# Royalty v. Nicholson

> Court of Appeals of Texas · January 19, 1967 · 411 S.W.2d 565

URL: https://www.frixlaw.com/law-library/cases/9639955

## Case

- **Full name:** J. W. ROYALTY Et Al., Appellants, v. Dr. W. D. NICHOLSON, Appellee
- **Court:** Court of Appeals of Texas
- **Decided:** January 19, 1967
- **Citations:** 411 S.W.2d 565; 1967 Tex. App. LEXIS 2864
- **Precedential status:** Published
- **Opinion:** Dissent by Coleman
- **Judges:** Werlein, Coleman
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9639955

## Opinion text

Dissenting Opinion
COLEMAN, Justice.
At the election in question two propositions were submitted to the voters. Proposition No. 1 authorized a $3,860,000.00 bond issue for the purpose of increasing the permanent facilities of the Brazosport High School to a 2,600 student capacity, a new elementary school, additions and improvements to elementary and junior high schools. Proposition No. 2 authorized a $5,998,000.00 bond issue for the purpose of building a new 2,000 student capacity high school in the Clute-Lake Jackson area, increasing the size of the Brazosport High School to 1400 student capacity, a new elementary school, additions and improvements to elementary and junior high schools.
As required by Article 2785, V.A.T.S., a petition requesting the School Board to call the bond election was presented to it. The petition requested that the two propositions be submitted. The petition was qualified by the following conditions:
“(a) If at said election both of the said propositions shall be rejected, bonds shall not be issued nor shall taxes be levied pursuant to either proposition; or
“(b) If at said election one of the said propositions shall be favored by a greater number of votes ‘For’ than ‘Against’ such proposition, and the other proposition shall be rejected, the favored proposition shall be declared adopted, and bonds shall not be issued nor shall taxes be levied pursuant to the rejected proposition; or
“(c) If at said election each of the said propositions shall receive a greater number of votes ‘For’ than ‘Against’ such proposition, the proposition receiving the greater number of votes ‘For’ such proposition shall be declared adopted, and bonds shall not be issued nor shall taxes be levied pursuant to the other proposition; or
“(d) If at said election each of the said propositions shall receive a greater number of votes ‘For’ than ‘Against’ such proposition, and each proposition shall receive the same number of approving votes, the Board of Trustees shall, in its discretion, declare one of the said propositions adopted, and bonds shall not be issued nor shall taxes be levied pursuant to the other proposition.”
The Board of Trustees adopted an order, reciting that the petition should be granted, and the election as prayed for should be ordered, calling the election. The order, which was set out in its entirety in the notices of election, contained a statement that the Board represented, covenanted and agreed to the conditions concerning the *576 manner of ascertaining the results of the election contained in the petition, which were quoted above.
The order canvassing the returns and declaring the results of the election found that Proposition No. 1 received 2,616 “for” votes and 2,321 “against” votes; and that Proposition No. 2 received 2,656 “for” votes and 2,367 “against” votes. It further found that there was a majority for the issuance of the bonds provided in Proposition No. 1 of 295 votes, and a majority for the issuance of the bonds provided in Proposition No. 2 of 289 votes. The order then declared that the election resulted favorably to the issuance of the schoolhouse bonds described in Proposition No. 2 and the levying of the tax in payment thereof; that the Board of Trustees was authorized to issue said bonds and to levy and collect taxes in payment thereof; that the election resulted unfavorably to the issuance of the schoolhouse bonds described in Proposition No. 1 and said bonds shall not be issued.
This election, as planned and conducted, is void for the reason that such an election has not been authorized by the Legislature of this State. The record reflects that the District had an acute shortage of classrooms, especially for high school students. The president of the School Board appointed a citizens’ Committee to consider the problem. The Committee recommended that the existing high school be replaced by a new high school in another area and that the existing school be used as a junior high school for three or four years. In the alternative, the Committee suggested the existing high school be expanded and continue as the only high school, or, in the alternative, that the existing high school be repaired and enlarged and that a new high school be constructed in the Lake Jackson area.
The first proposition was submitted alone and was defeated. Then the Trustees determined that “it seemed only fair to let the people of the district vote what they wanted * * * so the two remaining propositions left were submitted.” It is obvious that one of the principal questions this election was designed to determine was the question of whether a new high school should be constructed in the Lake Jackson area, and the Trustees thereby delegated the powers entrusted to them by Article 2749, V.A.T.S., to determine “how many schools shall be maintained in their school district, and at what points they shall be located” to those of the voters qualified to vote in bond elections. On this important question those residents of the District qualified to vote for trustees, but who owned no property subject to taxation, or whose property had not been duly rendered, were, in effect, disenfranchised.
It is clear that an election held for the purpose of determining whether a high school should be established and constructed in a particular area would be without binding effect for the reason that such an election is not authorized.
Article 2784e-l, Sec. 1, par. 2, provides that the Board of Trustees may issue bonds for: (1) purchase, (2) construction, (3) repair, (4) equipment of public free school buildings, and (5) the purchase of necessary sites therefor. There is no statutory authority to submit the same matters at the same election in two different issues, and no necessity therefor except for the desirability of a straw vote on the establishment and location of the new high school. It amounted to calling two elections on the same issues to be held at the same time using the same ballots. The statute does not authorize calling two elections in one order for the same purpose. Except for the difference in the amount of money authorized there is no difference in the propositions.
In Countz et al. v. Mitchell, 120 Tex. 324 , 38 S.W.2d 770 , Tex.Com.App., the Court said: “ * * * [t]here can be no valid election without some lawful authority behind it. The right to hold an election *577 cannot exist or be lawfully exercised without express grant of power by the Constitution or Legislature.”
In Coffee v. Lieb, 107 S.W.2d 406 , Tex.Civ.App., the court said:
“Therefore, ‘In all popular forms of government the power of a majority to bind the minority by a popular vote depends upon the fact that the elections are held by virtue of some legal authority, and an election held without affirmative constitutional or statutory authority is universally recognized as being a nullity.’ ”
Prior to the election the Board of Trustees had not determined whether a new high school should be built or where it should be built. By ordering the election on the basis of the petition presented to it, the Board determined that it was advisable either to build a new high school or to enlarge the present one. It agreed to be bound by the decision of those voters eligible to vote in bond elections. This is a vital distinction between the facts in this case and those in such cases as Moore v. Coffman, 109 Tex. 93 , 200 S.W. 374 (1918); Black v. Strength, 122 Tex. 188 , 246 S.W. 79 (1922), and other cases cited by appellee. In these cases the taxing authority calling the election designated the particular improvements to be constructed and their proposed location. In each case the taxing authority exercised their discretion. No alternative was submitted to the voters. They voted for or against a specific proposal. It is significant that in Moore v. Coffman, supra, the Supreme Court said: “ * * * We can perceive nothing in such a course that either trenches upon or exceeds the authority possessed in these matters by Commissioners’ Courts or municipal bodies, or that amounts, as is contended, to a surrender of their duty into other hands.” See also Hudson v. San Antonio Ind. School Dist., 95 S.W.2d 673 , Tex.Sup.1936.
Because of the identity of the propositions the ballots used in the election contained language which was not authorized by the law prescribing the form of the ballot to be used in such elections. The Supreme Court of Texas has stated that where a statute which authorizes a special election for the imposition of a tax prescribes the form in which the question shall be submitted to the popular vote, the statute should be strictly complied with. Reynolds Land & Cattle Co. v. McCabe, 72 Tex. 57 , 12 S.W. 165 (1888). The additional language was necessary only because of the. straw vote feature of this election.
There is yet another vice in this election. Sec. 4 of Article 2784e, V.A.T.S., provides that no tax shall be levied or bonds issued until such action has been authorized by a majority of the votes cast at an election held in the district for such purposes. Here the election included an additional purpose and required, in addition to a majority vote, that a proposition to be adopted must receive more votes than the other proposition submitted. Such a requirement has no statutory basis. . The Trustees, in agreeing not to issue bonds voted on in the proposition receiving the fewer “For” votes exceeded their authority if such proposition passed by a majority vote at an election held and conducted according to the requirements of the applicable law. It has been held in such a case that even where the school board is presented with a petition signed by three-fourths of the taxpaying voters of the district asking that their former action of voting for the issuance of bonds be rescinded and the bond issue annulled, the Board lacked the power to do so. Orr v. Marrs, 47 S.W.2d 440 , Tex. Civ.App., Texarkana 1932, writ dism., 122 Tex. 53 , 52 S.W.2d 53 .
Article 2786a, V.A.T.S., enacted in 1933, authorizes an election for the purpose of revoking and cancelling bonds voted or authorized by an independent school dis *578 trict. The Supreme Court of Texas had construed this statute to mean that an election could be held to revoke bonds duly voted, authorized and issued only when a later change in conditions showed that it would be unnecessary to spend their proceeds. Huntsville Independent School District v. McAdams, 221 S.W.2d 546 , Tex.Sup.1949.
From these decisions and this statute I conclude that an election called for the purpose of authorizing the issuance of bonds and the levy of a tax in payment thereof is illegal and void where the School Board, by the expedient of a contract with the voters, attempts also to determine that one or the other of the propositions voted on would be declared adopted and the other not adopted where both propositions received more votes for than against. The effect of such action would be the authorization of the issuance of bonds and the revocation of the same bonds simultaneously and without the showing of a later change in conditions.
The representations made to the voters as to the method of ascertaining the result of the election, together with the delegation of the discretion and authority of the Board of Trustees to the voters, was calculated to affect the voting on both propositions and the result of the election. The election was not authorized by, but was contrary to, the pertinent statutes and is illegal and void. Stephens v. Dodds, 243 S.W. 710 , Tex.Civ.App., Amarillo 1922; City of Houston v. McCraw, 131 Tex. 127 , 113 S.W.2d 1215, 1938 ; Mesquite Ind. School Dist. v. Gross, 123 Tex. 49 , 67 S.W.2d 242 (1934); Thompson v. Elmo Ind. School Dist., 269 S.W. 868 , Tex.Civ.App., Waco 1925.
I would reverse the judgment of the trial court and render judgment voiding the election. According, I respectfully voice this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9639955. Public record. Not legal advice.