On Motion to Dismiss Appeal.
MONROE, J.Defendant appealed from a judgment avoiding a special election held under its direction in school district No. 16 of Bienville parish for taking the sense of those having the right to vote upon the question of imposing upon the property of the district a tax of 10 mills, for a period of 10 years, in aid of the public schools, and decreeing the nullity of the tax thereafter imposed. The grounds of action relied on and the basis of the judgment were certain, alleged irregularities in the conduct of the election.
The plaintiffs and appellees now come into court and move that the appeal be dismissed, on the ground that appellant ha» *787•acquiesced in the judgment appealed from by ordering another election for the same purpose as that to which said judgment, refers, and they attach to their motion what purport to be copies of the official publication of the petition of the property taxpayers and of the resolution of the defendant board, in conformity thereto, ordering such •election to be held on the 26th day of the present month of May. Defendant and appellant has filed an answer to this motion, denying the allegations therein contained, save as admitted, and the answer proceeds as follows:
“Your defendant admits that the attached proceedings are true and correct; that the requisite number of qualified voters of district No. 16 have petitioned for an election, as the proceedings show; that your defendant has complied with the petition, as the law makes it mandatory upon your defendant to do; and that, further than this, your defendant has done nothing. Hence your defendant and appellant prays that the motion to dismiss be denied, and that, finally, the judgment of the trial court be reversed, and for all orders and decrees necessary and general relief.”
The answer is verified by the affidavit of defendant’s counsel; and the record thus made up is accompanied by the written consent of both counsel that—
“this motion be decided by this court on the proceedings of school board, as attached to plaintiffs’ (appellees’) motion; that these proceedings shall constitute all the evidence on this motion, without formality of remanding the case on this point.”
Counsel for defendant says, in a brief filed by him:
“The facts are simply these: An election has been held and the result declared in favor of the tax, and the tax levied. Certain parties have contested the validity of the tax, and the district court has decided in their favor. The defendant has exercised its constitutional right of appeal, and the case is before the court for decision. While this suit is pending, persons, not parties to the suit, have petitioned the school board for another election upon a similar proposition. The school board has no discretion, and simply follows the law and orders the election. The two elections are in no way connected; and there is nothing to prevent the two taxes, if they are voted by the qualified voters in accordance with the law.”
The position thus taken appears to us to be correct, and the motion to dismiss the appeal is overruled.