State v. City Commission of San Angelo

• Decision Date: 21 January 1937
• Docket Number: No. 8598.,8598.
• Citation: 101 S.W.2d 360
• Parties: STATE v. CITY COMMISSION OF SAN ANGELO et al.
• Court: Texas Court of Appeals

101 S.W.2d 360

STATE v. CITY COMMISSION OF SAN ANGELO et al.

No. 8598.

Court of Civil Appeals of Texas. Austin.

January 21, 1937.

Rehearing Denied February 3, 1937.

Appeal from District Court, Tom Green County; Jno. F. Sutton, Judge.

Mandamus proceeding by the State against the City Commission of San Angelo and others. From a judgment refusing the writ, the plaintiff appeals.

Affirmed.

W. A. Stroman, Clyde Vinson, and B. A. Carter, all of San Angelo, for appellant.

Olin Blanks and R. G. Hughes, both of San Angelo, for appellees.

BLAIR, Justice.

This proceeding was instituted for a writ of mandamus to compel appellees, the officials of the city of San Angelo, Tex., to call an election to amend the charter of said city so as to provide for a City Commission of five members elected from five districts, and a mayor elected at large, instead of the present City Commission of two commissioners and a mayor, all elected at large; and to further provide for a civil service system. The petition for the election was signed by the requisite number of qualified voters; but the city officials refused to call the election, on the sole ground that the charter of said city had been amended by an election in March, 1936, which resulted in divorcing the public school system from municipal control; and that both the Constitution and statute (Const. art. 11, § 5; R.S.1925, art. 1165) provide that "no city charter shall be altered, amended or repealed oftener than every two years." The trial court sustained this action of the city officials, and refused the writ of mandamus; hence this appeal.

The principle question presented is whether the election held in March, 1936, divorcing the public school system from municipal control, constituted an amendment to the city charter, or whether, as contended by appellant, the holding of the election was merely the exercise of one of the city's powers under its charter. We hold that the election and its result constituted amendment to the city charter.

The city of San Angelo adopted the home-rule amendment (article 11, § 5, Const.) in 1915, its charter providing for the appointment of members of the board of education by the City Commission. The election of March, 1936, resulted in the the adoption of a provision for electing the members of the board of education by the qualified voters. Before said election the members of said board were appointed by the City Commission; since said election the members of the said board cannot be appointed by the City Commission; but have been and are now serving by election of the qualified voters. Prior to the election, the schools were under "municipal control" through the appointment of the members of the board of education by the City Commission; after the election the "independent control of schools" was vested in a board of education, its members being elected by the qualified voters. The form of school government as authorized by the city charter prior to the election was therefore changed to another form by the election, which necessarily resulted in amending or altering the city charter. This election was held under the provisions of article 2783b, which authorizes the qualified voters to divorce their schools from "municipal control," and to provide for "independent control of schools" by an elective board of education.

In Keller v. Western Paving Co. (Tex. Civ.App.) 218 S.W. 1077, 1078, error refused, the court defined an amendment to a city charter as follows: "We regard the act in question as an amendment of existing charters, which the inhabitants may accept or reject. It enlarges the grant of powers already made, and is obviously amendment of charters, and it can make no difference that it does not contain the statement that it is an amendment. The act is complete in itself. The Legislature, itself, determined what powers municipalities should have, and the inhabitants were only permitted to decide whether or not to avail themselves of such grant of powers, and thus accept an amendment of their charter drafted by the Legislature."

Comparable to the paving statute discussed in the Keller Case is the statute (article 2783b) under which the March, 1936, election was held. It provided that its benefits and provisions must be adopted or accepted by the qualified voters, and before that could be done the municipal control must be changed, and that was the purpose of holding the election. By adopting the statute, the people necessarily enlarged the powers of the school government by accepting the benefits and provisions of the statute and by providing an additional and independent agency for the control of the schools; and when the people adopted the benefits and provisions of the statute by "providing for a board of school trustees to have control of its schools, they thereby changed the form of their school government to a board of trustees." Temple Ind. School Dist. v. Proctor (Tex.Civ.App.) 97 S.W.(2d) 1047, 1053, error refused. This action of the people necessarily resulted in the amendment or alteration of the city charter.

In Vol. 1 Words and Phrases, Second Series, 199, it is said that "the word `amend' is synonymous with correct, reform, and rectify. * * * It indicates a change or modification for the better." Vol. 1, Bouv. Law Dict. 187. Other authorities define the word "amendment" to mean to add something to or withdraw something from that which has previously existed. Vol. 1 Words and Phrases, First...