The opinion
On Appellants’ Motion for Rehearing
In their motion for rehearing appellants insist that this Court is in error in holding that the approval of the board of each school district affected was not necessary to the proposed formation of the independent school district. In so holding this Court followed the case of Countz v. Mitchell, 120 Tex. 334 , 38 S.W.2d 770 , by the Commission of Appeals in answering a question certified to the Supreme Court. The same question was before the Austin Court of Civil Appeals in Cox v. Beard et al., 87 S.W.2d 882 , writ refused, to which we also referred, but by oversight we omitted to state that the case was in the Second Series, and in which case Judge McClendon referred to as authority for his holding, the case of Countz v. Mitchell, supra. The Countz v. Mitchell Case has often been referred to with approval. The last reference we have observed is by the Eastland Court in Coffee v. Lieb et al., Tex.Civ.App., 107 S.W. 2d 406, 410 ; in a local option election, in discussing the constitutional question involved, Judge Funderburk said: “We think the principles discussed in the opinion by Judge Leddy in Countz v. Mitchell, 120 Tex. 324 , 38 S.W.2d 770, 773 , are decisive. This opinion having the approval of the Supreme Court recognizes the existence of jurisdictional requisites to the validity of special elections. It is an authority against the contention that the final and conclusive test of the validity of such an election is that the qualified voters have in fact had full and iair opportunity to express their choice in the election.”
We do not place the same interpretation on Bell et al. v. Kirkland et al., Tex.Civ. App., 41 S.W.2d 443 , writ refused, as do appellants. The opinion is by the Austin Court, Judge Blair writing the opinion, the same court that wrote the opinion in Cox v. Beard et al.
The motion is overruled.