*1 lease in full force effect as to Section
4. judgment of the trial court is af-
firmed.
CHAPMAN, J., participating. al., Appellants,
J. W. ROYALTY et NICHOLSON, Appellee.
Dr. W. D.
No. 15034. Appeals
Court of Civil of Texas.
Houston.
Jan. 1967.
Rehearing Denied Feb. *2 Holder, Freeport, appel- Wayne
C. lants. Searls,
Vinson, Elkins, & Donald Weems Howell, Mays, R. L. Robert Howard W. Gillies, Houston, Randolph, Evans & Angleton, appellee. Opinion
Majority WERLEIN, Justice. brought by appellants to suit was
This held bond election contest schoolhouse Brazosport Independent School District Texas, County, of Brazoria June high has one The School Freeport. Some- which is located school com- citizens time before appointed president mittee al- of Trustees consider Board shortage of meeting an acute ternatives District, especially on in the classrooms The high alternatives school level. high (1) replace present were: high Freeport central new school area. school in the Lake Jackson-Clute Freeport high sthool would present three junior high school for to a converted years proposition ‘For’ such shall be de- and then reaсtivated as a four school; high adopted, clared and bonds shall not be is- (2) expand the size of and present pursuant levied single high continue the central sued nor shall taxes be Freeport; (3) repair, enlarge proposition. school requested pe- present high granted petition at continue the Freeport as election and also construct a second titioners set June *3 day. given school the Lake area. The first Notice of the election was Jackson posting copies calling alternative committee was exact order of citizens of posted in a which submitted to electorate school were on May April 2, morning bond election on and was de- of hours 1966between the public places 8:30 feated. of to 9 o’clock at three in the School District. The еlection was decided submit the The School Board 4, 1966, held on and the returns June other two alternatives at an election on Trustees, duly made to Board of who 4, 1966, pursuant petition to a sub- June mitted to the Board regular met in on 7 with all session June May re- on Prop- present, that and declared members questing petition a bond election. The “For” 2616 votes osition No. received requested proposi- the Board to submit two “Against”, Proposition and 2321 votes and ¡ Proposition tions. No. 1 was to authorize ¿367 No. 2 “For” and received votes $3,860,000.00 the Board to issue District Proposi- “Against”; and since purchase, bonds “for the con- tion No. 2 more favorable votes received struction, repair public equipment and 1, the re- Proposition than No. free schools within limits of said Dis- Proposition favorably No. and sulted trict, purchase аnd the neces- levy and the and for the issuance of bonds sary [including (1) sites therefor additions payment collection taxes thereof. present Brazosport in- high school to said Board further declared “that 2,600 permanent crease the facilities to is- unfavorably to the has resulted (2) capacity; elementary student a new suance schoolhouse bonds described of the school, (3) elementary and additions to and Proposition and said bonds No. One junior high levy and the of the schools]” shall not be issued.” payment tax in Proposition thereof. No. suit, al- appellants was to authorize the filed this Board to issue Thereafter $5,998,000.00 pur- among things that the notice leging bonds “for the other construction, pose given; purchase, repair improperly election was equipment public qualified and build- certain tо vote free school voters were ings tax within the of said Dis- were not on the limits because their names trict, rolls; failed purchase necessary and the that the tax assessor-collector 2,000 list [including (1) judges sites a certified therefor new to furnish election capacity taxpayers; student and that the Board was the Clute- of area; pres- empowered propositions and (2) Lake additions to to submit two Jackson Brazosport high provide ent election that calling school to increase in its order 1,400 permanent only proposition receiving greater facilities to student ca- school, pacity; (3) elementary carry. a new number “For” votes would improvements (4) additions and to elemen- judgment The trial entered court tary junior high schools],” declaring October June levy payment of the tax therеof. favor- special bond election resulted petitioners ably bonds de- requested that if in said the issuance of the Proposition 2 and that the election each of said “shall scribed in No. greater the bonds receive a number of votes ‘For’ Board was authorized to issue levy prop- 2 and ‘Against’ proposition, than No. described osition, findings of receiving greater payment number of taxes in thereof. No requested in Article be
fact or conclusions of law were 2784e-l. Such article as the general or filed. considered law with refer elections, yet be ence to school district special considered a in that it is limited law Appellants the court contend scope in its to school district elections finding that notice holding erred generally. does not embrace elections proрerly posted, was since There is statute than Article no day’s than ten full notice such elec less specifies the notice given, secondly, that the court was given in bond schoolhouse elections. See days’ concluding ten erred Otto, Wilkerson Tex. They required by law. have notice was no Civ.App., Beaumont n. h. Article w. any fail point complaining there provides that: “said shall elections They begin voting. timely absentee ure to held and conducted law for timely post complain do failure to *4 general elections, except as provided here 2785, Annotated notices. Article Vernon’s provides It expressly in.” the as to notice statutory Statutes, pro Texas is the required to given. be purports specify the notice vision ex in a school bond election. It Independent In Baker v. Scranton days’ provides pressly for ten notice. 210, Tex.Civ.App., Dist., 287 S.W.2d East however, contention, that the appellants’ 1956, h., land n. was decided w. Code, by providing for Texas Election after the enactment the Election of Texas repealed by days’ voting, twenty absentee Code, it days was held is the notice that ten provision of implication special notice the required in school district elections for Article 4.05 of Texas Article 2785. the issuance of as bonds. contestants Code, provides, how Election V.A.T.S. posted serted that notice re was as ever, “special specially any that in election quired by law. court said: State, the provided by the laws of this for given in of shall be notices agree “We cannot with this contention. governing said compliance with laws 2785, Article Vernon’s Annotated Civil pro is no respectively.” There elections Statutes, provides that elections within concerning Election Code vision school for the issuance of bonds districts Our Su other than Article notice 4.05. publicized by posting must be ‘notices Williams, 101 preme Court, in Wallis v. (3) places thereof in three district 395, clearly (1908), has 153 * Tex. 108 S.W. * days prior for ten *.’ (10) thereto distinguished general elections between posted These dis- notices were within the by provided for special which are elections by length provided trict for the of time It cannot Special Laws of this State. the statute.” questioned that the election provided Furthermore, special specially has Legislature was a election the Texas by intention to the laws of Texas. at several times reaffirmed its preserve provisions Article pur was held
The school bond election passed voting prоvisions were The absentee 2784e-l, V.A.T.S., which to Article suant Texas Elec- in 1951 as Article 5.05 1953, Legis- issued tion Code. Thereafter provides that no bond shall be 2785, Article as an lature re-enacted all of by until authorized thereunder today, changing the notice applicable exists without Laws and that the General provisions. Legislature en- govern the method and 1957 districts shall 2802Í-30, and in Section holding of tax and acted Article calling manner thereof, affirmed Article Luna, reference by In Wiederkehr v. bond election. 1956, “The addi- stating: Tex.Civ.App., Waco S.W.2d called maintenance with- h., that Article tional tax n. court held w. but shall necessity petition, V.A.T.S., general referred to out law was special subject. manner one same respects be held in all other Co., Flowers Pecos Civil River R. by Revised Article Batts, amended, (1941); or as Ellis v. Texas, Statutes of (1863); Tеx. 703 Richardson v. Cameron amended.” hereafter County, Tex.Civ.App., Legislature connection In 1959 San Antonio n. w. h. of Article 2802Í-31 with the enactment providing again recognized Article 2785 in It is our view the trial court respects, all the election shall did not err in holding that notice petition, necessity be held than the duly posted the election was and properly provided in Thus the manner Article 2785. since there an actual or substantial have af- Legislature courts compliance with appel pro- at several different times the firmed lants have not shown that the results governing school visions of Article 2785 any way election were affected district elections after amendment being posted notices between the hours of Elec- voting provisions absentee 8:30 o’clock a. m. on May tion Code. instead earlier hour on said date. is, course, There no contention agree appellants We do not Trustees of the School District days’ ten providing Article 2785 sooner posting such notices were under *5 by posting notice bond prior to the school taking to defraud or deceive the voters implication. by repealed election has been the appellants District. Nor do contend The matter of notice election giving of an any by deprived voter was vote of a provisions referring the absentee to the of posting the between notices 8:30 and voting subjects. are In Cole v. different 25, 1966, May 9 a. m. on instead at mid of State, 472, (1914), Tex. S.W. 1036 24, night May posting on instead or of Supreme our “It well be Court said: 1966, by 25, them May m. 7:45 a. on at any implied doubted whether of an open which time the office to clerk’s was * * * ** repeal really аrises *. day each voting for absentee under the discrepancy not sufficient that be a there order of the Board. parts system between leg of a of different upon subject; islation general the same Generally in computing the time of there be a different must conflict between elections, day posting the is included and specific subject.” statutes the same the date of the election is excluded. There fore, 1966, would be excluded. June County County v. Board of Jefferson Counting back from such date will Indebtedness, and District Road seen that posted the notices were the (1944), said: the court day tenth prior to the date of the election. In Pollard v. Snodgrass, 203 S.W.2d “Ordinarily, general repealing clause dism., Tex.Civ.App., Amarillo error not, of inconsistent Acts does when con- involving contest, option a local Act, gеneral operate tained in a to re- applicable the article to notice peal special Act, though a local or even posted days day at “for least six before the provisions the of the two Acts are in of the posted during election.” was Notice respects some inconsistent. 59 904. C.J. day of December 1946 for an elec repeal special The intention em- Acts tion on December 1946. court said: provisions bodying conflicting must be * * * clearly [citing evidenced.” authorities] been held “It has that a sub- compliance procedural stantial with the requirements that a concerning law is well settled an election is general ordinarily will not be held law sufficient unless it failure is shown that repeal by implication particular strictly or comply with the letter materially Appellаnts elec- assert that the order law interfered freely conformity right calling electors the election was not in participate therein. The election no- with law the order of since posted during prop some time of Trustees dual issues or tices submitted If had day subject of December than submit ositions with more one posted prior midnight proposition. been November ted in each It is our view complied posting would have or the submission of two more schoolhouse literally provision proposition statute. elec projects with the one at a bond Since, 2784e-l, permitted of the that event no resident tion is V.A. precinct T.S., probably par. have seen them especially (2) since Section morning, next dif- sunup independent before such Article school allows effect, ference, between practical levy district ad valorem to issue bonds and construction, posting re purchase, time of actual taxes for “the pair equipment public not have been more free could school statute think, in view of buildings than a few hours. We within the limits of such districts deprived purchase necessary the fact that no voter was sites suffrage by propositions virtue of privilege the two his therefor.” Each of notices, delay posting submitted with the school short connection purpose posting them on De- act of the clerk bond election shows that house pliance cember with the 1, 1946, was statute, substantial [*] * com- tion, repair equipment purchase, public free construc buildings limits
school
within the
purchase
of the nec
school district and
It is our view that there was sub
Thus,
essary sites therefor.
compliance
stаntial
with Article
sub
expressed
of said
each
invalid,
that the election was not
especially
purpose set
stantially conforms with the
appellants
since
any
have not shown that
out
Article 2784e-l for
qualified voters whose votes would change
*6
2786,
issue bonds.
district
the result of the election would have voted
V.A.T.S.,
part
provides in
that whenever
if
longer
a few hours
notice had been
to
proposition
the
to issue bonds is
be voted
given. See
Independent
v. Scranton
Baker
district, the
any independent
on in
Dist.,
Appellants
supra.
School
only
assert
notice of elec
petition,
order and
three
deprived
absentee
voters
among
specify
other
distinctly
tion must
of notice. We
read
testimony
have
the
are
the bonds
things
purpose
for which
say
and
these witnesses
cannot
instant
in the
to
This was done
be usеd.
they
court erred in
finding
would
sepa
is
a
is
that the law
It
true
if
case.
posted
have voted
the notices had been
Furthermore,
longer
bal
placed
on the
period.
proposition
must
since
rate
appellants
request findings
did
fact
object
independent
distinct
lot
each
law,
or
trial
conclusions
court’s
is
indebtedness
purpose
which the
or
implies
judgment
necessary
all
fact find
however,
true,
equally
contemplated.
is
It
ings
support
judgment,
in
and this
of the
permissible
include several
is
to
it
presume
conflicting
Court will
that all
is
if
proposition
in
or units
one
structures
ap-
of fact were found
favor of
sues
differing
purposes
identical
serve
pellee.
Robinson
Petersen v.
Oil & Gas
houses, and
areas,
two school
such as
Co.,
217, Tex.Civ.App.,
356 S.W.2d
Houston
relationship
each other.
to
a natural
have
h.;
v.
1962, n. w.
Globe Chemical Co.
Mo.S.Ct.,
Compton,
See Kellams v.
341,
Walla,
Tex.Civ.App.,
and annota
A.L.R.2d
S.W.2d
h.; LaForce v. Brac
n. w.
Houston
622;
page
at
thereunder
ken,
C.J.S.
Tex.Civ.App., 163
aff’d
S.W.2d
366(2), p. 96.
Sec.
141 Tex.
S.W.2d
respect to
Mullen,
the will of the electorate with
Adams
244 S.W.
v.
ref.,
Proposition
passed
No. 2 which
Tex.Civ.App.,
1922,error
San Antonio
is
pur-
of favorable
larger
held that
number
votes.
the court
bonds voted for
construction,
power
and main-
our view that
of the Board
pose
operating,
to contract with
voters
taining graveled, paved
of Trustees
or macadamized
thereof,
Propo-
turnpikes,
not to
the bonds described in
in aid
issue
roads
to
objectionable
submitting two
sition No. 1 is immaterial and irrelevant
were not
de-
separate
power
purposes
Board to issue bonds
or more
and distinct
Proposition
single proposition.
No. which cаr-
a similar
scribed in
There is
vote,
holding
County,
by majority
word-
in Garcia
354 ried
Duval
respect
Tex.Civ.App.,
ing
pre-election
Antonio
order with
San
ref.,
issuing
Proposi-
to
for carrying
error
r.
out
n.
e.
In Wilkerson
Otto, supra,
authority of
upheld
election tion No. 2
not vitiate
the court
does
proposition
results
connection
the Board to issue bonds
There
with a
therefor.
purchase,
submitted
the record
purpose
nothing
“for the
to show that
construction, repair
pub-
propositions
equipment
manner of submission of the
lic free school
the limits
affected the results of the election.
buildings within
district,
purchase
Coffman,
In Moore
necessary sites therefor.”
(1918),
it was
S.W.
held that where
Appellants assert that the Board of Trus-
submitting
court
commissioners
provide
tees did not
power
have the
to
building
bonds for the
two
pursuant
their order
petition
to the
sub-
desig-
bridges across the Brazos River at
only
mitted that
proposition receiving
places, and the
carried,
nated
greater
number of “For”
votes
keep
court was
faith with those
adopted.
the one
The court found that
expressed,
whose will the election
and there-
Proposition
2No.
received
favorable
more
at
fore
not construct
bridges
could
Proposition
than
No.
and author-
places
places.
than
designated
ized the issuance
levy
collection
The court said:
of taxes as
Proposition
2.No.
such cases
fair
“In
Both
carried.
are not con-
We
voters in
election called
determine
cerned,
however,
Proposi-
primarily with
the matter to inform them in advance
tion No. 1. This
brought
suit was not
location,
so that
actual
intended
appellants
require
proposal,
given
merits of the
into which
issue and sell bonds under
*7
may
en-
largely
the
of location
No. We are
upon
not
to con-
called
ter,
decide the contest.
this
shall
When
sider
legal
what
principles
apply
may
had
done,
part
vote
the location is a
they done so or
whether it
nec-
now be
equivalent protec-
and is entitled
an
to
essary for the
proposi-
Board
to submit
tion.”
to
tion
cancelling and
electorate
an-
nulling the
Prop-
result and
of
affirmance
a similar
v.
holding
There was
Black
osition
1No. because the
of
issuance
bonds
Strength,
(1922).
112 Tex.
pursuant Proposition to No. 2 elimi- would In Board School of Lubbock of Trustees the need necessity nate and the issu- County Independent School Woodrow of pursuant ance bonds Proposition District, 333, Tex.Civ.App., 90 S.W.2d No. 1. h., Amarillo n. w. the commissioners if wе posi-
Even assume that the pre-election Board’s court in a that order respect tion with to not issuing majority any bonds in if a more voters in one or of connection 1 is un- independent No. of the common school or tenable, there seems to be no reason good against voted the creation of districts why election, such fact invalidating should result in high rural school district in the
the rural high controlling, school district would not he ner are but entitled to though per- created majority weight clearly even all great of wrong. unless San sons proposed group- voted favor College of Antonio Union District v. Junior ing. Daniel, Such order despite made the fact was that Article 2922c a favora- required only (1947). proposed ble vote of all voters in the rural opinion Attorney In another of Gen- require school district did and not Texas, Mann, 0-2667, of eral Gerald No. C. sepa- vote favorable in each the voters it was stated: rate district. The said: court control writ of
the trial court lees.” discretion of the board to create the posed exercise same so from the corrected minutes of said “Accordingly, exercised, that district being such mandamus it appearing discretion, by upon as erred we prayed conclusively appears hold a named here that absolute, that attempting granting condition, same was board, appel- initial might pro- Roane Fletcher Va. result thus fect and force we think annex the happening bonds should [79] “In view of Strength 32], 75; County vs. it obtained Ely, further RCL, [112 would not be unlawful not some Court vs. O’Brien [95 S.E. 53 S.W. a contract. See issue Tex. pages 352 and foregoing named event. The would have condition except 188], (2d) 355; quotation upon that the ef (Writ Black 1164; S.W. also W. We, therefore, also Couch, Refused). See Gibson conclude Tex.Civ.App., straight are for the Eastland w. h. if bonds voted n. is, construc
statutory purpose, ‘for tion, operation maintenance The Attorney General of the State macadamized, roads graveled paved Texas, Mann, Opinion Gerald C. issued thereof,’ that turnpikes, aid or in 0-2088, in response request No. to a proceeds be for the opinion used construction toas that an order the effect designated highways, and of State adopted by the Gon Trustees of conditioned the issuance thereof is Independent zales District on man in a House Bill 688 amended being same date call adopted the Board an order permit participation so ner ing bond would have on in the to the such bonds extent рre-election election results. order 100% allocated adopted gasoline State tax fund by Board covenanted In County Road district, Board of agreed if bonds of debtedness, would voted, such dis unless the issued ipso void because be rendered facto trict able to grant secure a from condition named inclusion Public The elec Works Administration. further conclude carried; proceedings. in the We however, the Public Works last happening that without Administration re denied the district’s not be contingency could stated the bonds quest grant. Attorney for a General’s lawfully issued.” opinion was to the that since effect *8 Board contracted the bonds not to issue
unless district A. not neces the received a P. It is our view that W. grant, they legally sary could the whether issue for this determine not Court to imposed grant pre-election the the bonds unless was secured. the in condition Attorney stated, pre opinion General in his order of the Board of Trustees “Any carrying out other rule tend undermine vent the issuance for would of bonds public public Proposition confidence in acts No. 1. are concerned of We here carrying Proposition No. 2 officers.” We that Attor recognize with the out of ney opinions therefor, any General’s not man- are and the issuance of bonds provision pre-election provision hold that such in the such of the law is immaterial order No. 2 validity does not invalidate and does not affect of the ” pursu- and the issuance sale of bonds election.’ ant thereto. The court Baker v. Scranton Inde- pendent District, supra, School stated that opinion are of the We the fact that the election did not officials fail holding err in court did not have a property certified list of the owners tax of ure of the assessor-collector by Article 5.04did not invalidate Independent Brazosport the election unless there was or seri- fraud provisions 5.04 comply with ous misconduct irregularities providing Election Code Texas changed or contributed changing property duly certified list rendered result of the election. is no evi- There owners, declaring a ground was not dence of or fraud anything misconduct or void; di provision is election since such to indicate that the failure of the tax as- rectory affect the failure did not sessor and collector to furnish the certi- results of In Franklin v. Wil the election. fied taxpayers list of changed the results son, 820, Tex.Civ.App., East the instant case. overruled, land where it mandamus by the was that the cast contended Appellants assert thеre were some il were voters the election in qualified voters were voters as who not legal the names voters did because of such owners of property taxable within appear not the assessment rolls of duly district which had been rendered. Texas, June, Town held of Lake the court They also contend that the erred in court tax assessment roll finding that there were 9 resident elec- directory pro merely in said statute tors who did voted the election that county vided for aiding not property own taxable within the dis- judge determining judges and election trict. In their first voters category of property who owns within area and are they they qualified, contend were not thereby eligible to vote in the election. It persons. category have listed 9 In such mandatory provision is not a that would dis they Walker, although listеd Mr. Milton W. qualify in the The court citizens area. there is no Walker Mr. whose vote said: hold that if “We a voter is other they challenged. category In second qualified wise law, under the voters, list 26 two of whom not listed are appear upon failure of his name to point error, their re- seventh thus destroy roll tax assessment his ducing such number to 24. third In their right in the to vote election to abolish the category they voters, list list but city.” Mr. George Mrs. B. twice Stevens Abell, hence such Border number should reduced to h., Tex.Civ.App., Davis, 5. F. Galveston n. w. P. who is a chal- listed as lenged appellants’ point the court said: voter seventh error, any appellants’ is not listed “ any allegations ‘In the absence of or categories. three category The fourth proof misconduct, fraud or that quali- whom the trial court held comply provision failure to fied persons pur- includes those who were stating tax collector statute chasing property their a contract shall judges, furnish in sale, and whose contracts had never been character, this a certified recorded. list of the owners of real estate in the Appellee county, have who rendered the same admits and the evidence shows taxes, challenged affected the fair of such that 29 of result listed voters *9 election, comply appellants’ Proposition the failure to so Point 7 voted for
574 they provided; but no assessment real 2 either not vote herein No. and that did Prop- illegal by rea- Proposition property shall be considered against 1 or voted on No. being not or as- (omitting of the same listed No. The other 11voters son osition Davis, in the name of the owner own- including Mr. sessed duрlicated), names they voted. Of four ers thereof.” did not disclose how qualifications voters, are whose Newman, 134 Tex. Markowsky In v. voters, challenged two voted as the same 440, Supreme (1940), S.W.2d on Proposition did not vote No. for Court said: Propo- Proposition No. and two voted 2.No. against .1 sition No. “Under Article Section Thus, contends, appellee if all as Texas, it Constitution of was held that held to challenged in trial court are person qualified a to vote who otherwise disqualified, the results taxpayer qual- property was a owned changed. not be determine ified to vote in elections to
expenditure assumption of money or this) though debt an like even (in asserts, however, Appellee that appear property his did not on tax qualified, challenged voters were since rolls.” ledger tax which cards constituted prop showed rolls School District Martin, Richter v. challenged erty owned each h., Tex.Civ.App., Antonio San n. w. voters, property that of each chal so the court said: tax lenged voter was on the rolls of The that District. evidence shows School property “It held if has been that pay challenged most voters their he of a citizen on the tax is rolls and a through taxes assessed, is has liable the taxes he pro mortgage company under the usual same, ‘duly regard rendered’ without whereby the of a deed of trust visions particular through manner or form monthly mortgage company withholds one- which the rendition was DuBose made. in a trust twelfth of taxes next due Ainsworth, Tex.Civ.App., paid to the school district fund is 307; Campbell Tex.Civ.App., Wright, year. ledger cards at the end of each There are a number S.W.2d 149. on ownershiр property not did reflect cases in which it be shown voters, but in the case of 5 June duly property his voter has- rendered assessor- that the tax the evidence shows though may appear not taxation already had received evidence collector his [citing rolls in name.” cases] ownership prepared and had changed plate reflecting such addressograph Mauermann, 195 also Lucchese v. S.W. See the date change prior to June 422, Tex.Civ.App., Antonio 2d San urge fact Appellants election. h.,w. in which the court stated that n. appear on the name did not voter’s appear person’s name failure of would indicate rolls or cards tax property on the rolls will an owner of tax not This qualified to vote. is person voting disqualify that from VI, 3a of the law. Article Section proрerty which if he owns a bond Texas, Ann.St. Vernon’s Constitution Pub also Texas is on the tax rolls. .See name actu require person’s Holland, Corp. does not S.W. Utilities lic 1938, er Tex.Civ.App., he Ft. Worth rolls before 2d appear on the tax ally ror dism. Arti in a bond election. to vote qualified provides: “All real 7171, V.A.T.S., cle as well settled law is subject shall to taxation
property taxation “duly rendered” for property the manner thereof to the owners sessed *10 school, mentary improve- property is rendered for taxation additions and if by by agent, elementary junior or if such ments to owner or his by property placed the tax rolls schools. Campbell v.
the tax assessor-collector. V.A.T.S., by As Wright, 149, Tex.Civ.App., San petition requesting call the School Board to h.; Antonio Texas Public Util n. w. presented the bond to The election was it. Markowky Corр. Holland, supra; ities v. petition requested propositions the two Newman, supra; Mauer Lucchese v. qualified petition be submitted. mann, supra; Jordan, Tex. Hanson by the following conditions: our (1946). S.W.2d 262 appellants failed sustain view have “(a) said If at said election both of the every negative the burden them propositions rejected, shall bonds shall be votes, theory upon challenged which the pur- not be issued nor taxes be levied shall exception by the with the the 9 found proposition; suant to either or court, legal. trial could have been Solis 956, Tex.Civ.App., Martinez, 264 S.W.2d “(b) If at one said election of the said San Antonio error dism. propositions greater shall favored be ‘Against’ number of votes ‘For’ than such appellants’ We overrule contentions proposition, proposition and the other shall trial overruling court erred in their rejected, proposition be shall the favored motion to have re- the court deem their adopted, be declared be shall not quest for admissions admitted. have We pursuant issued nor shall be taxes levied appellants’ points, considered and have con- rejected proposition; or part cluded there was error on the no connection, of the court in such and that “(c) If at said each of the said properly court its discretion exercised propositions greater shall number receive it, rulings made furthermore ‘Against’ proposi- of votes ‘For’ than such appellants any have failed to show re- tion, proposition receiving greater versible error in such connection. proposition number of votes ‘For’ such adopted, shall be declаred and bonds shall Judgment affirmed, court As- trial not be issued nor taxes be levied shall sociate dissenting. Coleman Justice pursuant proposition; to the other Opinion Dissenting “(d) If at said election each of the said
propositions greater shall receive a number COLEMAN, ‘Against’ of votes ‘For’ proposi- than Justice. tion, proposition and each shall receive the At proposi- election in two votes, approving same number of Board tions Propo- were submitted voters. shall, discretion, of Trustees in its declare $3,860,000.00 sition No. 1 authorized a bond adopted, one said purpose issue for the increasing bonds shall not be issued nor shall be taxes permanent Brazosport High facilities of the pursuant levied proposition.” 2,600 capacity, School to a student a new elementary school, improve- additions and adopted order, of Trustees elementary junior high ments to reciting petition should granted, schools. 2No. authorized a prayed election as should $5,998,000.00 ordered, bond issue for the calling order, the election. The building 2,000 capacity a new student entirety which was set out in its no- area, high school in the Clute-Lake tices contained a statement that Jackson increasing Brazosport High the size of represented, the Board covenanted and capacity, School to agreed ele- student a new to the conditions concerning the *11 * * * remaining the wanted two the results of so the ascertaining manner of It petition, which left were submitted.” in the election contained principal questions that one of the obvious quoted above. designed this to determine was election was de- and canvаssing order the returns The high a new of whether school that claring the results of the election found in should be constructed the Lake Jack- 2,616 “for” Proposition No. 1 received area, thereby dele- son and Trustees votes; 2,321 that “against” and and by gated powers entrusted to them 2,656 Proposition “for” votes No. 2 received V.A.T.S., to determine “how Article 2,367 found “against” further and votes. It many their schools shall be maintained in majority for the issuance that there was a district, points they and at school what Proposition No. in provided of the bonds qual- shall be located” to those of the voters the issu- votes, majority for of 295 and this ified to vote in bond elections. On Proposition ance bonds important question those of the residents de- then No. 2 The order votes. qualified trustees, to vote for but favorably resulted clared that the election property subject who owned no to taxa- bonds issuance of the schoolhouse to the tion, property duly or whose had not been levy- described No. rendered, effect, were, in disenfranchised. thereof; that payment ing of tax was authorized the Board of Trustees It is clear that an election held for the levy and collect and to issue said bonds purpose of determining high whether a thereof; that the elec- payment taxes in school should be established construct- issuance unfavorably to the tion resulted particular ed in a area be without Proposi- bonds described the schoolhouse binding effect for the reason that such an be said bonds shall No. election not authorized. issued. 2784e-l, par. provides Sec. conducted, planned as This that the Board of Trustees issue is void for thе reason election purchase, (1) (2) construction, (3) for: by Legislature has not been authorized repair, (4) equipment public free school this The record reflects that State. purchase buildings, (5) neces- class- shortage of District had an acute sary statutory sites There is no therefor. rooms, especially high students. school authority at the to submit the same matters president appoint- The issues, same two different consider ed citizens’ Committee to necessity except no therefor for the de- recommended problem. Committee The sirability of a straw vote on the establish- replaced high be existing school high ment and school. location of new high in another area and school new calling amounted to elections on two junior existing be used as school same be held the same time issuеs to at the al- years. three or four school for using the same ballots. The statute does ex- ternative, suggested the Committee calling two elections in one authorize expanded con- isting high be purpose. Except order the same school, or, only high tinue money the difference the amount of au- alternative, high school existing propo- thorized there is no difference newa enlarged and that repaired and sitions. Lake in the high school be constructed area. Jackson Mitchell, 120 Tex. et al. v. In Countz 770, Tex.Com.App., 324, 38 S.W.2d alone proposition was submitted first The “ * * * be no can Court said: [t]here de- the Trustees defeated. Then and was authority lawful valid election without some let fair “it seemed termined to hold an right it. behind what vote people district proposi- identity lawfully with- exercised Because оf cannot exist or con- power by the ballots used express grant of the Consti- tions out which was not authorized language tained Legislature.” tution prescribing the law the form of Lieb, 406, Tex. In Coffee elections. ballot to be used in such Civ.App., court said: Supreme has stated Court of Texas *12 special where a statute which authorizes a “Therefore, popular gov- ‘In all forms of pre- imposition for the of a tax election power majority ernment of a to bind scribes the form depends minority by popular a vote vote, popular to the shall be submitted upon held the fact the elections are strictly complied with. statute should be by authority, and an legal virtue of some McCabe, Reynolds Land & Co. v. Cattle without affirmative constitu- held 57, (1888). 72 Tex. S.W. universally statutory authority tional or is necessary only be- language аdditional ” recognized nullity.’ being as a this cause straw vote feature of the. election.
Prior to the election the Board of Trus- tees had not determined whether a new yet another vice in this election. There is high it school should be built or where V.A.T.S., 2784e, provides Article Sec. 4 of By ordering should be built. the election issued be levied or bonds tax shall no it, petition presented on the basis of the to by a been authorized until such action has the Board determined that it was advisable at an election majority of the votes cast either to build a new to school or purposes. Here for such held the district enlarge present It agreed one. to purpose included an additional by bound the decision voters those vote, majority required, in addition to a eligible vote to in bond This elections. re- adopted must рroposition that a to be is a vital distinction between the facts proposition than the other ceive more votes this case and those in such cases as Moore requirement no has submitted. Such Coffman, v. 200 S.W. Trustees, agree- statutory basis. The . (1918); Black Strength, v. Tex. ing issue bonds voted on (1922), S.W. and other cases cited proposition fewer “For” receiving the by proposi- appellee. authority if taxing In these cases au- their exceeded an elec- passed by majority vote at tion thority calling the designated according and conducted tion held particular improvements be constructed applicable It has requirements law. proposed and their In each case location. where that even held in such a case been taxing authority exercised their discre- peti- presеnted with a board is the school tion. No alternative was submitted to taxpay- by signed three-fourths They spe- against voted voters. for or asking that their the district ing voters of proposal. significant cific issuance voting for the former action of Coffman, Supreme Moore supra, issue and the bond of bonds rescinded “ * * * perceive Court can said: We annulled, power to lacked the the Board nothing trench- in such a course that either Marrs, Tex. 47 S.W.2d do so. Orr v. authority possessed es or exceeds dism., 122 Civ.App., writ Texarkana Courts these matters Commissioners’ Tex. 53. amounts, municipal bodies, or or that duty contended, 2786a, V.A.T.S., to a surrender of their enacted purpose Hudson into other hands.” See also an election for the authorizes Dist., cancelling Ind. 95 S.W.2d bonds revoking San Antonio School voted dis Tex.Sup.1936. independent authorized had Supreme Texas trict. The Court of INTER-CONTINENTAL CORPORATION elec this statute mean that an
construed al., Appellants, et duly be held tion could to revoke voted, when authorized issued change in showed that
later conditions MOODY, Appellee. Robert L. unnecessary pro spend their would be No. 14611. Dis Independent Huntsville ceeds. Appeals Court of Civil of Texas. McAdams, 546, Tex. trict v. Sup.1949. Houston. Dec. 1966. statute
From these decisions and this I for the Rehearing that an election called conclude Jan. 1967. Denied issuance authorizing Rehearing Denied Second Feb. levy payment bonds and the of a tax *13 illegal thereof is the School void where
Board, expedient a contract with voters, attempts to determine also propositions voted
one or the other of the adopted
on would be declared adopted propositions
other not where both against.
received more votes for than author-
effect of such action would be the
ization of the issuance simultane-
revocation of the same bonds later
ously showing of a and without
change in conditions. representations voters made to the ascertaining the method of result delegation together authority the discretion voters,
of Trustees to the was calculated voting affect on both The elec
and the result election. by, con but was
tion was authorized illegal to, pertinent
trary and is statutes Dodds, Stephens 243 S.W.
and void. 1922; City of
710, Tex.Civ.App., Amarillo McCraw, 127,113S.W.
Houston v. 131Tex. 1938; Mesquite Dist.
2d Ind. School Gross, Thompson Elmo Ind.
(1934);
Dist., Tex.Civ.App., Waco 269 S.W. judgment
I would reverse the voiding judgment court and render
trial respectfully According, I
the election. dissent.
voice this