On Motion for Rehearing.
Appellees have filed a forceful motion complaining of our original opinion on the ground that plaintiffs’ petitions affirmative- . ly showing that plaintiffs had failed to pursue the method of appeal provided them by the statute, the trial court had no jurisdiction of the case, and therefore defendants’ general demurrer was properly sustained, and the judgment should be affirmed.
With due deference to the argument of able counsel for appellees, we cannot agree with these contentions. There may be - inaccuracies and apparent inconsistencies in some of the expressions in our original opinion, but we think that opinion considered as a whole clearly shows that we based our judgment of reversal upon the holding that the contracts made by the school trustees with the appellants were, upon the allegations made in the petitions, legal and binding upon the school district and should have • been approved by the county superintendent.
This holding was not made dependent upon whether the selection of the teachers by the board of trustees should be regarded as .a judicial or an administrative act.
It seems clear to us that upon the facts alleged in the petitions, appellants have not lost their right to appeal to the courts to have the legality and binding force of their contracts established, and the contracts or*422dered approved by the county superintendent.
It is true that the subsequent election by the reorganized board of trustees had the effect, if allowed to stand, of destroying appellants’ contracts, and accomplished the ¿ame result as a formal discharge of appellants from their positions as teachers. But we are not prepared to hold that an indirect method of this kind could, without any notice or hearing afforded appellants, be given the effect of a formal discharge, from which an appeal is given by our statutes (see Rev. St. 1925, art. 2749) to the county superintendent, and from his decision to the county board.
The pendency of appellants’ applications before the superintendent for approval of their contracts and their repeated requests for such approval, was all that was necessary to give the superintendent jurisdiction to pass upon the validity of these contracts, and to refuse to acquiesce in appellants’ discharge if that effect be given to the election of appellee teachers, and a formal appeal from such indirect method of discharge would have conferred no greater jurisdiction or obligation upon the superintendent. Thé law never contemplates nor requires a vain and useless procedure. The question having been presented to and passed upon by the superintendent, the appellants could, as they did, appeal directly from his decision to the county school board.
We think the Acts of the 49th Legislature (1927) page 128, chapter 83, § 1 (Vernon’s Ann. Civ. St. art. 2686), applies to all appeals from the decisions of a county superintendent and county school board. This act is as follows: “All appeals from the decision of the County Superintendent of Public Instruction shall lie to the County Board of School Trustees, and should either party decide to further appeal such matters, they are here given the right to elect to appeal to any court having proper jurisdiction of the subject matter; or to the State Superintendent of Public Instruction as now provided by law, provided the election of which course of appeal the party or parties desire to pursue, shall be given within five days from the final decision of said County Board of School Trustees.”
Appellee very earnestly insists that this act does not modify or repeal any of the following provisions of article 2656, R. S. • 1925: “ * * * The State Superintendent shall be charged with the administration of the school laws and a general superintendency of the business relating to the public schools of the State, and he shall have printed for general distribution such number of copies of school laws as the State Board of Education may determine. He shall hear and determine all appeals from the rulings and decisions of subordinate school officers, and all such officers and teachers shall conform to his decisions. Appeal shall always be from his rulings to the State Board.”
It is a well-settled rule of decision that the repeal of a former statute by. a subsequent statute upon the same subject will not be implied unless the two statutes are so repugnant that both cannot be upheld. Hunt v. Atkinson (Tex. Com. App.) 12 S.W.(2d) 142; Conley v. Daughters of the Republic, 106 Tex. 80, 156 S. W. 197, 199, 157 S. W. 937.
If the rule invoked by appellees and announced in the authorities above mentioned and numerous others cited in the brief should be applied, the language of the statute which expressly leaves it optional with the complaining party from any decision of the county board of school trustees to appeal therefrom to any court having jurisdiction of the subject-matter in controversy, “or to the State Superintendent of Public Instruction,” modifies or repeals that portion of the former statute which empowers the state superintendent to “hear and determine all appeals from the rulings and decisions of subordinate school officers.” No other construction can be placed upon the language of the act, and it is impossible to bring this provision of the act into harmony with the previous article of the statute above quoted which requires all appeals from the rulings of subordinate school authorities to be determined by the state superintendent. In this situation, the later act of the Legislature must be held to have modified or repealed by necessary implication the former statute to the extent of this irreconcilable repugnancy in the two statutes.
There could be no possible reason that we can discover for the Legislature to have intended to require all appeals involving the rights and duties of teachers and subordinate school officers to be heard by the state superintendent, while permitting all other appeals to the school authorities to be taken directly to the courts from the decision of the county school board.
We think the express language of the statute requires it to be construed as applicable to appeals of any ■ character.
We think the motion for rehearing should be refused,. and it is so ordered.
Refused.