Cases argued and decided in the Supreme Court of the State of Texas during the latter part of the Austin term, 1882, and the Tyler term, 1882. Volume 57. Page: 234

                                
234          THE CITY or FORT 'WORTH v. DAVIs. [Austin Term,
Opinion of the court.
the laws generally, including those towns and cities which had assumed
control of public schools within their limits, and were levying,
under the act of 1875, taxes for their support. The reading
would be: And where towns have a charter authorizing their taxation
for educational purposes, such tax may hereafter be levied, if
two-thirds of the tax-payers of such town shall vote for such tax.
The expression, " have a charter," indicates a charter then in existence,
and is properly followed by the declaration that such a town
may hereafter levy such tax. It must be admitted. however, that the
use of the adverb " where " favors a different construction. Towns are
authorized to become independent school districts. " And where "that
is, and at the time that they may have assumed charge of the
public schools within their limits, and thereby have made the support
of public schools a proper town purpose, and taxation for that purpose
(within the limits prescribed for towns), legitimate, may levy
such tax, if, etc. It must be confessed that the true meaning of this
section is involved in doubt; and because of that fact, we are justified
in giving weight to the construction given it by the legislative and
executive departments. That construction is that, at whatever time
an incorporated town may assume control of its public schools, it
may thereafter levy a school tax, if two-thirds of its property taxpayers
shall so vote. I am constrained to say that, in my opinion,
this construction is unauthorized and wrong. But it is the opinion
of the court that it cannot be said to be clearly wrong, and that the
statutes authorizing town taxation for the support of public schools,
upon a vote of two-thirds of the tax-payers of the town, cannot be
said to be clearly unconstitutional and void. Having given the subject
careful examination, and being still in doubt, the opinion of the
court is that the statutes in question must be held valid.
It is claimed for appellee that article 3785 of the Revised Statutes
is unconstitutional, in that it allows a vote of two-thirds of the taxpayers
voting to authorize the tax, whereas it is said the constitution
requires an affirmative vote of two-thirds of all the tax-payers of the
town who are qualified voters. Our opinion is that the constitution
does require such an affirmative vote. The language is: " If
two-thirds of the tax-payers of such city or town shall vote for
such tax." In the case of the County of Cass v. Johnston, 95 U. S.,
365, the constitutional requirement was that " two-thirds of the
qualified voters of the  . .town, at a regular or special election
to be held therein, shall assent thereto."  The majority of the court
held that, '1 in the absence of any statutory regulation to the contrary,"
voters absenting themselves "are presumed to assent to the