author: HALL, J.

text:
    PANHANDLE & S. F. RY. CO. v. TISDALE et al.
    (No. 1234.)

    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 7, 1917.
    On Motion for Rehearing, Dec. 12, 1917.)
    1. Railroads <S&wkey;344(l) — Operation—Crossing FLAGMAN.
    Where petition alleged that view of travelers approaching crossing in village was obstructed by cars and temporary depot, it was not error to overrule special exception to the petition charging negligence in failing to have a flagman or watchman at the crossing.
    2. Appeal and Error <&wkey;742(3) — Scope — Preservations oe Exceptions.
    Assignment of error to overruling a special exception found in the special answer referred to and made a part of the assignment, but not followed by proposition or statement, the court being asked to adopt the proposition and statement under the previous assignment, neither the exception nor the paragraph appearing in the brief, which made no reference to the transcript or statement of facts where the necessary facts might be found, could not be’ considered.
    3. Evidence <&wkey;244(10) — Declaration—Authority of Corporate Officer.
    In an action for death” of wagon driver when struck by a train at crossing in village, under allegation of negligence in failing to have crossing flagman, conversation of division superintendent and trainmaster discussing advisability of putting in warning bell at such crossing was admissible, though it occurred prior to destruction of permanent depot and erection of temporary one, which was in existence when the accident occurred.
    4. Appeal and Error <&wkey; 1052(5) — Harmless Error — Evidence—Admissibility.
    In action for death of 60 year old man earning $3,000 a year, error, if any, in permitting his son to testify that he was of a long-lived stock of people was not prejudicial, where the verdict was for only $6,500.
    5. Railroads <&wkey;350(13) — Injuries to Persons — Crossing Accidents — Contributory Negli’gence — Questions for Jury.
    Evidence held to present a question for the jury as to contributory negligence of one killed at a railroad crossing.
    6. Railroads <&wkey;350(5) — Crossing Flagman —Question for Jury.
    In action for death of wagon driver on crossing in village, under allegations that a temporary depot and a crossing track not ordinarily occupied by cars obstructed the view, it was error to submit the issue of negligence in failing to have a crossing flagman; there being; no statute or ordinance requiring the employment of a flagman.
    7. Trial &wkey;330(5) — Yerdict — Several Counts.
    Rule that, if proof is sufficient to show negligence of defendant in any one of three acts charged, judgment for plaintiff should be sustained, does not apply where the case was submitted upon a general charge, the verdict was general, and there was nothing to show upon which charge of negligence the verdict was returned.
    8. Railroads &wkey;350(8) — Injuries to Persons — Questions for Jury — Warning.
    In action for death of wagon driver when struck by train at crossing in village, it was for the jury whether the railroad was negligent in having no lookout on the rear car of the train which backed into and upon deceased, and, in view of conflicting evidence, whether the bell of the train was rung.
    9. Death &wkey;18(3) — Right to Damages — Dependency.
    The mere fact that a daughter of deceased was a school-teacher and capable of supporting herself does not bar her right to recover for her father’s death if she suffered pecuniary loss by reason thereof.
    Appeal from District Court, Gray County; W. R. Ewing, Judge.
    Action by Martha A. Tisdale and others against the Panhandle & Santa Fé Railway Company. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    Terry, Gavin & Mills, of Galveston, and H. E. Hoover and Hoover & Dial, all of Canadian, for appellant. Kimbrough, Hnderwood & Jackson, of Amarillo, and Chas. C. Cook, of Pampa, for appellees.

      Second petition for rehearing denied January 9,1918.

   HALL, J.

Appellees Martha A. Tisdale and May Belle Tisdale, for themselves and for C. B. Tisdale,'Ira Tisdale, Will C. Tis-dale, Hal Tisdale, and Edward H. Tisdale, instituted this suit against appellant to -recover damages alleged to have been sustained by appellees on account of the death of C. R. Tisdale, the husband of Martha A. Tisdale and the father of the other plaintiffs. Plaintiffs alleged, in substance, that the defendant’s line of railway at Pampa, Tex., crossed the main street of that town, and that on the 15th day of June, 1915, O. R. Tisdale was lawfully traveling along said street in a buggy, and at a public crossing in the town of Pam-pa, and while crossing the track', one of defendant’s trains struck the vehicle in which he was riding, causing his immediate death; that the street along which O. R. Tisdale was traveling crossed the railroad tracks, and was used by the public for traveling and in passing over the defendant’s line of road; that said crossing was upon one of the principal streets of the town, upon which many persons were traveling and passing at all times, and especially about the time of the accident; that Pampa was one of the largest towns in Gray county, containing about 1,-500 inhabitants, and having at that time within its limits a large number of working meñ, in addition to its ordinary population, engaged in working upon improvements under construction in the town and working in the nearby harvest fields. The acts of negligence upon which plaintiffs based their right to recover are in substance as follows: (1) That it was the dijty of the defendant company to maintain a flagman or watchman at the crossing where the accident occurred to warn the public of the approach of trains and to warn its employes in charge of the train of the presence of persons attempting to use the crossing, especially inasmuch as defendant was moving a great many trains at different times across said crossing at said time; (2) and that at said crossing where the accident occurred the defendant kept, maintained, and operated as a part of its line of road, a certain side track or spur running parallel with the other tracks and about 30 feet north of the same, which extended to the west line of the street, but did not cross the street, that on the day of the accident defendant had a number of cars standing on said side track, which obstructed the view of travelers so that a person traveling along the public road and street and approaching the public crossing from the north, or from Pampa, could not see down the track westward, or discover the approach of its engine and cars from the West, that the defendant’s temporary depot was so situated that cars on said side track in connection with said temporary depot likewise obstructed the view of passengers or persons crossing the said public crossing, and that it was negligence which proximately caused the injury and death of O. R. Tisdale; (3) that when the said G. R. Tisdale drove upon said public crossing the defendant, without any warning or notice whatever, by ringing the bell and blowing the whistle, or otherwise, did, by means of an engine attached thereto, move and push a number of cars along its track with great speed upon the public crossing, without having any one standing at said crossing and without having any person on the last car from the engine give any warning or notice to persons who might be lawfully about to cross the track. It is further alleged that at the time of his death O. R. Tis-dale was 68 years old; that he was earning about $3,000 a year, which earnings were devoted entirely to the plaintiffs.

Appellant railway company answered by general and five special exceptions, general denial, pleas of contributory negligence and assumed risk, and further that at the time its train struck and killed O. R. Tisdale it was operated by a crew of skilled employés in a careful and prudent manner, and in plain view; that prior to the accident the train had entered the yards at Pampa, which was a small town; that the railroad tracks were in open view; that the day was clear; that the train had been switching in the yards for some time prior to the accident with bell ringing and all noise incident to the movement of such a train ; that its depot at that time consisted of a box car, lifted off the wheels and set on the ground; that there were no cars near the street where the accident occurred except a few which were over 100 feet north of the accident, and were necessarily there for the conduct of defendant’s business; that just prior to the accident it was necessary for this train to take the siding; that it was a work train, and consisted of about eight ears coupled on in front of its engine; that the train pulled up to the switch, a point within 80 feet from the west line of the street, where the accident occurred, where it stopped; that the switch was thrown by the conductor, and the train then started on up to the crossing, which passed over the particular street crossing where the accident occurred; that when it pulled up and started from the switch the bell was ringing; when the caboose which was in front of the train of cars passed over the switch the conductor mounted it on the south side; that all of appellant’s employes were at their proper places of duty and on the lookout; that the deceased, Tisdale, had resided for many years around Pampa, and had often crossed the track at this point; that he was familiar with the crossing, and knew that the defendant’s tracks passed over the same; that its trains were liable to be operated thereon at any time; that the train was operated in a careful and prudent manner, and that the deceased came to his death by his own negligence in failing to look for the train when he knew or should have known that the train was there and was being operated on or near said street crossing; that the said Tisdale had started at a point north and near the crossing, and at the time he started the train wa's then switching in the yards with all the noise usually incident to the movement of such trains and in $lain view of the deceased; that the deceased knew that he was about to cross the track where trains were hable to pass at any time; that after hie passed the house track on the north he was at all times in plain view of the defendant’s trains then in the yard and about to take the side track; that the deceased carelessly and negligently drove into the defendant’s moving train, and was injured under circumstances which the operators of the train could not prevent; that he was well aware or should have been of the danger of driving carelessly across its tracks at this place where its engines and cars were actually moving and' where at all times they were liable to be moving; that he carelessly drove towards the train as aforesaid, talking to a party who was riding with him, and drove upon a track or right of way without stopping, looking, or listening, which he should have done; that if he had used any sort of diligence and paid any attention whatever to his surroundings, he could have both seen and heard the train then coming upon said side track, and should have prudently refrained from driving in front of it; that if he had in any wise used either his sense of seeing or hearing he could, and necessarily would, have observed the movement of the train and prudently refrained from driving upon its track; that without any sort of diligence on the part of said deceased for his own safety he negligently and carelessly, in plain view of defendant’s moving train, drove in front of it, and was thereby necessarily injured. . By first supplemental petition plaintiffs alleged that it was not true that the deceased, O. R. Tisdale, drove upon the crossing in front of defendant’s moving train without looking or listening for the approach of trains, but as a matter of fact, owing to the cars that were standing on the storage or house track and the location of the cars with reference to the temporary depot, and with reference to the main tracks and sidings, it was impossible for the deceased as he approached said crossing from the north to see defendant’s moving train until after he had passed the house track and had reached defendant’s main track, by which time his horse and buggy and himself were so nearly upon the track upon which he was struck that he was in imminent peril, and, owing to the great and negligent speed of the train, was in such a position that he could not check his horse and stop his buggy before getting upon the track. A trial resulted in a verdict and judgmfent in the sum of §6,500.

The first assignment of error is based upon the action of the court in overruling the appellant’s special exception to that part of the petition charging that appellant’s negligence consisted in failing to have a flagman or watchman at the crossing.

“The rule is recognized in this state in cases of unusually dangerous crossings and intersections of wagon roads or streets with railroad tracks at grade, arising from the large travel or operation of cars or the existence of obstructions or conflicting noises calculated to mislead or confuse those passing- over such crossings, that it is proper 'to submit the failure of the railroad company to maintain a flagman at such point as actionable negligence predicated on the hypothesis that a person of ordinary prudence, operating trains under such circumstances, would have done so.” So. Pac. Oo. et al. v. Walker, 171 S. W. 265 (3).

It having been alleged in the petition that the view of travelers approaching said crossing friom the direction in which the deceased was coming was obstructed by cars standing on the 'house track and by the temporary depot of defendant, under the rule above quoted the court did not err in overruling the exception.

The second assignment of error is:

“The court erred in overruling and in not sustaining defendant’s fifth special exception found in the fifth paragraph of defendant’s special answer to plaintiff’s petition, for the reasons stated, which are here referred to and made a part hereof.”

Following this assignment there is no proposition or statement, but we are asked to adopt the proposition and statement un&er the first assignment. Neither the exception nor the paragraph, nor the substance of either, appear in the brief. Reference to the pleading shows that the fifth paragraph charges appellant with being negligent in failing to have some ,of the train crew on the back end of the car. The brief makes no reference to either the transcript, or statement of facts where either the pleading excepted to, the exception urged, or the order of the court, may be found. This is such a flagrant violation of the rules that the assignment cannot be considered.

The third assignment insists that the court erred in permitting the witness Mathews to testify that he heard the division superintendent and the trainmaster of appellant company discussing the advisability of putting in a bell at this crossing; that they said the people coming from town could not hear well enough up the west end of the track, and it was advisable to put in a bell or provide some means of warning the public. The court qualified the bill by the statement that when this testimony was offered and objected to plaintiff’s counsel stated that they only offered the testimony on the question of notice to the defendant company of the condition at the crossing in question prior to the time of the accident. Mathews testified that the division superintendent . had general authority and control over the whole division, and while he did not have authority to make changes in the improvements on his division, it was his duty to recommend to those whose duty it was to make such changes. The evidence having been properly limited, and it appearing that the division superintendent had authority to recommend the very change suggested, we think the evidence was admissible. It is contended that, because this conversation occurred prior to the destruction of the depot by fire, the evidence should not have been admitted. This fact affects the weight of the testimony only,-, and not its admissibility. .What is here said disposes of the fourth assignment.

The court permitted the son of the deceased, on direct examination, to testify, over appellant’s objections, that deceased was of a long-lived stock of people. The objection was that there was no such charge in the petition, and that the proper proof of the life expectancy of deceased was by the introduction of mortality tables which the court had admitted. The decisions upon this question do not uniformly sustain the court’s ruling, but the weight of authority seems to be in favor of the admission of the evidence. Chattanooga, etc., Railway Co. v. Clowdis, 90 6a. 258, 17 S. E. 88; Love v. Detroit Railway Co., 170 Mich. 1, 135 N. W. 963; Sterling v. Union Carbide Co., 142 Mich. 284, 205 N. W. 755. The amount of the verdict does not indicate that the admission of this evidence was prejudicial.

By the sixth assignment of error appellant contends that the court erred in permitting the jury to pass upon the issue of contributory negligence because it is asserted there is not sufficient testimony to warrant the court in presenting that issue. We do not assent to the proposition urged here. It appears that prior to the accident Tisdale, accompanied by R. P. Porter, in the former’s buggy, was driving south on a main street of the town of Pampa, with the intention of crossing appellant’s line of railway. It appears that there was north of the main line what is known as the house track, which left the main line several hundred feet west of the place of the accident, and ended at the west line of the street along which Tis-dale and Porter were traveling; that there was one car loaded with ice, and possibly others, standing on the house track. This track was about 30 feet north of the main track. It is clear that after passing south beyond the car standing on the end of the house track the view of the main track toward the west was further obstructed by a temporary depot, situated on the north side of the main track. This depot was a box car, without the wheels, resting upon supports near the main track. Besides the house track, northwest of the temporary passenger depot, at a distance not shown by the testimony, was another old box car, which was used as a freight depot. If the map attached to the statement of facts correctly shows the location of the ice car and the two old box cars used for passenger and freight depots respectively, appellant’s insistence that deceased was guilty of contributory negligence as a matter of law cannot be sustained. It appears from the evidence that the train which caused the death of Tisdale was a work train; that it came into Pampa from some point west of the town, and had pulled in on what is known as the passing track, some six feet south of the main line, in order that a through freight train' which had already whistled for the station might have the right of way oyer the main track. There is no positive testimony that the deceased failed to look and listen. The witness Porter, who, as stated, was in the buggy with Tisdale, testified as follows:

“On approaching the railroad we did not stop, and I did not look and listen, and I do not know whether or not Mr. Tisdale lopked or listened, as we were busy talking.”

One witness testified that the train which caused the death of Tisdale was backing in on the siding at the rate of about 18 or 20 miles an hour; that the car which struck him went about three car lengths beyond the place of the accident before it stopped. The engineer testified that he threw on the brakes as soon as the accident occurred, and there is evidence that the car itself was derailed. The fact that a derailed car would travel between-75 and 100 feet after being derailed and after the brakes had been thrown on tends to sustain the witness’ statement that it was traveling 18 or 20 miles an hour, although it appears from other testimony that it had stopped and started again between 60 and 100 feet west of the place of the accident. The facts of this case are similar to the facts in the case of Hovey v. Sanders, 174 S. W. 1025, decided by this court. As stated in that .case, the presumption is that the deceased did look and listen, and, there being no testimony to the contrary, the court could not hold as a matter of law that Tisdale was guilty of contributory negligence. We have not set out all the testimony bearing upon the issue, nor is it necessary to discuss the multitude of authorities cited in the briefs.

The court, in a general charge, submitted to the jury the issue as to whether or not the appellant was negligent in failing to keep a watchman at the crossing where the accident occurred. The evidence upon this issue was uncontroverted to the effect that no watchman or flagman was kept there. Several witnesses testified to facts bearing upon this issue, showing that Pampa was a town of from 500 to 1,500 people, that the crossing was frequently used by the public, and that there was considerable traffic over it during the season of the year in which the accident occurred. It was shown that there were no factories or anything else that would make an unusual noise in the neighborhood of the crossing, and nothing that would keep a person from hearing the movement of freight trains. One witness testified that he had lived at Pampa a great many years, and that the principal noise to be heard in the town was the movement of trains. The rule laid down by 33 Oye. p. 943, with reference to keeping flagmen at crossings is as follows:

“Unless required by statute, a railway company is ordinarily under no duty to maintain a flagman, lights, or gates at a crossing, and negligence cannot be predicated upon a mere failure to do so, particularly as to one who is familiar with the crossing, although such failure may, together with other circumstances, be considered as evidence of negligence in operating the road. That such failure may constitute negligence where the conditions of the crossing are such that ordinary care or reasonable prudence would so require, the duty may exist independent of statute, but before the jury will be warranted in saying in the absence of statute that the company was negligent, it must be shown that such crossing is more than ordinarily hazardous; as, for instance, that it is in a thickly populated town or city, that the view of the track is obstructed, and that the crossing is much traveled and the noise of approaching trains is. rendered indistinct and the ordinary signals difficult to be heard by reason thereof.”

It is admitted that there was no statute or city ordinance requiring a flagman at this crossing. The rule announced in Oye. is a fair statement of the rule adopted in this state. So. Pac. Co. et al. v. Walker, 171 S. W. 265. While the obstructions to the view mentioned above 'existed at the time of the accident, it is not shown that the house track was full of cars ordinarily, and under the facts the court was not warranted in submitting this issue to the jury, and the appellant’s objections to that portion of the charge should have been sustained.

Appellees suggest that we should sustain the judgment if the proof is sufficient to show negligence on the part of appellant in any one of the three acts of negligence charged, and cites T. & E. S. Railway Go. v. Rea, 180 S. W. 945. The rule announced in the Rea Case is not applicable here. As stated, this case was submitted upon a general charge, and not upon special issues, and the verdict returned is a general one, and we are not able to determine on which particular act of negligence the jury based the verdict. There is nothing in the record which would tend to show that the finding was upon either of the other two issues submitted, and the rule announced by this court in Wichita Valley Railway Go. v. Som-erville, 179 S. W. 671, that it must appear that an erroneous charge, calculated to mislead the jury, did not have that effect or the judgment will be reversed, is decisive of this question. Houston, etc., Ry. Co. v. Greer, 22 Tex. Civ. App. 5, 53 S. W. 58; St. Louis Southwestern Ry. Co. v. Anderson, 61 Tex. Civ. App. 374, 124 S. W. 1002; Williams Land Co. v. Crull, 59 Tex. Civ. App. 345, 125 S. W. 339; Davis et al. v. Cox, 176 S. W. 931; Et. Worth Belt Ry. Co. v. McKinney, 145 S. W. 666; Sadrock v. Galveston, etc., Ry. Co., 141 S. W. 163, and the authorities there cited. This .assignment and the ninth, which presents the same question, are sustained.

The fact that no lookout was kept on the rear car of the train which backed into the siding and caused the death of Tisdale is uncontroverted, and the issue of negligence should have been submitted to the jury. While the evidence was conflicting with reference to the ringing of the bell, and a majority of witnesses testified in favor of appellant, still it was proper for the court, in view of the conflict, to submit this issue also.

It was shown that at the time of the death of her father Miss May Belle Tisdale was living with her parents and was dependent upon her father for support. It is not shown that she had any source of revenue, though it does appear that she taught school the year before her father’s death. The fact that she was a school-teacher and might have earned, by teaching, enough to support herself, does not bar her right to recover if she suffered pecuniary loss by reason of his death.

There are a number of assignments which we shall not discuss in detail, as many of them present questions already disposed of in what has heretofore been said. Such of the remaining assignments as have been properly briefed are all overruled.

Eor the reasons stated, the judgment is reversed, and the cause remanded.

On Motion for Rehearing.

Complying with the request of appellee, we find the following facts in addition to those already set out in the original opinion: We find that the street upon which the accident occurred was the main crossing oil the railroad in the town of Pampa; that it was the main business street; that as shown by the map in evidence the accident occurred 210 feet east of Hobart’s office on the main street; that after leaving- Hobart’s office, going toward the main track, there was no obstruction until Tisdale reached the point in ‘the street where the house track ended; that there were several cars on the house track, extending from the line of the street west; that, as shown by the map, it was 50 feet from the house track to the main line where the accident occurred. Between the house track and the main line there was located a box car, about 60 feet west of the street; this box car was on the ground by the side of the main track, and was used as a temporary depot; further-west, 50 feet, and near the house track, was another old box car used for a freight depot; 600 feet west of the street, and located between the house track and the main track, was a wellhouse and pumphouse; that the crossing was used by the town people and by the rural population living 15 or 20 miles southward and eastward from the crossing; that such farming population averaged about one family to each section of land; that at the time of the accident the wheat harvest was on, when travel was most active over the crossing; that there was a considerable transient population in the town at that time; that several buildings were in progress in the town, amongst them a new depot for the appellant; that at the time of the accident work on the depot had-been stopped. Appellant’s employés operating the train knew that the crossing- was an important one, and that at times there was heavy traffic over it.

The motion for rehearing is overruled.
      «&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numberea Digests and Indexes


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    EAGLE LAKE INDEPENDENT SCHOOL DIST. v. HOYO.
    (No. 7447.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 14, 1917.
    Rehearing Denied Dec. 13, 1917.)
    1. Statutes <&wkey;S1/(!(l) — Special Acts — Public Schools — Notice.
    Under Const, art. 7, § 3, declaring that the Legislature may provide for the formation of school districts by general or special law, without the local notice required in other cases, of special legislation, and all such school districts whether created by general or by special law may embrace parts of two or more counties, and the Legislature shall be authorized to pass laws for the assessment and collection of taxes in all said districts, Sp. Act April 1, 1913 (Loe. & Sp. Acts 33d Leg. c. 138), creating a special school district and providing for assessments for school purposes, etc., though enacted without the notice required by Oonst. art. 3, §§ 56 and 57, is valid, the authority to provide for the formation of school districts including the power to make effective the creation and formation of such districts.
    2. Schools and School Districts <&wkey;106— Public Schools — Assessments—Defenses.
    Though the maintenance tax levied for the newly created district was in part applied to the ■debts of the old district included in the new district, such fact does not warrant taxpayers in refusing to pay the assessment, but at most gives an action for unlawful diversion of the school fund.
    3. Constitutional Law <&wkey;42 — Public Schools — Assessments—Defenses—Constitutionality of Statute.
    In an action on an assessment levied by special school district created by special act, a taxpayer may plead the unconstitutionality of the act.
    4. Statutes <&wkey;76(2) — Special Districts — Yalidity.
    Sp. Act April 1, 1913 (Sp. & Loc. Acts 33d Leg. c. 138), creating a special school district, and including therein a district already indebted which provided for the repeal of all laws and parts of laws in conflict therewith in so far as they may relate to it, cannot be held invalid as conflicting with a pre-existing general statute (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2856b) declaring that no school district shall be diminished, changed, or abolished while having outstanding against it an authorized debt.
    Appeal from District Court, Colorado County ; M. Kinnon, Judge.
    Action by the Eagle Lake Independent School District against C. P. Hoyo. From a judgment for defendant, plaintiff appeals.
    Reversed and rendered.
    A. A. Gregory, of Columbus, and J. M. Woods and A. J. Wirtz, both of Seguin, for appellant. W. L. Adkins, of Columbus, for appellee.
   GRAVES, J.

This case involves alone the constitutionality of the special act of the 33d Legislature approved April 1, 1913, creating the Eagle Lake independent school district.

See chapter 138, Local and Special Laws 33d Legislature. The sole objection leveled against) its constitutionality is that it was passed without the local notice required before the passage of special laws by sections 56 and 57 of article 3 of the Constitution of Texas. The trial court sustained this objection, and upon that ground only declared the act unconstitutional and void.

The case originated in the trial court through suit filed by appellant district against appellee to enforce collection of an ad valorum tax of 50 cents upon the $100 valuation of taxable property of the district, which its trustees had assessed and levied against his lands — lying within its bounds— for the support and maintenance of the public free schools therein for the year 1914, and to establish and foreclose a lien for that purpose ; appellee resisted upon the ground that the district was without authority to thus levy tribute upon him and his lands, and had in fact no legal existence, in that the special law creating it was wholly void for the reason already stated; the court having upheld this view so declared, and entered its general judgment in favor of appellee and against appellant, from which the latter has appealed.

The facts, for all needful purposes in passing upon the validity of the act, are practically undisputed. No local notice was given as prescribed in the sections of the Constitution above referred to; the trial court found as a fact, however, that all other provisions and requirements of the Constitution as well as statutes had been fully met, both in the creation of appellant district as such, and in the subsequent organization and procedure thereunder in seeking to require of appellee payment of the specified tax, and then concluded, as a matter of law, that it would be entitled to the judgment.sought but for the court’s holding that the act creating it was invalid, because passed without the requisite antecedent local notice; nor do either of the litigants question this fact finding, but part company solely upon the legal conclusion stated. After a careful consideration of the question, we conclude that the trial court erred in so striking down the act, and that it is not obnoxious to the objection urged against it.

We think that under, the amendment of 1909 to oiir Constitution, appearing therein as section 3, art. 7, the local notice required by sections 56 and 57 of article 3 was not necessary for the creation of an independent school district and the investment of it with such powers as appellant here sought to exercise ; the relevant part of that amendment is as follows:

“ * ⅞ And Legislature may also provide for the formation of school districts by general or special law, without the local notice required in other cases of special legislation; and all such school districts, whether created by general or special law, may embrace parts of two or more counties.' And the Legislature shall be authorized to pass laws for the assessment and collection of taxes in all said districts, and for the management • and control of the public school or schools of such districts, whether such districts are composed of territory wholly within a county or in parts of two or more counties. * * * ”

We have italicized the words “formation” and “created” in order to emphasize the two different constructions pub by the litigants here upon the provisions quoted. The appellant contends that the power thus given to create -such a school district by a special law, without the local notice formerly required, included, and perforce carried with it, the necessary authority to make the districts effective for the purposes contemplated in' their establishment and to equip them with the machinery for accomplishing those purposes, while, upon the other hand, the appellee very ably insists that the amendment by its terms plainly limited the Legislature’s right to so act by special law to the formation alone of the school districts, and that it could go no further.

As directly applied to the situation here, the appellee’s argument is that, since the special act creating' appellant district went beyond its mere formation, and not only abolished the pre-existing district known as the independent school district of the city of Eagles Lake, but enlarged, the bounds of that district so as to embrace appellee’s lands, and then allowed the old district’s assets taken over and its 20-year $15,000 bonded debt to be assumed by the new district, it exceeded the limits prescribed for such legislation, and was null and' void. The act carried the provisions just recited, but they had all been submitted to a vote of the people of the new district and indorsed by an overwhelming majority before being put into effect. In substantiation of this construction put by him upon the provisions of the Constitution, appellee cites the following cases: Cummins v. Gaston, 109 S. W. 476; Parks v. West, 102 Tex. 11, 111 S. W. 726; Dallas County v. Plowman, 99 Tex. 509, 91 S. W. 221; Crabb v. Celeste Dist., 105 Tex. 194, 146 S. W. 528, 39 L. R. A. (N. S.) 601; Snyder v. Baird Dist., 102 Tex. 10, 111 S. W. 723, 113 S. W. 521; State v. Wofford, 90 Tex. 514, 39 S. W. 921.

But we do not think they furnish authority for his position. The leading case relied upon (Parks v. West) was decided in June, 1908, before the adoption of the amendment to the Constitution now under consideration; indeed, it is apparent that this amendment was adopted in response to that very opinion of our Supreme Court, along with others of similar import, in which it was held that, under the wording of the Constitution as it then stood, an independent school district could not include portions of two different counties, but must lie wholly within the same county; that was the only question involved in that case, and therefore the only one decided; but since that decision, and evidently to remedy the situation thereby brought about, as before stated, the present article 7, § 3, was added, liberalizing and enlarging the authority theretofore existing for the passage of such laws without prior local notice, and expressly permitting school districts created under them to include parts of two or more counties. Wherefore, it seems to us, that opinion cannot be considered authority for giving to the amendment thereby occasioned the very narrow and restricted effect it was intended to remedy and to broaden; especially does this appear so to us, and as indicating a proper construction of the present article 7, § 3, when the following expression from that opinion is considered:

“We do not mean to say that if there were authority for the cr'eation of school districts embracing parts of several counties, these provisions concerning elections and the payment of taxes would necessarily apply to such districts ; for it is probably true, as held by the Court of Civil Appeals, that the power to create them and to have elections and taxation in them would carry with it power to provide the necessary machinery.”

Neither do we think the other cited cases furnish encouragement for a construction so strict and technical. If the contention of ap-pellee, that the only local or special legislation) authorized by article 7, § 3, was the mere formation of school districts without the local notice otherwise required, be sound, then the Legislature could do no morq by general law, because that part of the provision is:

“And the Legislature may also provide for the formation of school districts by general or special law, without the local notice required in other cases of special legislation.”

It seems to us clear that the Constitution, by this very simple and plain language, confers on the Legislature the power to make any provisions for such school districts by special law, without the local notice, that it might make with it, or by general law.

In the Cummins v. Gaston Case the Legislature had established a school district by special act, and had conferred on it the power to tax at the rate of 75 cents on the $100 valuation, which was in excess of the rate of taxation then permitted by the Constitution. In a suit brought to enforce the collection of the tax, the court held that the collection of an unconstitutional tax could not be enforced. The substance of the holding is as follows:

“We therefore conclude that, were the act in question constitutional and valid in other respects hereinbefore considered, the board of trustees acting thereunder could not legally levy a tax for the maintenance of the public schools and the erection" of improvements in said * * ⅜ district in excess of 20 cents on the $100.00 valuation.”

It is true the court further held that the indebtedness of the old district could not be transferred to the new, but the point does not seem to have been necessary to the decision. To like effect is the holding of the Supreme Court in the case of Snyder v. Baird Ind. School District, wherein the court disposes of a certified question as follows:

“We answer that so far as it attempts to empower the school district to levy a tax exceeding 20 cents on the $100.00 valuation of property situated therein ‘for the maintenance of public free schools and the erection of school buildings,’ the act * * ⅜ is in violation of section 3, art. 7, of the Constitution of this state.”

Both these latter cases also were decided in 1908, before section 3, art. 7, was so amended, and when the taxation rate was limited to 20 cents upon the $100 instead of 50 cents as at present, and no doubt both contributed, together with Parks v. West, to the changes made in the amendment of 1909. In each of those three, .cases the court was discussing the limitations, either express or by plain implication, contained in the Constitution as then worded against the exercise of the authority therein shown to have been attempted, in each instance holding that such restrictions existed.

The holding in- the next case relied upon by appellee (Dallas County v. Plowman) is, we think, directly counter to the rule of construction he contends for. There the Supreme Court held that the phrase ‘maintenance of public roads’ in article 8, § 9, of the Constitution, amendment of 1890, authorizing the Legislature to pass local laws for such purpose, included in its scope the laying out, opening, and" construction of new roads as well as the repairing of those already laid out; and that the meaning of the word “maintenance” as' used in this amendment was not restricted as when used in the older article 3, § 56, subd. 5, by its.context, to the keeping up of roads as distinguished from the laying out and opening of them, nor was it confined to its narrow and literal construction; but it must be held to embrace all the things necessary to accomplish the obvious purpose of the amendment, including the opening as well as repairing of roads, the court’s language being:

“But the. paragraph of section 9, article 8, above quoted, was not a part of the original section; it was added by amendment in the year 1890, for the evident purpose of conferring upon counties the power to lay out, construct and maintain, better systems of public highways than they were able to do under the restricted taxation before provided for; and * * * the purpose of the Legislature in making the amendment was to increase the capacity of the county to maintain a system of public roads, and the word ‘maintenance’ must be held to include all of the things necessary to be done to accomplish that purpose.”

In the remaining case of Crabb v. Celeste Independent School Distridt, the only question properly before the Supreme Court, and therefore the only one determined, was that an independent school district which has voted a tax for school purposes cannot, under article 3, § 7, of the Constitution, by a subsequent extension of its limits to include additional territory, made in the manner prescribed by law, acquire the right to levy such tax on property in the added territory, without further election by the qualified voters of the district as extended to determine that question.

But no such conditions as those underlying the decisions just reviewed exist here, nor can they be applied to the facts of this case, for the amount of tax herein sought to be enforced is within the limit now prescribed and the new district voted upon it, as required by section 3 of article 7 -of the Constitution.

Appellee insists, however, notwithstanding the fact that the new or extended district voted overwhelmingly in favor of levying the 50-eent tax upon all lands therein, that its right to assume the bonded debt of the old district, which carried, as the means of its ultimate retirement, a 15 per cent, annual tax on the property of the old district, amounted by indirection, and without a vote of the new district upon it, to burdening all property therein with a tax of 65 cents, more than the constitutional limit, and that part of the maintenance tax so levied upon the new territory for'the year’1914 was segregated and applied to this bonded indebtedness of the old.

But the answer to these contentions is twofold. In the first place, it was not shown that the new district had ever in fact assumed this indebtedness, and the trial court found as a fact that “the tax of 15 cents on the $100 valuation for the payment of interest and providing a sinking fund for the redemption of the schoolhouse bonds issued by the old district has never been levied or assessed against the new territory embraced in the new district by the special act”; second, we do not think it appears from the evidence that any part of the 1914 maintenance tax upon the new district was actually applied upon the bonded debt of the old one, nor if it had been, that such fact alone would have invalidated an otherwise lawfully laid tax, and have given appellee a valid ground for resisting its payment; for, at most, such action would have amounted to an unlawful diversion from its proper application of a school fund legally voted, assessed, and collected, and this would not, as just stated, have afforded appellee any reason for refusing to pay it, but might have given him, or any ’ other interested taxpayer of such district, the right to stop by injunction or other process such unlawful use of the fund.

In this connection' we are unable to agree with appellant that appellee could not, in this action, plead the unconstitutionality of the special act in question as a reason for refusing payment of what he claimed was an unlawful burden upon his property, but that such question could only be raised by a quo warranto, proceeding in the name or by authority of the state; his attack upon the law was not merely directed against the existence of the school district as such because of irregularities in the proceedings under which it was constituted, but went further and asserted the fundamental lack of •power in the Legislature by means of it to lay the burden of a tax upon his property. We think this question was settled adversely to appellant’s contention by the Supreme Court in Parks v. West, 102 Tex. 18, 111 S. W. 726, where Judge Williams, speaking for the court, uses this language:

“But be that as it may, the attack of the plaintiffs is not merely upon the corporate existence of the district, hut is directed against the power of the defendants to lay burdens on their property and subject them to the payment of taxes. Surely they have the right to do that, although the reason they assign for the lack of power may also go to the right of the district to exist under the Constitution. Certainly a property holder has the right to say to the court that he is protected by the Constitution from the imposition of a tax hy persons to whom the Constitution, in effect, denies such power. If the rule relied on by defendants should preclude plaintiffs from making the contention now, when and in what way could they make it? So far as we can see, the rule would equally apply to an effort to resist the collection of the tax by suit or otherwise. The consequence to which the contention leads is that, while the Constitution does not permit such a school district to exist and levy taxes, it may yet do both and foi'ce property owners to pay until the officers of the state see fit to intervene.”

The final objection to the validity of the act was that it conflicts with a pre-exist-ing general statute of the state (article 2856b, Yernon’s Sayles’ Revised Statutes), providing that no such district shall be diminished, changed, or abolished while it had outstanding against it an authorized debt either 'of bonds or in other form; but that difficulty is met by the fact that its concluding section expressly repeals all laws and parts of laws in conflict wtih this act, in so far as they may relate to it.

Holding as we thus do that no constitutional inhibition against the power thus sought to be exercised by the special act here involved was pointed out, we think the Legislature had the authority to create the new district through that act, without local notice, and that such authority carried with it the right to annex the added territory, abolish the old district, provide for the payment of its bonded indebtedness and the disposition of its property, and to do such other things as were necessary to carry out the purposes contemplated in erecting the new one. Dallas County v. Plowman, 99 Tex. 1513, 91 S. W. 221; Madry v. Cox, 73 Tex. 538, 11 S. W. 541; Cohen v. City of Houston, 176 S. W. 813.

I From what has been said, it follows that Iso much of appellant’s different assignments las challenge the correctness of the trial fcourt’s judgment holding the special act in question unconstitutional must be sustained, lind that such judgment must be reversed and judgment here rendered for appellant in all things as prayed for by it below; and it has been so ordered.

Reversed and rendered.
      <g^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes