Bowling v. City of Pearland

478 S.W.2d 143, 1972 Tex. App. LEXIS 2600
CourtCourt of Appeals of Texas
DecidedMarch 8, 1972
DocketNo. 570
StatusPublished
Cited by4 cases

This text of 478 S.W.2d 143 (Bowling v. City of Pearland) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowling v. City of Pearland, 478 S.W.2d 143, 1972 Tex. App. LEXIS 2600 (Tex. Ct. App. 1972).

Opinion

TUNKS, Chief Justice.

On February 6, 1971, the City of Pear-land, in Brazoria County, Texas held a special election to determine whether a proposed home rule charter should be adopted. The result, by a margin of 5 votes, was in favor of adopting the charter. The appellants, C. L. Bowling and other residents of the city, filed suit challenging the validity of the election. The trial court, at the close of contestants’ testimony, granted the city’s motion for judgment. Judgment was rendered declaring the election valid. The contestants have perfected appeal from that judgment.

The principal contention of the contestants relates to the publication of notice of the election. On the 14th and 21st days of January, 1971, notice was published in The Sun Progress, a newspaper of general circulation in Brazoria County. Notice of the election was also posted in two public places in the city on December 18, 1970.

The two publications of notice were 22 and 15 days before the special election. Contestants contend that Vernon’s Tex. Rev.Civ.Stat.Ann. art. 1166 (1913) requires that notice of a special election on the question of the adoption of a home rule charter be published not less than 30 nor more than ninety days before such election. References herein to statutes are references to Texas Revised Civil Statutes Annotated unless otherwise designated.

Chapter 13 of Title 28 of the Texas Civil Statutes deals with Home Rule Cities. Article 1165, the first article of that chapter is in the following language:

“Cities having more than five thousand inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters, subject to such [145]*145limitations as may be prescribed by the Legislature. No charter or any ordinances passed under said charter shall contain any provision inconsistent with the Constitution or general laws of this State; said cities may levy, assess and collect such taxes as may be authorized by law, or by their charters; but no tax for any purpose shall ever be lawful for any one year which shall exceed two and one-half percent of the taxable property of such city, and no debt shall ever be created by any city unless at the same time provision be made to assess and collect annually a sufficient sum to pay the interest thereon and create a sinking fund of at least two per cent thereon. No city charter shall be altered, amended or repealed oftener than every two years. The governing body of such city may, by two-thirds votes of its members, or upon petition of ten per cent of the qualified voters of said city shall provide by ordinance for the submission of the question, ‘shall a commission be chosen to frame a new charter.’ ”

Article 1166 is as follows:

“The ordinance providing for the submission of such question shall require that it be submitted at the next regular municipal election, if one should be held, not less than thirty nor more than ninety days after the passage of said ordinance; otherwise it shall provide for the submission of the question at a special election to be called and held not less than thirty days nor more than ninety days after the passage of said ordinance and the publication thereof in some newspaper published in said city. The ballot containing such question shall bear no party designation, and provisions shall be made thereon for the election from the city at large of a charter commission of not less than fifteen members, nor more than one member for each three thousand inhabitants, provided that a majority of the qualified voters, voting on said question shall have voted in the affirmative.”

Article 1165 refers to elections involving three different subjects — the adoption of a charter, the amendment of a charter and the choosing of a commission to frame a new charter. The notice required to be given on an election to amend a charter is specifically provided by art. 1170. It is appellants’ contention that by the use of the language “the submission of such question” in art. 1166 the legislature referred to both an election to adopt a charter and to an election on the question as to whether a charter commission should be chosen. The appellees contend that the quoted language refers only to an election on the proposition of the choosing a charter commission and that the notice requirements of art. 1166 are not applicable to an election on the question of the adoption of a charter.

The basic rules to be followed by a court in the construction of a statute require that the court seek the intention of the legislature in enacting the statute. Calvert v. British-American Oil Producing Co., 397 S.W.2d 839 (Tex.Sup.1965); Tex.Rev.Civ.Stat.Ann. art. 10. It is also an established rule that in the construction of one statute other statutes in pari mater-ia will be read and considered. Thus in seeking the legislative intent in enacting art. 1166 we must consider the other statutes in Chapter 13 of Title 28. Calvert v. Fort Worth National Bank, 163 Tex. 405, 356 S.W.2d 918 (1962).

The language of the final sentence of art. 1166 suggests that “such question” referred to in the first sentence is a reference to an election on the question of the choosing of a charter commission. The provisions for the ballot to be used in the election on “such question” clearly relate to a charter commission election.

The language of art. 1167, in pari mater-ia, also suggests that the preceding article relates to a special election on the question of choosing a commission. It refers to the charter framed by “said commission”, the one chosen pursuant to the election provided for in the preceding statute. It also [146]*146separately provides for the submission of the issue of the adoption of the charter and for the mailing of copies of the proposed charter to voters not less than thirty days before such submission.

The provisions of art. 1170, also in pari materia, suggest a conclusion that art. 1166 refers to only a charter commission election. It makes provision for notice to be given of a special election to amend a charter, thus refuting a conclusion that the notice provisions in art. 1166 relate to all of the three elections contemplated by art. 1165.

Neither party has cited any case directly holding upon the question here involved. The appellants have cited Turner v. Lewie, 201 S.W.2d 86 (Tex.Civ.App.-Waco 1947, writ dism’d). There is language in that opinion to the effect that the notice provisions in art. 1166 apply to a special election on the proposition of adopting a charter. That case, however, involved a special election to amend a charter, as to which notice is provided for in art. 1170. The language relating to notice required to be given of a special election to adopt a charter was dictum. With due respect for the learned judge who wrote that language we feel compelled to disagree with it.

Neither art. 1166 nor any other statute in Chapter 13 of Title 28 provides for the giving of notice of a special election by a city to adopt a home rule charter. Copies of the proposed charter were mailed to the voters of the city not less than 30 days before the election as required by art. 1167. The notices by publication met the requirements of art. 29e and of Tex.Election Code Ann. art. 4.05, V.A.T.S. (1969).

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Cite This Page — Counsel Stack

Bluebook (online)
478 S.W.2d 143, 1972 Tex. App. LEXIS 2600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowling-v-city-of-pearland-texapp-1972.