The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1899-08-06
First Skirmish in Legal Battle Over School
SUPPLEMENTARY.
THE HEARING OF PRAYER FOR INJUNCTION.
Regarding School Trustees Claimed by Defendants
Otherwise DefectivePlainffs'
Claim Law Is Valid and Also Operative.

started on its course through the courts.
The hearing OF the petition for an In
junction to restrain Prof. w. w. Barnett
from assuming the duties of the office. and
certain members OF the board Of trustees,
including Mayor Brashear. from In any
way interfering with the management OF
the schools, was commenced before Judge
Tod In the Eleventh civil district court
yesterday. Practically the whole of the
day was occupied by the argument OF
counsel and but little was accomplished
toward the desired end further than the
bringing out of the lines on which the two
parties will make the struggle. Court was
adjourned at p. IN. and further action In
the matter deferred to next Tuesday, the
Sth instant.
The contentious OF the two parties to
the suit have already been noted at length
in The Post. The plaintiffs hold that the
superintendent of public instruction and
the STATE board OF education constitute the
supreme authority In the premises and that
the new law providing for the election of
trustees Is valid and thoroughly applica-
bic in the present instance. The defense,
on the other hand. contends that the new
law in question is unconstitutional and
wholly defective that the State educa-
tional officers have absolutely nothing to
do with the case and that Mayor Brashear,
the members of the local school board who
acted with him, and the city council. are
upheld by the law in their election of Prof.
Barnett.
The hearing commenced promptly at ,
O'Clock yesterday morning. with Messrs.
Ross, Wood. Hunt and Oliver present To
represent the plaintiffs and Messrs. Sears
and Stewart for the defense. Mayor Bra
shear was in court during the day as were
Professors Kimbrough and Barnett and
number OF other persons interested In the
case.
The defense nled Its answer and Nj.
Oliver for the plaintiff offered an amend
ed petition, which differed from the orig
inal petition heretofore published in The
Post only in that It had reference to the
course pursued by the defendants suDse.
quent to the filing of the original, and to
the appeal taken from the decision OF State
superintendent In the premises, to the
State board OF education A restraining
order was prayed for in the amendment al
in the original.
MIR. Sears objected to the amendment on
the ground that an indefinite number of
temporary restraining orders might be Sc
cured by this means, and TOR other reas-
ons. The court agreed to hear counsel
and the argument began.
Mr. Oliver began by asserting that the
constituted authorities in the premises had
upheld the allegations made in the plain-
TINS petition both sides having submit
ted the case.
Mr.. Sears INTERRUPTED TO say that the
defendants had never been before the State
superintendent.
The action of the State superintendent,
and board OF public instruction. MIR. oliver
continued gave the Plaintiffs the prima
facie right TO have a restraining order is
sued them. The allegations made Messrs
Cade and Shearn OF the school board de
facto officers. but they We're really de jure
officers. Ii was not incumbent on the
plaintiffs to do more than protect the
rights given them by Superintendent Ken
dali and the State board
Where did Mr.. Kendall get his power
TO say who Ia and who Is not an ofGcer?"
asked Mr.. Sears at this juncture.
In answer Mr.. Oliver read from para
graph 293sb of the Texas etatutes regard
ing the duties of the superintendent of
public instruction as follows:
THE superintendent OF public instruc-
tion shall be charged with the admlnlstra-
ton of the school law and general SUI
perintendency OF tho business relating 70
the public schools OF the State. He shall
hear and determine all appeals from the
rulings and decisions OF subordinate school
officers and all such officers and teachers
shall conform to his decisions, unless they
are reversed by the State board OF educa-
ton He shall prescribe suitable forms,
etc. ss+
(293Sd) "The State superintendent shall
advise and counsel with the school OIL
GERS OF the counties. cities and towns and
school districts as to the best methods OF
conducting the public schools. and shall be
empowered to Issue instructions and regu-
lations, binding for observance on all Off
10 10 Il
provisions OF the school law may require
Interpretation In order to carry out the
designs expressed therein; also In cases
that may arise In which the law has mada
no provision. and where necessity requires
some rule In order that there may ba no
hardships to individuals. and no delays or
Inconvenience In the management OF school
0ffairs."
The legislature, Mr.. Oliver argued, had,
in framing the law, sought to provide an
orsariyed method for the handling OF
school matters. II was necessary to have
some one IN authority to act summarily
In cases Of emergency. The superintend.
emit constituted the original authority and
the State board OF education the appellate
body. Considering the elton heretofore
taken by these authorities counsel saw
no reason why the injunction prayed for
should not be granted. The defense. he
said, had NO ground for claiming SUR
ticaliy tho same a. the original differing
only in that It dealt with the course pur-
sued by the defendant Sihsevent to
the ding Of the original, and with the APP
peal taken from the State superintendent
up to the State board Of education. The
opening OF ths schools was close at hand
and the case should be settled as soon as
possible In order that no Inconvenience be
caused tho pupils.
Men Who were claimed by the defendants
not to be members OF tho board, counsel
argued. had met with Mayor Brashcar to
elect superintendent The mayor moved
70 adjourn and pending the holding OF the
aAtourned meeting appointed two addi-
tional men for the board, baslng his action
81 the position that the recent act Of the
B legislature IA the premises was unconsti-
/. tuliopal. The act IN question was valid,
counsel confendsd. because the constttn-
tlonal provision limiting the terms Of
sok0cl Officers TO two years did not apply
+ - truskeqs II the trustees were entirely
0han661 oyofy tWo years the efficiency Of
!. ~ oc>oels would be greatly impaired.
- euppcet of this position counsel cited