#### AUSTIN INDEPENDENT SCHOOL DIST. et al. v. MARRS, Superintendent et al.

No. 1474-5911.

Commission of Appeals of Texas, Section A.

July 22, 1931.

J. M. Patterson, Claude Pollard, and Black & Graves, all of Austin, for relators.

Jas. V. Allred, Atty. Gen., and Scott Gaines, Asst. Atty. Gen., and Ben H. Powell, George E. Shelley, and Smith, Brownlee & Goldsmith, all of Austin, for respondents.

HARVEY, P. J.

This is a proceeding for mandamus instituted in the Supreme Court by the relators, the Austin independent school district, and others, against the respondents, S. M. N. Marrs, superintendent of public instruction of the state of Texas, and others. The facts may be briefly stated as follows:

The Austin district is an independent school district situated in Travis county, and contains a scholastic population of 12,481; and the control and management of the public schools of the district are committed to the Austin school board. In July, 1930, the county board of education, of Travis county, acting in pursuance of and in conformity with the provisions of the Act of 1930, hereinafter set out, ordered an assessment against each school district in the county, including the Austin district, for the payment of the salary' and office- expenses of the county superintendent of public instruction. The Austin district, through its school board, denied liability and refused to pay the assessment. The Austin district’s portion of the county available school funds, for the year 1930, as a result of instructions to that effect issued by the respondent Marrs, has never been turned over to the Austin district by' the county authorities, but same still remains in the hands of the county treasurer, who refuses to make any disposition thereof pending this controversy. The Austin district’s portion of the above school funds lacks $998.48 of being of *10sufficient amount to satisfy said assessment against the district. The respondent Marrs caused the last-mentioned sum to he withheld from the Austin district’s share of state school 'funds, apportioned in February, 1931; and said sum remains in the hands of the state treasurer pending this controversy. The rela-tors seek the issuance of the writ of mandamus, directing and commanding respondent Marrs to withdraw and countermand all instructions and orders issued by him as mentioned above, and to compel him to issue such instructions and orders as may be necessary to place at the disposal of the Austin school board all the state and county available school funds belonging to the Austin district, which the said respondent has caused to be withheld.

Chapter 49 of the general laws p'assed at the 4th Called Session of the 41st Legis: lature (Vernon’s Ann. Civ. St. art. 2700d — 1), so far as material here, reads as follows:

> “Chapter 49.

> “An Act to provide for the maintenance of county administration of the public free schools to be prorated to all of the schools of' the county and declaring an emergency.

> “Be It Enacted By The Legislature Of The State Of Texas:

> “Section 1. That from and after August 31, 1930, the salary and office expenses of the county superintendent of public instruction and such assistants as he may have shall be paid out of the school funds of the common and independent school districts of the county.

> “Sec.% 2. That the County Board of Trustees shall annually on or before the first (1st) day of August hereafter order a scholastic per capita assessment against each school district within the County in sufficient amount to provide for the payment of the salary and office expenses of the County Superintendent and any office assistants he may have, as is now provided by law, or may hereafter be provided. And the said assessment when legally made and certified to the school districts of the County shall be paid by them for the purpose herein specified.

> “Sec. 3. The State Superintendent is hereby authorized and instructed to issue and transmit to County and District School Officials all instructions necessary for the proper observance and administration of this Act.

> “Sec. 4. All general laws in conflict herewith are hereby repealed, except such laws as provide for a part of the office expense to be paid from the general revenue of the eounty. **** 3⁄8 ”

The relators contend that the above act, which in this opinion will be designated as the Act of 1930, is invalid for the reason that the subject of the act is not expressed in the title, as required by section 35, art. 3, of the Constitution. The general subject to which the provisions of the body of the act relate is the distribution, among the various school districts of.the county, of the cost of maintaining the office of county superintendent of public instruction. To this office, as we shall hereinafter show, pre-existing statutes had attached divers administrative duties which concerned all the public schools in every school district in the county. The language of the title, though not clear in some respects, is sufficient, we think, to apprise the ordinary mind of the subject-matter of the body of the act. The contention that the subject of the act is not expressed in the title is overruled.

We come now to the question as to the application of the provisions of the act to the Austin independent school district. Article 2700 of the statutes reads in part as follows:

> “The county superintendent(s) shall receive from the available school fund of their respective counties annual salaries based on the scholastic population of such counties, as follows:

> Population Salary

> 3000 or less.$1600.00

> 3001 to 4000. 1800.00

> 4001 to 5000. 1900.00

> 5001 to 6000,. 2000.00

> 6001 to 7000. *2200.00*

> 7001 to 8000. 2400.00

> 8001 to 9000. 2500.00

> 9001 to 10,000. 2600.00

> 10,001 or more. 2800.00

“In making the annual per capita apportionment to the schools, the county school trustees shall also make an annual allowance out of the State and county available funds' for salary and expenses of the office of the county superintendent, and the same shall be prorated "to the schools coming under the supervision of the county school superintendent. The compensation herein provided for shall ■be paid monthly upon the order of the county school trustees; provided, that the salary for the month of September shall not be paid until the county superintendent presents a receipt from the State Superintendent showing that he has made all reports required .of him. The county board of trustees may make such further provision as it' deems necessary for office and traveling expenses for the county superintendent and any assistant he may have; provided that expenditures for office and traveling expenses shall not exceed three hundred dollars per annum, and the county board of trustees may make provision for the employment of a competent assistant for the county superintendent who shall, in addition to his other duties, act as attendance officer ; and said board is hereby authorized *11to fix the salary of such assistant and pay the same out of the same funds from which the salary and expenses of the county superintendent are paid.”

This statute was subsisting when the Act of 1030 was passed. There was not then, and is not now, any statute which places under the general supervision of the county superintendent any of the public schools in independent school districts of the class to which the Austin district belongs. It is apparent, therefore, that if the provision contained in article 2700, to the effect that the burden of paying the salary of the county superintendent, and the expenses incident to that office, shall be “prorated to the schools coming under the supervision of the county school superintendent” is existing law, then the contention that the Austin district is not liable for any portion of such salary and expenses would have a substantial foundation. But it is manifest that the provision just referred to has been superseded by the provisions of the Act of 1930, for in that act it is expressly provided that said salary and expenses “shall be paid out of the school funds of the common and independent school districts of the county”; and further provides for a scholastic per capita assessment against “each district within the county” for the payment of such salary and expenses. The clear purpose of the Legislature in passing the Act of 1930 was to bring all public school districts, of every character, within the scope of the provisions of that act, regardless of any relevant restrictive provisions contained in pre-exist-ing statutes, and to make the prescribed assessment lawfully payable from any available funds belonging to the respective districts. To this extent, pre-elisting statutes, such as article 2700 and article 2S27, were modified by the Act of 1930.

Nothing has been found in the Constitution which restrains the Legislature from authorizing the appropriation of available funds, belonging to any school district, to the payment for benefits received by the public schools of such district. It cannot be successfully denied that all the public schools of every school district in a given county are now, and were when the Act of 1930 was passed, the immediate beneficiaries of various duties which the county superintendent is required to perform in the promotion of public school affairs throughout the county. For instance, of those duties imposed on him by law which relate: (1) To the apportionment of the income arising from the county available school fund; (2) to the transfer of pupils from one school district to another; (3) to the matter of scholastic census; and (4) to the examination of applicants for teachers’ certificates, and to the issuance and recordation of such certificates. See Rev. St. 1925, arts. 2692, 2696, 2819, and 2878 to 2882, inclusive. The services which the law requires the county superintendent to perform in the respects above mentioned have direct relation to school mat-tera of common concern to all the public schools in the county. It therefore cannot, be true, as the relators contend, that the public schools of the Austin district derive no benefits from the administration of the office of county superintendent. The provisions of the Act of 1930 are valid, .and the Austin district comes within the scope of operation of those provisions. The district is liable for the amount of the assessment laid against it in accordance with the requirements of the act. Nevertheless, the writ of mandamus which is sought should be issued against the state superintendent. Statutory provision is made for the funds in controversy to reach the treasury of the Austin district for the purpose of being administered by the Austin school board in conformity to law. See R. S. arts. 2692 and 2663. The action of the state superintendent in causing those funds to be impounded constitutes an unauthorized interference with said funds in their prescribed course to the district treasury. Clearly, the Legislature did not mean, by the provisions of section 3 of the Act of 1930 (Vernon’s Ann. Civ. St, art. 2700d — 1, § 3), to authorize the state superintendent, in issuing the instructions there provided for, to disregard the statutory provisions to which we have just alluded.

We therefore recommend that the writ of mandamus do issue. * ■

CURETON, C. J.

The opinion of the Commission of Appeals is adopted and mandamus awarded.