The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1900-01-17
Text Of the Questions Which Have Been
Certified to the Supreme Court.
LAWS CoNsTITuTIONALIIY is INVOLVED
Both ms 20 Terms of Trustees and ms
TO Its Bearing on the Special Char
ter OF the City of Houston.

and questions have been certified to tue
supreme court.
Upon August 81, 1893. W W. Barnett
brought suit in the district court Of Har-
ris county for the Fifty NTH judicial dis
trict against W. H. Kimbrough for the
office or position Of superintendent OF the
public schools OF the city OF houston. Bar
nett recovered Judgment October 2. 1899.
for the Office and its emoluments, and
Kimbrough has appealed The contest
arose out of the construction Of an act
OF the Twenty-sixth legislature concern
ing school trustees Of independent dis
tricts, being chapter 81 OF the General
Laws Of that body approved March 30.
1899 Barnett claims that the law IN
question docs not apply TO the city OF
Houston or that If it does apply its provi-
sion as to the election OF trustees does
not go into effect until the year 1901, and
that he is entitled to the office by reason
OF 10 his nomination thereto by the mayor
and confirmation by the city council, and
i21 his election thereto by a majority OF
the legally constituted board OF public
school trustees OF the city OF Houston.
Kimbrough claims that the law does apply
and that he was regularly elected supes-
intendent OF the public schools hY the
board OF trustees lawfully constituted un
der tho acl OF March 30. 1899. There were
two bodies, each claiming TO be the legal
board OF public school trustees Of the city
or Houston The questions In the case
arise upon the consttutionallty and con-
struotion OF the act Of March 30, 1893,
above referred 10.
The city OF Houston assumed exclusive
control Of the public free schools within
lis limits on December >, 1876. by virtue
Of an election held under the school law
AZ 1875. and when the lRw OF March 3d.
1899, went INTO effect It was conducting
its schools in accordance with It's char
ter and the law applicable to snch con
troll. and has been so conducting them
ever since December D. 1875 After the
passage Of tho act OF March 80, 1890, a
difference OF opinion arose in the board
OF trustees as 10 the construction OF tho
law which resulted IN the formation Of
two boards. one of which elected Kim
brough and the other Barnett az super
;ntendeni 81 the schools. At the date OF
the passage Of the act the board was
composed 81 tho following members. TO
Wit ! r. Csde G.. A. Blossom, Fred
Fenwick Rufus Cage and James Charl-
ton. alFo n. Brashesr mayor OF the
CITY OF HOUSTON, as eF ntnri0 me mhhr. TN
April H. 1881. Henry r. Fisher was APP
pointed by tho mayor and confirmed by
the city council as trustee In the place
Of Rufus Gage. and the board Ms thu.
constituted continued To act without oh.
lection until July 4, 1899, when II mo
and the question OF eleeting superin
tendent for the public schools haviu,
come UP II appeared that Cade, Shearn
Bloxsom and Fenwick were in favor o
retaining Kimbrough who was the In
cumbeut. and Brashear Charlton an,
Fisher we're In favor Of alecting Barn ett
The board adjourned without an election
Cage. Shearn and Cade had been appoint
ed rs members OF the board by the mayo
and confirmed by rho council on Nav II
1897; Charlton. Boxsom and Fenwic
were thus appointed aud confirmed Jun
8, 1898. The term OF office OF trustees wa
iwo years under the law as IL eNiste
when the act Of March 30. 1899, wa
passed AZ the meeting OF the city coun
ell July 10, 1899, the mayor, s. II, Bra
shear nominated as trustees OF the publ
schools Andrew Dow aud George Ione
who were confirmed by the city council
majority Of the board thus constitute
By the appointment OF Dow and Jones
lieu OF Jones and Cade, towit; Charlton
Fisher, Dow and Jones, with whom acte
Brashear met on July 10. 1893 and sseri
cd the appellee rs superintendent OF III
on July II, 1898, the appellee was appoln
ed by the mayor aud confirmed by Il
city council as such superintendent 4
The term OF two years The trustc
shearn and Cade did not resign their o
fees but acting with Bloxsom and FEE
wick on July ~ 1899. organized wi
Shearn as president and elected the a
reliant Kimhrough as superintendent (
the ensuing two years. Prior to the pa
sage OF the act OF March 30 1892. 4
school superintendent was required by [
charter to be appointed by the mayor al
confirmed by the council. The salary /
iached TO the position Is $4,000 Kir
brough had been duly appointed superI
tendent and was acting as such at Il
time OF his election. and was elected
the expiration OF the term for which
had been appointed. on July 49, lSe
the Shearn board brought suit in the al
trict court Of Harris county for I
Eleventh judicial district against the Br
shear board and Barnett for an lniupetl
and temporary order WIS granted !
strAining them from Interfering with :
plaintiffs In the management OF the schot
Or school property and restraining IN,
from acting as trustees aud superinteu
ent. respectively. That suit is stil pen
ins and the temporary restraining order
still In force.
Out OF the foregoing facts the folio,
ing questions OF law arise which are CO
tined to the supreme court for decision
Is the position OF superintendent of I
public schools OF the city OF Houston
office for which suit may be maintain
In the district court7
2. Was Ii necessary for the plaintiff
submit his contention to the State sun,
intendent OF public instruction or +,
State board OF education before no co.
maintain this suit?
3. Does chapter 81 OF the general laws
the Twenty sixth legislature concerni
school trustees and Independent distric
approved March 80. 1S99 apply to the G,
troll OF tho public schools OF the city
Houstonf
4. hid said act in it's application TO
city OF Houston, II IL applies, take eff
VITA respect 70 the election or appoi
ment OF school trustees on March 80, lS
What action in accordance with said
was required with respect 70 the elect
or appointment OF public school trust
for the city OF Houston? Was the ma,
ex-ofhcio a member OF the board of ri
toes after March 30. 1892
8. Is naid act Of the Legislature cons
tntional with respect TO the term OF OF
fixed by n for public school frusteess
not does Its want OF constituiionality
this respect inyalidste the entire law?
81 We're conflicting provisions Of I
charter Of the city OF Houston repealed
1.l|. ~ 800 orf - 1far