296 S.W. 1062 | Tex. | 1927
This is a mandamus proceeding brought by Anderson County Road District No. 8, the County Judge and County Commissioners of Anderson County against the Attorney-General, for the purpose of requiring him to approve $500,000 of road bonds previously voted by the electors of the road district at an election held for the purpose. Anderson County Road District No. 8 was created by order of the Commissioners Court on the 13th of October, 1922, under authority of the Constitution and laws of the State, particularly Sec. 52, Art. 3, of the Constitution, Chap. 2, Title 18, Revised Statutes of 1911, as amended by Chap. 203, Acts of 1917, Regular Session, and Chap. 18, Acts Fourth Called Session of the Thirty-fifth Legislature, Chap. 38, Acts of the Second Called Session of the Thirty-sixth Legislature, and Chap. 41, Acts of 1921. In other words, the district was created under the road district laws of the State providing for the creation of districts by County Commissioners' Courts and the issuance of bonds by vote of the electors. The election was petitioned for by the voters, as provided by the statute, ordered by the Commissioners Court, and held on the 21st of November, 1922, for the purpose of determining whether or not the bonds of Road District No. 8 should be issued in the total principal sum of $1,500,000. No question is made but that the statute in all respects was complied with in all proceedings leading up to the election, nor is any question made but that the bonds were voted by the required constitutional and statutory majority. In due course all the bonds authorized by the election were issued, and, after approval by the Attorney-General, sold or otherwise lawfully disposed of, save and except $500,000 thereof. This action was brought to require the Attorney-General to approve the record as provided by law as to the issuance of the last installment of $500,000 in bonds previously voted, as above stated. The Attorney-General has refused to approve the bond record, for reasons stated by him in his answer, *549 to the effect that the Supreme Court of the United States in the case of Browning v. Hooper (known as the Archer County case) had declared the law under which the bonds were issued repugnant to the due process clause of the Federal Constitution, and that the Legislature was without power to validate them as it had attempted to do in the statutes hereafter noted.
After the decision of the Supreme Court of the United States in the case of Browning v. Hooper, United States Reports, 70 Law Ed., p. 153, the Legislature was convened in special session by the Governor, for the purpose, among others, of passing necessary and proper legislation to validate and legalize State, county, commissioners' precinct, and special road district bonds or securities, whose validity had been brought in question by the decision in the Browning case, and to cure defects in the issuance of such bonds or securities, etc. Tom Green County v. Moody,
"Section 1. That Road District No. 8 of Anderson County, Texas, including within its limits the territory described and defined in that certain order of the Commissioners Court of Anderson County, Texas, passed and adopted by said court on the 13th day of October, 1922, recorded in Book 19, page 292 etseq., minutes of the Commissioners Court of said county, a certified copy of which order is on file in the office of the State Comptroller of Public Accounts, is hereby created and established as a defined road district in said county, under authority of Sec. 52 of Art. 3 of the Constitution of the State of Texas, with like effect as though the metes and bounds description thereof appeared herein, for the purpose of constructing, maintaining and operating macadamized, graveled, or paved roads and turnpikes, or in aid thereof, and such district is hereby made a body corporate and taxing district under the Constitution and laws of the State of Texas.
"Sec. 2. That the organization and establishment of said Road District No. 8 of Anderson County, Texas, by the Commissioners Court of said county is hereby approved, ratified and confirmed, and the power and authority of said Commissioners Court to create said territory into a separate road district and taxing district for the purpose of issuing bonds for purchasing roads from other districts, and further constructing, maintaining *550 and operating macadamized, graveled, or paved roads and turnpikes, or in aid thereof, and to levy and collect annually a direct general ad valorem tax upon all of the taxable property therein appearing upon the assessment rolls for State and county taxes, in payment of such bonds, be and the same is hereby delegated, ratified, approved and confirmed."
The third section copied the order of the Commissioners Court made in ordering the election at which these bonds were votedhaec verba, and declared that this order, which authorized the issuance of the bonds in controversy and the levy of a tax for their payment, etc., the notices of the election, the form of ballot used, the canvass of votes, the declaration of result, etc., are "hereby legalized, approved, and validated."
Secs. 4, 5, 6, 7, and 8 relate to bonds which have been heretofore issued and disposed of, but voted at the same time and as a part of the same issue as the bonds here involved. Those which were previously issued and disposed of were validated by the Act, and were declared valid and binding obligations of the district, and in all things relative to their issuance legalized and validated.
Sec. 9 legalized and validated the levy of taxes, expressly delegating to the Commissioners Court the power to continue to levy taxes for the purpose of maturing the bonds.
Secs. 10, 11 and 12 relate directly to the bonds in issue in this proceeding. These sections read as follows:
"Sec. 10. That, whereas, there now remains unissued and unsold bonds in the sum of five hundred thousand dollars ($500,000) of the said total authorized issue voted at the election held in said Road District No. 8, on the 21st day of November, 1922, and, whereas, the Commissioners Court of said county by the said order of February 8, 1925, expressly reserved the right to thereafter issue the said unissued bonds aggregating said five hundred thousand dollars ($500,000), in addition to the bonds that had been theretofore issued, and it is further enacted that the said unissued bonds shall be issued and delivered after approval thereof by the Attorney-General of the State of Texas, and registration thereof by the State Comptroller of Public Accounts, and the said order of the County Commissioners Court reserving the right to issue such additional bonds is hereby approved and confirmed, and power and authority is hereby expressly conferred upon the said court to adopt all orders and to do all acts necessary in the issuance and sale of such unissued bonds, and the said court is hereby expressly authorized and empowered to levy a direct general ad valorem tax upon all *551 taxable property in said road district, in addition to taxes heretofore levied for and on behalf of said district, for the purpose of paying the interest on and principal of the said unissued bonds, and which such taxes shall be levied, and proper provision made for their assessment and collection, in all things as provided by law.
"Sec. 11. That said orders, and all other orders adopted by said County Commissioners Court in respect of said road district, bonds and taxes, as the same appears upon the records of said court, or copies thereof duly certified, are hereby constituted legal evidence of such orders, and shall be authority for said court to annually levy, assess and collect taxes in an amount sufficient to pay the principal of and interest upon said bonds as the same mature and become due, such taxes to be levied and assessed upon the value of taxable property in said road district as fixed for State and county taxes, and that any and all acts and proceedings had and taken by said court in the construction of roads and turnpikes from the proceeds of said bonds are hereby validated, approved and legalized.
"Sec. 12. That the Legislature hereby exercises the authority upon it conferred by Sec. 52, of Art. 3, of the Texas Constitution, and declares said defined district as a road district, as above described, to have been legal and valid from the date of the adoption of said order, defining its boundaries, and confirms and ratifies said acts and proceedings of said court in respect of said election authorizing the issuance and sale of said bonds, and levy of taxes to pay principal thereof and interest thereon and the construction of roads and turnpikes with the proceeds thereof with like effect as though at the time or times said acts and proceedings were done or had, there existed statutory authority for the doing thereof, and the bonds of said district that have not been issued and sold, having been voted by the necessary majority of the qualified electors in conformity with the provisions and requirements of said Sec. 52, of Art. 3, of the Constitution, shall be the valid and binding obligations of said Road District No. 8, upon their issuance and sale under the provisions of this Act."
In addition to the foregoing, the same session of the Legislature passed a general law, Chap. 10 of the General Laws of the First Called Session of the Thirty-ninth Legislature, having for its object the validating of all road bonds theretofore voted by any political subdivision or Road District under Sec. 52, Art. 3, of the Constitution, and which bonds had not theretofore been issued and sold. Sec. 1 of this Act reads as follows: *552
"Section 1. That all road bonds heretofore voted and authorized by any political subdivision, or by any road district, in accordance with the provisions and requirements of Sec. 52, of Art. 3, of the Texas Constitution, and which bonds have not yet been issued and sold, are hereby validated, and the Commissioners Court of the county including such political subdivision or road district, shall have the power, and is hereby expressly authorized, to make and enter any and all orders and provisions necessary for the purpose of issuing and selling the bonds so authorized to be issued by the qualified electors of such political subdivision or road district, and such court is hereby further expressly authorized to levy general ad valorem taxes on all taxable property situated in such political subdivision or road district as such taxable property appears upon the assessment rolls for State and county taxes, in amount sufficient to pay the interest on such bonds and the principal thereof at maturity, and such bonds, when approved by the Attorney-General, registered by the State Comptroller and delivered shall be the general direct and binding obligations of such political subdivision or road district issuing the same."
The same session also passed another general Act. Chap. 17, General Laws of the Thirty-ninth Legislature, First Called Session, Secs. 1, 2, 3, and 4 of which read as follows:
"Section 1. That whenever the County Commissioners Court of any county shall have caused to be described upon its records any defined portion of contiguous territory, located wholly within such county, for the construction, maintenance and operation of macadamized, graveled, or paved roads and turnpikes, or in aid thereof, located therein, each such defined portion of contiguous territory is hereby recognized as a legal body politic and corporate of this State and as a road district for such road purposes under authority of Sec. 52, of Art. 3, of the Constitution of Texas, and the creation of each such road district is hereby validated and legalized.
"Sec. 2. That the boundaries of each such road district are hereby designated as the same are described by metes and bounds upon the minutes or records of the County Commissioners Court of any county wherein a road district has been heretofore established pursuant to any general or special law, and such boundaries are hereby designated as the same appears upon said record books of the County Commissioners Court of the several counties in the State of Texas, and upon certified copies of such records on file in the office of the State Comptroller of Public Accounts, and with like effect as though the metes and *553 bounds description of each such road district was here severally set out at large.
"Sec. 3. That where a two-thirds majority of the resident property taxpayers, being qualified electors thereof, of any such road district voting on the proposition, having voted at an election held in such road district called by the County Commissioners Court of such county, in favor of the issuance of bonds of such road district and the levy of a tax upon the taxable property therein for the purpose of paying interest on said bonds and providing a sinking fund for the redemption thereof, for the construction, maintenance and operation of macadamized, graveled, or paved roads or turnpikes, or in aid thereof, the canvass of said vote, revealing such majority, having been recorded in the minutes of said County Commissioners Court, and where thereafter the County Commissioners Court of such county, by order adopted and recorded in its minutes, authorized the issuance of bonds of such road district, prescribed the date and maturity thereof and rate of interest the bonds were to bear, the place of payment of principal and interest, and provided for the levy of a tax upon the valuation of taxable property in such road district according to the value thereof as fixed for State and county purposes, sufficient to pay the interest on such bonds and to produce a sinking fund sufficient to pay the bonds at maturity, and said bonds were sold and delivered and the proceeds received by the county treasurer of said county for the credit of all such road district, each such election and all acts and proceedings had and taken in connection therewith by such County Commissioners Court in respect of such bonds, levy of taxes and construction of roads and turnpikes are hereby legalized, approved and validated; and such bonds so sold and delivered are hereby validated and constituted the legal obligations of such road district.
"Sec. 4. That taxes sufficient to pay the principal of and interest upon said bonds, so levied for such purpose upon the valuation of taxable property in such road district, according to the value of taxable property as determined for State and county purposes, are hereby found and fixed as the amount to be raised in such road district, and constituted the basis for such taxation, and the assessment and levy of such taxes is hereby validated and legalized; and that said taxes, in an amount sufficient to pay the principal of and interest upon said bonds now outstanding, shall be annually assessed and collected according to the value of taxable property as fixed for State and county *554 taxes by the County Commissioners Court of each such county, and express authority so to do is hereby delegated and granted to such courts."
It is obvious from a reading of these special statutes that the purpose of the Legislature was to validate road districts of the character here involved, including this identical district, in all respects. The boundaries of the district as selected by the petitioners, and as defined by the Commissioners Court in its orders, the election at which the bonds were voted, all orders of the Commissioners Court, the taxes levied to pay the bonds, and all other proceedings pertaining to the creation of the district, the levy of taxes, and the issuance of bonds, are by these several Acts of the Legislature expressly ratified and validated.
By the provisions of Chap. 10, previously quoted, the Commissioners' Courts of the various counties having bonds heretofore voted but not issued, are expressly authorized to make and enter any and all orders and provisions necessary for the purpose of issuing and selling the bonds, and to levy general ad valorem taxes on all taxable property, in an amount sufficient to pay the interest on the bonds and principal at maturity. The Act then declares that said bonds, when approved by the Attorney-General and registered as required by law, shall be the general, direct and binding obligations of the political subdivision or road district within its terms.
The validating Acts are so comprehensive in their terms that if the Legislature had the constitutional power to pass them, there can be no doubt that the bonds here involved were validated, and that the Attorney-General ought to approve the record. That the Legislature did have the constitutional power to pass these validating Acts, we regard as well settled by the authorities. Tom Green County v. Moody,
The general and established rule is, what the Legislature could *555
have authorized in the first instance, it can ratify if at the time of ratification it has the initial authority to authorize. Charlotte Harbor Northern Ry. Co. v. Wells,
That the Legislature could have defined and constituted the territory set forth in the boundaries of Anderson County Road District No. 8 as a defined road district under the Constitution and laws of this State, and authorized the issuance of the bonds in controversy by a two-thirds vote of the qualified electors, under the provisions of Sec. 52, Art. 3, of the Constitution, and the levy of a general property tax to pay the bonds and all interest thereon, is, we think, well settled by the authorities. Tom Green County v. Moody,
A complete review of the authorities does not appear to be necessary, but in view of the importance of the question we will direct particular attention to some of them.
In the case of Charlotte Harbor Northern Ry. Co. v. Wells, supra, a bill in equity was brought to declare illegal a special road and bridge district in Florida, and restrain the county commissioners from paying out any funds in settlement of supposed obligations of the district. The ground of the suit and the relief prayed for were based upon the proposition that the district was constituted of territory which overlapped territory included in another district theretofore created, and that therefore the Board of Commissioners to which the creation of the district was committed by the law of the State, as the law then existed, was without power to establish the district. At some stage of the proceeding, not disclosed by the record, the Legislature of Florida passed an Act having for its special purpose the validation of the action of the commissioners in creating the road district with overlapping territory. The Act was passed for the purpose of legalizing and validating the assessments made for the construction of roads and bridges in the newly *556 created district, the indebtedness incurred, and the warrants issued in payment of the expense incident thereto, or which might thereafter be issued. The validating Act also legalized the assessment and taxes in the district. In that case the Legislature had the original power to have authorized the creation of a district with overlapping territory, but it had not done so. The validating Act was attacked in the courts as being inhibited by the Fourteenth Amendment to the Constitution of the United States, in that "the said bill attempts to legalize a proceeding of the County Commissioners of DeSoto County, Florida, who were mere administrative officers and which proceeding was void ab initio and without jurisdiction, and under which proceeding certain taxes were levied against the property of your petitioner, prior to the passage of said Act of the Legislature, and therefore the said Act of the Legislature, in so far as it purports to create a liability on your orator for taxes previously assessed against your orator under a proceeding of said administrative officers is void abinitio and without jurisdiction." The Supreme Court of the United States sustained the validating Act, and denied the relief, saying:
"In support of the contention of the petition, plaintiff in error makes a distinction between a curative statute, which it is conceded a Legislature has the power to pass, and a creative statute, which, it is the assertion, a Legislature has not the power to pass. The argument in support of the distinction is ingenious and attractive, but we are not disposed to review it in detail.
"The general and established proposition is that, what the Legislature could have authorized, it can ratify if it can authorize at the time of ratification. United States v. Heinszen Co.,
In the case of Kansas City Southern Ry. Co. v. Road Imp. District No. 3,
"The special confirmatory act was recognized by the Supreme Court of the State as a legislative determination of the lands which will be benefited and of the proportions in which they will share in the benefits. It therefore must be treated here as an admissible legislative assessment of benefits, so far as the State Constitution is concerned. * * * We conclude that the objections made to the assessment on constitutional grounds are not well taken."
In the case of Anderson v. Santa Anna,
"The Legislature did not in any just sense impose a debt on Santa Anna township against the will of its corporate authorities, the electors. The Act embraces only townships which, by a majority of their legal voters, at an election previously held, had declared for a subscription. That such majority was given at an election held by the township in the customary form is averred in the declaration and is admitted by the demurrer. The curative Act only gave effect to the declared will of the electors. As the Constitution of the State did not provide any particular mode in which the corporate authorities of a township should manifest their willingness or desire to incur a municipal debt for railroad purposes, we perceive noreason why the action of the majority of the legal voters, atan election held in advance of legislative action, might not berecognized by the Legislature and constitute the basis of itssubsequent assent to *559 the creation of such indebtedness, and its ratification of whathad been done."
Continuing, the court said:
"In Grenada County v. Brogden,
By an Act of the Legislature of Illinois incorporating the Dixon, Peoria Hannibal Railroad Company, passed in March, 1867, authority was given certain cities and incorporated towns to subscribe to the stock of the railroad company in amounts not exceeding $35,000. At an election called and held subsequent to the passage of this Act, the town of Brimfield voted to subscribe $35,000, and at the same time and place,but without legislative authority therefor, the same electorsvoted to make an additional subscription of $15,000. In March, 1869, the Legislature passed an Act reciting that the last named sum had been voted by a majority of the legal voters of said township at said election, and provided that said election "is hereby legalized and confirmed, and is declared to be binding upon said township, and may be collected from said township, in the same manner as if said subscription had been made under the provisions of said charter." An action was brought to recover upon the bonds, and resisted by the municipality. It was not disputed that the bonds in suit would have been valid obligations of the town of Brimfield if the election of August 3, 1868, at which they were voted, had been previously authorized by the statute. The Supreme Court of the United States upheld the constitutionality *560 of the curative Act and the validity of the bonds, and in its opinion in part said:
"The question then, is, could the Legislature, by subsequentratification, make that legal which was originally withoutlegal sanctions, but which it might, in the first instance,have authorized? A negative answer to this question would be inconflict with numerous decisions of this court upon the generalquestion as to the power of a Legislature to enact curativestatutes, when not restrained by constitutional provisions —the last of those decisions being Anderson v. Santa Anna. Weadhere to what has been heretofore said by this court upon thatsubject.
* * * * * * *
"We must presume, upon this record, that the Legislatureascertained, as stated in the Act in question, that such amajority had, at the election of August 3, 1868, voted for theadditional subscription of $15,000; and we do not see that thesubsequent ratification by the Legislature of what had beendone by the voters can be regarded as imposing a debt upon themagainst their will. The Legislature simply gave effect to thewishes of the people, as expressed in the customary mode forascertaining the popular will. Grenada County Supervisors v.Brogden,
The case of County of Leavenworth v. Barnes,
"In the present case a majority of the electors voting declared themselves in favor of the subscription and issue of the bonds. This is all that is required, either by the first or fourth sections. The same rule is intended to be applied in each case. This is an explicit authority from the Legislature to the county board to adopt any previous expression of theelectors of their willingness to make such subscription. It isconclusive on the point under consideration."
The facts in the case of Schneck v. City of Jeffersonville,
"This purpose or object, we are constrained to hold, was accomplished by the Act in controversy, and that the lawmaking power thereby ratified, confirmed, and made legal the unauthorized power or authority which the city, through its council, assumed to exercise. In its effect and operation the Act must be held equivalent to conferring original legislative authority upon the City of Jeffersonville which would have authorized it to incur the indebtedness and issue the bonds to obtain the necessary means to defray the debt; and these obligations must therefore be considered in the same light as though they were valid ab initio, unless the curative statute can be said to be open to *562
the objections urged against it by appellant. That the Legislature has the power to enact legislation of the character of that in question, in the absence of constitutional restrictions either Federal or State, where vested rights have not intervened, is well affirmed and settled by many decisions, not only in this jurisdiction but elsewhere. Among the number we cite the following: Walpole v. Elliott,
Again the court said:
"The ratifying Act of 1897 cannot be said to fasten unwillingly upon the city the indebtedness and thereby compel its payment. In a sense it simply gives effect to the will of the city, as expressed by it in 1876, through its Common Council, and no doubt also ratifies the desire of a large majority of the resident freeholders, expressed, presumably, to the Common Council, by means of petition or otherwise.
* * * * * * *
"The contention of appellant's counsel that the Legislature was not empowered to enact the statute in dispute, for the reason that it creates a debt, and thereby the city, at the time of its passage, became indebted in excess of the constitutional limit fixed by Sec. 1, Art. 13, as amended March 14, 1881, is not tenable. The Legislature, by the Act in question, neither created or professed to create a debt. It simply recognized the indebtedness and bonds as having an existence in 1876, and ratified, confirmed, and legalized them." *563
In the case of People v. Stitt,
"This doctrine as to curative statutes applies as well to laws that have been held unconstitutional as to those laws that have been held invalid for other reasons. Ross v. Board of Supervisors,
The other Illinois cases cited by us are similar.
The opinions of this court, in so far as questions similar to those decided by the cases cited and discussed have been presented, have been in line with the decisions of the Supreme Court of the United States, and sustain the validity of the curative statutes here involved. In the case of Tom Green County v. Moody, supra, one of the validating Acts in issue here was involved, and its validity and effectiveness sustained. In the opinion, by ASSOCIATE JUSTICE GREENWOOD, we said:
"We are, however, of the opinion that if the bonds were originally subject to attack on constitutional grounds, they have since been validated by Act of the Legislature of Texas. The Governor convened the Legislature in special session for the purpose, among others, of passing — 'necessary and proper legislation that will validate and legalize State, county, commissioners' precinct, and special road district bonds or securities whose validity has been brought in question by the decision of any State or Federal court, or otherwise. And to cure any defects in the issuance of said bonds or securities, or to provide by *564 proper legislation to make said bonds or securities binding and valid debts and obligations of the authority issuing the same.'
"The Governor, on October 14, 1926, approved a law, which became effective on that date, whereby the election at which the bonds here involved were voted, the notice of the election, all orders of the Commissioners Court, the taxes levied to pay the bonds, and all other proceedings pertaining to the bonds were each and all expressly ratified and validated.
"We have already shown that under principles repeatedly declared by the Supreme Court of the United States the Legislature of Texas might in the first instance have made any reasonable selection of the property to be taxed for the improvement of the public roads in Tom Green County, and could have levied ad valorem taxes on such property to pay the cost of such improvement. There being no constitutional provision to the contrary, whatever the Legislature might originally have lawfully authorized in respect to these matters it could subsequently confirm. The rule is thus tersely put by Mr. Justice Gaines in Nolan County v. State,
" 'Where a contract which a municipal corporation has attempted to create is invalid merely for want of legislative authority to create it, it can be made valid by a subsequent law'."
Under the authorities we are convinced that the curative Acts passed by the Legislature, and heretofore quoted in this opinion, were valid and constitutional exertions of the legislative power, and were and are effective to make valid the bonds and all proceedings under which they were issued involved in this case. It follows from the foregoing that it is the duty of the Attorney-General to approve the bond record as prayed for, and that the writ of mandamus ought to issue. Mandamus awarded.
Associate Justice Greenwood not sitting. *565