El Paso daily herald. (El Paso, Tex.) 1881-1901, 1897-12-04
CELEBRATED TAX CASE.
Full Text of the Decision Rendered by
the Court.


the Court.
T. H, Conklin, Appellant, VS.. The
{ i'y of El Paso, Appellee: Appeal
from Ell Pr so couI ty No. 1913.
The orr . inel petition of III. city as
stated by app liant was to recovered of
appellant 1896. 81 and interest IS taxes
for the years 1898 and 1894 upon GER
tain reality. By the amended plead
ngu pom which the case went to trial
plaintiff set up in the nature of tres
pass to try title that the city
had acquired title to the lands in
question, by virtue of sales for taxes
FIR certain years due the city, and
king for juu gmeut, and further stat
ing that it was claimed by defendant
that the several taxes were void, and
in view of this it was pleaded that if it
should so appear, then that the defen-
dant was indebted to the city for the
taxes for the years 1887. 1892, 1894 and
1895, and the lands subj set to liel
therefor, and prayer was made accord
ing.
Certain special demurrers to the pc
tition we're overruled assignments 81,
2S, 29). The first Of ttese is that it ap-
pears from the petition that the real
estate was assessed in bulk, which We
find not to be The case. Next that the
pei ion shows that the property had
been sold to the city for taxes ard did
not show wherein The Gales were void,
and also showed that the tax bad
been discharged by sales of the proper
ty to plaintiff. 1t is obvious that petit
tiOner brought it's suit in this TO- to
enable it, it DEF, ndant ma lie no appear
ance, to Obtain judgment for the land.
Upon appearance and answer it would
have been necessary for plaintiff to
show the facts neces- airy to the validity
of it's tax deeds. The pleading rroper-
ly considered. merely antici pated what
defense was likely to be n,erposed and
was drawn in the alienation W tn
view to the case taking such course.
Plaintiff did not allege tn 1t the sales
were void, hence the petition needed
rot state wherein hey were void: nor
was the petition as drawn al admission
that the taxes had been discharged.
The 30tn and 3lss assignment wi l be
disposed of by considering the assign
ment that goes to the exis' ence of pow
er ia the city of Ell Paso AS an iode-
pendent school dist let, viz: tn 1st as
signment. It lie too lie 'gthy to be in
cOrpo' at ID in this opinion, but its SUBJ
star ce is that t. powe" of the city 10 tax
for school purposes did not tx st, be-
csu'e 1T appears, by undisput' eei-
dence that the election held in April,
council assumed control, and has since
exer CT sed control. of the public sch ols
with in its limits, was ordered by the
city council and not by its mayor; and
was ordered upon the petition of tweu
ty tax payers and not upon that
Of fifty qualified electors; and the vote
was by the resolution of the council
ordering he election, vote by the
property tax payers aud exclusive of
4 he olC 70
and the question submitted at such
election was simply whether or not the
city should assume control of the pub
lie free schools within it's limits and
not whether it should assume such
co troll ard whether the said schools
should be under the cont oil of board
OF tru-tees or of the city council. The
facts relative to such election appear to
be stated in the assignment.
1t will be observe that the council
proceeded in tie matter 10 accordance
with Articles 37s1 and 1882, Ravd.
Statutes Of 1879, which appellee. con-
tends were in force at the I'll ne of h 8
election.
On April 3, 1879, the legislature en-
acted a law providing for the acquisi-
on of ci'ies sBd towns of exclusive
control of the public sChOOl- wi hin its
limits, dealing with The same subject
toat nau previously oe' IL proVl1eu ior
in said Article 1881 and 1882 which
represented the then existing law oa
the subject. This act of 1879 provides
that the mayor of the town or city
shall order the election upon the
written application of not less than
fifty qualified electors of such city and
town, the election to be by The quail
fed electors, upon the question wheth.
er such city or town shall SECURE the
exclusive control of any or ali of the
public free So hon's and institutions of
a-n'ng within It's limits, and whether
the same shall be und r the control of
g board OF trustees Or of the council or
board of aldermen. 1t will be seen
that this act ts comprehe nsive one,
covers the ehtits subject of thu mode