281 S.W. 837 | Tex. | 1926
On January 2, 1925, Charles B. Cook filed this suit for mandamus against W.D. Yett, Mayor, and other officers of the City of Austin, to secure the issuance of a writ of mandamus requiring the officers named to call an election for Councilmen for the first Monday in February, 1925.
One phase of the controversy was before us last term, and we refer to the opinion then rendered for a fuller preliminary statement of the case.
A peremptory writ of mandamus was awarded. An appeal was taken by the plaintiffs in error Yett and others, to the extent of giving notice of appeal, filing assignments of error, and the execution of a supersedeas bond. They did not, however, file a statement of facts in the lower court or a transcript in the Court of Civil Appeals. In this state of the case the defendant in error Cook filed a motion for leave to file a transcript in the Court of Civil Appeals, to reform, and as reformed to affirm the judgment of the trial court. A complete transcript accompanied this motion. That court overruled the prayer to reform and modify the judgment, and affirmed the case as on certificate. The case is before the Court on writ of error granted W.D. Yett and others. The motion of the defendant in error acted upon by the Court of Civil Appeals was in no sense of the word a motion to affirm on certificate, "a request for affirmance signed by the party or his counsel," as contemplated by the statute and rule named, and without which the Court of Civil Appeals was without power to affirm on certificate. Revised Statutes (1925), Art. 1841 (1610), Rule 11A.
We quote from the motion in part as follows: *211
"That by virtue of such default petitioner is entitled upon filing of a certificate as provided by law, to have this cause affirmed as upon certificate, but that such an affirmance upon certificate would be of no avail to petitioner, and would deny to petitioner all relief and protection of the law, in this, * * *
"Petitioner prays that upon a consideration of this motion and of such transcript, that such transcript be ordered filed, and said cause be placed upon the docket of this Court, and that upon a hearing had after notice given that the judgment of the trial court be so reformed as to require the respondents named in plaintiffs' original petition, to-wit, W.D. Yett as Mayor, H.L. Haynes, George P. Searight, H.W. Nolen and C.N. Avery, as Councilmen, and Joe Hornsby as City Clerk of the City of Austin, to fix a date for the holding of such election, * * *"
The prayer also contains a request for general relief.
That the defendant in error did not move for an affirmance on certificate is evident for the reason that the first part of the motion, quoted above, expressly negatives his purpose to ask for any such relief, and the prayer for general relief cannot be construed as being a prayer for anything which is expressly excepted therefrom by other portions of the pleading. Denison v. League,
The action of the Court of Civil Appeals in affirming the case as on certificate, being without pleading to support it and contrary to the express and direct purposes of the motion, was erroneous. Wheeler v. Wheeler,
In view of the disposition to be made of this case, it is immaterial whether the trial below was before the judge in chambers or before the court in session. Hence we will not discuss that question.
The assignment of plaintiffs in error that the charter amendments adopted by the voters and here involved were not validly adopted, because not drawn by a charter committee, selected under the statute, is without merit. Under Revised Statutes (1925), Article 1170, the governing body of the city had a right to submit amendments to the existing charter to the voters of the city. The amendments before us were submitted and adopted under this Article. These amendments, *212
while covering a wide range, do not constitute a new charter. They fall far short of such an instrument, covering but a portion of the subjects necessary to be included in a city charter. 19 Ruling Case Law, 751, Sec. 55; People Ex Rel. Moore v. Perkins,
The mandamus awarded required plaintiffs in error to call an election for city councilmen on February 2, 1925, in accordance with one of the charter amendments lawfully adopted on August 8, 1924, at which time all other amendments to be hereafter referred to were adopted by a vote of the electors of the city. There is no statement of facts in the record, but it is conceded that we may take judicial notice of the charter of the city and the adopted amendments, all of which we have before us for examination.
Sections 1 and 4 of Article XVII, which Article is one of the amendments adopted, read in part as follows:
"Section 1. On the first Monday in February, A.D. 1925, and on the first Monday in April, A.D., 1927, and at each successive interval of two years thereafter on the first Monday in April, there shall be elected at large by the qualified voters of the City of Austin, at a general election to be held for that purpose, five councilmen, who shall constitute the City Council, * * *
"Section 4. All city elections shall be governed, except as otherwise provided by the charter, by the laws of the State of Texas governing general and municipal elections, so far as same may be applicable thereto; and in event there should be any failure of the general laws or this charter to provide for some feature of the City elections, then the City Council shall have power to provide for such deficiency and no informalities in conducting a city election shall invalidate the same, if it be conducted fairly and in substantial compliance with the general laws, where applicable, and the charter and ordinances of the City."
The above quotation shows that there was to be held but one election for councilmen on any February 2nd. The biennial election of officers thereafter is to take place each two years after the first Monday in April, 1925. From this we think it clear that the election on February 2nd was to be a special election, as distinguished from the regular biennial election of *213 city officers; and is to be regarded as the first step towards carrying into execution and effect the changes in the form of city government brought about by the adoption of the amendments. Reading all the amendments and carefully checking them against the original charter provisions of the City, convinces us that the fundamental changes wrought by these amendments and the erection of a new type of city administration was a matter of paramount and controlling importance to the people who adopted the amendments, and that the date selected for holding the election for new councilmen was of secondary importance.
However, the date named in the section quoted — the first Monday in February, 1925 — was February 2nd, a date at which it was impossible to hold an election in compliance with the general laws of the State.
The purity of the ballot in Texas has been safeguarded by many constitutional and statutory provisions. The State Constitution, Article 16, Sec. 2; Article 6, Secs. 4, 5, 2; Article 7, Sec. 3. See generally, also, Revised Statutes (1925), Articles 2954 to 3173, and the Penal Code (1925), Articles 206 to 280.
Among other provisions having for their purpose the purity of the ballot are those relating to the payment of poll taxes and evidence thereof for use at elections. Tax collectors are compelled to prepare and furnish poll tax lists to election boards for distribution to the precinct election officers. These lists constitute part of the election supplies and the number of ballots to be furnished each voting precinct is ascertained by reference thereto. Revised Statutes (1925), Articles 2975, 2984. In the case of municipal elections the election board is composed of the Mayor, and others, whose duty it is to obtain election supplies including the poll lists referred to and furnish them to election officers. Revised Statutes (1925), Articles 2997, 2996, 2992, 2993. Supplemental lists of the voters who have paid their poll taxes must be furnished "not less than four days prior to any * * * general election." Revised Statutes (1925), Article 2975. If all lists are not furnished the presiding judges of the various election precincts "at least three days before election" it is their duty to send for and procure them. Revised Statutes (1925), Article 2993. These poll lists are used on the day of election as a means of identifying those who appear for the purpose of voting. Describing the actual method of voting, Article 3005 declares that when the voter presents himself to vote he shall "announce his name and the judge, *214 after comparing the appearance of the party with the descriptiongiven in the certified list of qualified voters of the precinctmade out by the County Collector, and being satisfied that itaccords therewith, shall pronounce in audible voice the name ofthe voter and his number as given in the lists of qualifiedvoters." (Italics ours.)
It can serve no good purpose to make reference to the many statutes which show that the poll lists are one of the things which can not be dispensed with if a lawful election is to be held. Since the statutes contemplate that the poll lists shall be used as an active and efficient aid towards securing the purity of the ballot they necessarily mean that complete poll lists shall be used. That is to say, the lists should contain the names of every voter who may pay his poll tax prior to the close of January 31st each year. We think it quite evident that the poll lists in a city like Austin could not properly be prepared and distributed and the statutes in other important respects be complied with between the hour of midnight January 31st and the hour of the morning when an election would be held on February 2nd. But aside from what might be done the law is that the supplemental lists must be prepared at least four days before the election day and that the poll lists must be in the hands of the precinct judges at least three days before election day. Revised Statutes (1925), Articles 2975, 2993.
Construing the various statutes bearing on the subject in the light of the Constitution shows conclusively that the provisions relating to poll tax lists are mandatory. We think it too plain for argument that the general laws covering elections could not have been complied with in the City of Austin at an election on February 2nd, as provided for by the amendment to the City charter. Since the conflict between the general statutes and this charter provision exists it follows that in so far as the amendment named February 2d 1925, as an election day it is void and the court erred in directing plaintiffs in error to give effect to that provision. State Constitution, Article 11, Sec. 5; Vernon's Texas Statutes (1925), Article 1165.
It does not follow from this, however, that an election cannot be had under the amended charter. It is true the amendment designated February 2d 1925, as an election day, but, of course, that date was not a mandatory date, in effect no date because a void date. It would be against common sense to say that the people enacting this amendment intended that unless the election could be held on February 2, 1925, then there should be no change in the city government, and the new plan of city management should fail. It is apparent from the amendments *215 that the election of new councilmen, different in number, with different and more limited duties, was the substance of the election, and not the void date named. The charter plainly contemplates that although some feature of the city election might not be provided for, either by the charter itself or the general laws of the State, the omission shall be supplied, and the election held. Section 4 of Article 17 of the Charter declares: "And in the event there should be any failure to provide for some `feature' of the city elections, then the city council shall have the power to provide for such deficiency."
The date of a city election is certainly a "feature" of the election. There has been a failure of that "feature," for the date named is, as we have seen, no date, or a void date. There having been a failure of that "feature" of the city election contemplated by the amendment, the quoted provisions of Section 4 of the amendment, Article 17, are to be given effect; and it is the duty of the city council, in compliance with the terms of the amendment and other relevant portions of the charter, to call an election, to be held at a date fixed by the council consistent with the general laws of the State. We are led to the conclusion that the date may be supplied under the charter provision quoted, not only by considering the charter amendments in the light of reason and common sense, but because this construction is in harmony with the public policy of the State as evidenced by various Acts of the Legislature.
The charter provisions of a number of cities illustrate the proposition that in the instance of the adoption of a new charter by vote, or the election of the first officers to begin the administration of a city government under a new charter or under an amended one, the substance of the legislative act ordering the election is that the election shall be held, rather than the date thereof. Charters of Galveston, Gammel's Laws, Vol. 8, 1194; Vol. 9, pp. 488, 772, 773; Charter of El Paso (1889), Sec. 6, Gammel's Laws, Vol. 9, pp. 1261, 1262; Charter of San Antonio (1876), Sec. 194, Gammel's Laws, Vol. 8, p. 1258; Charter of Corpus Christi, Local and Special Laws, 31st Legislature, 350; Charter of Palestine, Sec. 10, Local and Special Laws, 31st Legislature, 586; Charter of Amarillo, Local and Special Laws, 31st Legislature, 859. See also Sec. 22, Article 15, Charter of Austin, Local and Special Laws, 31st Legislature, p. 43.
The view here expressed, to the effect that an election of officers may be held in the City of Austin although the charter day, February 2d 1925, has passed, is supported by the leading *216
authorities. 38 Corpus Juris, pp. 721, 722; Dillon on Municipal Corporations, Vol. 4, Secs. 1495, 1496; 26 Cyc., p. 272; Kent's Commentaries (13th Ed.), Vol. 2, p. (296) 403; Board of Excise v. School District,
In the event the city council declines or refuses to order the election, they may be required to do so by mandamus. Dillon on Municipal Corporations, Vol. 4, Secs. 1495, 1496; 38 Corpus Juris, pp. 721, 722; 26 Cyc., p. 272; 18 Ruling Case Law, 270; 9 Ruling Case Law, 1000; Sansom v. Mercer,
We are convinced, however, that the defendant in error can not maintain the present action. He predicated his right to relief solely upon the fact that he "is a citizen and tax payer of the City of Austin, Travis County, Texas, and is a duly qualified voter and entitled to vote in the election hereinafter referred to, and brings this action in such capacity." (Italics ours.) He has no interest, financial or otherwise, peculiar to himself in the election. His interest is that of the general public only. That he cannot maintain the suit appears not only from the law as declared generally by the authorities of this State, but directly from the charter of the City of Austin as it exists under the amendments adopted and here under review. The special charter of the City at the time of its enactment by the Thirty-first Legislature, and up until the adoption of the amendments of August 8th, contained in Section 22 of Article 15, the provision quoted below. This Section made it the duty of the *217 Mayor, as soon as the Act took effect, to order a primary and general election at specified dates, and thereafter the regular biennial election on a date named. The Section then declares:"Whenever it is the duty of any officer or officers to order anelection under the provisions of this Act, five or more qualifiedvoters of the City of Austin may compel such officer or officersby mandamus to order the same." Acts of the 31st Legislature, p. 43.
This clause was placed in the Austin charter because the Legislature was of the opinion that without it voters, citizens, and tax payers of the City, under the statutes of the State and decisions of the courts, would not have the right to bring a mandamus suit such as this one, and because the Legislature desired that voters, citizens, and tax payers should have thatright. However, one of the amendments adopted by the people ofAustin on August 8, 1925, expressly repealed this provision ofthe charter. An elementary rule of construction is that when a law is amended, effect must be given to the amended law in a manner consistent with the amendment. Wilson v. Vick,
The amendment here had the direct effect and the undoubted purpose to take out of the charter that mandamus provision. There then can be given to this charter as thus amended but one meaning, and that is that five or more qualified voters cannot now maintain a mandamus suit to order an election. Any other interpretation would completely ignore the will and intention of the legislative authority (the people who voted the amendment in this instance) when they took the provision out of the charter. It would, of course, be absurd to say that because the people took from the charter this clause they thereby intended that while five or more voters could not maintain a mandamus suit, that nevertheless one, the relator for instance, could do so.
We might well rest our opinion on this question on the construction of the charter alone, but there is still another fundamental reason why the relator cannot maintain this action. It is a rule of universal acceptation that to entitle any person to maintain an action in court it must be shown that he has a *218
justiciable interest in the subject matter in litigation, either in his own right or in a representative capacity. State of Texas v. Farmers Loan Trust Co.,
"It is not claimed that appellant Dickson has any interest in the subject-matter of this suit other than to subserve the public interest. His lack of special interest is fatal to his capacity to maintain his suit in the absence of a valid statute, authorizing him to sue. San Antonio v. Strumberg,
*219
The case of Bobbett v. State, 10 Kansas, 9, is directly in point, and has been approved by this Court. Sansom v. Mercer,
The cases of Sansom v. Mercer, just cited, Kimberly v. Morris,
None of these cases support the position of defendant in error. In Kimberly v. Morris a question of taxation was also involved, and the Court expressly declined to determine the broad position relied on by relator.
What we have said is in accord with the established legislative policy of the State, which has from time to time, when thought necessary, declared by statute when and under what circumstances a private citizen could bring suit in the interest of the public, thereby evidencing a Legislative determination that without such enactments the citizen could not maintain actions of that character. Revised Statutes (1925), Articles 3069, 3071, 3173, 4667, 4668, 6011; Charter of Austin, Acts of 31st Legislature, 43; Charter of Palestine, Acts, 31st Legislature, 586; Charter of Corpus Christi, Acts 31st Legislature, 345; Charter of Gainesville, Acts, 31st Legislature, 534; Charter of Greenville, Acts, 31st Legislature, 628. Perhaps there are other statutes — we have made no effort to collect them all. These suffice, however, *220 to show the legislative policy as to both general and local laws.
Under the only admissible construction of the charter as amended, as well as under the authorities cited, defendant in error can not maintain this suit.
However, the people of the City are not without remedy for the reason that the State, the guardian and protector of all public rights, can maintain a mandamus suit for redress of the wrongs complained of, if any exist. The rule is an elementary one that the State may maintain an action to prevent an abuse of power by public officers, and in general protect the interest of the people at large in matters in which they can not act for themselves. Staples v. State,
That the State has a justiciable "interest" in its sovereign capacity in the maintenance and operation of its municipal corporations in accordance with law does not admit of serious doubt. Municipal corporations are created for the exercise of certain functions of government. They have a two-fold character, one governmental and the other private, and in so far as their character is governmental, they are agencies of the State and subject to State control. 19 R.C.L., page 697, Sec. 9; page 730, Sec. 36, page 739, Sec. 45, page 749, Sec. 54, page 751, Sec. 56, page 751; Dillon on Municipal Corporations (5th Ed.) Vol. 1, Section 109, page 182, and Sections 103, 104, 105, 106, 108, 115 and 117; Trent v. Randolph,
The Mayor of a city is a magistrate, and its police officers are state officers. Code of Criminal Procedure (1925), Articles 33, 34, 35, 36 to 40, 72 to 93, and 95 to 103; Ex Parte Tracey,
City officers may be appointed by an agency selected by the Governor. Ex Parte Tracey, supra; Brown v. Galveston,
Corporation Courts exercise State judicial power, and this power runs in the name of the State. Code Criminal Procedure, Articles 62, 867; Harris County v. Stewart,
Other interests of the State in its municipalities, such as schools, public health, etc., might be enumerated. 19 Ruling Case Law, 760 to 767.
It is plain from the foregoing that it is a matter of obvious interest to the State that the agency selected by it for the various public purposes and functions involved should conduct and maintain itself in the manner prescribed by law; that officers, upon whom rests the duty of administering the franchises of government confided to the city, and acting as the State's agents in custody of public property, and in the performance of the State's duties as parens patriae, trustee, guardian, or representative of all the people, should be regularly selected and installed in office in a lawful manner. See the cases of State v. DeGress,
Aside from the above, under the common law, by which our Constitution and Statutes are to be interpreted, the State could forfeit municipal charters for misconduct of their officers. Dillon on Municipal Corporations, Vol. 4, Sec. 1558; Vol. 1, Sec. 330. There are cases where this may be done. Revised Statutes (1911), Article 798. However, the less destructive remedies of mandamus and proceedings in equity are more generally employed. Dillon on Municipal Corporations, Vol. 4, Sections 1480, 1483, 1484, 1495, 1496, 1570, 1573, 1576, 1587.
On the whole it is evident that not only for the reasons we have given predicated upon our statutes and from the status of a municipal corporation as an agency of the State, but under the ancient and modern rules of the common law, the State has sufficient interest to and can maintain an action to require municipal officers to call an election to fill their own offices. This, too, is the practice both in this country and in England. Dillon on Municipal Corporations, Vol. 4 (5th Ed.), Sections 1495, 1496.
Since the State can bring a mandamus suit similar in purpose to the one before us, it is elementary that the Attorney General has the power to institute such an action. Queen Ins. Co. v. State,
We shall not at this time determine whether or not the County Attorney can, on his accord, institute, in the name of the State, such a suit as the present one. It is certain that when once lawfully instituted he can, under the express language of the Constitution, represent the State. State Constitution, Article 5, Section 19. It is clear, however, that the County Attorney can, under the direction of the Attorney General, institute a suit of this character in the name of the State.
Plaintiffs in error present many assignments attacking the validity of various amendments to the charter as adopted. We do not regard the questions raised as involved in this case, and, therefore, do not discuss them. We have intended to determine only the questions actually decided in this opinion.
From what we have said it is apparent that the District Court erred, not only in awarding the mandamus, but in permitting the defendant in error to maintain this suit; and that the Court of Civil Appeals likewise erred as pointed out in the opinion. In view of the conclusions reached, the judgments of the Court of Civil Appeals and District Court must be reversed and the suit dismissed, and it is so ordered.