On Motion for Leave to File Second Motion for Rehearing. Appellees have filed a motion for permission to file a second motion for rehearing, earnestly insisting that our decision in this case is erroneous, and that the effect thereof will be to "practically disrupt the entire school system of the city of Fort Worth, as well as seriously affecting the rights of practically every other city in the state of Texas with a population in excess of 5,000 inhabitants." In this motion appellees are joined by the city attorneys of Houston, Dallas, Galveston, San Antonio, and Austin.
In the main the contention urged by appellees in the motion which they seek leave to file is contained in the following quotation:
"The controlling fact to which we respectfully and specifically desire to direct this honorable court's attention is that it was impossible for the City of Fort Worth to levy a tax for school purposes in excess of 71 cents except by having a higher maximum in its charter, and that higher maximum could only be created by an amendment to its existing charter. The Legislature could not amend that charter, as stated by Justice Greenwood in the Steinhagen Case. The Home Rule Amendment and Enabling Act transferred to the specified cities through the agency of their qualified voters the same power which the Legislature had theretofore possessed. That maximum could not be raised by an election submitted to the taxpaying voters or to any other class of voters under article 2876 or any other general law for the reason that the charter of the city of Fort Worth expressly provided in plain and mandatory language a different procedure for fixing such rate each year. Such an increased rate could not be established by the board of trustees or by the board of commissioners of the city of Fort Worth for the reason that the charter expressly provided that such rate should not be in excess of 71 cents on the $100 valuation, and consequently the only way in the world that it could be changed was by having that maximum changed, and that could only be done by an amendment to the existing charter."
It will thus be seen that a distinction in sought to be drawn between the case at bar and the Steinhagen Case, in that the charter of the city of Beaumont prescribed a method by which the tax might be raised without resort to the procedure of amending *Page 134 the charter, whereas no such provision is contained in the Fort Worth charter; and that this difference in the charters of the two cities creates a different mode by which a tax rate or maximum rate may be increased.
The controlling questions thus presented are, we think: (1) Whether, in view of the Home Rule Amendment the Legislature had the power, by general law, to prescribe, as it has in R.S. art. 2876, the electorate by which a special school tax may be created or the rate thereof increased in cities constituting independent school districts; and, if so, (2) whether such legislation can be defeated by a charter provision prescribing the rate of such tax and providing no method for changing it other than by a charter amendment.
In the case of Garitty v. Halbert (Tex.Civ.App.) 235 S.W. 231, the Court of Civil Appeals for the Dallas district held that such charter may be amended so as to increase the maximum rate of school tax by majority vote of the qualified electors under section 5, art. 11, of the Constitution. As said in our original opinion, the court did not advert to Revised Statutes, art. 2876, but held that the Home Rule Amendment was not in conflict with section 10 of article 11 of the Constitution.
A writ of mandamus was applied for for the purpose of requiring certification of the question to the Supreme Court. Garitty v. Rainey,112 Tex. 369, 247 S.W. 825. The application was denied on the ground that there was no conflict of decision presented, and that for that reason the Supreme Court was without jurisdiction to grant the relief sought. The question presented in the Garitty Case was thus tersely and clearly stated in the opinion of the Supreme Court:
"What the Court of Civil Appeals really held in this case was, that by virtue of section 5, art. 11, of the Constitution, and the Enabling Act thereunder, the inhabitants of the city of Corsicana had the right to amend their charter by a majority vote of the qualified electors, and in doing so levy a tax for school purposes, and that it was not necessary for a voter to be a property tax paying voter in order to participate in such an election."
After holding that there was no conflict which would give the Supreme Court jurisdiction in the matter, the court further say:
"However, we desire to be understood in this matter. We are not deciding that the opinion of the Court of Civil Appeals here involved is correct or incorrect. That question is one we are not passing on, but reserve our decision fully and completely until it is presented in a cause over which we have jurisdiction. What we are deciding is that we have no jurisdiction to issue a mandamus in this case, because no such conflict is shown as warrants the granting of this extraordinary writ against a Court of Civil Appeals. The merits of the controversy as to the correctness of the opinion of the Court of Civil Appeals are not here involved."
Regardless of whether there be a conflict between our holding and that in the Garitty Case, it is clear to our mind that the latter case has been overruled by the Supreme Court in the Steinhagen Case. In order to hold that the Steinhagen Case does not apply to the case at bar, a controlling distinction must be drawn between the Beaumont and Fort Worth charters, as stated above. That the difference in the two charters makes no essential difference in the rules of law which control the decision in the two cases does not, we believe, admit of substantial doubt.
The Steinhagen Case clearly holds that the matter of a school tax rate is not germane to a city charter, and therefore is not subject to the mandatory provisions of the Home Rule Amendment with reference to the adoption and amendment of city charters. Nothing could be clearer than this holding. It was one of the determining elements upon which the decision in that case rested.
Such being the case, it necessarily follows that the Legislature is not circumscribed in its powers to regulate by general law (as distinguished from a special law) in what manner and by what vote a city within the Home Rule Amendment may increase its school tax rate. This we think necessarily follows from the fact that the Legislature has general power to legislate upon the subject; and from the further fact that the Home Rule Amendment is clearly not self-executing, and the Legislature is invested with the express power by the Home Rule Amendment to legislate generally upon the subject.
To hold that the Legislature has the power to prescribe the electorate by which a school tax may be voted or changed, and at the same time to hold that a city has the power to prescribe the rate by charter amendment, and that such charter amendment is governed by the provisions of the Home Rule Amendment relative to the qualifications of the electorate voting upon such amendment, is in effect destroying the power of the Legislature, by this indirect method, to legislate upon the subject. The Home Rule Amendment itself expressly inhibits any interference, directly or indirectly, with this legislative control in the proviso:
"That no charter or any ordinance passed under such charter shall contain any provision inconsistent with the Constitution of the state, or of the general laws enacted by the Legislature of the state."
It has been the policy of the state to delegate to the taxpaying qualified voters of the locality affected the creation of local special taxes, and the fixing and changing of the rate thereof. Our Constitution contains many such provisions. There appears to be no constitutional inhibition, however, against *Page 135 the creation or changing the rate of local school taxes in cities constituting independent school districts, other than by a vote of the taxpaying electors; but our statutes have for many years contained such provisions (R.S. arts. 2875-2883). Article 2876 was amended in 1917 and made expressly applicable to all cities whether incorporated under an act of Congress of the republic, or the Legislature, or any act of incorporation whatever. The purpose of this language clearly applied the article to cities incorporated under the Home Rule Amendment. That the Legislature had the power to pass this act and make it applicable to cities of over 5,000 inhabitants under the Home Rule Amendment necessarily follows, we think, from the holding in the Steinhagen Case; and it further follows we think from the validity of this statute that it is not within the power of a city to destroy the effect of the act in so far as it prescribes the electorate by embracing the tax rate or maximum tax rate within its charter.
The charter provision of the city of Fort Worth fixing the maximum school tax at 71 cents, which was sought by amendment to be raised to 86 cents, was contained in a special act of the Legislature passed before the Home Rule Amendment. This fact, however, in no way militates against the conclusion we have above expressed. Article 2876 would have been valid in the absence of the Home Rule Amendment, and was by the Legislature made to apply to a city incorporated under a special act the same as it was made to apply to any other incorporated city in the state. It is true that the Home Rule Amendment took from the Legislature the power to grant or amend city charters by special legislative act, and the repeal or withdrawal of this power by the Home Rule Amendment is manifestly what is referred to in the Steinhagen Case. But the power to legislate generally with reference to all cities under the Home Rule Amendment is expressly conferred upon the Legislature, and unquestionably article 2876 has application to every incorporated city in Texas whether created before the Home Rule Amendment by special legislative acts of incorporation, or created thereafter by whatever method. The article is made all-inclusive, and if valid must apply to Fort Worth, created by special charter, the same as to any other incorporated city; and if valid and applicable (as it is by its express terms) to the city of Fort Worth, then it is beyond the power of the city by resorting to the procedure of a charter amendment to raise the maximum school tax rate by a majority vote of the general qualified electorate, and thus to nullify the statutory provisions requiring such raise to be effected by a majority vote of the qualified taxpaying voters.
In conclusion we may add that we do not think the dire results forecast by appellees' counsel and their associates in the motion follow from our holding in this case. The holding in the Steinhagen Case that a special school tax rate is not germane to or an essential part of a charter under the Home Rule Amendment necessarily, we think, impels the further holding that it cannot be made a germane or essential part of the charter by placing it in the charter, and if not thereby made germane to or an essential charter provision, it is not necessary to change the charter in order to change the rate. The Legislature has prescribed by general statute the method by which the rate can be changed, and this general statute being valid, and the city being without the power to render it nugatory by putting the rate in its charter, it necessarily follows that the statute is in force regardless of whether the rate be placed in the charter by the city, or was in the charter prior to the Rome Rule Amendment by virtue of a previous special legislative enactment.
In view of the importance of the contentions urged by counsel for the city, we have deemed it not amiss to restate and amplify our views upon them; although they had our careful consideration both when the case was first submitted and upon rehearing, and are, we think, disposed of in the original opinion.