El Paso daily herald. (El Paso, Tex.) 1881-1901, 1897-12-04
MEXICAN BEGGARS.

al d manner Of acquisition by the city
of control Of the schools within its
limit, and provides d radically differ
ent method of procedure whereby the
i city or town may acquire such control.
! from that heretofore prescrib ID. The
i two me b DIS of procedure are wholly
| in confilct with each other and irrec on
cilabie.
| One cannot be observed without do
! ing vic encs to the other. In view of
this and Sec. 20, final title of the Re-
vised Statutes of 1879, which reads,
| 'That no laws Rener 81 or special, en-
acted at the present session, shall be
I in any way affected by the repeating
C ause of this title. provided that any
law passed by the sixteenth leEis azure
in conflict with any provision of this
act, shall be the la of the state, this
act to the contrary not whist sndi 1g:'
we think there can be no doubt that
the act of 1879 superseded the two ar
ticles men TONED under which appellee
undertook the control of the free
schools within it's limits, so far as af-
fects the manner in which such control
may be acquired.
The election called by the council,
ir ste d of the mayor, aud upon the APP
o icat on of 20 tax payers, instead of
fifty qualified voters, the ;tion by
| Taxpayers instead of by popular vote,
and the subm;s on of a ditferen. pro-
posi- ton than the one direc ed in the
Act of 1879, ignored every essential,
prerequisite 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
| indepepd- Mt school districts in this
ST. to and rpda~t &l<eS in Shny nv
elactmeuts tina; the leg stature has
recogn ed this fact. It cites til, act
of 1888 art. 1888 A. Sayies Statutes. J
which, it will be seen, authorizes the
city council of towns or cities having
population over 1000, to ere Ate a
| board of trustees when the control of
public schools had, or may, b 4come
We ted in the council. Under the Act
of 1879, the vote therein provided for
might vest such control in the council,
and the law of 1888 provides that in
any case, where such control had baen
or might thereafter be acquired, the
council, if it saw fit, might de- egate it
! to trustees. We see nothing in this to
indicate that the legislature uud .r-
stood there was more than one pro-
cedure or method by which a town or
city might assume CO ltrol in the first
in stance.
We are of opiuion that the power
can be conferred upon a city only by,
at least sub tantial, observance of the
ste ps prescribed for that purpose, and
where the essentials have rot 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 FL Pa>O did not confer authOri-
ty to levy the tax recovered in this
case for public school purposes, and
authority therefor must have existed,
If at all, by it's having complied with
the general law empow sring cities to
assume control of such schools and to
levy taxes for their support.
1t seems clear to us that the enact
ment of 1879 controlled elect ons OF
this character in 1882 and as the pro-
ceeding was not had in conformity
| with It's provisions, but con .rary there
to, the assumption by the city of con-
| troll of the schools was withou. any
authority.
The next question is whether or not
| the tax payer in a suit gaiDst him for
such school tax. may show this want of
pow err to impose the tax. 1t is argue
| by appellee that it has eXetci ed this
power since 1888 and its power now to
do sol cannot be thus collater.lly at
| tackled. We are Of opini n that the
mere assumption ard as ton BY a
city Of a power not granite to it. gains
| nothing by time. When tax is as
serte t. e tax payer is entitled to show
he want of authority to impose the
ak, AMI If the existence of the power
depends on C. rtain fac.s, he may show
that such facts pever existed. We do
| not regard this as a coll ,teral attack
upon the tax. but the assertion of de.
fensive matter that the defendant NAV
properly present Mr.. Cooley says;
| sit will be good defense to the suit
that the tax for any reason is illegal -
Cooley Taxation, 2ud. Ed. D 435. II
he cannot raise the que 'tion in suit
| against him for the tax, it is d fl ,ut
to conceive how the question should be
raisaG, or by whom,
These views dispose Of the tag fo,