In this case the Court of Civil Appeals for the First Supreme Judicial District have certified for our decision the following question:
"This is an information in the nature of quo warranto filed in the District Court of Victoria County in the name of the State of Texas by the district attorney for the Twenty-fourth Judicial District against J.M. Brownson and others, claiming to be officers of the `Victoria Independent School District' under an act of the Twenty-sixth Legislature, approved May 1, 1899 (General Laws, page 151), to oust them from the offices claimed by them and to have said offices declared to be without warrant of law. The court below sustained the demurrer to the information and rendered judgment in favor of the respondents. The sole question of law presented upon the appeal is the constitutionality of the act of the Twenty-sixth Legislature, approved May 1, 1899, chapter 90 of the General Laws passed at the regular session, and that is certified to the Supreme Court for decision." After the *Page 439 certificate was filed here, the court sent up the following additional statement: "The certificate made in this case on the 14th instant is amended so as to show that the petition alleged that no notice was given as provided by article 3, section 57, of the Constitution, of an intention to apply for the passage of the act in question."
We are of opinion that the Legislature did not exceed its authority in passing the act in question. The legislative department of a State government may make any law not prohibited by the Constitution of the State or that of the United States. Therefore the rule is that in order for the courts to hold an act of the Legislature unconstitutional, they must be able to point out the specific provision which inhibits the legislation. If the limitation be not express, then it should be clearly implied.
The present Constitution as originally adopted, with but few exceptions, gave the Legislature unlimited power over the distribution and management of the free school fund. Sections 1 to 8 inclusive, of article 7 of that Constitution, relate to the public free schools of the State. Sections 2 and 3 provide what shall constitute the public free school fund. Section 4 makes provision for the sale of the lands belonging to that fund and the investment of the proceeds. Section 5 prescribed what part of the fund should be permanent fund and what should be available for the maintenance of the schools, and prohibited the application of either to any other purpose or to the support of any sectarian school. It also directed that the available fund should "be distributed to the several counties according to their scholastic population and applied in (such) manner as may be provided by law." Section 7 provides for separate schools for white and colored children and declares that impartial provision shall be made for both. Section 56 of article 3 prohibited the passage of any local or special law, except as otherwise provided by the Constitution, "regulating the affairs of counties, cities, towns, wards, or school districts." Section 10 of article 11 declares that "the Legislature may constitute any city or town a separate and independent school district," and authorizes the levy of a local tax for the support of the same, under certain restrictions. This grant of power was probably conferred in view of the restriction upon local and special legislation mentioned above; for in the absence of that restriction, it seems to us no such grant was necessary.
In 1883 an amendment of section 3 of article 7 was adopted by a vote of the people, which, among other provisions, contained the following: "And the Legislature may also provide for the formation of school districts within all or any of the counties of this State, by general or special law, without the local notice required in other cases of special legislation." Four Legislatures had assembled under the Constitution when this amendment was submitted to the popular vote; and it seems obvious that, when submitted, it was considered that under the then existing limitations upon the Legislature with reference to the public schools, the varied needs of special localities could not be met and that *Page 440 the purpose of the provision quoted was to give the Legislature a free hand in establishing independent school districts. Being the last expression of the will of the people, any provisions of the Constitution previously existing must, if in conflict, yield to it. We do not see that there were any save that as to special and local legislation, if that be one, and that restriction is expressly removed. But it is argued that the language, "the Legislature may provide for the formation of school districts," does not authorize them to create directly a school district. But we do not concur in this proposition. It is clear that the provision was intended to empower the Legislature to establish separate school districts, and in order to provide for them they must first be created. We see no reason why they might not be created by direct act of the Legislature, just as a city government may be created in our State for any city having ten thousand inhabitants or more. The fact that the Legislature was empowered to act by special law shows that it was contemplated that it might be desirable to pass an act creating one district only. The separate school district in question was provided for when the Legislature fixed the limits of the territory and declared that it should constitute an independent district and provided a governing board for the management of its affairs.
The act in question includes within the territory of the district the city of Victoria; but we are of opinion that the inclusion of a town or city with contiguous territory in one district is not prohibited by the Constitution. The provision quoted from section 10 of article 11 is clearly permissive only and does not make it the duty of the Legislature to constitute every incorporated town or city a separate school district. This provision would hardly have been inserted if amended section 3 of article 7 had been a part of the original instrument. Under the amendment, the Legislature clearly has the power to make a city or town an independent district, even had there been no express provision to that effect. Therefore the express provision, although not repealed, is practically superseded by the amendment.
Our opinion is that the act in question is valid, and it will be so certified. *Page 441