Royalty v. Nicholson, 15034

• Decision Date: 19 January 1967
• Docket Number: No. 15034,15034
• Citation: 411 S.W.2d 565
• Parties: J. W. ROYALTY et al., Appellants, v. Dr. W. D. NICHOLSON, Appellee. . Houston
• Court: Texas Court of Appeals

Page 565

411 S.W.2d 565

J. W. ROYALTY et al., Appellants, v. Dr. W. D. NICHOLSON, Appellee.

No. 15034.

Court of Civil Appeals of Texas Houston.

Jan. 19, 1967.

Rehearing Denied Feb. 9, 1967.

C. Wayne Holder, Freeport, for appellants .

Vinson, Elkins, Weems & Searls, Donald L. Howell, Howard W. Mays, Robert R. Randolph, Houston, Evans & Gillies, Angleton, for appellee .

Majority Opinion

WERLEIN, Justice.

This suit was brought by appellants to contest a schoolhouse bond election held in Brazosport Independent School District of Brazoria County, Texas, on June 4, 1966. The School District has only one high school which is located in Freeport. Sometime before the election a citizens committee was appointed by the president of the Board of Trustees to consider the alternatives for meeting an acute shortage of classrooms in the District, especially on the high school level. The alternatives were: (1) to replace the present high school in Freeport with a new central high school in the Lake Jackson-Clute area. The present Freeport high school would be converted to a junior high school for three of four years and then reactivated as a high school; (2) to expand the size of and continue the present single central high school in Freeport; (3) to repair, enlarge and continue the present high school at Freeport and also construct a second high school in the Lake Jackson area. The first alternative of the citizens committee was submitted to the electorate in a school bond election on April 2, 1966, and was defeated.

The School Board decided to submit the other two alternatives at an election on June 4, 1966, pursuant to a petition submitted to the Board on May 24, 1966, requesting a bond election. The petition requested the Board to submit two propositions. Proposition No. 1 was to authorize the Board to issue $3,860,000.00 District bonds 'for the purpose of purchase, construction, repair and equipment of public free schools within the limits of said District, and the purchase of the necessary sites therefor (including (1) additions to present Brazosport high school to increase the permanent facilities to 2,600 student capacity; (2) a new elementary school, and (3) additions to elementary and junior high schools)' and the levy of the tax in payment thereof. Proposition No. 2 was to authorize the Board to issue $5,998,000.00 District bonds 'for the purpose of the purchase, construction, repair and equipment of public free school buildings within the limits of said School District, and the purchase of the necessary sites therefor (including (1) a new 2,000 student capacity high school in the Clute-Lake Jackson area; (2) additions to present Brazosport high school to increase permanent facilities to 1,400 student capacity; (3) a new elementary school, and (4) additions and improvements to elementary and junior high schools),' and the levy of the tax in payment thereof.

The petitioners requested that if in said election each of said propositions 'shall receive a greater number of votes 'For' than 'Against' such proposition, the proposition, receiving the greater number of votes 'For' such proposition shall be declared adopted, and bonds shall not be issued nor shall taxes be levied pursuant to the other proposition. The School Board granted the petition as requested by the petitioners and set June 4, 1966 as election day. Notice of the election was given by posting exact copies of the order calling the election, which were posted on the morning of May 25, 1966 between the hours of 8:30 to 9 o'clock at three public places in the School District. The election was held on June 4, 1966, and the returns were duly made to the Board of Trustees, who met in regular session on June 7 with all members present, and declared that Proposition No. 1 received 2616 votes 'For' and 2321 votes 'Against', and Proposition No. 2 received 2656 votes 'For' and 2367 votes 'Against'; and that since Proposition No. 2 received more favorable votes than Proposition No. 1, the election resulted favorably to Proposition No. 2, and for the issuance of bonds and the levy and collection of taxes in payment thereof. The Board further declared 'that said election has resulted unfavorably to the issuance of the schoolhouse bonds described in Proposition No. One and said bonds shall not be issued.'

Thereafter appellants filed this suit, alleging among other things that the notice of the election was improperly given; that certain voters were not qualified to vote because their names were not on the tax rolls; that the tax assessor-collector failed to furnish election judges a certified list of taxpayers; and that the Board was not empowered to submit two propositions and provide in its order calling the election that only the proposition receiving the greater number of 'For' votes would carry.

The trial court entered judgment on October 12, 1966 declaring that the June 4, 1966 special bond election resulted favorably to the issuance of the bonds described in Proposition No. 2 and that the Board was authorized to issue the bonds described in Proposition No. 2 and levy taxes in payment thereof. No findings of fact or conclusions of law were requested or filed.

Appellants contend that the court erred in findings and holding that notice of the election was properly posted, since less than ten full day's notice of such election was given, and secondly, that the court erred in concluding that only ten days' notice was required by law. They have no point complaining that there was any failure to timely begin absentee voting. They do complain of the failure to timely post notices. Article 2785, Vernon's Annotated Texas Statutes, is the only statutory provision that purports to specify the notice required in a school bond election. It expressly provides for ten days' notice. It is appellants' contention, however, that the Texas Election Code, by providing for twenty days' absentee voting, repealed by implication the special notice provision of Article 2785. Article 4.05 of the Texas Election Code, V.A.T.S. provides, however, that in any 'special election specially provided for by the laws of this State, the notices of the election shall be given in compliance with the laws governing said elections respectively.' There is no provision in the Election Code concerning notice other than Article 4.05. Our Supreme Court, in Wallis v. Williams, 101 Tex. 395, 108 S.W. 153 (1908), has clearly distinguished between general elections and special elections which are provided for by the Special Laws of this State. It cannot be questioned that the election in question was a special election specially provided for by the laws of Texas.

The school bond election was held pursuant to Article 2784e--1, V.A .T.S., which provides that no bond shall be issued thereunder until authorized by an election and that the General Laws applicable to school districts shall govern the method and manner of calling and holding of tax and bond election. In Wiederkehr v. Luna, 297 S.W.2d 243, Tex.Civ.App., Waco 1956, n.w.h., the court held that Article 2785, V.A.T.S., was the general law referred to in Article 2784e--1. Such article may be considered as the general law with reference to school district elections, and yet be considered a special law in that it is limited in its scope to school district elections and does not embrace elections generally. There is no statute other than Article 2785, which specifies the notice required to be given in schoolhouse bond elections. See Wilkerson v. Otto, 289 S.W.2d 411, Tex.Civ.App., Beaumont 1956, n.w.h. Article 2785 provides that: 'said elections shall be held and conducted as provided by law for general elections, except as provided herein.' It expressly provides as to the notice required to be given.

In Baker v. Scranton Independent School Dist., 287 S.W.2d 210, Tex . Civ.App., Eastland 1956, n.w.h., which was decided after the enactment of the Texas Election Code, it was held that ten days is the notice required in school district elections for the issuance of bonds. The contestants asserted that notice was not posted as required by law. The court said:

'We cannot agree with this contention. Article 2785, Vernon's Annotated Civil Statutes, provides that elections within school districts for the issuance of bonds must be publicized by posting 'notices thereof in three (3) places in the district for ten (10) days prior thereto * * *.' These notices were posted within the district for the length of time provided by the statute.'

Furthermore, the Texas Legislature has at several times reaffirmed its intention to preserve the provisions of Article 2785. The absentee voting provisions were passed in 1951 as Article 5.05 of the Texas Election Code. Thereafter in 1953, the Legislature re-enacted all of Article 2785, as it exists today, without changing the notice provisions. In 1957 the Legislature enacted Article 2802i--30, and in Section 3 thereof, by reference affirmed Article 2785 stating: 'The election for the additional maintenance tax may be called without the necessity of a petition, but shall in all other respects be held in the manner provided by Article 2785, Revised Civil Statutes of Texas, 1925, as amended, or as hereafter amended.'

In 1959 the Legislature in connection with the enactment of Article 2802i--31 again recognized Article 2785 in providing that the election shall in all respects, other than the necessity of a petition, be held in the manner provided in Article 2785. Thus the courts and the Legislature have affirmed at several different times the provisions of Article 2785 governing school district elections after the amendment of the absentee voting provisions of the Election Code.

We do not agree with appellants that Article 2785 providing for ten days' notice by posting prior to the school bond election has been repealed by implication. The matter of giving notice of an election and the provisions referring to absentee...