45 Tex. 234 | Tex. | 1876
This suit was brought by appellant, Edward F. Austin, against the Gulf, Colorado, and Santa Fe Bailroad Company, Robert D. Johnson, William II. Williams, Bradford Hancock, Hugo Brosig, and C. A. Kaufman, the justices of Galveston County Court, and Joseph
A jury having been waived, the Case was submitted to the judge of the court below, who, after hearing the petition, demurrer, answer, and evidence, refused the injunction and dismissed the petition. From this judgment the plaintiff prosecutes this appeal, on the following assignment of errors, to wit:
“ 1. That the court erred in refusing the injunction prayed for, and dismissing the bill.
“ 2. The corn’t erred in its ruling on the law.
“3. That the court erred in its ruling on the facts.
“4. That the court erred in giving judgment for the defendants, and that the judgment should have been for the plaintiff and the perpetuation of the injunction.”
An inspection of the record plainly shows that this assignment is too general and indefinite to serve the purpose for which an assignment of errors is intended, and that appellant has failed’ to distinctly specify in it the grounds upon which he relies for a reversal of the judgment. Taking them separately or together, they amount to no more than if ap
An assignment of this kind might he sufficient, if the error complained of involved a single question of law or one issue of fact to be determined by the weight and preponderance of the evidence in favor of one or the other party, or merely the sufficiency of the evidence as a whole to support the judgment. But, evidently, it cannot be so regarded where the determination of the appeal involves the consideration, as in this case, of numerous and diverse character of rulings in the court below, both in regard to matters of law and fact. And we would feel fully justified by the statute requiring an assignment of errors, and by what has been repeatedly said by the court on this subject, if we treated the case as if no errors whatever had been assigned.
But as other suits of a like character might and probably would be brought if this case should go off without our passing upon the objections taken to the validity and legality of the bonds and tax which appellant seeks to enjoin, and as both parties insist that the decisions of the questions presented by the record at as early a day as practicable is a matter of great public interest, we conclude, that we may properly regard objection to the consideration of these questions, on account of the generality of the assignment of errors, as waived, The number of cases, however, which are submitted to us on defective assignments of error of like character, notwithstanding attention has been repeatedly called to the subject, and the delay and embarrassment it necessarily occasions the court in the prompt and satisfactory disposition of business in the present over-crowded condition of our dockets, leads us to admonish parties that unless in future they use more care in the preparation of their assignments of error, they need not be surprised to find their causes disposed of by this court, without considering or passing on questions which "were regarded in the court below and discussed in their briefs as of the most vital importance to their correct determination-
A thorough analysis of appellant’s brief, in connection with the record, will show that all the objections taken by him to the judgment, which need be considered, are embraced in the following general propositions:
1. The county of Galveston was not authorized by law, on a vote of two thirds of the qualified voters of the county, to assess a tax to aid in the construction of internal improvements, or to become a stockholder in the Gulfj Colorado, and Santa Fe Eailroad Company, on the 15th of June, 1874, when the contract or agreement between said company and the county, acting through the County Court, was consummated.
2. If, by law, the county of Galveston had the power and authority to aid in the construction of internal improvements, and to have entered into such a contract as that proposed to the county by said railroad company, the County Court had not been authorized by a vote of two thirds of the legal voters of the county to do so, and therefore the action of said court, accepting the proposition of the company, ordering the issuance of bonds, and assessing the tax sought to be enjoined, was unauthorized, illegal, and void.
The different propositions suggested by and discussed in appellant’s brief, which, if well taken, may be claimed as tending to support these general propositions, which we have eliminated from them, will be considered in the order in which they may be suggested by our own minds, though not entirely the same in which they are discussed by appellant.
1. It seems not to he controverted, that prior to the repeal of the act of April 12, 1871, entitled “An act to authorize counties, cities, and towns to aid in the construction of railroads and other works of internal improvement,” counties might, on being authorized by a vote of two thirds of the qualified voters of the county, aid in the construction of internal improvements to the extent this might he done by an assessment of a tax not to exceed two per cent, upon the taxable value of the property of the county. But it is maintained that aid could only be given to such works by a direct donation of the amount annually realized from such a tax as might h.e assessed for tins purpose. To maintain this proposition, it must he held that the act of April 12, 1871, is in many if not all of its provisions unconstitutional, and that we must look to article 12 section 82 of the Constitution, not only to determine the power and authority by which counties and cities have to aid works of internal improvements, hut also the character of such aid and the manner and form in which it is to be extended. Evidently this section of the Constitution was intended for no such purpose. Whether municipal corporations, such as counties, cities, and towns, could by virtue of their corporate authority contribute aid to, or participate in the construction of works or internal improve-
The language of the Constitution is: “ The inferior courts of the several counties of this State shall have the power, upon the vote of two thirds of the qualified voters of the respective counties, to assess and provide for the collection of a tax upon the taxable property, to aid in the construction of internal improvements: Provided, That said tax shall never exceed two per cent, upon' the value of such property.” Now, while it is beyond question that the counties in this State, when authorized by a vote of two thirds of the qualified voters, may aid in the construction of internal improvements, certainly the manner of doing so is not attempted to be defined or settled. Shall it be done by a direct donation of money or property; by the loan of the credit of the county; by the indorsement of the bonds or contracts of the company or parties engaged in such work, or by the county becoming a stockholder or participant in the enterprise ? Aid might be given in either of these ways, or in various others which might be suggested. The manner in which it shall be given, and the conditions and stipulations upon which it is done, are
This, we think, was done in. reference to the power in question, so far as the several counties of the State are authorized to aid in the construction of internal improvements by the act of April 12, 1871, previously referred to.
If this law is a legitimate exercise of legislative authority, of which we have no doubt, and was in force at the time of the consummation of the agreement between the county of Galveston and the Gulf, Colorado, and Santa Fe Bailroad Company, there can be no question that it was competent for the county to aid in the construction of said road by taking stock in said company; so, in either aspect, appellant’s objection, that the county could not aid the road by taking-stock, is fallacious.
But it is urged that this law had been repealed by the Legislature previous to that time. In support of this position, reference is made to an act approved April 22, 1874, and two acts passed May 2, 1874, amendatory thereof. The
It is insisted, however, that tins exception in the act of May 2, 1874, is inoperative and void, because this part of said act attempts to provide for a distinct and different object
“ifone of the provisions of a statute should be regarded as unconstitutional where they relate, directly or indirectly, to the same subject, have a mutual connection, and are not foreign to the subject expressed in the title.” (Phillips v. Bridge Co., 2 Met. Ky. R., 222; Smith v. Commonwealth, 8 Bush., 112.)
“ So long as the provisions are of the same nature, and come legitimately under one general denomination or object, we cannot say that the act is unconstitutional.” (State v. County Judge, Davis county, 2 Iowa, 284; See also Tadlock v. Eccles, 20 Tex., 792; S. M. Ins. Co. v. New York, 5 Sand., 19.)
Applying the principles laid down in these cases, and many others to like effect to which reference might be made, we think it quite evident that the objection made to this act on this ground is not well taken.
Mere limitations and restrictions by proviso, on the general scope of the law as indicated by the body of the act, ordinarily relate and are germane to its general object, and are of general and universal use, though no references are made to them in the title of the act. To require every limitation or qualification contained in the act to be expressed in the
It is also said that the exception in this act is unconstitutional, because it is an attempt “to revise and amend an act repealed, instead of re-enacting and promulgating it in full.” The Constitution says, “no law shall be revised or amended by reference to its title.” (Art. 12, sec. 18.) The statute of May 2,1874, was passed in strict conformity with this requirement of the Constitution. The act of April 22, 1877, which is revised and amended, is re-enacted and ’published at length. Eo previous act is revised or attempted to be revised, if to do so would be within this provision of the Constitution. The act of April 12, 1871, was still in force, and must have continued so, without an amendment of the act of April 22, 1874, for sixty days after the adjournment of the Legislature. The object of the law of May 2 was to effect its immediate repeal, except in certain localities, and not to revise it anywhere.
2. Under the second general ground of objection to the judgment, it is claimed that two thirds of the qualified voters of Galveston comity did not vote in favor of the proposition
The act of April 12, 1871, directs, “ "Whenever not less than fifty freeholders of any county shall petition the County Court for an election to take the opinion of the electors of such county on a proposition that said county shall aid in the construction of a railroad or other work of internal improvement, either by taking stock, malting a loan, or malting a donation thereto, it shall be the duty of such County Court, at a meeting which shall be called within twenty days after the presentation of the petition, to order an election to be held 'in not less than thirty days nor more than forty days thereafter, to take the opinion of the electors of the county upon such proposition.”
And after prescribing for notice of the election, the manner of holding and conducting it, how and when the returns are to be made, it enacts as follows: “ Sec. 5. A special meeting of the County Court shall be held on the first Monday after the return day of such election, when the court shall ascertain and record the results of the election; and if two-thirds of the qualified voters of the county shall have voted in favor of the proposition at such election, then it shall be the duty of the court to make such orders and adopt such regulations as will give practical effect to the proposition so voted for,” &c.
The law, we think, plainly and directly negatives the appellant’s proposition. All persons duly registered are no doubt prima fade qualified voters, and should be admitted to vote, on the production of their certificates of registration. But it is two thirds of the qualified voters who must vote for the proposition to secure its adoption, and not two thirds of all whose names are found on the registration rolls. It is
It is also claimed that the declaration of the result of the election was unauthorized and void, because made at a time when the County Court had no legal authority to sit for such purpose. But the court met at the time provided by the statute. Yo specific time is indicated within which it must perform the duty with which it is intrusted. It was unquestionably authorized to continue its session until it was able properly to complete and discharge its duty. The legal presumption is that it did so. We cannot présume that it violated it3 duty or exceeded its authority for the purpose of impeaching its acts.
Other objections are made to the action of the court in ascertaining and declaring the result of the election. If, however, we were to concede the most that can be claimed for them, it would be found that they were mere irregularities or errors in the course of a judicial proceeding, for which the judgment and conclusion could not be impeached at the time and in the manner proposed by appellant in this case.
It is also insisted that said bonds are void, because payable in Yew York. Tins was a matter properly within the disere
The laws levying taxes for purposes of general revenue have no reference to taxes assessed under the special authority given for the levy of this tax. Consequently the act of June 3, 1873, on the subject of taxes, cannot be held to repeal it.
The objection that Galveston county did not pay five per cent, of its stock in cash at the time the proposition was accepted, is of no weight. Evidently the provision to tMs effect in the company’s charter has no application to aid extended by counties in the construction of railroads and other works of internal improvement by an exchange of the bonds of the county for stock.
The proposition for aid by the county was submitted and voted for in strict conformity with directions and requirement of the act of April 12, 1871. Unless its provisions on the subject .are shown to be illegal and void, the objection on this ground is of no force. We need not add anytMng further to what has already been said in reference to the constitutionality as well as construction and effect of this statute. Leaving the statute out of view, howevei’, we see no cause to object to the form in wMch the proposition was submitted. The substantial question to he determined by the election was, Shall the county aid in the construction of this road in the manner and to the extent proposed ? It is a poor compliment to the voters of the county to suppose that they could or did not understand the import and effect of the proposition submitted to them.
3. The railroad company stipulates that each section of five miles of the first fifty miles of its railroad shall he completed in the manner provided in the charter of the company, as a
There is no error in the judgment, and it is affirmed.
Affirmed.
Justice Gould did not sit in this case.