Christy v. Williams
| Decision Date | 31 May 1956 |
| Docket Number | No. 12961,12961 |
| Citation | 292 S.W.2d 348 |
| Parties | George W. CHRISTY et al., Appellants, v. W. S. WILLIAMS et al., Appellees. |
| Court | Texas Court of Appeals |
Lloyd M. Lunsford, South Houston, for appellants.
Robert R. Breaker, La Porte, Homer T. Bouldin, Houston, for appellees.
This is a contest of special bond election which was held in the City of South Houston pursuant to the resolution which called for two propositions to be voted on. The resolution provided for the ballots to have printed thereon the following:
'Official Ballot
Proposition No. One
For
The Issuance of $125,000 Waterworks System Improvements and Extensions Revenue Bonds Proposition No. Two
The Issuance of $175,000 Sanitary Sewer System Improvements and Extensions Revenue Bonds'
The aforesaid bonds are water and revenue bonds and are not bonds to be paid by taxation. The election was held on April 5, 1955. The contest was brought under Art. 9.30, V.A.T.S., Election Code. At this point it is sufficient to state that the court, trying the contest without a jury found against the contestants and intervening contestants, and declined to declare the bonds void and refused to grant the aforesaid contestants a permanent injunction restraining the sale of said bonds, which was requested in the pleadings of the contestants and intervening contestants.
Pursuant to contestants' request, the court filed conclusions of fact and law; whereupon contestants, not being satisfied, filed a request for additional findings. The court's findings are amply sufficient to support its judgment. However, appellants attack such findings as not being supported, or insufficiently supported, by the evidence, through ten points, upon which they predicate their appeal.
Appellants have not complied with T.R.C.P. Rule 418, Sec. (b), wherein it is provided that the points 'should ordinarily be so concisely stated that they may appear, separately numbered, on a single page of the brief.'
This special election contest is not a civil suit, of course, but a special proceeding prescribed by law, and the courts are limited in their investigation of such subjects as are prescribed by statute. Ferrell v. Harris County, Fresh Water Sup.Dist. No. 23, reported in Tex.Civ.App., 241 S.W.2d 242, 243. It is well settled that laws requiring notice of general elections are usually held to be directory only. However, it is 'usually held that the required notice of a special election constitutes a condition upon which authority is granted to hold the election, and that there must be a substantial compliance with the law.' Turner v. Lewie, Tex.Civ.App., 201 S.W.2d 86, 88 (writ dismissed). Art. 1118a, § 2, V.A.T.S., provides in effect that no system such as appellees were seeking to subject to an encumbrance should be 1
We hold that the propositions which were to be voted upon by the citizens of South Houston were submitted to the qualified voters in compliance with R.C.S. Articles 701, 702, 703 and 704. These Articles contain the requirements as to the submission of the propositions for the issuance of bonds to the qualified property tax paying voters of the city, and the requirements with reference to the question to be submitted; and enumerates what the propositions shall specify, and the requirements with respect to the notice that shall be given, and how the same shall be given. The last Article referred to, 704, concludes with this language, (Emphasis supplied.)
One of the requirements of Article 704 is that the notice of the election shall 'be published on the same day in each of two (2) successive weeks in a newspaper of general circulation published within said * * * town, * * *.'
It is appellants' contention that the notice of the election was not published in a newspaper of general circulation and, further, that the newspaper in which the notice was published did not comply with Art. 28a, §§ 2 and 5. And that since the bond election was a special, as distinguished from a general, election, that it was essential to the validity of the election that the requirements as to notice be strictly complied with, citing Turner v. Lewie, 201 S.W.2d 86 (writ dismissed), supra.
Art. 28a, which appellants contend appellees disregarded in giving notice of the election, and so rendering the election void, reads, so far as here material, as follows:
'Art. 28a. Legal publications, definitions
'The following terms shall, unless the context indicates otherwise, have the following respective meanings:
'(2) The term 'newspaper' shall mean any newspaper devoting not less than twenty-five (25) per cent of its total column lineage to the carrying of items of general interest, published not less frequently than once each week, entered as second class postal matter in the county where published, and having been published regularly and continuously for not less than twelve (12) months prior to the making of any publication mentioned in this Act.
'(5) The term 'shall' whenever used in this Act shall be construed as indicating mandatory provisions in this Act.'
Back in 1951 the city council of South Houston designated the South Houston Mirror, a weekly newspaper, as the newspaper in which all official notices, etc., should be published. And since that time all official notices, etc., including the notice relative to the election here in question on bonds, have been published in said newspaper. Appellants state, and appellees do not deny, that said newspaper does not have any paid circulation. But such fact is not here to the purpose. Furthermore, the court specifically found that all the statutory requirements relative to newspapers in which such notice was to be published, and what constitutes a newspaper, were met by the South Houston Mirror, except one, namely, it was not entered as 'second class postal matter', but as third class postal matter.
Under the court's findings of fact, the South Houston Mirror unquestionably qualifies as a newspaper. It had all of the statutory...
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