City of El Paso v. Conklin , 91 Tex. 537 ( 1898 )

GAINES, Chief Justice.

As indicated by our refusal of the application for the writ of error, we think that the Court of Civil Appeals correctly disposed of the questions presented upon the appeal. The opinion of Chief Justice James ably discusses the points involved, and in a manner satisfactory to us in the main. We incline, however, to the opinion that the special charters of the City of El Paso recognize the city as having control of its public free schools and that the effect of that recognition is to confer such control upon the city council. Section 10 of article 11 of the Constitution provides that “the Legislature may constitute any city or town a separate and independent school district.” It is to be presumed that the Legislature when it passed the special charters in question knew7 that the city had been exercising control of its schools and intended to authorize it to continue to do so. In regard to the effect of a legislative recognition of the existence of a corporation, “the rule is that, although the organization of a corporation may be irregular, in such a sense that it could be overthrown in a direct proceeding by the State, yet where its corporate existence has been recognized by the Legislature, this will make it a good corporation, for the purposes of collateral proceedings.” 1 Thompson on Coporations, sec. 512. It seems to us that the same rule should apply to a legislative recognition of a corporate power. But the section of the Constitution from which we have already quoted, continues as follows: “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.” It results from this provision that, before a tax can be levied by any city or town for the support of its public schools, the tax must first be voted, and that before an election can be had such city or town must first have authority to control the schools. When the tax was voted in this case, such authority did not exist; and the provisions in the special charters in question cannot be construed to relate back and to give validity to a vote not authorized by the Constitution at the time the election took place.

The motion for a rehearing is overruled.