MARTIN v. GRANDVIEW INDEPENDENT SCHOOL DIST. et al., 267 S.W. 461

GERMAN, P. J. This case is before the court on certificate from the Court of Civil Appeals of the Second Supreme Judicial District. The essential facts may be succinctly stated as follows: . On September 27, 1921, by proper order theretofore made by the board of trustees, an election was held within and for the Grandview independent school district of Johnson- county, Tex., to determine whether or not the then existing special ad valorem tax of 50 cents on the $100 valuation of property should be increased. At this election the proposition to increase the tax was defeated.

On August 28, 1922, the board of trustees ordered another election to determine whether or not such special tax should be increased to a rate not to exceed 80 cents on the $100 valuation of property. This second. election was held September 28, 1922, and the proposition to increase the tax carried by a substantial majority. ' .This suit was brought by appellant Martin to obtain an injunction restraining the collection of the additional tax of 30 cents on the $100 valuation of certain property owned by him and situated in said school district.

His contention is that because the second election was ordered by the board of trustees within less than one year after the date on which the first election was held, that such order was contrary to the provisions of the law with reference thereto, and therefore the election was void.

It is the contention of the school district that although the second election was ordered within less than a year after the first election was held, yet it was not void, because the election was held more than a year after the first election; and that-the second election not being entirely void, it could not be attacked collaterally, and appellant had lost his right to complain by failing to contest the election as provided by statute. It appears that each of the -elections -was held under and by virtue of

chapter 24 of the Acts of the Thirty-Seventh Legislature,

section 22 of that act (Vernon’s Ann. Civ. St.

Supp. 1922, art. 2860e) is as follows: “Whenever the qualified property taxpaying voters of an independent school district shall desire to be submitted, at an election for that purpose, the question of the levy and collection of an annual ad valorem tax on the $100 valuation of taxable property of the district for the maintenance of the schools therein, a petition signed by twenty, or more, or a majority, of the qualified property taxpaying voters of such district shall be presented to the board of trustees, praying for an election upon the question so desired to be submitted, and it shall be the duty of the board of trustees to order an election substantially as in case of a bond election, and all other proceedings in respect to the question so submitted shall be in accordance with the provisions of this act relative to independent school district bond elections; provided said petition shall designate either the specific rate of tax to be levied, or such rate of tax not exceeding $1 on the $100 valuation of all taxable property within the district; and provided further that when a proposition to levy such a tax shall be defeated no election for that purpose shall be ordered until after the expiration of one year from the date of the election.” It is definitely settled that if the second election, under which it is sought to levy the additional tax upon appellant’s property, was void, then appellant has the right to test the question of its validity in this proceeding and to’ restrain collection of the illegal tax.

Parks v. West, 102 Tex. 11, 19, 111 S. W. 726. It is also settled that if the second election was not void, but was merely irregular or voidable, its validity cannot be attacked in a proceeding of this kind. Coffman v. Goree Independent School District (Tex. Civ. App.) 141 S. W. 132 (writ refused [142 S. W. xxxvii]).

We think it a correct rule that when the statute says a second election shall not be held within one year from the date of the first election, or the question shall not be again submitted within one year, then an election held more than a year after the first election is not void, although the order for such election was made within less time than a year after the first election. Slate v. Mayor, etc., of Blue Ridge, 113 Ga. 646, 38 S. E. 977; Keefer v. Board of Supervisors, 109 Mich. 645, 67 N. W.

Section 22, quoted above, is only a part of the act of the Legislature dealing generally with elections in common school districts and independent school districts for the issuing of bonds and the levy of taxes for maintenance purposes. It is therefore necessary to look to.the whole act to determine the intention of the Legislature.

It is a matter of judicial knowledge that heretofore in the matter of holding elections, where restraint was. put upon the Folding of a second election, the legislative declaration was to the effect that it should not be held within one year, or other designated period of time, from the date of the holding of the first election. Of course, the purpose of such enactments is to prevent the agitation and expense incident to too frequent elections. It is the actual holding of the election, and not the mere ordering of it, which is calculated to inconvenience or disturb the voters.

It was the holding of a second election within a less time than one year from the first election which the Legislature no doubt intended to prevent. In

section 2 of the act (article 2828) provision is made for elections in common school districts, and it is there provided that “not more than one such election shall be held within a year from the date of such election.” There is no substantial reason why a different rule should apply to independent school districts than that applied to common school districts. This being a certified question, involving the construction. of a statute, it has been our privilege to discuss and thoroughly consider the matter with the Supreme Court. We are therefore prepared to state it as the settled opinion of the court that a proper construction of

section 22, under review, is that it was the intention of the Legislature to declare that no second election should be ordered to be held until after the expiration of one year from the date of the first election. This construction brings

section 22 into harmony with

section 2, and really reflects what had been the uniform policy in like matters before the enactment of this statute. We therefore answer the question propounded by the Court of Civil Appeals by saying that the election of September 28, 1922, was not void. CURETON, O. J. The opinion of the Commission of Appeals, answering certified questions, adopted and ordered certified to the Court of Civil Appeals. @^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes