Nacogdoches Independent School Dist. v. Adams

WADKER, J. The campus of the city schools of the city of Nacogdoches is a rectangle about 900 feet by 1,200 feet. On or about September, 1930, over the protest of appellee and many of the other property owners of the city of Nacog-doches, the board of trustees of the city schools contracted with Cyclone Pence Company to’ build a wire fence, mesh 1 or 1½ inches, 6 feet high, around the campus, with arms extending from the tops of the posts .upon which barbed wire was to be stretched. The contract provided for seven openings in the fence as it surrounded the campus. At that time appellee’s twelve year old son, and many other children similarly situated, were in attendance on this school and had been for several years and would continue as students of that school. Appellee’s homestead was adjacent to the campus of the city schools, separated from it by one of the city streets. This1 suit was brought by appellee against appellant to enjoin the building of the fence. Por grounds' of relief he alleged the building of the fence would (a) damage his property ; (b) create a dangerous condition for his son and other children similarly situated in entering and leaving the campus of their school; (cj detract from the value of the Old Stone Port as a historic relic, the allegation being that this old fort was located on the campus and was a matter of curious and historical interest to the citizens of Texas who go to Nacogdoches in large numbers to see the old fort; (d) the expenditure of the school funds' for the purpose of building this fence would be an unlawful diversion of the funds. Appellant answered this petition by general and special demurrers and specially pleaded that the building of the fence was necessary (a) to protect the school property from vandals; (b) to protect the public morals ; and (c) to protect the life and limb of the children attending the school. The demurrers were overruled, to which appellant excepted, and the case went to the jury on the two following questions, answered as indicated: “Special Issue No. Í. “Do you find from the preponderance of the testimony that the building of the fence, as is now begun, will depreciate the plaintiff’s property? “You will answer this ‘Yes’ or ‘No’ as you may find the facts to be.” Answer: “Yes.” “Special Issue No. 2. “Do you find from the preponderance of the testimony that the building of the fence, as is now begun, will make it more dangerous for the plaintiff’s child in attending school? “You will answer this ‘Yes’ or ‘No’ as you may find the facts to be.” Answer: .“Yes.” On this verdict judgment was entered perpetually enjoining the building of the fence. Opinion. Appellants advance twenty-six assignments of error complaining of the judgment appealed from. However, many of their propositions under these assignments cannot be reviewed for the following reason: Rule 30 governing the preparation of briefs in the Court of Civil Appeals is as follows: “Following the statement of the case there shall be stated consecutively, separately subdivided and numbered, the propositions or points upon which the appeal is predicated. These shall be germane to one or more of the assignments of error or relate to fundamental error. “The purpose of this rule is to enable counsel to state immediately and briefly, and without repetition, the questions in the case and to acquaint the court at once with the propositions presented for ’decision.” 230 S. W. p. VII. Immediately following the statement of the nature and result of the suit, appellants, in their brief, have submitted fourteen propositions, stated consecutively and separately subdivided and numbered, prefacing, these propositions with the statement: “Propositions upon which this appeal is predicated.” Immediately following these propositions is the statement made by appellants in support thereof, together with their citation of legal authorities and argument. The first twenty-five pages of the brief are devoted to a discussion of these propositions. The remaining propositions are scattered through the1 brief without being consecutively stated or numbered. There is nothing in the introduction to the case, nor in the statement of the first fourteen propositions, advising the court as to the nature of these additional propositions. It is our conclusion that Rule 30 should be given a mandatory construction. It was promulgated to change briefing rules that had been in force for many years where [569] by the propositions were scattered through the brief and were not required to be “stated consecutively, separately subdivided and numbered.” The immediate purpose of the rule is stated in the rule itself-in the following language, again quoting from rule 30: “The purpose of this rule is to enable counsel to state immediately and briefly, and without repetition, the questions in the case and to acquaint the court with the propositions presented for decision.” Rule 30, in fact, accomplishes that purpose. To read into this rule a discretion on the part of counsel to obey its provisions, or on the part of the Courts of Civil Appeals to disregard its provisions, would absolutely nullify the rule and defeat its express purpose. For this reason we should not consider any of the propositions except the first fourteen. Without quoting these propositions, many of them are too general to invoke the jurisdiction of the court, as appears from three of them which we set out in full: “A petition for injuries, for injunction, should disclose injury likely to occur to applicant by reason of the proceeding sought to' be enjoined.” “Injunction will never be granted unless- it appears from the allegations in the petition that injury will otherwise result to the applicant.” “A petition for injunction which fails to allege that plaintiff had no remedy at law or that it was inadequate was fatally defective.” Unquestionably these propositions must be stricken down under the principié rean-nounced by this court in Clevenger v. Burgess, 31 S.W.(2d) 675. However, the remaining propositions are sufficient to bring forward the following points: (a) The’ petition was subject to general demurrer because it appeared on its face that appellee had not apr pealed to the school authorities for relief against the alleged illegal actions of the trustees building the fence; (b) the petition was subject to general demurrer because it did not appear therefrom that appellee was without an adequate legal remedy; (c) the petition was subject to general demurrer because it appeared from the petition that in law the board of trustees was vested with the legal discretion to manage and control the property intrusted to their care as trustees, and that ' such discretion could not be reviewed by -a trial court. The language of the proposition being: “The exercise of this power is judicial, not ministerial, and rests- solely with them, and the exercise of this power cannot be inquired into by any legal proceedings.” Appellants are in error in saying that appellee was required first “to appeal to the school authorities.” The purpose of appel-lee’s suit, as expressed by the petition, was the prevention of an alleged wrong against him by the board of trustees. The question presented is one growing out of the administration of the common law and not of school laws. Barton v. Vickery (Tex. Civ. App.) 189 S. W. 1103, and similar authorities, have no application. We cannot agree with appellants in their construction of the petition on the point that appellee has not pleaded facts entitling him to equitable relief. Under the allegations of his petition the building of the fence under the plans and specifications provided for in the contract between the board of trustees and Cyclone Fence Company created a dangerous condition for his son and children similarly situated in entering and leaving the school campus. In law appellee had no adequate relief against that alleged wrong. Citing Marshall v. City of Dallas (Tex. Civ. App.) 253 S. W. 887, we think appellants have announced a sound legal proposition determining the result of this appeal, which is as follows: “The plaintiff must show that the fence complained of will be dangerous to life, or detrimental to health.” Under appellee’s. petition, the building of the fence complained" of, under the plans and specifications called for in the contract, would create a condition dangerous to the life of his son and children similarly situated, and, therefore, unlawful. Solely upon the proposition that the building of the fence would subject his son and other children similarly situated to additional danger in entering and leaving the campus, we hold the petition was not subject to general demurrer. Beyond question, the trustees' of our public schools are vested with discretion in the management, control, and protection of the school property committed to tbeir care, and the courts should not review this discretion except upon a showing of abuse. But our schools are maintained for the education of the youth of the country, and it is the duty of the trustees to exercise their discretion to maintain the school property in a safe condition for the children. For them to create a condition, adding danger to the life and limb of the children, in entering and leaving the school premises, would be an abuse of the discretion vested in them for the orderly discharge of their fiduciary obligations. It is our conclusion that appel-lee’s petition stating this cause of action was not subject to general demurrer. While not assigned, we think it apparent upon the face of the record that appellee was granted relief beyond the terms of his petition. At least the judgment is ambiguous and in the future might mislead the courts and interested parties as to the extent of the relief in fact granted appellee. Therefore, we reform the judgment appealed from and limit it merely to enjoining appellants [570] from building tbe fence under tbe plans and specifications complained of. In doing tbis we are expressing no' opinion, because it is not. before us, of tbe power and authority of tbe board of trustees to build a lawful fence around tbe school campus. From what has been said it follows that tbe judgment of tbe lower court should be reformed and affirmed, and it is accordingly so ordered. Reformed and affirmed. Because appellants did not assign error against tbe form of tbe judgment nor ask tbe lower court to make it conform to tbe pleadings, tbe costs of tbis appeal, though tbe judgment has been reformed, will be taxed against appellants.