November 14, 1929. Rehearing Denied November 21, 1929.
Appeal from District Court, Rains County; Grover Sellers, Judge.
Suit by Eugie Lynch against John T. Rushing and others, for injunction and cancellation of alleged wrongful sale of county school lands. A temporary injunction was granted, and from an order overruling a motion to dissolve the injunction, defendants appeal. Order reversed, temporary injunction dissolved, and cause remanded.
The appeal is from an order in vacation overruling a motion to dissolve a temporary injunction.
The grant of public land made to Rains county for educational purposes was approximately 13,000 acres, located in Hockley county. The land was unimproved and nonrevenue-bearing. After the law was passed authorizing county school lands to be taxed by the counties in which such lands were located (section 6a, art. 7, Constitution; and Acts of First Called Session, Fortieth Legislature, p. 20, c. 10), and because such county was of small area, with a limited available general fund out of which to pay the extra burden of taxes, the commissioners' court deemed it necessary to sell the school lands and put the proceeds thereof to interest-bearing securities. The commissioners' court then had visitation made to the lands, and had them platted and valuation placed upon each section and labor thereof. The values placed upon the various tracts ranged in price from $15 to $22 per acre. The plat and the valuation so made were adopted and entered in the minutes by the commissioners' court in regular session on August 8, 1927. Thereafter, in 1927, the commissioners' court made an agency contract with Cosby Posey to find a purchaser for the lands at the prices per acre so fixed in the order. Such contract was to run until May, 1929. During the period of the contract, Cosby Posey found purchasers, and the county disposed of the greater part of the lands, leaving approximately 3,200 acres unsold. These 3,200 acres consisted of small tracts and "were not in blocks, but were scattered and separated." Cosby Posey, because of sickness of Mr. Cosby failed to find purchasers for the 3,200 acres for a time before the expiration of their contract, and during such time there was lack of bidders or purchasers therefor. At the expiration of their contract in May, 1929, the commissioners' court formally ended it by an order entered in the minutes. Afterwards, on June 5, 1929, Mr. O. H. Rodes made formal application to the commissioners' court for purchase of these unsold tracts of land at the price of $14 per acre, payable on or before 40 years, with five per cent. interest payable on December 1 of each year. The proposal further recites: "It is to be understood that there is to be no personal liability upon my part by reason of the execution of the notes, but the vendor's lien upon the land alone to be the payment of said notes. I will execute the notes and deed of trust and deliver the same to you." At a special term before the regular term, in June, 1929, the commissioners' court by an order of record accepted the offer of purchase made by Mr. Rodes, and in the same order empowered the county judge "to execute and deliver warranty deeds to said lands to said O. H. Rodes upon his complying with the terms of said offer and purchase and the execution of vendor's lien notes for the purchase price thereof, to be made payable to the County Treasurer of Rains County, Texas, and his successors in office, and the execution of trust deeds to secure the same." On July 27, 1929, Eugie Lynch and John S. Smiley filed the present proceedings to enjoin the county judge and the members of the commissioners' court and Mr. Rodes from carrying out the agreement, and to cancel the alleged wrongful sale or contract of sale of the land. The petition states that: "The plaintiffs each reside in Rains County and they are taxpayers in such county, and as such are interested in the lands and property of the County of Rains. The plaintiff John S. Smiley is the father of school children who are in the scholastic age and attending school in Rains County." The petition then alleges, in effect, that the lands are of the value of $20 per acre on terms payable in 40 years or sooner at option, and that a bona fide offer of purchase at such price and on such terms had been made; and that so knowing, the commissioners' court and the present purchaser, acting together, had wrongfully and fraudulently made sale or contract of sale and purchase of the lands at $14 per acre. The prayer was to temporarily restrain the county judge and the members of the commissioners' court and the present purchaser, namely: "From completing the proposal and acceptance and from making any deeds to any of the lands of such county school fund and from entering any transfers of record, recording any deeds, making any notes or papers with reference to such lands." The prayer on final hearing was: "Cancelling any trade or acceptance that has been made thereon, and perpetually enjoining defendants from selling or purchasing any of the Rains County lands except at a fair market price and for a consideration equal to that offered upon the open market." On the hearing of the motion to dissolve the temporary injunction, which had been theretofore granted without notice, the plaintiff John S. Smiley asked permission of the court to withdraw his name as plaintiff, and such permission was granted and he was dismissed from the suit.
There was evidence on behalf of the plaintiff tending to show the value of the lands to be greater than $14 per acre, and there was much evidence on behalf of the defendants going strongly to show the actual value of the lands at the time to be not above $14, or $15 at most, per acre, and that the sale thereof for $14 to Mr. Rodes was in good faith and fairly and publicly made after failure of repeated effort showing means of letter writing of several months to find a cash purchaser or responsible purchaser on terms. It is unnecessary to set out the evidence in detail.
Clark, Harrell Clark and Bruce M. McMahan, all of Greenville, and T. R. Potts, of Emory, for appellants.
Wynne Wynne, of Kaufman, for appellee.
There are two points urged on this appeal: (1) That the plaintiff showed no such interest as authorized him to bring and maintain the suit; and (2) that no fraud was shown in the purchase and sale of the lands in controversy. The plaintiff, as "a resident taxpayer in the County of Rains," seeks to cancel a purported sale or contract of sale of the county school lands for an alleged consideration therefor occasioning loss in substantial amount to the school land fund of the county. Such is the only interest, as alleged and proven, that the plaintiff has in the cause of action or in the subject-matter of the controversy. It is believed that he cannot invoke the right to maintain such particular suit and to obtain the allowance of an injunction therein in virtue merely of being a resident taxpayer. That would be so, because it conclusively appears that the plaintiff would not be affected or injured in the wrongful sale of the lands in any way peculiar to him individually, but the injury he would suffer would be only such as is common to all the public. His interest in the lands was not of an individual nature, but purely such as arises in virtue of his being a member of the general public. The alleged wrongful sale of the lands did not in any wise operate to create a debt which the plaintiff, in common with other property holders, may be legally compelled to pay through taxation actually levied upon their property. Neither would such alleged wrongful sale operate or have the legal effect to in any wise create the burden of immediate or direct taxation upon the property holders. The Constitution of this state expressly provides that the proceeds of the sale of public school lands granted to the several counties for educational purposes shall "be invested in bonds of the United States, the state of Texas, or counties in said state, or in such other securities and under such restrictions as may be prescribed by law; * * * the interest thereon and other revenue, except the principal, shall be available fund." Section 6, art. 7, Const. The interest from such invested proceeds of sale only goes to form a part of the available school funds of the county. The other available funds are distinctively derived from state school taxes, poll tax, and from taxes voted and collected by individual school districts. These methods of taxation are independent of each other, and wholly independent of the county school land fund. The county as such in no wise levies a school tax. There is distinction between lands granted to a county and the invested proceeds of sale therefrom, and the available funds apportioned by the state to the counties. Jernigan v. Finley, 90 Tex. 205, 38 S.W. 24. Although the sale of the lands at a wrongful price, if such be the case, might have the effect of occasioning a loss of available school funds through "interest," yet the private individual would not be directly or immediately affected thereby through taxation. There is no provision of law to reimburse the loss, as such, through means of actual taxation of property. The remedy of action against the wrongful sale would lay with the public, considered as a whole or in the collective sense, acting through duly constituted officers. The rule as applicable is thus stated to be, quoting from City of San Antonio v. Strumberg, 70 Tex. 366, 7 S.W. 754, 755: "We think it a principle established by the overwhelming weight of authority in the courts of all countries subject to the common law that no action lies to restrain an interference with a mere public right, at the suit of an individual who has not suffered or is not threatened with some damage peculiar to himself. As applied to public nuisances the doctrine is elementary. 2 Cooley, Bl. 219. For a special damage resulting from the invasion of a right enjoyed by a party in common with the public, the law affords him a remedy by private action, but if the damages he suffers are only such as are common to all, the action must be brought by the lawfully constituted guardian or guardians of the public interest. * * * We apprehend that the underlying principle is that individuals have a right to sue for a redress of their own private injuries, but for such as affect all the public alike an individual is not the representative of the public interest. * * * A suit in such case must be brought by such officer or officers as have been intrusted by the lawmaking power with this duty." The same rule is approved in Yett v. Cook, 115 Tex. 205, 281 S.W. 841, with authorities therein cited. The Yett Case clearly intends to lay down, and in no wise to depart from, the same rule announced in the Strumberg Case, supra, which it cites. All the authorities agree that the above is the correct rule. 32 C.J. p. 258; Asplund v. Hannett, 31 N.M. 641, 249 P. 1074, 58 A.L.R. 573. The case of Crampton v. Zabriskie, 101 U.S. 601, 25 L.Ed. 1070, is distinguishable from the present case, in that in such case the taxpayer was preventing the creation of a debt which such taxpayer individually and in common with other property holders would have to pay by means of taxation actually levied. There was an issue of bonds made payable directly by taxation of property. In City of Austin v. McCall, 95 Tex. 565, 68 S.W. 791, the expenditure of municipal funds derived gives a taxpayer an individual interest in the suit, and therefore gives the taxpayer the right to sue. The case of Terrell v. Middleton (Tex.Civ.App.) 187 S.W. 367, was supported upon the fact appearing that, "The appellee was seeking to prevent the diversion of taxes collected by the state, a portion, no matter how small, of which had been paid by appellee." He was a taxpayer immediately affected by the wrongful diversion. Therefore, sustaining, as we do, the first contention of appellants, it becomes unnecessary to in any wise determine the second ground. Also we do not consider or in any wise rule upon the validity or legality of the proposed offer of purchase and order of the commissioners' court thereon. Such question of law is not necessary to be decided in view of the disposition of the appeal.
The order appealed from is reversed, and the temporary injunction heretofore granted is dissolved, and the cause is remanded to the district court.