Yeary v. Bond

• Decision Date: 02 November 1964
• Docket Number: No. 7450,7450
• Citation: 384 S.W.2d 376
• Parties: Rene YEARY et al., Appellants, v. Hollis BOND et al., Appellees.
• Court: Texas Court of Appeals

Page 376

384 S.W.2d 376

Rene YEARY et al., Appellants, v. Hollis BOND et al., Appellees.

No. 7450.

Court of Civil Appeals of Texas, Amarillo.

Nov. 2, 1964.

Rehearing Denied Nov. 30, 1964.

Thomas J. Griffith, Jr., Lubbock, for appellants.

Crenshaw, Dupree & Milam, Lubbock, for appellees.

DENTON, Chief Justice.

Appellants, Rene Yeary and other property owners, brought this suit against Hollis Bond and others, individually and as directors of the Caprock Hospital District, and the Commissioner's Court of Floyd County, Texas attacking the constitutionality of Article 4494q-14, Vernon's Ann.Civ.St., which created the Caprock Hospital District lying within the boundaries of Precincts 1, 3, and 4 of Floyd County. Appellants sought a declaratory judgment declaring the creating statute unconstitutional; nullifying the election creating the hospital district; and sought an injunction against the defendants from levying, assessing, or collecting taxes or expending money and pledging credit of the district.

Appellants challenge the constitutionality of Article 4494q-14 on the grounds the act failed to meet the constitutional requirement of an affirmative vote of a majority of the taxpaying voters in the district; that the caption of the statute is inadequate; that the enabling act has as its principal object the raising of revenue and is therefore unconstitutional in that it originated in the Senate; that Section 14 of the enabling act is a grant of judicial power to the district in violation of the Texas Constitution; and the alleged gerrymandered district and mode of taxation is invalid. As we understand it, appellants take the position the act creating the Caprock Hospital District is unconstitutional in that it does not require an affirmative vote of a majority of the taxpaying voters in the district concerned as required by Article 9, Section 9 of the Texas Constitution, Vernon's Ann.St., but only requires a majority of the qualified property taxpaying electors of the district voting at an election called for such purposes. (Emphasis added) In other words appellants contend Article 9, Section 9 requires an affirmative vote of the majority of the taxpaying voters regardless of the number of such voters participating in an election.

The act creating the Caprock Hospital District was enacted under authority granted the Legislature in Section 9, Article 9 of the Constitution. This section provides in part:

'providing that such district shall not be created or such tax authorized unless approved by a majority of the qualified property taxpaying electors thereof voting at an election called for the purpose; * * *.

'Provided, however, that no district shall be created except by act of the Legislature and then only after thirty (30) days' public notice to the district affected, and in no event may the Legislature provide for a district to be created without the affirmative vote of a majority of the taxpaying voters in the district concerned.'

Section 3 of Article 4494q-14 provides in part:

'Sec. 3. The District shall not be created nor shall any tax therein be authorized unless and until such creation and such tax are approved by a majority of the qualified property taxpaying electors of the District voting at an election called for such purpose.'

Appellants contend the quoted portion of Section 3 of the act is in conflict with the last paragraph of Section 9, Article 9 of the Constitution. This would be correct only if the applicable constitutional provision and statute called for a different standard of voter approval. It is to benoted the first paragraph of Article 9, Section 9, and Article 4494q-14, Section 3 employ the same language, to-wit: 'approved by a majority of the qualified property taxpaying electors * * * voting at an election * * *.' 'Electors' is used in both instances while in the second paragraph of Article 9, Section 9, the term 'voters' is used. We think this is significant.

In State ex rel. Wilkinson v. Self, (Tex.Civ.App.), 191 S.W.2d 756, the San Antonio Court was called on to determine the validity of an election to annex territory to a city under Article 1182a, V.A.C.S. The contention that the term 'voters' required that the election carry by an affirmative vote in excess of fifty per cent of the number of voters qualified to vote was overruled. The court held: 'In our opinion the word 'voter' as used in the excerpts from Article 1182a, above quoted, means those who actually cast a legal vote at the elections provided for by the Article. Shaw v. Lindsley, Tex.Civ. App., 195 S.W. 338, and authorities therein cited.' See also Marsden v. Troy, (Tex. Civ.App.), 189 S.W. 960; and Bradshaw v. Marmion (Tex.Civ.App.) 188 S.W. 973. We therefore conclude, and so hold, the phrase in Article 9, Section 9, 'the affirmative vote of a majority of the taxpaying voters in the district concerned,' means an affirmative vote of a majority of the qualified taxpaying electors voting in the election. This interpretation coincides with the language in the first paragraph of the same section and the one quoted in Article 4494q-14, Section 3. They are not in conflict. This holding is in conformity with the settled rule of instruction that all provisions of the Constitution relative to the same subject are to be construed together, and that an interpretation be given which will avoid a conflict if possible. 12 Jur.2d, Constitutional Law, Sections 27 and 28, and authorities there cited.

Appellants also urge that the enabling act is unconstitutional in that the caption is inadequate to meet the requirements of Article 3, Section 35 of the Texas Constitution. The caption of Senate Bill No. 486, the enabling act under consideration here, is as follows:

'An Act providing for the creation of a hospital district to be known as Caprock Hospital District with boundaries coextensive with the boundaries of Commissioners Precincts 1, 3 and 4 of Floyd County; providing for elections on the questions of the creation of such District and the levy of a tax not to exceed Seventy-five Cents (75cents) for its maintenance support, the indebtedness assumed, and the payment of bonds issued by it; providing the transfer of hospital facilities and assumption of indebtedness and assets; providing the District with power to issue bonds, and methods for authorizing same, for the purpose of the purchase, construction, acquisition, repair or renovation of buildings and improvements and equipping same for hospital purposes, and for any and all such purposes, and for the refunding of such bonds; providing that bonds issued by the District shall be lawful investments and security for certain funds; providing a governing body for such District, its powers and duties and the tenure of its members; withdrawing authority for the sale of bonds or levy of taxes for hospital purposes by any other municipality or political subdivision therein; enacting other provisions incident and germane to the subject and purpose of this Act; providing a severance clause; and declaring an emergency.'

Appellants complaint of the caption authorizing a 'levy of tax not to exceed seventy-five cents (75cents)' whereas the body of the statute permits a maximum tax of 'Seventy-five cents (75cents) per One Hundred Dollars ($100.00) valuation.' This apparent discrepancy was ruled on contrary to appellants' contention by the Supreme Court in Sweeny Hospital District v. Carr, Tex., 378 S.W.2d 40. Other discrepancies complained of deal with provisions omitted from the caption but included in the body of the statute. These included: reference to annexed territory; providing for transfer of...