On Appellant’s Motion for Rehearing.
Appellants urge that in our original opinion we were in error in not reversing and rendering for the plaintiffs in the original petition the amount of the taxes for the three years, 1922, 1923, and 1924. The reason we did not do this was because we were of the opinion that there was a question of fact to be determined by the trial court as to whether an election held on June 17, 1919, by which sections 14 and 15 of the charter were amended, was by vote of the property holding taxpayers, or merely by a vote of all who had a poll tax. Our attention is called to a statement in the agreed statement of facts which we overlooked in our original opinion. Such statement is as follows:
“The above quoted charter provisions remained in force until the creation of the new Port Worth Independent School District by a special act of the legislature, approved and effective March 16, 1925, except that on June 17, 1919, sections 14 and 15 above set out were amended by a vote of the people of Port Worth so as to provide for a maximum taxj rate for school purposes of 71 cents on the $100.00. The other charter provisions above set out were not changed, and the only changes made in sections 14 and 15 were the ones above stated. The amendment, or attempted amendment, made on June 17, 1919, was adopted at a charter election in which the proposed amendment was submitted to the qualified voters of Port Worth generally without confining the vote to property tax paying voters. In other words, said amendment was passed and adopted in the same way and manner'as the charter amendment of July 22, 1922.”
It will be noted that it is agreed that the amendment or attempted amendment made on
June 17, 1919, was adopted at a charter election in which the proposed amendment was submitted to the qualified voters of Port Worth generally without confining the vote to the property holding taxpaying voters. Hence it appears that the increase of the taxation from 50 cents to 71 cents on the $100 valuation was voted at an election at which the voters participating were not limited to the property holding taxpayers. Therefore we conclude, under our view of the case, that 36 cents on the $100 valuation was involved in this suit, and that all questions concerning the right of the original plaintiffs to recover the taxes sued for have been settled.
The judgment heretofore rendered by this court will therefore be reformed and amended so as to entitle nine of the original plaintiffs, all except J. E. Burton, to a recovery of the taxes sued for, with interest thereon as to each payment of the taxes for the three years involved, interest at 6 per cent, to be recov-. ered from date of payment of each year’s taxes. Judgment will also be rendered for J. E. Burton for a recovery of taxes paid for the year 1922, and for the year 1923, with interest from dates of payment, in addition to the recovery allowed him by the trial court for the taxes for the year 1924. But otherwise the judgment rendered on original hearing is undisturbed.
Appellants also urge that we were in error in affirming the judgment of the trial court as to the subsequently made plaintiffs, by the amended original petition, filed March 23, 1928. But we do not agree with this contention.
Appellees have also filed a motion for rehearing and to certify. The motion for rehearing urges the same points that have been decided by this court, and we do not feel that the judgment heretofore rendered, as to the questions raised in the motion for rehearing, should be disturbed.
As to the prayer for certification to the Supreme Court, we think that the same should be overruled. Some of the questions suggested for certification in our opinion have been decided by the Commission of Appeals, and approved by the Supreme Court, in City of Fort Worth v. Zane-Cetti, 278 S. W. 183. Such questions as are not controlled by this last-cited decision we do not think require certification.
The motion of appellees for rehearing and to certify is overruled, and the motion for appellants is granted in part and overruled in part