San Antonio Independent School Dist. v. State

• Decision Date: 17 February 1915
• Docket Number: (No. 5435.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: 173 S.W. 525
• Parties: SAN ANTONIO INDEPENDENT SCHOOL DIST. et al. v. STATE ex rel. DECHMAN et al.
• Court: Texas Court of Appeals

Page 525

173 S.W. 525

SAN ANTONIO INDEPENDENT SCHOOL DIST. et al. v. STATE ex rel. DECHMAN et al.

(No. 5435.)^†

Court of Civil Appeals of Texas. San Antonio.

February 17, 1915.

Rehearing Denied February 19, 1915.

Appeal from District Court, Bexar County; W. F. Ezell, Judge.

Quo warranto by the State of Texas, on relation of T. M. Dechman and others, against the San Antonio Independent School District and others. Judgment for relators, and defendants appeal. Affirmed.

Denman, Franklin & McGown and Arnold, Cozby & Peyton, all of San Antonio, for appellants. W. C. Linden, Swearingen & Ward, and John H. Bichett, Jr., all of San Antonio, for appellees.

FLY, C. J.

This is a suit in the nature of a quo warranto brought by the state of Texas, upon the relation of T. M. Dechman, Charles Florian, and J. F. Fentiman, against Dr. F. Terrell, S. L. Harris, C. A. Goeth, S. G. Bechtel, W. D. Hood, Albin Seidel, Mrs. M. J. Bliem, Mrs. Rena Maverick Green, and Mrs. Eli Hertzberg, to oust them from the office of trustees of San Antonio independent school district. The information is quite voluminous, alleging, in substance, that by the act of the Legislature of 1909 (Loc. & Sp. Acts 31st Leg. c. 84) the San Antonio independent school district was created and given the management and control of all the schools within the corporate limits of the city of San Antonio; that on March 26, 1913 (Loc. & Sp. Acts 33d Leg. c. 93), the act of 1909 was amended so as to have nine trustees instead of seven to compose the San Antonio school board; that in said amendment it was provided that nine trustees should be elected in April, 1913, that three of the trustees should hold office for six years, three for four years, and three for two years, that they should determine by lot the terms of the members, and that every two years an election should be held for three trustees whose terms should be six years. It was alleged that the act was null and void because of the terms of the trustees being fixed at six years instead of two years, as provided in article 16, § 30, of the state Constitution, and that the same is unconstitutional because its caption is not such as is required by the Constitution; that on April 8, 1913, an election was held for nine trustees as provided in said act, and F. Terrell, S. L. Harris, C. A. Goeth, S. H. Bechtel, E. G. Le Sturgeon, Albin Siedel, Mrs. Eli Hertzberg, Mrs. M. J. Bliem, and Mrs. Atlee B. Ayers were elected and ousted the relators from the office of trustees held by them under the old law and took possession of the public free schools of San Antonio; that Le Sturgeon resigned and W. D. Hood was chosen in his place, and Mrs. Ayers resigned and Mrs. Green was chosen in her place. The defendants demurred generally, and specially denied that they were holding the office illegally, but by provision of a valid act passed by the Legislature and by virtue of their election to the same. The court rendered judgment to the effect that the act of 1913 is null and void in so far as it seeks to provide terms of six years for the trustees, but that the other portions of the statute are valid and binding, and that the nine trustees are entitled to hold their respective officers for two years from the second Tuesday in April, 1913, and that on the second Tuesday in April, 1915, an election should be held as provided for in the act of March 26, 1913, for the election of nine trustees, six men and three women.

The act referred to provides, in the first section for the creation of the San Antonio independent school district, and the first paragraph of the second section provides:

"From and after the passage of this act, said San Antonio independent school district shall be under the control of nine trustees, who shall be called the San Antonio school board. On the second Tuesday in April, 1913, an election shall be held by the qualified voters of said district for the purpose of electing nine trustees."

In the second paragraph of the second section provision is made for three of the trustees to hold office for six years, three for four years and three for two years; the three for each term so fixed to be determined by lot. Provision is made for an election every two years, but for only three trustees. The third paragraph of the second section provides for notices of elections, and for the manner of holding the elections and making returns thereof. The third section of the act fixes the qualifications of trustees, and provides that not more than three women shall be eligible to election as members of the board, not more than one woman to be chosen at any election after first. It also provides that men living in the suburbs of San Antonio who are taxpayers therein shall be eligible as trustees, and also for the oath to be taken by trustees. The other portions of the act need not be considered, as all of the act that is attacked is contained in the second and third sections and relates to the terms of office prescribed for trustees.

Original section 30, art. 16, of the state Constitution, provides:

"The duration of all offices not fixed by this Constitution shall never exceed two years."

In 1894 the section was amended so as to give six-year terms to railroad commissioners. In 1912, by a vote of the people of Texas, section 30a was added to the Constitution. That section provides:

"The Legislature may provide by law that the members of the board of regents of the state university and boards of trustees or managers of the educational, eleemosynary and penal institutions of the state, and such boards as have been, or may hereafter be established by law, may hold their respective offices for the term of six years, one-third of the members of such boards to be elected or appointed every two years in such manner as the Legislature may determine; vacancies in such offices to be filled as may be provided by law, and the Legislature shall enact suitable laws to give effect to this section."

It is the contention of the school board of San Antonio that the language, "such boards as have been or May hereafter be established by law," is broad enough to include any board, state, county, or municipal in the state, and, if that construction can be reasonably placed on the language, the school board of San Antonio is within its contemplation and purpose. However, there is a rule of construction as to constitutional and legislative provisions, known as the rule of ejusdem generis, which, we think, can with peculiar aptitude be applied to the section of the Constitution in question. The ejusdem generis rule is that, where general words follow an enumeration of persons or things by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same kind or class as those specifically mentioned. Black's Law Dic.; Cutshaw v. Denver, 19 Colo. App. 341, 75 Pac. 22; Spalding v. People, 172 Ill. 40, 49 N. E. 993. The boards enumerated in the Constitution are clearly all state boards, or boards of the state, which, we deem, for the purposes of a consideration of the question involved, are the same thing, and, if the rule of ejusdem generis is applied, it would reject any boards except those of the same general class, rank, or grade with those enumerated. As said in a quotation, made and approved by the Texas Supreme Court in National Bank v. Hanks, 104 Tex. 320, 137 S. W. 1120, Ann. Cas. 1914B, 368:

"The words `other' or `any other,' following an enumeration of particular classes, are therefore to be read as `other such like,' and to include only others of like kind or character."

If the Legislature in preparing the constitutional amendment had intended all boards elected or appointed, whether state, county, or municipal, no mention would have been made of certain state boards; but the amendment would have been formulated so as to have included public boards of every description. But the amendment enumerates the board of regents of the state university and boards of trustees or managers of the educational, eleemosynary, and penal institutions of the state, and then includes all other such boards as have been or may be appointed or elected. If all the state boards had been enumerated or had been included among boards of the institutions named, then it must be argued with some force that all public boards were included; but there are numbers of boards other than those connected with the educational, eleemosynary, and penal institutions of the state.

"It is a principal of statutory construction everywhere recognized and acted upon, not only with respect to penal statutes, but to those affecting only civil rights and duties, that where words particularly designating specific acts or things are followed by and associated with words of general import, comprehensively designating acts or things, the latter are generally to be regarded as comprehending only matters of the same kind or class * * * particularly stated." Ex parte Muckenfuss, 52 Tex. Cr. R. 467, 107 S. W. 1131.

We do not lose sight of the fact that we are construing a constitutional and not a legislative provision, and that a state Constitution should not receive a technical construction like a statute; but that rule of interpretation should be followed which carries out the apparent intention of the people who enacted it. But if an ambiguity exists in the language of a constitutional provision, which cannot be removed by consulting other parts of the Constitution, then the prior state of the law, the evil to be remedied, and the circumstances of contemporaneous history are to be resorted to to determine its meaning and import. It is well known in this state that with each succeeding administration in the state of Texas for the last 40 years, although each was of the same political faith as the other, the doctrine that "to the victor belongs the spoils" has been...