State v. McAllister

• Decision Date: 27 May 1895
• Citation: 31 S.W. 187
• Parties: STATE ex rel. GUERGUIN v. McALLISTER.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

31 S.W. 187

STATE ex rel. GUERGUIN v. McALLISTER.¹

Supreme Court of Texas.

May 27, 1895.

Certified questions from court of civil appeals of Fourth supreme judicial district.

Action, on relation of Charles Guerguin, against F. W. McAllister, to test defendant's

right to a public office. There was a judgment for defendant, from which relator appealed. Heard on questions certified from the court of civil appeals.

J. D. Childs, for appellant. Camp & Umschied, Peter Shields, and R. B. Minor, for appellee.

BROWN, J.

Section 33 of the charter of the city of San Antonio reads as follows:

"Sec. 33. The city council shall be composed of the mayor and aldermen. One alderman to be elected from each ward by the voters thereof, and four aldermen to be elected by the voters of the city at large. * * * The aldermen elected as representatives of the different wards shall be residents thereof at least six months prior to the election," etc.

Question: Is the above section of the city's charter unconstitutional in providing for the election of aldermen from the several wards by the vote of the wards respectively?

Section 3, art. 6, of the constitution of this state, is in the following words:

"Sec. 3. Electors in Towns and Cities: When must Pay Taxes. All qualified electors of the state, as herein described, who shall have resided for six months immediately preceding an election within the limits of any city or corporate town, shall have the right to vote for mayor and all other elective officers; but in all elections to determine the expenditure of money or assumption of debt, only those shall be qualified to vote who pay taxes on property in said city or incorporated town," etc.

The law in question must be held to be valid "unless the constitution expressly or by necessary implication forbids its enactment." Lytle v. Halff, 75 Tex. 132, 12 S. W. 610. In determining the question of the constitutionality of an act of the legislature, the intention of the framers of the constitution must be ascertained by considering the entire section, as well as the circumstances under which it was adopted. Cooley, Const. Lim. p. 70. At the time the constitution was adopted, the law of 1875, entitled "An act regulating the incorporation of cities of one thousand inhabitants and over," etc., was in force, the fifth section of which provided for the election of aldermen of cities by the electors of each ward of the city. Laws 1875, p. 113. After the adoption of the constitution the laws were revised by a commission, and adopted by the legislature in 1879, and the section referred to was copied literally into the Revised Statutes, being article 346. The commissioners for revision of the laws, in their report to the legislature, said in reference to title 17 (Cities and Towns): "The substance of the old law is retained," etc., showing that by construction of the revisers and the legislature this law was not repealed by the constitution. At the time the constitution was adopted, there were many cities and towns in the state organized under the law of 1875 and under special acts, in which the same provision, in substance, for electing aldermen, was embraced. In fact, it was the well-known and common method of city government. The effect that is claimed for the constitution in this particular would have operated to annul all such provisions in the general law and in the special charters, thus changing the established plan of municipal government. The purpose to destroy a system of municipal government so common in the state will not be attributed to the convention that framed the constitution, unless the language used is so certain as to compel such a construction by the courts.

Before examining the particular section in question, we will notice an argument made to the effect that the legislature of 1876 (the first held after the convention adjourned) construed that section in accord with the claim of appellee. In an act entitled "An act regulating elections," approved August 23, 1876, the legislature simply embodied in the statute the third section of article 6 of the constitution. It is no construction of the constitution, but, if to be considered as construction, we think that the legislation of that session upon this subject, taken as a whole, would militate against the claim of appellee. If it had been intended to change the manner of electing aldermen, the legislature would certainly have provided another mode, which it did not do, but left the old law in force. At the same session (1876) the legislature amended the charter of the city of Houston in which the section of the constitution under consideration was substantially copied, and in a subsequent section provided "that each ward in the city shall be represented in the city council by two aldermen, elected by the qualified voters of each ward, who shall vote only in their respective wards." Sp. Laws 1876, p. 44, § 7. A similar provision is found in the charters of the city of Dallas granted at that session. Laws 1876, p. 74, § 5. And at the same session the legislature granted a new charter to Galveston, in which the same method of electing aldermen is prescribed. Laws 1876, p. 8, § 5. Thus, we see that the construction placed by the first legislature which assembled after the adoption of the constitution is to the effect that the section under consideration did not...