Hibbitts v. Robison , 1926 Tex. App. LEXIS 162 ( 1926 )

It appeared from testimony heard by the district judge that no appeal was prosecuted from the order of June 1, 1925, determining that the new building should be constructed on the "old school site." Appellants insist that it therefore appeared that the judge was without power to grant the injunction. Appellees, on the other hand, insist it appeared that a majority of the trustees voted in favor of constructing the building on the Sam Moore place, and, therefore, the board of trustees not having power to enforce the will of the majority, that they (appellees) had a right to invoke the power of the courts to enforce it.

Appellees' contention is not supported by the minutes of the proceedings of the board of trustees referred to in the statement above, according to which a majority of the votes cast at the June 1, 1925, meeting was not in favor of the site on the Sam Moore place, but was in favor, instead, of the "old school site." It is true it appeared that eleven votes were cast at said meeting, whereas, it may be conceded, only the seven trustees were entitled to vote; but it did not appear from said minutes that a majority of the votes of the seven trustees was not in favor of the "old school site." Therefore we think the order of the board of trustees of June 1, 1925, should not be ignored as void, but, unless and until set aside in a proper proceeding in a proper tribunal, should be treated as determining that the new building was to be constructed as the "old school site." In that view it is clear, in the light of decisions of the courts of this state, that appellees must have exhausted the remedy by appeal to school authorities provided by law before they were entitled to resort to the courts as they did. Davis v. Hemphill (Tex.Civ.App.) 243 S.W. 691; Caswell v. Fundenberger, 105 S.W. 1017, 47 Tex. Civ. App. 456; McCollom v. Adams (Tex.Civ.App.) 110 S.W. 526; Trustees v. Dudney (Tex.Civ.App.)142 S.W. 1007; Adkins v. Heard (Tex.Civ.App.) 163 S.W. 127; Jennings v. Carson (Tex.Com.App.) 220 S.W. 1090; School District v. Bank (Tex.Civ.App.) 227 S.W. 974; School District v. Martine (Tex.Civ.App.)275 S.W. 265; Nance v. Johnson, 19 S.W. 559, 84 Tex. 401.

Appellees cite Seat v. Jones (Tex.Civ.App.) 225 S.W. 208, and Bevers v. Winfrey, 260 S.W. 627, as cases supporting their contention that the district judge exercised power he possessed when he granted their prayer for an injunction. But, as we understand those cases, they rather support the conclusion reached by us as indicated above. In the Seat Case the injunction was granted a taxpayer to prevent threatened action by trustees pending an appeal by him to school authorities. In the Bevers Case the plaintiff had appealed to the school authorities, and the injunction the court held he was entitled to was to enforce orders of said authorities. In disposing of the appeal, the Court of Civil Appeals said:

"It seems to be the holding of the courts of this state that the Legislature has provided a method by which all questions affecting the administration of the school laws shall be reviewed, first, by the school authorities, giving to all aggrieved parties the right to appeal from the decisions of the subordinate boards to the highest authority within the school system."

The order of the district judge will be set aside, and an order refusing appellees relief by a temporary injunction will be entered here.