Turner v. Lewie
| Decision Date | 14 March 1947 |
| Docket Number | No. 14840.,14840. |
| Citation | 201 S.W.2d 86 |
| Parties | TURNER et al. v. LEWIE, Mayor. |
| Court | Texas Court of Appeals |
Appeal from District Court, Cooke County; B. W. Boyd, Judge.
Suit by L. D. Turner and others against Wm. Lewie, Mayor, to contest an election held for the purpose of amending a city charter. From an adverse judgment, contestants appeal.
Reversed and rendered.
Cecil Murphy, of Gainesville, for appellants.
Jack Garrett, of Gainesville, and Earl L. Coleman, of Denton, for appellee.
On November 29, 1946, there was held in the City of Gainesville a special election at which were submitted to the citizens eight proposed amendments to the city charter. This suit was brought for the purpose of contesting the election.
In their first amended original petition, on which they went to trial, the contestants sought to have the election declared void under the Uniform Declaratory Judgments Act, Acts 1943, 48th Leg., p. 265, ch. 164, Vern.Tex.Civ.St. Art. 2524—1, but in the same pleading declared that they sought as well to contest the election. Appellee contends that the City of Gainesville was a necessary party to the suit, by reason of the provisions of Section 11, of the Uniform Declaratory Judgments Act, which requires that the municipality be made a party if the proceedings involve the validity of a municipal ordinance or franchise. In our opinion the case is governed by the provisions of Articles 3069 and 3070, which provide that in certain election contests the mayor of the city shall be made the contestee. Hayter v. Baker, Tex.Civ.App., 293 S.W. 331.
Appellee argues that the statutes last referred to do not govern the case, on the ground that the jurisdiction of the district courts in election contests is limited to an inquiry into the matters pertaining strictly and directly to the election itself and happening on the day of the election. General language may be found in some of the opinions of our appellate courts indicating that such may be the rule, but if the language found be examined in the light of the facts involved in each of those decisions, it will be seen that such a statement of the rule is too broad to permit of general application. It is clear to us that all of the irregularities charged in the present election, to be discussed later, were proper subjects of inquiry in the contest brought by appellants. Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1012; Holden v. Phillips, Tex.Civ.App., 132 S.W.2d 419. As is said in Dickson v. Strickland, an election is not a single event, but a process, and the entire process is subject to contest, including the manner of giving notice of the election, the manner in which the ballots are prepared, and various other things which of necessity precede an election.
Prior to the time of the election complained of, Gainesville had what is commonly called a city manager form of government. On October 1, 1946, the City Council passed a resolution authorizing notice to be "published as required by law regarding election for the change of the City of Gainesville charter," to quote from the minutes of the meeting. The minutes set out the form of the notice to be given, as follows:
"That on the 28th day of October, 1946, at the Council Room at the City Hall, Gainesville, Texas, at 7:30 p. m., it is the intention of the City Council of the City of Gainesville, Texas, to meet in special session for the purpose of passing an ordinance authorizing an election to be held on the 29th day of November, 1946, same being the fourth Friday of said month, submitting amendments to the existing charter of said city to change the City government from a City Manager form of government to the Aldermanic form of city government, and making other changes to said charter to conform thereto."
The minutes further recite that a copy of said proposed ordinance is now on file with the City Secretary.
The above notice was published for the time required by law.
On October 28th the City Council passed an ordinance providing that at an election to be held on a named date there should be submitted to the qualified votors of Gainesville eight proposed charter amendments, which were set out in full in the text of the ordinance. The said ordinance was not published in any newspaper, nor was any legal notice thereof given by publishing or posting, except that copies of the ordinance were sent by mail to the voters as hereafter described.
The contestants, who are the appellants in this court, attack the election in their first two points of error on the ground that there was no publication of the ordinance in a local newspaper after its passage and before the election, and on the ground that the notice of the intention of the City Council to pass an ordinance ordering an election was not a sufficient notice of the election in that the notice did not contain the substance of any of the eight proposed charter amendments, nor did it clearly set forth and apprise the voters of the object and purpose of the meeting and special election.
Laws requiring notice of general elections, held on days fixed by law, are usually held to be directory only, because it is presumed that time and place of the election is known to all without special notice. But the rule is different as to special elections. It is usually held that the required notice of a special election constitutes a condition upon which authority is granted to hold the election, and that there must be a substantial compliance with the law. It has often been held that failure to give the required notice invalidates the special election. 18 Am.Jur., p. 245; 29 C.J.S., Elections, §§ 72, 73, p. 96, 98; Croxton v. Truesdel, 75 S.C. 418, 56 S.E. 45; Coffee v. Lieb, Tex.Civ.App., 107 S.W.2d 406, and the many cases there cited; Countz v. Mitchell, 120 Tex. 324, 38 S.W.2d 770; Missouri K. & T. R. Co. v. Tolbert, 100 Tex. 483, 101 S.W. 206; Cunningham v. State, 119 Tex.Cr.R. 572, 44 S.W.2d 739. As is noted in the opinion last cited, there are announcements in certain decisions of our courts to the effect that irregularities in an election will not invalidate the election if the voters had notice of the election and participated in it, and that to invalidate the election it must be shown that the result of the election would probably have been different but for the irregularities complained of. The rule mentioned may be applied in a proper case, but may not, in our opinion, be applied where there is an entire failure to give a notice required by law, or where there is not a substantial compliance with the law. The proceedings of the election, and those leading up to it, must themselves give sufficient notice regarding the election and its purposes. It is not enough that some or even all of the voters learned of the election through reading news items, or by conversations with other citizens, or by hearing of it through any means other than the notices required to be given by the statutes regulating the election. If there is not a substantial compliance with the law in the proceedings leading up to the election, there is no valid election. The will of the majority of the voters might be expressed in any number of ways, as in a mass meeting, or by petition, and yet not amount to an election. Our system of government depends for its existence on orderly elections, held strictly in accordance with the law, and surrounded by all of the safeguards which the lawmakers have seen fit to impose. It is important that the voters receive legal notice of the election and the purposes for which it is to be held.
The pertinent statutes regarding notice of an election to amend a city charter are Articles 1165, 1166, 1170, and 1171. Appellants and appellee differ as to the interpretation of these statutes. As we construe them, they provide as follows:
Art. 1165 provides that the charter may be amended by a majority vote of the qualified voters.
Art. 1166, pertaining to the adoption of a new charter, requires that the ordinance providing for submission of the question of adopting a new charter shall be published in some local newspaper published in the city.
Art. 1170 requires that an ordinance providing for the submission of amendments to an existing charter shall make the same provision for holding the election and publishing notice thereof as is provided in Art. 1166.
Art. 1171 reads as follows:
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