cited in the majority opinion. The court stated in the Chastain case (which was admittedly a case of annexation under the provision of article 2922a, R.C.S.) that it did not hold that the trustees were without authority under proper safeguards to remove the school building in question but it held that the trustees did not have authority in that case to convert the school building. In the instant case the motive of the Wilson School Board is in no way impugned by appellants, who allege only that it "would be wholly unlawful" for appellees to make a sale of the property.

It is my opinion that there was nothing more than a de facto existence of a new consolidated independent school district when it was validated twice by Acts of the Legislature and that as a result of such existence and validations, the Morgan School District lost its identity as a separate district and that the title to all of its property, both real and personal, became vested, as provided for in Article 2767d, Vernon's Ann.Civ.St., in the new district known by all throughout its existence as the Wilson Independent School District and that the trustees of the said district had the authority to sell the property in question.

It is therefore my opinion that the restraining order issued by this court on May 5, 1944, prohibiting the sale of the property in question pending this appeal, should be dissolved, the judgment of the trial court affirmed, and the motion for a rehearing overruled.