author: PALMORE, Judge..

text:
    Wendell P. BUTLER, Superintendent of Public Instruction, et al., Appellants, v. UNITED CEREBRAL PALSY OF NORTHERN KENTUCKY, INC. et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 15, 1961.

      John B. Breckinridge, Atty. Gen., Troy D. Savage, Asst. Atty. Gen., for appellants.
    James C. Ware, Covington, for appellees.
   PALMORE, Judge..

The Ware Act of the 1960 General Assembly (Senate Bill 253) authorizes public ■aid to private institutions for the education of “exceptional children.” Except for the section establishing an appropriation from the general fund, it is set forth in KRS 157.305. This action tests its validity.

'"-'In its entirety, KRS 157.305 reads as follows;

“(1) In lieu of the statutory requirements concerning education of exceptional children and until such time as the local boards of education are able to provide adequate instruction and facilities for exceptional children in their respective districts, private schools that are now established and are providing instruction and facilities for exceptional children may qualify as state schools for exceptional children.
“(2) To qualify as a state school for the exceptional children a private school shall:
“(a) Submit to the State Board of Education with its application for such qualification the names and addresses of the governing body of the school. The State Board of Education may approve or disapprove the governing body as it exists or may appoint such additional members thereto as it deems advisable;
“(b) Submit the type of instruction and program now being provided, the qualifications of the instructors employed and the facilities now available. The State Board of. Education may approve or disapprove the program, personnel or facilities now existing or it may make its approval contingent on such recommended improvements as it deems advisable. •
“(3) Once a school has'qualified as a state school for exceptional children, the State Board of Education upon the recommendation of the Superintendent of Public Instruction may allow to such school one hundred dollars annually per exceptional child in average daily attendance; provided that such school meets and continues to meet the standards promulgated by the State Board of Education for schools qualifying under this section.” (1960, c. 107; effective June 16, 1960.)

The Superintendent of Public Instruction and Kentucky State Board of Education take the position that the statute violates Sections 3, 27, 28, 59, 171, 177, 184, 186 and 189 of the Constitution of this state, and they appeal from a judgment of the circuit court declaring otherwise.

In its laconic simplicity the act leaves much to be desired. However, it is not ours to disapprove if it can reasonably be upheld. Cf. Bowman v. Frost, 1942, 289 Ky. 826, 158 S.W.2d 945, 946. So, before taking up the constitutional questions, let us dispose of whatever ambiguities can fairly be removed by the process of interpretation.

First, what is meant by “exceptional children”? Is this euphemistic generality sufficiently definite to state an intelligible legislative intent ? Standing alone, we should probably say not, but examined in the context of the whole enactment, we believe it is. Subsection (1) clearly expresses a recognition that there are children not within the normal range of those whom the common school may be equipped to serve. Though we think immediately of the physically or mentally handicapped, the term might also include the exceptionally gifted, the genius. At any rate, it covers those children within this state who would be entitled to attend its common schools, but for whom the state board, in its reasonable discretion, concedes that the program and facilities of a particular school district are thus far inadequate. The power to make the definition more specific lies in the state board of education.

Next arises the question of whether the determinations relating to eligibility are left to the untrammelled discretion of the Superintendent or the state board. This, of course, would attempt to permit the administrative agency to do what Const. § 59 forbids to the legislature itself. Surely this was not intended. On the contrary, subsection (3) speaks of “standards promulgated by the State Board of Education,” which we regard as a mandate to formulate and establish such reasonable and uniform regulations as are necessary to a just and proper administration of the act.

The main questions we see in this case are these: (1) Does the act have a valid public purpose within the scope of Const. §§ 3, 171 and 177? (2) Does it constitute illegal class or special legislation under Const. §§ 3 or 59? (3) Does it attempt to spend money “for education” or out of “the public school fund” within the meaning of Const. §§ 184 and 186? (4) Does it attempt to delegate legislative power to an administrative agency in violation of Const. §§ 27 and 28? (5) Does it authorize aid to sectarian schools, as forbidden by Const. § 189 ? We shall discuss them in that order.

In Hager v. Kentucky Children’s Home Soc., 1904, 119 Ky. 235, 83 S.W. 605, 608, 67 L.R.A. 815, this court said by way of illustration that “the special education of the deaf and dumb, the blind, and of the feeble minded” can rightfully be made a public charge. Indeed, if it is a valid public purpose to educate anyone at all, mu'st it not be equally so with respect to all who can be elevated to more constructive citizenship by the process of education? What the people through their elected representatives choose to do, whether it be in the form of education or some other type of assistance, in order to develop the capabilities of those who probably otherwise will be either a detriment or a dead weight to society, has the public welfare as its central aim. That is the test of a “public purpose.” See Carman v. Hickman County, 1919, 185 Ky. 630, 215 S.W. 408; Hendrickson v. Taylor County Farm Bureau, 1922, 196 Ky. 75, 244 S.W. 82; Bowman v. Frost, 1942, 289 Ky. 826, 158 S.W.2d 945; and Industrial Development Authority v. Eastern Kentucky Regional Planning Comm., Ky.1960, 332 S.W.2d 274.

The financial aid provided by this legislation goes directly to the school, but the ultimate beneficiary is the “exceptional” child. That the state chooses a private institution as its instrumentality does not despoil the public nature of the appropriation, for it has been said “that the vital point in all such appropriations is whether the purpose is public; and that, if it is, it does not matter whether the agency through which it is dispensed is public or is not; that the appropriation is not made for the agency, but for the object which it serves; the test is in the end, not in the means. The limitation put upon the state government by the people is as to what things it may collect taxes from them for, to which it may apply their property through taxation; not upon the means by which or through which it will do it.” Hager v. Kentucky Children’s Home Soc., 1904, 119 Ky. 235, 83 S.W. 605, 608, 67 L.R.A. 815.

There is, of course, the risk that in individual instances the payment of $100 per pupil will help the' operators of the school without any perceptible increase in benefits to the children. That some of the seeds of public assistance will fall on barren ground is always possible. However, the proper safeguard rests in the regulatory power and responsibility of the state board of education.

Though public aid chiefly benefits a certain class, if its ultimate purpose is to contribute to the welfare of the people of the whole state, it does not constitute a special privilege or emolument within the meaning of Const. § 3. Carman v. Hickman County, 1919, 185 Ky. 630, 215 S.W. 408; Bowman v. Frost, 1942, 289 Ky. 826, 158 S.W.2d 945. Nor does it violate Const. § 171. (Carman v. Hickman County, supra) or Const. § 177 (Hager v. Kentucky Children’s Home Soc., supra).

We have no difficulty in concluding that the act does have a valid public purpose within the scope and spirit of Const. §§ 3, 171 and 177.

As to the question of classification, it was held in the Hager case, supra, that an act for the benefit of homeless destitute children of the commonwealth generally was not local or special legislation under Const. § 59 even though one agency was selected for that purpose. In Bowman v. Frost, 1942, 289 Ky. 826, 158 S.W.2d 945, it was held, in effect, that when the legislature in singling out a special class responds to a moral duty of the state it does no violence to Const. § 3. See also Meredith v. Ray, 1942, 292 Ky. 326, 166 S.W.2d 437. “That some members of the public may derive more benefit than others, even between those who are situated alike or in the same class, is immaterial where the chief function of the expenditure is to minister to the public good * * Hendrickson v. Taylor County Farm Bureau, 1922, 196 Ky. 75, 244 S.W. 82, 84. We think that exceptional children, for whose education the common schools are not adequate, are a proper subject of classification.

There is, however, in this law another classification which has not been questioned but has been considered by us and ought to be mentioned. The public assistance is confined to schools engaged in the education of exceptional children at the time of the enactment. Hence children who may attend other similar schools established thereafter will not have the same benefit. No doubt, however, the legislature wished to forfend against a mushrooming of new “schools” attracted more by the state aid than by a genuine desire to serve. Probably most of the existing schools are charities, and, if so, it is well that things be kept that way.

Classifications based upon time or existing conditions frequently have been upheld. In Hines v. Jenkins, 1929, 237 Ky. 676, 36 S.W.2d 387, it was held that a city, after permitting 51 gasoline pumps to be installed on its sidewalks, could validly refuse to permit any more. In Opinion of the Justices, 1954, 99 N.H. 505, 105 A.2d 924, the Supreme Court of New Hampshire sustained a legislative action restricting commercial enterprises on a limited access toll road to those already so established. And as we have seen, in Hager v. Kentucky Children’s Home Soc., 1904, 119 Ky. 235, 83 S.W. 605, 67 L.R.A. 815, the public aid was confined to a single institution. Hence we cannot say that the restriction to existing schools already performing the type of service in question is unreasonable.

Insofar as it is pertinent to the question now before us, Const. § 184 provides: “No sum shall be raised or collected for education other than in common schools until the question of taxation is submitted to the legal voters,” etc. § 186 directs that all money “accruing to the school fund” be used exclusively for the maintenance of the public schools.

Although Const. § 184 literally applies only to funds “raised or collected” for education, this was held in Pollitt v. Lewis, 1937, 269 Ky. 680, 108 S.W.2d 671, 672, 113 A.L.R. 691, to be “a limitation upon legislative power to expend money for education other than in the common schools.” (Emphasis added.) And in Talbott v. Kentucky State Board of Education, 1932, 244 Ky. 826, 52 S.W.2d 727, under the same principle it was held that any funds raised by taxation become a part of the school fund as soon as they are appropriated for school purposes.

Whether the theory of the Pollitt and Talbott cases really is justified by the language of Const. §§ 184 and 186 is questionable. See, for comparison, dictum in the later case of Hodgkin v. Board for Louisville & Jefferson County Children’s Home, Ky.1951, 242 S.W.2d 1008, 1010, to the effect that these sections neither authorize appropriations of the “Common School Fund” to schools outside the common school system "nor do they bar the use of other state funds for such schools(Emphasis added.) See also Jefferson County Board of Education v. Goheen, 1948, 306 Ky. 439, 207 S.W.2d 567, 569. However, we do not find it necessary to come to grips with that problem in this case, because we regard the act in question as primarily a welfare rather than an educational measure. For example, it would scarcely be argued that the state could not, if it saw fit, provide crutches for the crippled or seeing eye dogs for the blind. That the public assistance takes the particular form of education makes no difference. Otherwise it would be doubtful that such institutions as the Kentucky Industries for the Blind (KRS 163.036), Mayo State Vocational School (KRS 163.090) and Northern Kentucky State Vocational School (KRS 163.100) could be supported or operated by the state, because certainly they are not within the common school system. We do not believe it was the intention of the delegates in adopting Const. §§ 184 and 186 to deny forever the possibility of special educational assistance to those who by no choice of their own are unsuited to the standard program and facilities of the common school system.

Probably the most difficult problem in this case is the question of whether the legislature over-delegated its powers in failing to prescribe more definite standards to be observed by the administrative agency in determining the eligibility of and regulating the recipient schools. Our decisions and those of the other courts of last resort in this country are replete with mention of “standards,” much of which has been characterized by a leading authority as mumbo-jumbo. Kenneth Culp Davis, Administrative Law Treatise, § 22.11 (Vol. 1, p. 125). A perusal of the latter work, and, in particular, Vol. 1, Chapter 2, “Delegation of Power,” pp. 75-158, will convince the reader that “The need is usually not for standards but for safeguards.” Ibid., .p. 151. We quote from it as follows:

“The typical opinion of a state court on a delegation problem is quite unfortunate both in what it says and what it fails to say. It says that (1) legislative power may not be delegated, (2) that ‘filling up the details’ is not an exercise of legislative power, (3) that legislative power is not delegated if the Legislature has laid down a standard to guide the exercise of the power, and (4) that presence or absence of vague verbalisms like ‘public interest’ or ‘just and reasonable’ make all the difference between valid legislation and unlawful delegation.
“The typical state court opinion on delegation fails to say anything about (1) the reasons for the legislative choice to make the particular delegation, (2) the practical consequences of allowing the Legislature to do what it is trying to do, (3) the usual lack of practical advantage in compelling the Legislature to dress up the statute with vague verbiage that the judges call standards, (4) the question whether in the circumstances good government calls for a headlong choice of policy by the legislative body or whether it requires the working out of policy by case-to-case adjudication conducted by those who have the advantage of knowing the facts of particular cases, (5) the need for protection against unfairness, arbitrariness, and favoritism, (6) the importance of procedural safeguards, or opportunity for a judicial check, and in some circumstances of a proper legislative or even administrative supervision or check, or (7) the need for providing help to the Legislature in its search for practical and efficient ways of accomplishing legislative objectives. * * * The notion that a standard should be required started out rationally; the belief was that the legislative body ought to state am-‘intelligible principle’ and that the administrative authority would merely ‘fill in the details.’ * * The difficulty is that it is often affirmatively desirable for the legislative body to avoid either an intelligible principle or a clear delineation of the general policy, for the simple reason that many questions of basic policy may better be worked out by an agency than by a legislative body,” Ibid., pp. 148-149.

In the study from which we have quoted it is further demonstrated, by numerous examples from this and other courts, that in order to find the effective law “one must look past the theory to the holdings. The correlation between the theory and the holdings is characteristically low, and when it is high the holdings have been unfortunate when examined in the light of practical needs of effective government.” Ibid., pp. 103-104.

Let us, then, examine this law in terms of the practical needs of effective government, and in terms of safeguards against abuse and injustice. The legislature wants to encourage and lend a modicum of support to the special education of a certain class of people. It does not wish, in so doing, to waste the taxpayers’ money. The members of the legislature are allowed to meet in regular session only 60 days every two years. They have neither the time, facilities, nor qualifications to do more than indicate the class and fix the amount to be spent. At the state’s disposal, however, is its board of education, an agency fully and better qualified than the legislature to establish and carry out whatever further policies and procedures may be necessary or desirable. This body also is one of the most responsible and long-established agencies of the state government. Is there any real danger that it would, even if it could, abuse the responsibilities conferred upon it by this act? We think not. Moreover, since arbitrary power does not exist in this Commonwealth, any discriminatory treatment is inherently reviewable by the courts. Cf. 73 C.J.S. Public Administrative Bodies and Procedure § 164, pp. 506-507; Davis, Administrative Law Treatise, § 28:21, Vol. 4, pp. 112-113.

This act does not, in our opinion, constitute an invalid delegation of legislative authority under Const. §§ 27 and 28. See Craig v. O’Rear, 1923, 199 Ky. 553, 251 S.W. 828, 834, sustaining the right of the legislature to vest the “management and control” of two state normal schools in the state board, and citing other illustrative instances of valid delegation.

We come lastly to the question of whether the act permits public funds to be used by sectarian or denominational schools in violation of Const. § 189. It so happens that the schools involved in this lawsuit are nonsectarian charities, but the term “private schools,” of course, admits of no such limitation. Literally it would appear to mean any school outside the common school system. However, we may properly indulge the presumption that the legislature did not intend to include schools to which the payments could not legally be made. It is not unreasonable to presume, for example, that the term was not meant to include schools not within the state, and it is equally reasonable to infer that it does not include schools that give sectarian instruction or have any denominational requirements with respect to their teachers or pupils. It is to be expected that the board of education in establishing and administering uniform standards and regulations determining eligibility will heed the Constitution. Hence we find in the act no violation or attempted authorization of the board to violate Const. § 189.

The judgment is affirmed.

MONTGOMERY, J., dissents.


source: Caselaw Access Project

author: WILLIAMS, Judge.

license: Public Domain

text:
    Eddie Lewis TRAVIS, etc., Appellant, v. Edmund H. T. HAY, Jr., Appellee.
    Court of Appeals of Kentucky.
    Dec. 15, 1961.
    Harry S. McAlpin, Louisville, for appellant.

      Kent McElwain, McElwain, Dinning,Clarke & Winstead, Louisville, for appellee.
   WILLIAMS, Judge.

Eddie Lewis Travis, hereinafter referred to as plaintiff, was injured when he was struck by an automobile driven by Edmund H. T. Hay, Jr., hereinafter referred to as defendant. A jury returned a verdict against plaintiff, and this appeal is taken from the judgment of the Jefferson Circuit Court rendered on that verdict.

The facts related by plaintiff and his witnesses indicate that the accident occurred as he was proceeding from south to north across Louisville’s Jefferson Street at its intersection with Eleventh Street. Jefferson Street had three eastbound and three westbound lanes. Plaintiff waited on the curb until traffic going east had passed and then walked to the center or dividing yellow line where he stopped to allow westbound traffic to pass. Defendant was driving a Volkswagen automobile in the center lane proceeding west and struck plaintiff while he was standing in the middle of the street, causing him injury.

Defendant testified that before reaching the intersection of Jefferson and Eleventh streets he was forced to move from an inner traffic lane to the left or center lane by a group of youngsters who were standing in the street hitchhiking. Upon changing lanes he shifted his automobile to a lower gear and remained in lower gear through the intersection and until the accident occurred. He stated there was a normal flow of traffic in each direction and that after passing through the intersection he saw plaintiff for the first time running in front of a car traveling in the eastbound center lane. He immediately applied his brakes and swerved away from plaintiff, but plaintiff ran into the left front side of his automobile. Defendant testified that plaintiff was several feet out of the crosswalk at the time, whereas plaintiff’s witnesses stated that he was in the crosswalk.

Although certain portions of defendant’s evidence were disputed by other witnesses, the jury chose to believe his story, and it cannot be said that the verdict was flagrantly against the evidence.

The plaintiff was ten years old at the time this accident occurred. A child between the ages of seven and fourteen is presumed incapable of being negligent, but the presumption may be rebutted by counter testimony. United Fuel Gas Co. v. Friend’s Adm’x, Ky., 270 S.W.2d 946. No evidence was taken to rebut the presumption; nevertheless, the circuit court instructed that it was plaintiff’s duty to exercise that degree of care which is ordinarily exercised by a child of his age, experience and mental capacity. The court also instructed on contributory negligence. Under the circumstances, those instructions were not authorized. Baker v. Sizemore, Ky., 338 S.W.2d 386. But, since plaintiff did not object on the ground that he was not proven capable of being negligent, we will not consider it further.

There was an objection made to the contributory negligence instruction given by the court which we feel is meritorious and will require a reversal of this case. That instruction reads as follows:

“If you believe from the evidence that the plaintiff, Eddie Lewis Travis, violated any one or more of the duties imposed upon him as set out in Instruction #2, and such violation on his part, if any, caused or helped to bring about the accident and the resulting injuries, if any, then the law in this case is for the defendant, Edmund H. T. Hay, Jr., even though you believe from the evidence that the defendant violated one or more of the duties imposed upon him by these instructions.”

Plaintiff objected to that instruction on the ground that it did not advise the jury that negligence on the part of plaintiff must have been a proximate cause of the accident. He points out that the standard clause which is commonly used in contributory negligence instructions, to wit, “but for which the accident and injury would not have occurred,” was omitted. It is the rule in this state that to constitute contributory negligence exempting the defendant from liability the plaintiff’s negligence should be a proximate and not a remote cause, efficiently contributing to the injury or damage. Chesapeake & O. Ry. Co. v. Pope, 296 Ky. 254, 176 S.W.2d 876. See also Annotation 102 A.L.R. 411. It has been standard procedure to point out to the jury the requirement that plaintiff’s negligence be proximate as contrasted to remote by employment of the phrase “that but for such negligence” the injury would not have occurred. In Adams v. Parrish, 189 Ky. 628, 225 S.W. 467, which was decided in 1920, this Court held an instruction erroneous because it failed to state that but for plaintiff’s negligence the injury would not have been received. And in Ellis v. Glenn, Ky., 269 S.W.2d 234, 236, the rule is specifically stated as follows: “A plaintiff is guilty of contributory negligence if his negligence contributes to cause the accident to such an extent that but for such negligence the accident would not have occurred.”

The instruction given here fails to meet the test. It informed the jury that if plaintiff failed to perform certain duties and such failure caused or helped to bring about the accident the law was for the defendant. Had the circuit court used only the word “caused” then plaintiff would have no complaint since that word, standing alone, connotes proximate or sole cause. By saying “caused or helped,” on the other hand, the direction is weakened to the extent that any factor, however remote, which may have aided in bringing about the accident would be sufficient to deny plaintiff relief. The use of the “but for” clause in an instruction precludes a jury from finding against a plaintiff who has been negligent, but which negligence did not contribute as a proximate cause to the happening of the accident.

It is unnecessary to consider objections to the other instructions. On a new trial proof concerning plaintiff’s capacity to be negligent will necessitate different instructions.

Judgment reversed.


author: BIRD, Chief Justice.

text:
    Carl PINKSTON, Appellant, v. Charlie P. GOODE et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 15, 1961.
    Louie B. Nunn, Glasgow, for appellant.
    H. M. Grigsby, Springfield, for appellees.
   BIRD, Chief Justice.

This appeal is taken from a judgment entered in an election recount proceeding.

Carl Pinkston defeated Thomas Houri-gan in a race for sheriff of Washington County by a margin of 11 votes. Hourigan petitioned the Washington Circuit Court for a recount. The proceeding was narrowed to the consideration of 28 ballots. The trial court after his examination and consideration of these ballots entered a judgment declaring that the plaintiff, Hourigan, had won the election by a margin of 6 votes.

Pinkston has appealed. Only the same 28 ballots are involved on appeal.

We have considered each ballot separately and carefully together with the law thereunto pertaining.

We have tabulated 12 votes for Pinkston that were not tabulated for him by the trial court. We have tabulated 3 votes for Hourigan that were not tabulated for him by the trial court. There was no change in the rest of the 28 ballots considered. The trial judge’s margin for Hour-igan was 6 votes and he picked up 3 by our count. Pinkston, however, picked up 12 by our count which leaves him a victory margin of 3 votes.

The judgment is therefore reversed and Pinkston is declared the winner by 3 votes.

MOREMEN, J., not sitting.


author: MONTGOMERY, Judge.

text:
    KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION et al., Appellants, v. KROEHLER MANUFACTURING COMPANY of Kentucky et al., Appellees. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION et al., Appellants, v. BROWN-FORMAN DISTILLERS CORPORATION, Appellee.
    Court of Appeals of Kentucky.
    Dec. 15, 1961.
    Paul E. Tierney, Forest Smith, Clarence E. Powell, Dept, of Economic Security, Frankfort, for appellants.
    James U. Smith, Jr., Louis E. Woolery, Smith & Smith, Louisville, for appellees Kroehler Mfg. Co. of Ky., and others.
    Malcolm Y. Marshall, James S. Welch, Ogden, Brown, Robertson & Marshall, Louisville, for appellee Brown-Forman Distillers Corp.
    Robert T. Caldwell, Ashland, for amicus curiae Associated Industries of Ky.
   MONTGOMERY, Judge.

The Kentucky Unemployment Insurance Commission has appealed in these consolidated cases from judgments in favor of the appellees, disqualifying various claimants from receiving certain benefits, relieving appellees’ reserve accounts of any payments made or to be made to the claimants, ■and reversing the orders of the Commission. In its findings of fact and conclusions of law, the court- held that the various claimants left their employment voluntarily without good cause under KRS 341.370(1) (b), and without good cause attributable to ■the employment under KRS 341.530(3).

The appellees are Kroehler Manufacturing Company of Kentucky, Kroehler Manufacturing Company, Container Corporation ■of America, and Brown-Forman Distillers Corporation. The appeals arose from the decisions of the Commission, holding that the various claimants, former employees of the various appellees who had retired under the terms of their respective retirement plans', were eligible for unemployment compensation benefits and the payments so made were to be charged to the respective reserve accounts of appellees. Ten employees were involved. They will be referred to as ■claimants unless identified by name. No appeal wás taken by the Commission from a similar judgment in favor of the American Radiator & Standard Sanitary Corporation.

The retirement systems involved are similar. They were instituted by the respective employers in 1945 and 1946 for the benefit ■of their employees'. The systems were not begun by reason of union agreements but later were embraced in collective bargaining agreements. Employees were permitted to participate in the systems by making written requests, but were not compelled to join. The systems were financed by the joint contributions of employers and em-ployées. The benefits payable to each retiree were based on compensation received ■during employment and on creditable years ■of' employment. It was permissible for an employee to withdraw from the system prior to retirement with an accompanying withdrawal of his contributions.

The plan provided for retirement at age 65 upon written application having been made, unless, a special request to continue in employment was made. Provision was made for early retirement at a reduced allowance.

Under these plans, the Commission insists that the claimants were compelled to retire upon reaching age 65 and that their leaving was involuntary and with good cause attributable to the employment.

In order to show that the employee was not compelled to retire at age 65 and that retirement was voluntary, appellees point to the voluntary initial participation in the plan and the options available to the employee to withdraw from the plan or to retire early. Further, it is pointed out that upon reaching age 65, the employee may request an extension of employment instead of retirement. The exercise of any of these options and the initial decision by the employee to participate in the plan are voluntary actions on his part which relieve the retirement at age 65 from being compulsory.

Oddly enough, this argument is consistent with two- decisions of the Commission involving' the same questions and one of the same retirement systems in the cases of Kroehler Manufacturing Company v. Florence, Commission Order No. 2978, and Mengel Company, Inc., v. Lukemeier, Commission Order No. 2979, both decided before the present cases and reported at 1A CCH Unemp.Ins.Rep. (Ky.) ¶ 8222.101. In the Florence case, the Commission said:

“Notwithstanding, it is our opinion that when this claimant personally and without compulsion or coercion elected to become covered by the savings and retirement plan offered by the company (one of the conditions of becoming a member being that he would retire at the ag'e of sixty-five) we feel that he personally chose retirement rather than employment which is tantamount to voluntary quitting. Further, the conditions under which he quit do not relate to the employment and we have no reason to hold that his quitting was attributable to the employment. We conclude that his act was not attributable, to the employment and that the reserve account of the appellant, the employer who furnished him his ‘most recent’ work should be relieved of charges for benefits paid.”

In the Lukemeier case, the Commission said:

“In this case, the facts show that the claimant voluntarily and of his own initiative entered into a plan whereby he elected to sever his relationship with the company upon reaching the age of sixty-five unless certain extensions were granted. Such action on the part of a worker must he considered as a voluntary quitting of his employment. His election to retire being the sole cause of his separation, and there being no condition of his work or factor concerning the employment furnished him by the appellant to motivate or cause his quitting, it must be concluded that his separation was not attributable to his employment and, consequently, the provisions of KRS 341.530(3) became effective and the appellant’s reserve account should be relieved of charges for benefits paid to the claimant.”

Appellees have cited several decisions indicating that the Commission has held both ways on this question, both before and after the cases on appeal were decided. The Commission has not favored the Court with any explanation of the vacillation in its policy.

The quoted views expressed by the Commission in the Florence and Lukemeier cases are in accord with the principles expressed elsewhere. Bergseth v. Zinsmaster Baking Company, 252 Minn. 63, 89 N.W.2d 172; Lamont v. Director of Division of Employment Security, 337 Mass. 328, 149 N.E.2d 372; Campbell v. Unemployment Compensation Board of Review, 175 Pa.Super. 592, 106 A.2d 687; 180 Pa.Super. 74, 117 A.2d 799; Valles v. Unemployment Compensation Board of Review, 194 Pa.Super. 47, 166 A.2d 108, 8 CCH Unemp.Ins.Rep. (Pa.) ¶ 8878; Madison Gas & Electric Company v. Gardner, 9 CCH Unemp.Ins.Rep. (Wis.) 1975.52 (Wis.Cir.Ct.1951); John Morrell & Company v. ESC, 4 CCH Unemp.Ins.Rep. (Ia.) ¶ 1995.45 (Ia.Dist.Ct.1959); Regal Pale Brewing Company v. California Unemployment Insurance Appeals Board, 2 CCH Unemp.Ins.Rep. (Cal.) ¶ 8829 (Cal.Sup.Ct.1958); 48 Am.Jur., Social Security, Unemployment Insurance, and Retirement Funds, Section 34, page 52 (1960 Cum.Supp.).

The authorities cited are in harmony with the principles in Unemployment Insurance Commission v. Cochran Foil Company, Ky., 331 S.W.2d 903. This view is also in accord with the declared public policy of this state as expressed in 1938 Acts, Chapter 50, Section 2. In substance, it was stated that involuntary unemployment was a subject of general interest and concern and that an enactment was required “ * * * for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no-fault of their own * * * as a part of a. national plan of unemployment compensation and social security.” Barnes v. Hall, 285 Ky. 160, 146 S.W.2d 929, cert. den. 314 U.S. 628, 62 S.Ct. 59, 86 L.Ed. 505. The purpose of the General Assembly in the enactment of such legislation was to provide benefits for only those employees who have been forced to leave their employment because of forces beyond their control and not. because of any voluntary act of their own.

The Commission relies on Campbell Soup Company v. Board of Review, 13 N.J. 431, 100 A.2d 287; and Warner Company v. Unemployment Compensation Board of Review, 396 Pa. 545, 153 A.2d 906. There was. no declared legislative policy in either case, and in each case the employee participated in the retirement plan under a collective bargaining agreement, as opposed to the voluntary manner of participation here. If it is not enough to say that these are distinguishing factors, then this Court is. hound by the declared legislative policy as •determined in prior decisions. The de•cisions in Renshaw v. United States Pipe & Foundry Company, 30 N.J. 458, 153 A.2d 673, and in Campbell v. Unemployment Compensation Board of Review, 180 Pa.Super. 74, 117 A.2d 799, appear to be inconsistent with the cases relied on by the Commission.

In the Campbell case, the employee elected to and did retire before reaching retirement age. It was held that this constituted voluntary quitting of his employment, barring an award of benefits. In this respect, the Campbell case is similar to two of the cases presented here. Employees Jinnett and Krause elected to and did retire early; that is, before reaching the prescribed retirement age. Jinnett did so in order to go to Florida to live. Krause’s purpose was to look after her mother. Apparently the Commission concedes that such was a voluntary quitting of employment and was not attributable thereto since the point is not argued in brief. No further consideration of the appeals concerned with Jinnett and Krause is necessary. Stewart v. Jackson, Ky., 351 S.W.2d 53.

The Commission has questioned the voluntary agreement to participate in the retirement plan as being in violation of KRS 341.470(1), prohibiting an agreement to waive, release, or commute any benefits payable under Chapter 341, Unemployment Compensation. Reliance is placed on the Warner case. In addition to what has already been said concerning the voluntariness of the agreement, similar arguments were rejected in the Massachusetts, Minnesota, and Wisconsin cases cited. The agreement was not considered as a waiver by the Minnesota and Wisconsin courts, but was deemed an agreement for the voluntary termination of employment. The agreement here did not constitute a waiver under KRS 341.470(1).

Accordingly, it is held that the retirement of the employees involved, whether at age 65 or prior thereto, constituted a voluntary quitting of their employment which was not attributable to the employment and that the reserve accounts of the appellees should be relieved of any charges for benefits paid to these employees.

Judgments affirmed.


author: GREENHILL, Justice.

text:
    Ex parte Betty RHODES.
    No. A-8552.
    Supreme Court of Texas.
    Dec. 6, 1961.
    Rehearing Denied Jan. 10, 1962.
    Dibrcll, Gardner & Dotson, San Antonio, Fred V. Klingeman, Karnes City, for relator.
    Ronald Smallwood, Karnes City, for respondent.
   GREENHILL, Justice.

In this habeas corpus proceeding, the question is whether a district judge has the power, in a divorce decree, to provide that the infant child of the marriage shall remain within the county and that the residence of the child shall not be moved from the county without an order of the court. Because of the violation of such an order, Betty Rhodes was adjudged to be in contempt of court. She seeks relief from this Court.

The pertinent facts are these: Betty Rhodes was formerly married to Edgar Sherrill, Jr. They and their parents lived in Karnes County, Texas. In 1954, Betty sued Edgar Sherrill for divorce and sought custody of their only child, a daughter then two years of age. The suit was uncontested. The divorce decree awarded exclusive custody of the child to Betty, the mother. While the judgment had no specific provisions as to days and hours of visitation, Edgar Sherrill was given the right to visit the child at all reasonable times and places. The judgment then stated:

“It further appearing to the court that the best interest of said child will be served if she resides in Karnes County, Texas, where plaintiff and defendant reside and where the four grand-parents of said child reside; it is ordered, adjudged, and decreed by the court that said child shall reside within Karnes County, Texas, and that plaintiff not move said child’s residence from within Karnes County, Texas, without first making written application to this court, and after hearing by the court of all parties concerned, and an order being made by the court allowing plaintiff to move said child’s residence from within Karnes County, Texas.”

There was no appeal from the judgment, and it became final. It has not been modified.

In 1960, Betty married Barry Rhodes. They moved from Karnes County to the City of Bryan in Brazos County, Texas, in February, 1961. The child remained in Karnes County with her maternal grandparents. In May, 1961, however, Betty’s father, at her request, brought the child from Karnes County to her in Brazos County.

The father of the. child, Edgar Sherrill, Jr., was dissatisfied with his reception at the home of Betty and Barry Rhodes when he went to visit his daughter. He considered that his rights of visitation had been unduly curtailed. He thereupon brought suit in Karnes County seeking: (1) the return of the child to Karnes County; (2) punishment, by contempt proceedings, of Betty and her father for violating the terms of the custody provisions of the divorce decree; and (3) a change in the terms of the judgment as to custody of the child. He sought particularly to have his days and hours of visitation made definite.

All parties thereafter appeared in the district court of Karnes County. Betty and her second husband, Barry Rhodes, filed a plea of privilege to be sued in the county of their residence, Brazos County. As to the visitation matters, the court sustained the plea of privilege; and that portion of the case was ordered to be transferred to Brazos County. That feature of the case is not now before us.

The district court of Karnes County, however, did adjudge Betty Rhodes to be in contempt for willfully and knowingly violating the order of the court, and ordered her to jail for 12 hours and until she should purge herself of the contempt. She here contends that the district court was without power to restrict the residence of the child to Karnes County and was without, power to decree that such residence should not be removed without an order of the court.

When counsel for Betty Rhodes made application for leave to file the application-, for writ of habeas corpus in this Court, several members of the Court doubted the-power of the district court to impose such restrictions in the divorce decree. It was-forcefully argued that such provisions, in effect, prohibit the wife from remarrying- and moving, or from seeking gainful employment in another county without the consent of the district judge, and that this-deprived her of her liberty without due process of law. While the decree does not. prevent Betty Rhodes from remarrying or moving whenever or wherever she pleases, it does require her to obtain the consent of the court to move if she desires to take the child with her. She has not been denied consent to move and take the child with her. She did not ask the court’s permission to change the child’s residence to Brazos. County. Her contention is that the court was without power to impose such a condition in the decree.

We find that the question has been heretofore answered in Texas. For this Court to order the release of Betty Rhodes, the order of the district court must be absolutely void. It is not enough that the order of the court be erroneous. The order must have been beyond the power of the court to enter. Ex parte La Rocca, 154 Tex. 618, 282 S.W.2d 700 (1955); Ex parte Tyler, 152 Tex. 602, 261 S.W.2d 833 (1953).

The question of the power of the district court to restrict the residence of a minor child to the state and to the jurisdiction of the court has been resolved in the affirmative on several occasions. One of the earliest decisions was Ex parte Ellerd by the Texas Court of Criminal Appeals, 71 Tex.Cr.R. 285, 158 S.W. 1145. That court upheld contempt proceedings which, among other things, enforced a divorce decree which directed that the minor child be •maintained in Plainview, Hale County, 'Texas.

In 1949, the Court of Civil Appeals at -'Eastland upheld a custody decree which directed that the child be not removed from Eastland County, Texas. Lasater v. Bagley, 217 S.W.2d 687 (writ refused, n. r. e.). Thereafter, in 1951, in McAnally v. McAnally, 239 S.W.2d 154, the same Court of Civil Appeals upheld a decree of a district court which directed that the child be not removed from Texas or from the jurisdiction of the court. Upon further appeal, this court “refused” the application for writ of error, thus approving the ruling by the Court of Civil Appeals.

There are other opinions by the Texas ‘Courts of Civil Appeals to this same effect: White v. Lobstein, 246 S.W.2d 953 (1952, no writ) where the residence of the -child was restricted to Coleman or Brown Counties, Texas; and Fasken v. Fasken, 260 S.W. 698 (1924, no writ) where the. residence of the child was restricted to Midland County, Texas. We have been •cited to no Texas appellate opinion, and we have found none, which holds to the contrary. The rule set out .above is recognized outside of Texas. Annotation, 154 A.L.R. .552; 2 Nelson, Divorce and Annulment, § 15.20, p. 198 (2nd ed.).

We therefore hold that the court ‘had the power to direct that the child’s residence should not be removed from Karnes ‘County.

Counsel for Betty Rhodes also attacks that portion of the divorce decree which requires "an order being made by the court allowing plaintiff to move said child’s residence” because it is an attempt, on behalf of this particular court, to retain continuing and exclusive jurisdiction of the question of custody. Many states, by statute, have given the trial court continuing and exclusive jurisdiction of custody. 27B C.J.S. Divorce § 303, p. 424. However, this Court held in Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016 (1940), that an action to modify or change custody is an independent action and that the court which granted the divorce and first awarded custody did not retain exclusive, continuing jurisdiction of custody. It was held that the defendant in such a suit was entitled to have venue of such an action removed to the county of his residence. If, therefore, the decree in question means that only the district court in Karnes County could thereafter pass upon change of custody of the child, it was ineffective.

We really do not have the question here as to whether the district court in Karnes County has attempted to exercise exclusive and continuing jurisdiction. If, for example, the father had moved to Dallas, Dallas County, and the wife had moved to Bryan, Brazos County, and the wife brought suit there on the right to remove the child from Karnes County, and the husband had attempted to move the case to Karnes County on the ground that only that court could pass upon removal from Karnes County, we would have the question squarely presented. Or if the wife had brought suit in Bryan, Brazos County, to remove the restriction against the removal of the child from Karnes County, and the father had remained in Karnes County, the point might have arisen. But Betty Rhodes did not attempt to get the decree of the court sitting in Karnes County modified in any district court.

While we have held that the restrictive residence provision of the custody decree was not void, it is one of an extreme nature. It may drastically affect the freedom of decision of the custodian of the child as to what is best for the child. And, as pointed out by counsel for Betty Rhodes, if request for removal to another county is denied, it may materially restrict the right of a citizen (who would not move without her child) to change the place of his or her residence. If permission to move were denied, she would be in a better position to assert that she was deprived of her liberty without due process. We express no opinion on that matter. In any event, the appellate court will look with care to see whether there has been an abuse of discretion on the part of a court which denies permission to remove the residence of the child to that of the new residence of the person having been adjudged the proper person to be the custodian of the child. By citing White v. Lobstein, 246 S.W.2d 953, we are not to be understood as approving the decision that there was no abuse of discretion in refusing to grant consent for the removal of the child to the residence of the custodian. That case did not reach this court.

Betty Rhodes is remanded to the custody of the sheriff of Karnes County.

GRIFFIN, J., dissenting.


author: STEAKLEY, Justice.

text:
    TEXAS EMPLOYMENT COMMISSION and General Electric Company, Petitioners, v. INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, LOCAL UNION NO. 782, AFL-CIO et al., Respondents.
    No. A-8454.
    Supreme Court of Texas.
    Nov. 22, 1961.
    Rehearing Denied Jan. 10, 1962.

      Will Wilson, Atty. Gen., C. K. Richards, Sam Lane, Asst. Attys. Gen., for Texas Employment Commission.
    Ramey, Brelsford, Hull & Flock, Tyler, Wm. J. Barron, New York City, L. Mason Harter, De Witt, N. Y., and Jack W. Flock, Tyler, of counsel, for General Electric Company.
    Sam Houston Clinton, Jr., Austin, for respondents.
   STEAKLEY, Justice.

This case as it reaches us with the Texas-Employment Commission and General Electric Company as petitioners involves the right of eighty-eight respondents to unemployment compensation benefits for the week of August 4, 1957, during which the plant of General Electric Company at Tyler was shut down. The facts common to all of the respondents require a construction of certain provisions of their collective bargaining contract in the light of the applicable provisions of the Texas Unemployment Compensation Act. The claims of the respondents were denied by the Commission in one proceeding and suit was brought by all the respondents in the District Court of Smith County to review the adverse decision. The district court sustained the Commission. The Court of Civil Appeals reversed the district court and entered' judgment “directing the Texas Employment Commission to grant the claims of the-eighty-eight claimants * * *." 346 S.W.2d 649.

Preliminarily, petitioners urge two-jurisdictional pleas. The first is that the district court was without jurisdiction in the fact that the claim of each respondent was-approximately $25.00 although aggregating, of course, more than $500.00. This plea to-the jurisdiction was not raised in the trial court but was urged in the Court of Civil Appeals, and is urged here, as fundamental error. Lack of jurisdiction in the district court would be fundamental error and a plea to such effect is subject to review although first presented on appeal. We hold, however, that the plea is without merit.

There was proper joinder of the claimants under Rule 40, Texas Rules of Civil Procedure. Hindman v. Texas Lime Co., 157 Tex. 592, 305 S.W.2d 947, 954. The rights jointly asserted by the several claimants arose out of the same transactions and occurrences within the purview and purposes of the Rule. The determining questions of law and of fact are common to all.

Article 1906a, Vernon’s Ann.Civ.St., provides :

“Where two or more persons originally and properly join in one suit, the suit for jurisdictional purposes shall be treated as if one party were suing for the aggregate amount of all their claims added together, exclusive of interest and cost; provided that this statute shall not prevent jurisdiction from attaching on any other ground. Provided further, that the passage of this Act shall not affect any pending litigation.” Acts 1945, 49th Leg., p. 543, ch. 329, § 1.

Article V, Section 8 of the Constitution, Vernon’s Ann.St., provides that “The District Court shall have * * * such other jurisdiction, original and appellate, as may be provided by law.” See Oilmen’s Reciprocal Ass’n v. Franklin, 116 Tex. 59, 286 S.W. 195, 197.

Respondents were originally and properly joined and the statute makes th.e aggregate amount controlling for jurisdictional purposes. Article 1906a was enacted for the express purpose of curing what the Legislature described as a “jurisdictional defect” in Long v. City of Wichita Falls, 142 Tex. 202, 176 S.W.2d 936; the “defect” was the holding in Long that the claims of several plaintiffs cannot be added together to achieve a jurisdictional amount. Southwestern Drug Co. v. Webster, Tex.Civ.App., 246 S.W.2d 241 (no writ hist.) and Kasishke v. Ekern, Tex.Civ.App., 278 S.W.2d 274 (ref., n. r. e.), cited by petitioners, are not in point because of their reliance on Long and under their facts. In the case before us there is proper joinder of claims aggregating more than $500.00 giving the district court jurisdiction under the express provisions of Article 1906a.

The second jurisdictional plea of petitioners asserts want of jurisdiction in the District Court of Smith County with respect to twelve of the respondents joining in the appeal suit who were not residents of Smith County, and is based on Article 5221b — 4(i) providing for court review of decisions of the Texas Employment Commission as follows:

“(i) Court review: Within ten (10) days after the decision of the Commission has become final, and not before, any party aggrieved thereby may secure judicial review thereof by commencing an action in any court of competent jurisdiction in the county of claimant’s residence against the Commission for the review of its decision, in which action any other party to the proceeding before the Commission shall be made a defendant, provided that if a claimant is a non-resident of the State of Texas such action may he filed in a court of competent jurisdiction in Travis County, Texas, or in the county in Texas in which the last employer has ■his principal place of business, or in the county of claimant’s last residence in Texas. * * * ”

The right of an appeal thus created by the'Act is expressly limited, as to residents of Texas, to a court of competent jurisdiction in the county of the claimant’s residence, and as to nonresidents of Texas, to one of the specified counties. These provisions are exclusive and come under the accepted rule that statutory proceedings are strictly governed by the statute of their creation. Those availing themselves of the statutory remedy are not free to select a forum not authorized by the statute creating the remedy. Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084; Alpha Petroleum Co. v. Terrell, 122 Tex. 257, 59 S.W.2d 364; Oilmen’s Reciprocal Ass’n v. Franklin, 116 Tex. 59, 286 S.W. 195; Texas Employment Commission v. Daniel, 241 S.W.2d 969 (Civ.App., no writ hist.). The trial court correctly dismissed the twelve respondents who were residents of counties of Texas other than Smith in which the appeal suit was brought.

We come now to the merits of the case. Respondents were employees of petitioner, General Electric Company, in its plant at Tyler. General Electric and the International Union of Electrical, Radio and Machine Workers, Local Union No. 782, AFD-CIO, representing the employees, entered into a collective bargaining contract for the period 1955 to 1960 containing the following provisions pertinent to the question before us:

“Article IX
“7. Scheduling of Vacations
“(a) At time of annual shutdowns
“Those Works shutting down annually shall consider the vacation season for eligible employees to run concurrently with the shutdown period * *.
* * * * * *
“(c) Postponement or Division of Vacation
“It will not be permissible to postpone vacations from one year to another, or to omit vacations and draw vacation pay allowances in lieu thereof, except with the written approval of the Manager.”
“8. Time of Vacation Payment
“Except as otherwise provided in this Article, vacation allowances shall be paid to an employee on or about the last day worked by him prior to the vacation scheduled for him. An employee who takes his vacation prior to the date upon which he becomes eligible, will receive payment (computed in accordance with Section 6 above) after he becomes eligible. Additional day or days for which an employee may qualify later in the year may be taken at the time of the regular vacation and payment for such time (computed in accordance with Section 6 above) will be made after the employee has qualified.”

The plant commenced preliminary operations about June 1, 1956, and approached normal operations by the following January or February, 1957. On February 20, 1957, General Electric announced that it would shut down the plant beginning August 2, 1957, and until August 19, 1957, and did so. The shutdown was pursuant to paragraph 7(a) of Article IX of the collective bargaining contract, above quoted,, and was not agreed to — in fact, was protested — by the Union.

The respondents received no vacation pay on or before August 2, 1957 for the first week of the shutdown (the last two weeks are not involved in this case) because they had not passed their first anniversary date on August 2, 1957, and under the contract were not eligible for vacation, and for vacation pay, on such date. All of the respondents, however, could have reached their first anniversary date subsequent to August 2, 1957 and during the calendar year of 1957.

Respondents filed their claims for benefits for the week of August 4, 1957, which were denied by the Commission upon the basis of the contractual provisions herein-quoted, the crucial reasoning of the Commission being stated as follows:

“Those employees whose service anniversary date was subsequent to the shutdown period and before the end of the calandar year, took their vacation during the first week of the shutdown and under the contract will receive pay for such vacation after their service anniversary date.”

It was established upon the appeal trial in the district court (over the objection of respondents) that all of the respondents did in fact reach their first anniversary date subsequent to August 2, 1957, and during the year 1957, and were in fact paid vacation pay for the week of August 4, 1957, at the time they became eligible therefor.

Article 5221b-17(l) and (n) define “Total unemployment” and “Wages” as follows: “An individual shall be deemed ‘totally unemployed’ in any benefit period during which he performs no services and with respect to which no wages are payable to him”; “ ‘Wages’ means all remuneration for personal services, including commissions and bonuses * * *."

Respondents contend, first, that evidence of the actual payments to them subsequent to August 2, 1957, is inadmissible since these were “transactions and events which occur after the crucial date that fixes the status of a claimant before an administrative agency,” and which “supply support for the administrative decision which itself shows that the agency did not consider the evidence”; and, second, that if the sums paid to respondents are wages, “they are not payable with respect to the first week of the shutdown.”

The three companion cases of Texas Employment Commission v. Huey, Tex., 342 S.W.2d 544, Texas Employment Commission v. Hansen, Tex., 342 S.W.2d 551, and Texas Employment Commission v. Amlin, Tex., 343 S.W.2d 249, considered questions -of statutory construction in the light of the collective bargaining contracts and facts the?-e involved, and it was held in each case that the employees were entitled to benefits. Recitations in the opinions point out the controlling difference between these cases, and the case at bar:

In Huey: “Others, including Clara Huey et al. who had not worked long enough to he entitled to paid vacations, were laid off during the shutdown. * * * There is no provision for any vacation for those like Clara Huey who had worked less time.” ,[342 S.W.2d 546.]

In Hansen: “The [contract] is not one of voluntary unemployment for those without seniority during a layoff period, but deals with the treatment of employees with seniority during the shutdown.” [342 S.W.2d 554.]

In Amlin: “Those with less than a year of seniority received no pay.” [343 S.W.2d 250.]

In the case now before us the collective bargaining contract specifically provides for a vacation period to run concurrently with a plant shutdown ordered by General Electric; that the employees will take their vacation at such time whether eligible or not; and that both those employees eligible at the time and those becoming eligible later in the calendar year will receive pay for the vacation. Under such contract circumstances we are of the view that the right to benefits, or not, of those employees not eligible at the time of the shutdown-vacation necessarily must be determined by facts subsequent during the remainder of the calendar year.

It is to be emphasized that the contract is one voluntarily entered into by, and in the interest of, the employees through their Union representative; that the contract, among other things, guarantees payment to the employees for a vacation running concurrently with a plant shutdown, with such payment to be either at the time of the vacation or later during the calendar year; and that all employees are treated alike, compensation-wise, in the overall contractual plan.

We are therefore clear in the view that the sums so received by all the employees are wages paid with respect to the vacation-shutdown period; and that proof of the receipt of vacation pay subsequent to the vacation period, in connection with claims for unemployment benefits for the vacation period, is proper and necessary in adjudicating the claims.

It is a concomitant to the above holdings that an employee who does not in fact reach the required anniversary date during the calendar year, and who does not therefore receive pay for the vacation period, would be entitled to establish such facts subsequent, and to be paid benefits, since he has received no wages with respect to the vacation period. In this connection it may be noted that Article 5221b-4(a) provides that “Claims for benefits shall be made in accordance with such regulations as the Commission may prescribe.” Thereunder the Commission may establish an appropriate procedure for the filing of claims by such employees.

Respondents cite Western Union Telegraph Co. v. Texas Employment Commission, Tex.Civ.App., 243 S.W.2d 217 (Dismissed by this Court as without jurisdiction with per curiam opinion, 150 Tex. 526, 243 S.W.2d 154) for what they say is “the controlling principle,” namely, “that vacation pay is allocable to the period in which services are performed. Since no services were performed the first week of the shutdown, the pay is allocable to other periods.”

Apart from the fact that the Western Union case concerned severance pay only, it is readily apparent that if carried to its logical conclusion, the argument of respondents based on Western Union would mean that employees would be entitled to benefits for all vacation periods (during which, of course, no services are actually performed) notwithstanding eligibility for, and payment of, vacation pay at the time of the vacation period. It is noted, for example, that the record in the case at bar reflects the fact that there was a group of employees of General Electric with sufficient seniority to be eligible for, and who received, vacation pay on August 2, 1957, for the week in question. No appeal is here for them on the ground that the services performed to reach seniority were al-locable to the period in which the services were performed, rather than to the vacation period, but under the reasoning advanced by respondents these employees would also be entitled to benefits for the vacation upon the same basis as that claimed by respondents, namely, that under Western Union wages paid for vacation are not “with respect to” the vacation but to the time when services were actually performed, under the statutory definition of “Total unemployment.”

We hold, therefore, under the contract of the parties and the facts we have reviewed, that wages were paid to respondents for the vacation period in question, and that during such time respondents were not totally unemployed under the Act.

The fourth counterpoint of respondents is as follows: “The Court of Civil Appeals correctly held that the Collective Bargaining Agreement between IUE [the Union] and GE [General Electric Company] could not operate to waive claimants’ rights under the Texas Unemployment Compensation Act,” referring to Article 5221b-13(a), which provides that “No agreement by an individual to waive, release, or commute his rights to benefits or any other rights under this Act shall be valid.”

There is nothing in the collective bargaining agreement which constitutes a waiver of rights to benefits, or other rights, of the individual employee. It cannot be said that an agreement for a vacation period coincident with a plant shutdown which may be ordered by management, and for vacation pay therefor upon reaching the requisite seniority, is an agreement waiving benefits or rights within the contemplation and purposes of the above-quoted prohibitions of the Act. To hold that such an agreement is prohibited would mean that an employee (and the Union for him) is restrained by the Act from contracting for vacations with pay. See Jackson v. Minneapolis-Honeywell Regulator Co., 234 Minn. 52, 47 N.W.2d 449; I. M. Dach Underwear Co. v. Michigan Employment Security Commission, 347 Mich. 465, 80 N.W.2d 193.

The judgment of the Court of Civil Appeals awarding recovery to the twelve respondents who are not residents of Smith County is reversed and the judgment of the District Court dismissing them from this suit is affirmed. The judgment of the Court of Civil Appeals awarding recovery to the remaining respondents is reversed and the judgment of the District Court is affirmed.

CULVER, J., not sitting.

      . Acts 1936, 44th Leg., 3rd C.S., p. 1993, codified as Article 5221b-l et seq., Y.A.C.S., and as referred to herein.


author: SMITH, Justice.

text:
    Robert J. COOK et al., Petitioners, v. Ralph NEILL et al., Respondents.
    No. A-8189.
    Supreme Court of Texas.
    Dec. 13, 1961.

      Guilford L. Jones, Big Spring, J. C. Hinsley, Austin, for petitioners.
    Harvey C. Hooser, Jr., Hartman Hooser, Big Spring, Newton J. Steele, Turpin, Kerr, Smith & Dyer, Midland, for respondents.
   SMITH, Justice.

This controversy stems from the action of the County School Trustees of Howard County in passing orders annexing Center Point Common School District No. 7 and Gay Hill Common School District No. 6 to Big Spring Independent School District. The suit was by the trustees of the common school districts against the County School Trustees of Howard County, the County School Superintendent, Walker Bailey, and the Trustees of the Big Spring Independent School District to have declared void the orders of annexation.

For convenience, we shall hereafter refer to the petitioners as Cook, and the respondents, who were plaintiffs in the trial court, as Neill.

Neill alleged in his petition that the enactment of the two annexation orders annexing the Center Point and the Gay Hill Common School Districts to the Big Spring Independent School District were unenforceable and of no legal effect for several reasons:

(A) that the orders violated the Constitutions of the United States and Texas because the orders were made without notifying the plaintiffs and giving them an opportunity to be heard; (B) that the orders were in violation of the statute because not made at a meeting held at a proper place; (C) that the statutes under which the county school trustees purported to act are unconstitutional; (D) that the orders were arbitrary, capricious, and were an abuse of discretion because of the facilities of the common school districts involved ; (E) that a school district would be created containing more than one hundred square miles contrary to law, and (F) that the order so far as the Gay Hill District was concerned was void and unenforceable because the area of the Big Spring District and the Gay Hill District were not contiguous for the reason that, according to plaintiffs’ allegations, the order annexing the Center Point District to the Big Spring District did not become final until sometime after the order annexing Gay Hill to Big Spring was made, there being no contention that the three districts did not constitute as a whole one contiguous area.

Neill further alleged that the orders were invalid because they were in violation of certain promises and representations which had been made by some of the individual members of the Board of County School Trustees of Howard County at some time in the past with respect to the matter of consolidation of the district involved.

Neill also alleged that the statute under which the county school trustees acted in the annexation (Article 2922a, Vernon’s Ann.Tex.Civ.Statutes) was improperly applied here because of the financial condition of Gay Hill Common School District. Neill alleged in his petition that the statute under which the annexation orders were made authorized the creation of rural high school districts and that the Big Spring Independent School District is not a rural high school district nor a rural school district within the meaning of the statute and that for such reason the orders were void.

On May 9, I960, and within five days after the annexation orders were passed, Neill began a series of moves to perfect an appeal. Two suits were filed. The first suit, Cause No. 12,416, was filed at 11:53 a. m. in the District Court of Howard County. This filing was about 40 minutes after a notice of appeal was filed with the Secretary of the County School Trustees and some two hours after a notice of ap-' peal was filed with the State Commissioner of Education. However, this cause is not involved here.

The suit involved here was filed in the same district court at 4:43 o’clock in the afternoon of May 9, 1960, some 5½ hours after the notice of appeal was filed with the Secretary of the County School Trustees of Howard County, and some 6% hours after the filing of the notice of appeal with the State Commissioner of Education.

On May 12, 1960, Neill filed a First Amended Original Petition. Thereafter, on May 13, 1960, Cook filed a plea to the jurisdiction of the court, alleging, in effect,, that the District Court was without jurisdiction for two reasons: (1) that since coordinate jurisdiction over the subject matter of the suit was vested by statute, Article 2686, Vernon’s Annotated Civil Statutes, in two tribunals, the District Court and the administrative authorities— the State Commissioner of Education and the State Board of Education, such administrative authorities having first acquired active jurisdiction, retained that jurisdiction, and the District Court had no power to interfere, although Article 2682, Vernon’s Annotated Civil Statutes, gives the district courts general supervisory control of the actions of the County Board of School Trustees in creating, changing, or modifying school districts; and (2) that Cook, by filing his appeal first with the administrative authorities, elected to appeal to those authorities rather than trying his cause of action in the district court.

The trial court in its judgment determined that Cook’s plea to the jurisdiction and motion for dismissal was “well taken”. The plea to the jurisdiction was sustained and the cause dismissed.

Neill appealed on one ground of error: “The trial court erred in dismissing the action for want of jurisdiction.” The Court of Civil Appeals sustained the point, holding that the district court erred in sustaining the plea to the jurisdiction and dismissing the case, and ordered the judgment reversed and the cause remanded for a trial on the merits. 340 S.W.2d 315, 316.

Cook’s points in his application for writ of error present the contention that the district court was without jurisdiction: (1) Because the legislature, by the adoption of Article 2686, Vernon’s Annotated Civil Statutes, gave to the school authorities coordinate jurisdiction with the district court in all cases challenging the creation, changing, and modification of school districts, thereby giving the school authorities coordinate jurisdiction to review and pass upon the validity of actions of county school trustees in annexing districts to other districts where the attack upon such actions is based upon mixed questions of fact and questions of law, and (2) Because Neill elected his remedy by first appealing to the administrative authorities, the State Commissioner of Education, and the State Board of Education.

Neill contends that the sole question before the Court is whether his attack upon the legality of school annexation orders is to be ruled upon by the courts rather than the State Commissioner of Education. Neill contends that the annexation orders are invalid for several reasons, some of the reasons being (1) because the actions of the County School Trustees in entering the orders were unreasonable, arbitrary, capricious, and constituted an abuse of discretion; (2) because the actions were not taken at a duly constituted meeting; and (3) because no elections were held to create a district containing more than 100 square miles.

The Court of Civil Appeals has held that the courts have jurisdiction of the matters involved to the exclusion of the school authorities. In so holding, the court relied primarily upon the holding in the case of Henderson et al. v. Miller et al., Tex.Civ.App. (1926), 286 S.W. 501, 506, wr. ref., wherein it was held “that neither the board of county school trustees, nor the state superintendent, nor the state board of education, is vested with any jurisdiction to determine the constitutionality of any statute, or the question whether or not any action by any board of school trustees is violative of constitutional rights. Authority to determine such questions is. exclusively the function of the judiciary * * *." The Court cited other cases such as Hale v. McMurrey, Tex.Civ.App. (1929), 22 S.W.2d 499, 501, wr. ref.; Adams v. Miles, Tex.Civ.App. (1927), 300 S.W. 211, reversed on other grounds by The Supreme Court of Texas, Tex.Com.App., 35 S.W.2d 123, 127; Crow v. Burnet Independent School District et al., Tex.Civ.App. (1927), 304 S.W.2d 439, wr. ref. n. r. e., in support of its final conclusion in the present case. The effect of the holding is to say that the rule declared in these and other cases of like holding applies in any case wherein constitutional questions are involved, despite the wording of a specific statute such as Article 2686, supra. With this we do not agree. The district court and the 'administrative authorities have coordinate jurisdiction in a suit involving the annexing of school districts by a county board of trustees. Any statements in former decisions to the effect that the district court has exclusive jurisdiction in such cases are incorrect and should be disregarded.

Where county school trustees take action to annex some school districts to other school districts as authorized under the provisions of Article 2922a, Vernon’s Annotated Civil Statutes, those dissatisfied with such action may elect to appeal directly tG the district court. See Adkins v. Rogers, Tex.Civ.App., 303 S.W.2d 820, wr. ref. n. r. e.; County School Trustees of Callahan County v. District Trustees of District No. 15 (Hart) Common School, District of Callahan County, Tex.Civ.App., 192 S.W.2d 891, wr. ref. n. r. e.; County Board of School Trustees of Limestone County v. Wilson, Tex.Civ.App., 15 S.W.2d 144, wr. dism. On the other hand, they may elect to appeal directly to the State Commissioner of Education (formerly the State Superintendent of Public Instruction). This administrative agency has appellate coordinate jurisdiction with the district court to determine appeals, from orders of county school trustees, creating, changing, and modifying school districts. See Stinson v. Graham, Tex.Civ.App. (1926), 286 S.W. 264, 265; District Trustees of Tennessee Colony Common School Dist. No. 21 v. Central Education Agency, Tex.Civ.App. (1953), 256 S.W.2d 151, wr. ref. n. r. e.; State ex rel. Texas City Independent School Dist. v. La Marque Independent School Dist., Tex.Civ.App. (1953), 258 S.W.2d 384, wr. ref. n. r. e.; and, Erath County School Trustees v. Hico County Line Independent School Dist. Tex.Civ.App. (1952), 247 S.W.2d 564, wr. ref.

In the last case, the Court held that jurisdiction of the County Judge to receive a petition for consolidation of two independent school districts was coordinate with that of the county school trustees to group one of the independent school districts with another school district to form a rural high school district. This case is also authority for the rule, which has been invoked by the Texas courts, that where two tribunals have coordinate jurisdiction over the subject matter the one which first acquires active jurisdiction shall retain its jurisdiction until the matter is disposed of without interference from the other tribunal. The Court cited: Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063; State ex rel. George v. Baker, 120 Tex. 307, 40 S.W.2d 41; Garrett, County Judge, v. Unity Common School Dist., Tex.Civ.App., 211 S.W.2d 238; Wichita Common School Dist. No. 11 v. Dickens Independent School Dist. of Dickens County, Tex.Civ.App., 206 S.W.2d 885; Lynn County School Board v. Garlynn Common County Line School Dist., Tex.Civ.App., 118 S.W.2d 1070; 21 C.J.S. Courts § 492, page 745.

The application of this rule is not limited to situations where original action is taken by .an officer or body having jurisdiction over the subject matter. The rule applies with equal force to the review of the actions of such bodies in the exercise of appellate jurisdiction. See Adkins v. Rogers, supra. That case involved a dispute over jurisdiction of an appeal from orders of the county school trustees annexing two common school districts to an independent school district under provisions of Article 2922a, supra. The precise question presented was whether jurisdiction of the appeal was in the district court or in the State Commissioner of Education. The plaintiffs who were attacking the annexation orders had filed their suit in the District Court of Brazoria County seven days prior to the time they took action to appeal administratively to the State Commissioner of Education. The court held that since the suit was first filed in the District Court of Brazoria County, that court had jurisdiction to determine the validity of the annexation orders to the exclusion of the administrative officers, namely, the State Commissioner of Education and the State Board of Education. No contention was made that appeals involving a determination of the validity of annexation orders under Article 2922a, supra, could not be made first to the State Commissioner of Education had the parties so elected.

The case of State ex rel. Texas City Independent School Dist. v. La Marque Independent School Dist., supra, supports Cook in his contention that the State Commissioner of Education has jurisdiction of appeals in territorial matters to the exclusion of the district court where the appealing parties have chosen to appeal first to the administrative authorities. The Court said:

“ * * * As the trial court properly held the deposition of the State Commissioner of Education was not admissible for the purpose of showing that an appeal to him by the appellant, in seeking the order it coveted in this cause, had been dismissed or abandoned; this, for the reason that appellants having admitted that they did file such appeal, the law hound them to pursue that remedy to its final conclusion, which they did not do before appealing to the courts in this controversy. * * ” [Emphasis added.] [Tex.Civ.App. (1953), 258 S.W.2d 390]

It is argued that Article 2686, supra, has application only in cases where the appeal is to be perfected from a decision of the County Superintendent of Public Instruction to the County Board of School Trustees, etc. We cannot agree with this contention. We have found no case which holds that the Article has reference only to appeals from a decision of the County Superintendent. In the case of Jennings v. Carson, Tex.Civ.App. (1916), 184 S.W. 562, 564, Id., Tex.Com.App.1920, 220 S.W. 1090, holdings approved by the Supreme Court, which originated when the trustees of the school district involved refused a petition to create a new district, the Court of Civil Appeals observed that the duties of the County Superintendent are only ministerial and that “since the county superintendent has no discretionary powers, it is difficult to conceive of any action on his part from which it would ever be necessary for anyone to appeal.” This language in the Jennings case, presumably at least, is the reason why the courts have consistently disregarded the literal language of the statute from the beginning. Although the Court of Civil Appeals opinion was rendered in this case on March 15, 1916, the final judgment of the Supreme Court was not rendered until May 5, 1920. See 220 S.W. 1090, Comm, of App. The Court of Civil Appeals had held that the district court had jurisdiction of the case and affirmed the judgment of the trial court creating the new district and perpetuating the injunction theretofore issued. The Supreme Court, upon the recommendation of the Commission of Appeals, entered its judgment reversing the judgment of the Court of Civil Appeals and remanding the cause to the trial court with instructions to dismiss. The Commission of Appeals was not required to directly pass upon the question of whether or not the appeal provision of what is now Article 2686 applies only to decisions originating with the County Superintendent of Public Instruction. However, it was held that the statute in effect at the time conferred the right of appeal from the decisions of the subordinate school officers in certain matters to the State Superintendent of Public Instruction and thence to the State Board of Education, and that it was necessary to prosecute the appeals in the manner designated before resort could be had to the courts. The Court held that the statute conferred upon the Board of County School Trustees the authority to manage and control the public high schools provided for in the Act of the Thirty-Second Legislature. (General Laws 32d Leg. Ch. 26, p. 34; Vernon’s Sayles’ Ann.Civ.Stat.1914, Arts. 2849a-2849o). Section 10 of the Act, Article 2849j, read as follows:

“All appeals from decisions of the county superintendent of public instruction shall lie to the county school trustees, and from the said county school trustees to the state superintendent of public instruction, and thence to the state board of education.”

The Court after quoting the above section of the statute, said:

“As the foregoing section was originally enacted when the duty to establish school districts devolved upon the Commissioners’ Court, the appeals therein referred to had no relation to such duty. The Act of the Thirty-Fourth Legislature, supra, amending the Act of the Thirty-Second Legislature, so enlarged the scope of the administrative duties of the county trustees as to extend their management and control over all the public free schools of the county. * * * ” [220 S.W. 1091]

The reasoning employed by the Court in reaching its ultimate conclusion in the Jennings case leads us to conclude that the right of appeal from the decisions of the Board of County School Trustees was granted by the provisions of Article 2686, supra.

NTeilfs argument in his original reply to Cook’s application for writ of error was to the effect that the legislature has expressly conferred exclusive jurisdiction upon. the district court in all cases challenging- the creation, changing, and modification of school districts, through the enactment of Article 2682, supra. In a supplemental brief filed on September 18, 1961, he advances the theory that the legislature repealed Article 2686, supra, and portions of Articles 2690 and 2749, Vernon’s Annotated Civil Statutes of Texas, by the adoption in 1949 qf Article 2654 — 7, Vernon’s Annotated Civil -Statutes. In making such contention, he agrees with the position taken by Mr. Ernest A. Knipp, who has filed a “Brief of Amicus Curiae”. However, Neill does not agree with Knipp’s position that Article 2654 — 7, Section l, had the effect of also repealing Article 2682, supra.

We shall consider Neill’s contention in the order of presentation. We do not agree that the legislature has expressly conferred jurisdiction upon the district court to the exclusion of the administrative agencies in cases challenging the creation, changing, and modification of school districts through the enactment of Article 2682, supra. A holding by this Court adopting such view would be wholly inconsistent not only with the views expressed in the above cited cases, but with the cases of Mission Independent School District v. Diserens, 144 Tex. 107, 188 S.W.2d 568, 570, 161 A.L.R. 877 (1945); Palmer Publishing Co. v. Smith, 130 Tex. 346, 109 S.W.2d 158, 159; Warren v. Sanger Independent School District, 116 Tex. 183, 288 S.W. 159, 160, 161; Nance v. Johnson, 84 Tex. 401, 19 S.W. 559; Bishop v. Houston Ind. School Dist., 119 Tex. 403, 407, 29 S.W.2d 312, 314. These cases were recently cited and discussed in the case of McIntyre v. Hoblinski, Tex.Civ.App. (1960), 333 S.W.2d 697, wr. ref

There is language in the cases of Mission Independent School Dist. v. Diserens, 144 Tex. 107, 188 S.W.2d 568, 161 A.L.R. 877, and McIntyre v. Hoblinski, Tex.Civ.App., 333 S.W.2d 697, 698, wr. ref., which would seem to run counter to our present interpretation of the effect of Article 2686. In refusing the application for writ of error in the latter case, this Court adopted the opinion of the Court of Civil Appeals.

The troublesome language is as follows:

“It is a well-established rule that in all matters pertaining to the administration of school laws involving questions of fact as distinguished from pure questions of law resort must first be had to the school authorities and the method of appeal there provided for exhausted before the courts will entertain jurisdiction of a complaint with reference to such matters.”

If taken out of proper context and read literally, this language would compel the result that in all school cases where there is not a pure question of law involved, the school authorities would have jurisdiction of the controversy to the complete exclusion of the courts. This is not the law.

We do" not question the correctness of the language above as it applied in the particular cases where used. In the Hoblinski case the language was taken as a direct, quote from the Diserens case. In turn, the language was used in the Diserens case only to state a general principle and was again taken as a direct quote. The actual origin of this language is the case of State ex rel. Nevills v. Sanderson, Tex.Civ.App. (1935), 88 S.W.2d 1069, no wr. hist. In the Sanderson case, a private citizen sued, through the county attorney, to remove a county trustee on the grounds that he was not qualified for office. The trial court dismissed the suit and was affirmed by the Court of Civil Appeals. That court observed that the county superintendent had not requested the county attorney to bring suit nor had he personally been requested to remove the trustee. Because Art. 2747 expressly charges the superintendent with the duty of removing disqualified trustees, the Court held that the courts were without jurisdiction until the superintendent had acted. The opinion, including the language which we have quoted above did not in any way alter or question the provisions of Article 2686. In fact, the Court in that case quoted Article 2686 and left the clear implication that after the superintendent had acted, the provisions of Article 2686 would apply, including the election provision.

Likewise, the Diserens case, supra, in no way affects our present interpretation of Article 2686. That case involved a dispute between an independent school district and a teacher who had breached her contract with the school district. The language in question was used to state a general principle only and was clearly dicta in the case. No action by a county school superintendent or county board of trustees was involved in any way, and Article 2686 had no application in the case whatever.

The Hoblinski case, supra, involved a suit by individual taxpayers against an Independent School District and others. The complaint alleged breaches of the principle of separation of church and state. Again, a county superintendent or trustees were not involved and Article 2686 could have no application in the case.

In short, it is our position that the language quoted above states an accurate general proposition and was validly applied in the three cases just discussed. However, it is not to be applied broadly in all school cases. We believe that wherever it is applicable, Article 2686 is to be applied as ⅞ has been written and construed by the courts. That is, specifically, whenever the particular dispute involves a decision by a county board of school trustees, either on appeal from the county superintendent or as an original proposition, then the aggrieved party may elect to appeal either to the courts or to the proper administrative authorities. This is true whether the dispute involves only questions of fact, mixed questions of law and fact, or questions of law only.

We turn now to Neill's contentiou tion that Article 2686, supra, was repealed by the legislature by the enactment of Article 2654-7, Sec. 1, supra. He now argues that “Article 2654-7, Sec. 1, however, eliminated any election of procedures, in school cases, by recognizing that both administrative and judicial action may be taken in the same case.” Neill reasons that now “a party may, but shall not be required to, go to school officials for relief, even when the County School Superintendent is the offensive one. If the aggrieved one does invoke the aid of the school authorities, perforce of the last sentence of the 1949 [Article 2654-7] statute, he is not to be denied his day in court because thereof.”' In substance, Neill is saying that the legislature, in enacting Article 2654 — 7, supra, recognized the concurrent existence oí rules, and he reasons that in this case "the higher school authorities should have jurisdiction to determine in their expertise whether, in the interest of good school administration, the Big Spring Independent School District should have Respondents’ moneys and properties, while at the same time the courts have the authority to determine whether the county school trustees, in law, have taken these assets and vested them in another. Thus, one body, the administrative body, may look at whether the county school trustees should have done what they purport to do, while anothea body, the judicial body, determines whether, in law, they did what they purport t© do. This concept is what the legislature had in mind in Article 2654-7 when it said that administrative appeals involving the school laws of Texas shall not deprive a party of his legal remedy.” With this contention we cannot agree. Article 2654-7, Sec. 1, was enacted in 1949 as a part of the so-called Gilmer-Aikin Legislation, Acts 1949, 51st Leg., p. 537, Ch. 299, Art. VII, Senate Bill No. 115. There was no express repeal of Article 2686, supra, in this statute. In fact, there appears nothing to indicate that Article 2656, Vernon’s Annotated Civil Statutes, was repealed by. Article 2654 — 7, supra. This latter Article provides, in substance, that the State Superintendent [now the State Commissioner of Education] of Public Instruction is charged with the administration of the school. Ians, and- that he shall hear and determine all appeals from the rulings and decisions of subordinate school officers, and that appeals would lie from his rulings to the State Board of Education. Aside from that, there is no conflict between Article 2686 and Article 2654-7, Sec. 1, as applied to this case.' Under the former, the parties are given the right to elect whether to appeal to the State Commissioner of Education or to the appropriate court. Article 2654-7 states that they may appeal to the State Commissioner of Education, but that this Article shall not deprive them of any legal remedy. This simply means that if the parties appeal to the court, Article 2654 — 7 does not deprive them of that right, inasmuch as Article 2654 — 7 makes no provision with regard to an election as does Article 2686. There cannot be a conflict as to that on which Article 2654-7 is silent.

It clearly appears from the statutes, including Articles 2656, 2686, and 2654-7, supra, that some matters involved in the operation of the Texas public school system are appealable to the State Commissioner of''Education. The matters involved here present an action which may be appealed to such agency. Article 2656, supra, provides in part that the State Commissioner of Education shall hear and determine all appeals, etc. Article 2654-7, in Section 1, provides for appeal of “any matter of dispute among them arising under provisions of the school laws of Texas”, to the State Commissioner of Education, and for appeals from “the actions or decisions of any Board of Trustees or Board of Education, and Article 2686 with respect to the subject matter involved speaks of “all appeals”. These Articles do not in any manner limit the subject matter of decisions that may be appealed to the State Commissioner of Education.

In this case, we hold that the appeal provisions of Article 2686, which provide for an election to appeal either to the State Commissioner of Education or the appropriate district court, have not in any manner been repealed, and that such provisions apply in this case.

We must now determina whether Neill made a binding election to pursue the administrative route so as to preclude his subsequent appeal to the district court. We hold that he' did not. Under the provisions of Article 2686, election of the desired course of appeal must be made within five days. Here, Neill gave notice of appeal to the administrative authorities and also filed suit in the district court within the five-day period. Indeed, as stated above, these acts were performed on the same day, only some hours apart. We hold that the mere giving of notice of appeal to the administrative authorities was not a binding election. By later filing suit in the district court, Neill in effect withdrew his appeal to the administrative authorities and indicated a new and different course of appeal. This he had the right to do, so long as it was within the five-day statutory period. In other words, there is no binding election until the five-day period has expired. Thus, Neill’s ultimate election was to the district court in this case, and that court improperly dismissed the suit.

It is well settled that once a matter in controversy is submitted to the school authorities for decision on appeal, that course of appeal must be exhausted and completed before resort can be had to the courts for relief. See Plains Common Consolidated School District No. 1 of Yoakum County v. Hayhurst, Tex.Civ.App., 122 S.W.2d 322, no wr. hist.; State ex rel. Texas City Independent School District v. La Marque Independent School District, supra. We do not disturb that principle here, and it would have applied in the present case had there been a final, binding election to appeal to the school authorities. As stated above, there was not such a final election here.

For the reasons stated, the judgment of the Court of Civil Appeals is affirmed.

      . “Art. 2686. Appeals
      “All appeals from the decision of the County Superintendent of Public Instruction shall lie to the County Board of School Trustees, and should either party decide to further appeal such matters, they are here given the right to elect to appeal to any court having proper jurisdiction of the subject matter; or to the State Superintendent of Public Instruction as now provided by law, provided the election of which course of appeal the party or parties desire to pursue, shall be given within five days from the final decision of said County Board of School Trustees, provided this act shall not apply to any controversy now pending or to any orders of school authorities made more than five days before this act becomes effective. Acts. 1915, p. 71; Acts 1927, 40th Leg., p. 128, eh. 83, § 1.”

      . “Art. 2682. Supervisory powers of district court
      “The district court shall have general supervisory control of the actions of the county board of school trustees in creating, changing and modifying school districts. Id.”

      . "Parties having any matter of dispute among them arising under provisions of the School Laws of Texas, or any person or parties aggrieved by the actions or decisions of any Board of Trustees or Board of Education, may appeal in writing to the Commissioner of Education who, after due notice to the parties interested, shall examine in a hearing and render a judgment without cost to the parties involved. However, nothing contained in this section shall deprive any party of a legal remedy.”