England v. McCoy

• Citation: 269 S.W.2d 813
• Decision Date: 03 June 1954
• Docket Number: No. 6762,6762
• Parties: ENGLAND et al. v. McCOY, Mayor
• Court: Texas Court of Appeals

Page 813

269 S.W.2d 813

ENGLAND et al. v. McCOY, Mayor

No. 6762.

Court of Civil Appeals of Texas, Texarkana.

June 3, 1954.

Rehearing Denied June 24, 1954.

M. D. Emerson, Paris, for appellants.

Moore & Moore, O. B. Fisher, and T. E. Jack Springer, Paris, for appellee.

FANNING, Justice.

This is a contest of a special charter election held in the City of paris, Texas, on September 26, 1953. Appellee's motion for summary judgment was granted by the trial court and appellants have appealed.

Appellants present one point, which reads as follows: 'The error of the trial court in holding that a valid special election can be held when the proposition to be voted upon is neither described nor identified in either the ordinance calling the election, the notice of the election or the ballot used to hold the election.'

Prior to the election in question and on February 27, 1953, an election was held in the City of Paris to determine whether a commission should be chose to frame a new charter for the city to be submitted at a subsequent election for adoption or rejection. This resulted in an affirmative majority vote and in the election of a charter commission for such purpose. The commission so elected thereafter framed a proposed new charter and presented it to the city council on the 27th day of July, 1953, whereupon the council adopted an ordinance, the caption of which is as follows: 'An ordinance submitting to the qualified voters of the City of Paris, Texas, in a special election to be held between the hours of 8:00 o'clock a. m. and 7:00 p. m. on Saturday, the 26th day of September, 1953, the following question: 'Do you favor the proposed charter?' and providing for the election of a mayor, an alderman from each of the four wards, one alderman-atlarge, a city secretary, a city attorney, a city recorder, and a city marshal, in the event that a majority of the qualfified voters voting at such election shall vote in the affirmative on the question of the adoption of the proposed charter.' We deem it unnecessary to here quote the entire ordinance, which is quoted at length in the record. A copy of the ordinance was published in its entirety once each week for four consecutive weeks following adoption in a daily newspaper of general circulation in the city and duly executed notices of such election were posted by the chief of police of the city at least 30 days prior to the election at each of the four polling places designated by the ordinance. We deem it unnecessary to here quote the notice but it may be found in the record. A copy of the proposed charter was by the city clerk of the City of Paris mailed to each qualified voter of the City of Paris more than thirty days prior to September 26, 1953.

The record further shows that the election generated great public interest among the voters and citizens of the city, that the issue of the adoption or rejection of the proposed charter was hotly contested, that at least twenty public speeches were made in the city on the issue, all of which were given publicity in the two newspapers in Paris, for more than thirty days prior to the election, that radio announcements were carried for a week or more prior to the day of election, that three radio speeches in opposition to the charter were made over the local radio station, that during the week or so preceding the day of election both sides circulated and published in the newspapers specimen ballots instructing the voters how to vote on said issue, and that at the time and place of the holding of said election, the question for determination then and there by the voters, the effect of the ballot cast as framed and to be cast, were all matters of common and general information in Paris, Texas, and its environs.

The ballot in question was endorsed 'Special Election, Sept. 26, 1953,' and submitted the question: 'Do you favor the proposed charter?' and left spaces for the voters to mark 'No' or 'Yes'. The election resulted in rejection of the proposed charter by a majority of 320 votes out of a total of 3,216.

A copy of the proposed charter was introduced in evidence. The cover page of the charter is entitled: 'Proposed Charter of the City of Paris.' The concluding section of the proposed charter reads as follows: 'Submission of Charter to Electors-The Charter Commission, in preparing this charter, finds and decides that by reason of the form of government provided herein and the nature of the provisions relating thereto, it is not practicable to segregate each subject or article so as to permit a separate vote of 'yes' or 'no' thereon; and that it should be adopted in its entirety. Therefore the Charter Commission directs that said charter be voted upon as a whole and that it shall be submitted to the qualified voters of the City of Paris at an election to be held for that purpose on the 26th day of September A. D. 1953. If a majority of the qualified voters voting in such election shall vote in favor of the adoption of this charter, it shall become the charter of the City of Paris, and after the returns have been canvassed, the same shall be declared adopted.' (Emphasis added.)

The City of Paris is a Home Rule city and the election in question was held under the statutes pertaining to Home Rule cities found in Chapter 13, Title 28, Vernon's Texas Civil Statutes. Article 1165, among other things, provides that the voters of a city 'May, * * * at an election held for that purpose, adopt or amend their charter * * *'; and further provides that the governing body of the city may by two-thirds vote of its members, and upon petition of ten per cent of the qualified voters of the city shall '* * * provide by ordinance for the submission of the question, 'shall a commission be chosen to frame a new charter'?' Article 1166, among other things, provides that the submission of 'such question' shall be by ordinance calling such special election to be 'held not less than thirty days nor more than ninety days after the passage of said ordinance and the publication thereof in some newspaper published in said city'; and further directs that the ballot shall bear no party designation and shall make provisions for the election of a charter commission (to function if a majority votes in favor of the question). (Emphasis added). Article 1167, among other things, provides that the charter so framed by the charter commission shall be submitted to the voters at 'an election to be held at a time fixed by the charter commission * * *'; and that: 'Not less than thirty days prior to such election, the governing body shall cause the city clerk or city secretary to mail a copy of the proposed charter to each qualified voter in said city'. (Emphasis added.) Article 1169, among other things, provides: 'If such proposed charter is approved by a majority of the qualified voters, voting at said election, it shall become the charter of said city until amended or repealed.' (Emphasis added.)

In Community Natural Gas Co. v. Northern Texas Utilities Co., Tex.Civ.App., 13 S.W.2d 184, 195, writ dismissed, the court stated: 'Neither the Legislature nor the city charter prescribed any particular form of an ordinance, and in such cases municipal bodies may use any form of expression which suits them, provided it expresses their will that the ordinance should exist and indicates its terms and the objects to which it applies. 4o C.J. 520, § 801; City of Brenham v. Holle (& Seelhorst) (Tex.Civ.App.) 153 S.W. 345.' In 29 C.J.S., Elections, § 170, page 246, it is stated: '* * * it is not customary to print in extenso on the ballot the thing to be voted for, but it is sufficient if enough is printed to identify the matter and show its character and purpose.' In Reynolds Land & Cttle Co. v. McCabe 72 Tex. 57, 12 S.W. 165, the Supreme Court, in an opinion by Chief Justice Gaines, held that where no form of ballot was prescribed all that was required was that the proposition to be voted upon be submitted with sufficient definitencess and certainty as not to mislead and that an election to determine whether a tax should be imposed for 'school purposes' was sufficient to apprise the voters that the proposed tax was for the purposes permitted by law and stated in the petition for election. In Whiteside v. Brown, Tex.Civ.App., 214 S.W.2d 844, 851, writ dismissed, holding the ballot on a constitutional amendment to be sufficient, the court stated: 'Some of the details and provisions, including the one to which appellants direct our attention, were omitted. This is a necessary consequence of the failure to print the amendment, in extenso, upon the ballot. It must have been presumed that the voter would familiarize himself with the contents of the proposed amendment before entering the ballot box, otherwise the legislature would have required a full copy on the ballot. It is not shown that any voter was misled or deceived by the form of submission of this amendment. No one who had previously read the amendment could have been misled or deceived by the ballot used.'

The Supreme Court of Texas in the case of Railroad Commission v. Sterling Oil & Refining Co., 147 Tex. 547, 218 S.W.2d 415, 418, held that a ballot used in an election on a constitutional amendment which stated that the proposed amendment was to authorize the legislature to provide for appeals direct to the Supreme Court in instances involving constitutionality of certain laws and orders, was not invalid as being too indefinite to apprise voters of the purpose of the proposed amendment. In this case the court stated: 'The Constitution requires that certain publicity shall be given a proposed amendment prior to an election. This is done to identify the...