El Paso daily herald. (El Paso, Tex.) 1881-1901, 1897-12-03
Principal Points in the Decis-
ion Rendered by the Court.
THE JUDGMENT AFFIRMED
As to the Principal Taxes. but Reform
ed so as to Exclude Taxes Levied
For Public Schools, School Bonds,
Sewer Bonds and Interest Prior
to 1896.

TIL. Conklip, Appellant, vs.. The
City Of Ell Paso, Appellee. Appeal
from Ell Psso county. No. 134s.
Plaintiffs first assignment is in sub
stance that the power of the city to tax
for school purposes did not exist, be-
cause it appears, by undisputed ec1-
dence that the election held in April,
1882. by reason of which the city
council assumed control, and has since
exercised control, OF the public schools
within it's limits, was ordered by the
city council and not by its mayor; and
was ordered upon the petition OF tweu-
~ tax psyersj and not upon that
Of fifty qualified electors; and the vote
was by the resolution of the council
ordering the election, vote by the
property tax payers and exclusive OF
the qualified electors not tax payers,
and the question submitted at such
election was simply whether or not the
city should assume control of the pub
lie free schools within its limits and
not whether it should assume such
control and whether the said schools
should be under the control of q board
OF trustees or Of the city council. The
facts relative to such election appeared
in yesterdays HERALD
The election called by the council,
instead of the mayor, and upon the ap-
III ~ 'o-A PoS SAs3 hoSoNSN ~
ff,y qualified voters, the election by
taxpayers instead of by popular vote,
and the submission of a different pro-
position than the one directed in the
Act of 1879, ignored every essential,
prerequi>ite and condition necessary to
the requirement by the city of the
right to administer its public schools.
Appellee presents the view that
since the said Act of 1879, there have
been two different and distinct kinds OF
independent school districts in this
state and undertakes 10 show by later
enactments that the legislature has
recogn 'zed this fact. 1t cites the act
of 1883 (Art. 1888 A. Sayies Statutes, J
which, it will be seen, authorizes the
city council of towns or cities having
a population over 1000, to create a
board of trustees when the control of
public schools had, or may, become
vested in tie council. Under the Act
Of 1879, the vote therein provided for
might vest such control in the council,
and the law of 1883 provides that in
apy case, where such control had been
or might thereafter be acquired, the
council, if it saw fit, might delegate II
to trustees. We see nothing in this to
Indicate that the legislature under
stood there WAS more than one
procedure or method by which q town
or city might assume control In the
first instance.
We are of opinion that the power
can be conferred upon a city only by.
at least substantial, observance of the
steps prescribed for that purpose, and
where the ESSENTIALS have not been OBJ
served as in this instance, the power
is not obtained, and the power to levy
taxes for that purpose would likewise
not exist.
1t appears that the charter of the
City of Ell Paso did not CT nfer authority
TO levy the tax recovered In this case
for put Dlic school purposes, and
authority therefor must have existed,
If at all, by its having complied witt
the general law empowering cities to
assume control Of such schools and to
levy taxes for their support.
II seems clear to US that the exact
ment of 1879 controlled elections VI
this character in 1882 and as the pro
ceeding was not had in conformity
with its provisions, but contrary there
to. the assumption by the city of con-
troll Of the schools was without any