On Motion for Rehearing. The motion of plaintiffs in error for a rehearing thus indites the original opinion in this cause
"This Honorable Court in its opinion has held as an abstract proposition that injunction will not lie to restrain an order of the Commissioners' Court made pursuant to election forming a school district, and that quo warranto and election contest are the exclusive remedies.
"We believe the law is that injunction will lie when such orders and election are *Page 448 void, for want of lawful authority, and believe that in passing upon such case the court should consider the question of the validity of such orders and election. It is true that in its opinion this Honorable Court stated that `plaintiffs in error set up several alleged irregularities and questioned the power of the districts to consolidate', but even a casual reading of the assignments of error and propositions will reveal that no `irregularities' are set up in the brief, but in fact the wholeground for injunction is predicated upon the proposition that there wasno lawful authority for the consolidation of these two districts, or districts so situated, for the reasons, first, that a county-line school district cannot be changed without the consent of the Commissioners' Court of both counties, which was not obtained in this case; second, that there is not legal authority to consolidate two school districts that are not contiguous, which was not true in this case, and third, that there is no legal authority to consolidate a consolidated-school district to a county-line school district, and that such order, purported consolidation, and election, were all void for each and all of said reasons. This Honorable Court has held that injunction does not lie insuch case, without stating whether such order and election were valid orvoid.
"If the election and order were void for either of said reasons, then injunction will lie. This rule was established by the Supreme Court in the case of Parks v. West, 102 Tex. 11, 111 S.W. 726, in which case the court held that a private citizen could by injunction attack the validity of a school district formed under an unconstitutional law. The rule has been consistently followed."
This criticism is well taken, and error is confessed in the former disposition, in that it was assumed that the attempted consolidation of such districts, Nos. 26 and 33, was not shown to be void but at most only voidable; whereas, upon the reconsideration, since No. 26 was a county-line district, and since the undisputed facts, as well as the trial court's unquestioned findings, show that the consent of both the Commissioners' Courts to the proposed consolidation was not obtained, the order of the Commissioners' Court declaring the consolidation — as well as the election upon which it was based — were wholly void, as being violative of the express inhibition thus contained in R.S. Article 2744: "Such district [that is, a county-line one] shall not be changed or abolished except by the consent of the commissioners court of each county having territory contained therein, and if such a district has outstanding bonds the same shall not be changed or abolished in any way until after such bonds are finally paid and discharged."
This holding is made upon a construction of the cited Article dealing with the powers of and limitations upon county-line school districts, as well as upon the authority of these two decisions: Lubbock County School Trustees v. Harral County Line Ind. School Dist., Tex. Civ. App.95 S.W.2d 204; County School Trustees of Runnels County v. State, Tex. Civ. App. 95 S.W.2d 1001, application for writ of error dismissed.
It is thought the holdings in both these cases were made upon states of fact not in legal effect different from that here obtaining, and that the election and consequent order of the Commissioners' Court looking to the consolidation in this instance were directly violative of the express pronouncement of the quoted statute to the contrary, hence had no legal validity whatever, and that the declaration of such a result was properly subject to restraint by injunction: Kuhn v. City of Yoakum, Tex.Com.App.,6 S.W.2d 91.
Without further discussion, the motion for rehearing will be granted, this court's judgment affirming that of the trial court will be set aside, and judgment will here be rendered in favor of plaintiffs in error, granting the injunction as prayed for in their petition.
Rehearing granted, former judgment of affirmance set aside, trial court's judgment reversed, and cause rendered for plaintiffs in error. *Page 449