Whiteside v. Brown

Decision Date20 October 1948
Docket NumberNo. 9754.,9754.
PartiesWHITESIDE et al. v. BROWN et al.
CourtTexas Court of Appeals

Appeal from District Court, 126 Jud. Dist., Travis County; Roy C. Archer, Judge.

Consolidated suits by C. W. Whiteside, and others against Paul Brown, Secretary of State and others, to have the State College Building Program Constitutional Amendment declared invalid. From an adverse judgment, plaintiffs appeal.

Affirmed.

Carter, Gallagher & Barker, of Dallas, for appellants.

Price Daniel, Atty. Gen. of Texas, and Joe Greenhill and Jesse P. Luton, Asst. Attys. Gen., for appellees.

HUGHES, Justice.

Two suits were filed in the court below having as their common purpose the invalidation of an amendment to the State Constitution known as the State College Building Program Constitutional Amendment, which amendment, having received a favorable majority of the votes at a special election held August 23, 1947, was proclaimed adopted by the Governor of Texas on September 8, 1947. Vernon's Ann. St. Const. art. 7, §§ 17, 18. The two suits were consolidated for trial.

Appellants, who brought the two suits, are Clarence Whiteside, S. A. Wells, Homer Maxey, and H. E. Speer, all residents of the State of Texas, and all of whom are qualified voters and own real estate subject to the ad valorem tax laws of this State.

Appellees are the Hon. Price Daniel, Attorney General, and the Hon. Paul Brown, Secretary of State.

Analysis of the pleadings in the two suits is not required for a decision of the questions presented.

Appellants, by their first two points, challenge the validity of the election on the ground that no notice of the election by publication, as required by the Constitution, was given in six of the two hundred and fifty-four counties in Texas, and that the publication notice made in other counties was irregular.

Provision for the publication of notice as contained in Sec. 1, art. 17, of our Constitution, reads: "* * * which proposed amendments shall be duly published once a week for four weeks, commencing at least three months before an election, the time of which shall be specified by the Legislature, in one weekly newspaper of each county, in which such a newspaper may be published; * * *."

The six counties in which no notice was published are: Bexar, El Paso, Galveston, Hill, Moore and Taylor.

The combined vote cast in these counties was 16,015 for the amendment and 9,657 against the amendment. If the votes in these six counties are excluded the amendment fails.

The Joint Resolution proposing this constitutional amendment was finally passed by the legislature April 22, 1947, and approved by the Governor May 5, 1947. Gen. and Special Laws, 50th Leg., p. 1184.

On May 81 the Secretary of State, after having ascertained the name and address of one newspaper in each of the 254 counties in Texas, mailed each of such papers a letter fully explaining the publication desired and attached a full copy of the notice. Immediate reply was requested as to whether or not the paper desired to make the publication, and a stamped and appropriately worded self-addressed post card was enclosed for this purpose.

Not having heard from the paper selected and written to in El Paso County, the Secretary of State wired the publisher on May 17, who replied on the same date that he had not received the letter of May 8. A duplicate letter was forwarded by the Secretary of State on May 19, and a reply was received by him on May 23, advising that due to the shortage of newsprint the publication could not be made at that time. No further effort was made by the Secretary of State to publish the notice in El Paso County.

In Galveston County, no reply having been received to the letter of May 8, the Secretary of State wired the selected publisher and a reply was received May 19 stating the letter of May 8 could not be located. On the same day the Secretary of State sent a copy of the lost letter and also included an authorization for publication of the notice. On July 26 and August 13, the Secretary of State wrote the Galveston publisher to return affidavits showing publication. Similar request was made on August 22. On August 26 the Secretary of State was informed by the Galveston paper that no publication was made because the rate of pay offered was too low.

In Bexar County the publisher selected to make the publication informed the Secretary of State on May 19 that it would be unable to publish the notice because of shortage of space and unsatisfactory rate of pay. On the 19 and 20 of May the Secretary of State attempted to call another newspaper in Bexar County by telephone, but was unsuccessful.

In Moore County the paper selected to make publication notified the Secretary of State on May 12 that it desired to publish the notice and then on May 24 it advised the Secretary of State that through an oversight the notice was not published.

Publication was not made in Hill County because the publisher, after receiving the letter of May 8 and answering that it desired to make the publication, did not proceed because of failure to receive authority from the Secretary of State. This information was given to the Secretary of State by letter of June 9 and in reply thereto the Secretary of State advised that he had mailed authorization on May 20.

In Taylor County the publisher, after indicating on May 10 that it desired to make the publication, notified the Secretary of State on or about August 15 that the publication had not been made.

It appears that in addition to the papers selected by the Secretary of State to make publication in the six counties where no publication was made, there were other papers eligible to publish the notice in five of such counties.

Literal compliance with the constitutional provision as to notice, in this instance, required that publication of the notice commence not later than May 23.

Publication irregularities complained of are:

Publication of the notice was commenced late as follows: Harris County one day; Nacogdoches County six days; Angelina County seven days (the reason here being shortage of newsprint for the preceding week); Wichita County one day; Gregg County six days (the reason for delay being that although the amendment was received several days before May 23 there was insufficient time to set the notice accurately in six point type).

The publication made in Cherokee County was timely, but there was omitted therefrom the last paragraph in Sec. 3 of the Joint Legislative Resolution, supra, being the negative proposition directed placed upon the ballots.

In Coryell County the publication was timely, but "hereinabove" and "equipping" were spelled "hereinnabove" and "equiping", respectively; also that in three of the four publications made, one line was dropped and inserted eight lines below where it should have appeared.

As to the publication in Yoakum County, appellants say that it was "irregular and did not conform to the true text of S.J.R. 4." This objection is too indefinite to warrant consideration. However, we have examined a copy of the notice and find that it is intelligible and contains a full and fair statement of the subject of the notice.

In the notices published in thirty-four counties the following words were in bold type: "For the Amendment to Article VII," and the following words were printed in ordinary type: "Against the Amendment to Article VII"; and in eleven counties the words quoted first above were printed in capital letters and the words quoted second above were printed in regular type.

All of the objections or defects listed above, except those which relate to the failure to publish notice at all or the failure to publish in time, are considered trivial and they are dismissed without further comment.

It is the general rule that election laws, even though mandatory in form, are construed as directory in the absence of fraud or statutory provision voiding the ballot or election for failure to comply with the statute. Thomas v. Groebl, Tex. Sup., 212 S.W.2d 625, and authorities therein cited. See also Orth v. Benavides, Tex.Civ.App., San Antonio, 125 S.W.2d 1081, Writ Dis.

The difference here is that a constitutional provision, and not a statute is involved. Appellant cites Cooley on Constitutional Limitation, 8th Ed., pages 154-164, and other authorities, including Hunt v. State, 22 Tex.App. 396, 3 S.W. 233, for the rule that all provisions of a constitution are mandatory.

It may well be doubted that this rule obtains in Texas insofar as constitutional provisions pertaining to elections are concerned, in view of the decision in Markowsky v. Newman, 134 Tex. 440, 136 S.W. 2d 808, and the comment thereon made by the Supreme Court in Thomas v. Groebl, supra , which we quote: "* * * despite the provision of Section 3a of Article VI of the Constitution, adopted November 8, 1932, defining as qualified voters in an election for the issuance of bonds only those owning taxable property `who have duly rendered the same for taxation', and the provision of article 1043 of the statutes, as amended in 1934 [Vernon's Ann.Civ.St. art. 1043], that the property owner `shall, between January first and April first of each year' render his property for taxation, the court held Article 1043 to be directory and not mandatory, and that property owners otherwise qualified were entitled to vote even though they had not rendered their property until after April first."

It is unnecessary for us to determine if the constitutional provision under consideration is directory, because we are convinced that even though it be deemed mandatory, that substantial and not literal compliance is sufficient to satisfy its demand.

In Houchins v. Plainos, 130 Tex. 413, 110 S.W.2d 549, 554, a case involving construction of a provision of the Constitution, the court said: "It is the intention of a legislative act that governs, and statutes are...

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