Hill v. Evans, 11527
| Citation | 414 S.W.2d 684 |
| Decision Date | 12 April 1967 |
| Docket Number | No. 11527,11527 |
| Parties | John L. HILL, Secretary of State, Appellant, v. Roy R. EVANS and Allen C. Matthews, Appellees. . Austin |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Crawford C. Martin, Atty. Gen., George M. Cowden, First Asst. Atty. Gen., A. J. Carubbi, Jr., Staff Legal Asst . Atty. Gen., J. C. Davis, W. O. Shultz, James C. McCoy, Asst. Attys . Gen., Austin, for appellant.
Sam Houston Clinton, Jr., Austin, for appellees.
O'QUINN, Justice.
This is an appeal from judgment of the district court permanently enjoining Appellant John L. Hill, Secretary of State, from canvassing returns and declaring the result of an election held November 8, 1966, at which was submitted a proposed amendment to the State Constitution to repeal the poll tax as a requirement for voting.
Decision in this case depends on whether the ballot used at the election identified the proposed amendment and fairly gave notice of its intent and subject matter. If the ballot met this test, it was sufficient, and the election was valid.
Appellees Roy R. Evans and Allen C. 'Irish' Matthews filed this suit September 16, 1966, seeking to enjoin Appellant John L. Hill, Secretary of State, from certifying the proposed constitutional amendment for placement on the ballot for the general election November 8, 1966. The amendment had been proposed in May, 1965, by the Legislature in House Joint Resolution No. 13 (Acts, 59th Leg., 1965, Reg.Sess., p. 2218). The Governor of Texas approved the resolution June 2, 1965, and it was filed with the Secretary of State June 4, 1965.
In their original petition appellees alleged that Roy R. Evans was secretary-treasurer of Texas AFL-CIO, a voluntary unincorporated association of local labor organizations whose 175,000 members were working men and women, resident taxpayers and citizens of Texas. Appellees alleged that Allen C. 'Irish' Matthews was president of Austin AFL-CIO Council, a voluntary unincorporated association comprising local labor organizations whose 7,200 members were working men and women, resident taxpayers and citizens of Travis County.
In addition to the Secretary of State, appellees sued the commissioners' court, the county judge, the county clerk, and the sheriff of Travis County, seeking to restrain these officers from printing the official ballot and using it at the election with a proposition on the ballot submitting the amendment proposed by House Joint Resolution No. 13.
The case was heard September 20 on temporary injunction, and the district court denied all temporary injunctive relief sought by appellees in an order entered September 21, 1966.
After the general election on November 8 appellees filed an amended petition November 18, 1966, with Appellant John L. Hill, Secretary of State, as the only defendant. Appellees prayed that appellant be enjoined from tabulating, estimating or canvassing the returns of the November 8 election with respect to the amendment proposed under House Joint Resolution 13 and from declaring the result of the election on this proposition.
Appellees filed motion for summary judgment December 22, 1966, and appellant moved for summary judgment January 11, 1967. Appellees' motion was heard by the trial court January 4, and on January 12 attorneys for the parties were advised by the court in a letter that judgment would be entered for appellees. By stipulation it was agreed that appellant's motion for summary judgment could be considered by the court without necessity of ten days' notice.
Judgment was entered January 17, 1967, granting the motion of appellees for summary judgment and permanently enjoining appellant from tabulating, estimating and canvassing the returns of the election with regard to the proposed amendment under House Joint Resolution 13 and from ascertaining or declaring the result of the election. Appellant's motion was denied .
Appellant duly perfected appeal to this Court and here contends that the language of the ballot submitting the proposed amendment under House Joint Resolution No. 13 was sufficient to identify the amendment and to give fair notice to the voter of its intent and subject matter. The Legislature directed that the ballot have printed on it the following:
'FOR repealing the poll tax as a requirement for voting.
AGAINST repealing the poll tax as a requirement for voting.'
Appellees contend, and the trial court held, that this form of ballot failed to give the voter fair notice of the scope, character, and purpose of the amendment. Appellees argue that the ballot language was misleading, and that its failure to give fair notice to the voter might have been cured by adding the words 'and providing for annual registration of all voters.'
The trial court, in the letter opinion of January 12, condemned the language of the ballot as 'telling the voters that something is being removed from the Constitution,' but failing to suggest 'that something is being written into the Constitution.'
The full import of these opposing contentions is not apparent without careful examination of House Joint Resolution No. 13 as adopted by the Legislature in May, 1965, and approved by the Governor June 2, 1965.
The caption of the resolution described it as '(p)roposing an amendment to Sections 2 and 4 of Article VI of the Constitution of the State of Texas so as to repeal the provision making payment of the poll tax a requirement for voting and so as to authorize the Legislature to provide for the registration of all voters.'
The body of the resolution comprised six sections, which are described as follows:
Section 1 proposed that Section 2 of Article VI of the Constitution, Vernon's Ann.St. be amended, effective February 1, 1968, by deleting specified language and substituting for it different language.
The deleted language was all that part of Section 2 of Article VI beginning in the first sentence with the words 'and provided further' and including the balance of the first sentence of Section 2. The deleted part of Section 2 required payment of the poll tax 'before offering to vote at any election in this State' and the holding of 'a receipt showing that said poll tax was paid before the first day of February next preceding such election.' The deleted language also permitted the voter to make an affidavit of lost or misplaced tax receipt at the polling place, and authorized a husband or a wife to pay the poll tax of the other spouse and to accept a receipt for payment.
The substituted language provided 'that before offering to vote at an election a voter shall have registered annually,' but prescribed that the 'requirement for registration' would not be 'considered a qualification of an elector' under 'the term 'qualified elector' as used in any other Article' of the Constitution 'in respect to any matter except qualification and eligibility to vote at an election.' It further validated any legislation enacted in anticipation of adoption of the proposed amendment.
In section 1 of the resolution, following the statements of deleted and substituted language described above, the Legislature then set out the entire text of Section 2, Article VI, as amended, 'with the deleted language marked through by a broken line and with the new language underscored.' In this manner the Legislature twice stated the changes proposed for Section 2, Article VI, of the Constitution in section 1 of the joint resolution.
Section 2 of the resolution followed the same pattern used in section 1 and proposed amendment of Section 4, Article VI, of the Constitution.
As amended, Section 4 was made to read as set out below, with the deleted language here shown in brackets and the substituted word 'shall' shown in italics:
Section 3 of the resolution provided that adoption of the proposed amendment would not change or nullify any other amendment of Sections 2 and 4, Article VI, for a different purpose, if adopted at an earlier election or the same election for this proposed amendment .
Section 4 called for the proposed changes in Sections 2 and 4, Article VI, to be submitted at the general election of November 8, 1966, and prescribed the ballot language for submission of the proposal.
Section 5 directed that the proclamation declaring adoption of the amendment set forth the full text of the amended sections.
Section 6, the last section of the resolution, directed the Governor to 'issue the necessary proclamation for the election' and that the proposed amendment be 'published in the manner and for the length of time as required by the Constitution and Laws of this State.'
When more than one proposed constitutional amendment is submitted by the legislature at one election, the secretary of state is required to give each proposition a separate number on the ballot, the numbers to be determined by lot. Vernon's Ann.Tex.Sts. Election Code, Art. 6.07 (formerly Art. 2982, V.A.T.S.); Acts 1951, 52nd Leg., p. 1097, ch. 492, art. 63, as amended Acts 1955, 54th Leg., p. 907, ch. 357, sec. 1. Sixteen proposed amendments were submitted at the November 8, 1966, election, and the amendment proposed by House Joint Resolution No. 13 became Proposition No. 7 on the ballot.
Neither the Constitution nor the statutes prescribe the form in which a proposed constitutional amendment is submitted, unless the legislature fails to prescribe the form. In such instances, Article 6.07 provides that if the form has not been prescribed by the legislature, the Governor shall prescribe the form in his proclamation. The...
To continue reading
Request your trial
-
Dacus v. Parker
...each other, as the court below, 383 S.W.3d at 566, and some other courts of appeals have held, see, e.g., Hardy, 849 S.W.2d at 358 ; Hill, 414 S.W.2d at 692. Instead, it must “substantially submit” the amendment with “definiteness and certainty.” See Reynolds Land & Cattle Co., 12 S.W. at 1......
-
City of Glendale v. Buchanan
...where challengers presented expert testimony that misleading title introduced a significant bias into the election); Hill v. Evans, 414 S.W.2d 684 (Tex.Civ.App.1967). The record contains an affidavit signed by only one voter who swore he mistakenly voted for Amendment No. 1 because he was m......
-
Brown v Blum
...849 S.W .2d 355, 358 (Tex. App.-Austin, 1992, writ denied); see also Bischoff, 656 S.W.2d at 212; Moore, 542 S.W.2d at 723; Hill v. Evans, 414 S.W.2d 684, 692-93 Tex. Civ. App.-Austin 1967, writ ref'd n.r.e.); Whiteside v. Brown, 214 S.W.2d 844, 851 (Tex. Civ. App.-Austin 1948, writ Accordi......
-
Dacus v. Parker
...each other, as the court below, 383 S.W.3d at 566, and some other courts of appeals have held, see, e.g., Hardy, 849 S.W.2d at 358; Hill, 414 S.W.2d at 692. Instead, it must "substantially submit" the amendment with "definiteness and certainty." See Reynolds Land & Cattle Co., 12 S.W. at 16......