*1 .247 Necessarily included sense a requested by it in no unreasonable. was the use n denialof due removal dirt plaintiff. would be the disturbance or process of law to the It premises. en- and other material plaintiff was from the process which due 'The may be, however, court was trial proceedings that the titled was afforded was the re- able to conceive of where judgment a situation the court below where n entered part owner to been fusal on the easement appeal has from which this permit plaintiff any prior certain dirt to remove necessary that It taken. was not. premises would be other material defendants proceedings be conducted n so, prop- arbitrary judicial If he unreasonable. any of them the sense n erly Rail- refrained from foreclosure as the quasi-judicial body (such Board, plaintiff’s ques- litigate future Commission, Liquor right to Control road n etc.), trial tion on the under record made the court their status in say that his be dis- instant case. cannot «question We involved is no sense ordinary liti- caution the de- was unreasonable nor that tinguished from that of an were fendants entitled to more extensive .gant. relief Their judgment than the afforded. cross-assign Concerning cross-assignments overruled. error are look we error of the ments of defendants Judgment is affirmed. judgment in the entered the order upon order findings fact of wheth premised in determination any find support disregard er and we it has not affect

ing conclusion which does suit. sought parties

relief to us seems clear

When this done presented by the cross- only question DISTRICT, BEXAR HOSPITAL COUNTY en points were the defendants is whether Appellant, declaratory From to broader relief. titled previously defend what has been noted al., Appellees. B. CROSBY et Jack prayed judgment to ants desired No. 13385. right to plaintiff no effect purpose of dis upon the land enter Appeals Court of Civil of Texas. ma removing any other turbing dirt or San Antonio. per express without the terial whatsoever Dec. 1958. judgment of the defendants. mission Rehearing Denied Feb. quite far, go did ef not but entered did so plaintiff could not fectually declare purpose for such under enter

presently suggested. go It did not

plan proposed or so plaintiff at all enjoin the as to far future, we see no real is but times

in n sue respect the record made. under appear there is therefrom that It does

n anyhazard against which defend of such injunctive relief. entitled were

ants plain that the have held above

We against to use land as right no

tiff has the easement owner where objection of clearly ap refusal does latter’s arbitrary wholly fraudulent or pear to *2 Aycock, Harvey Hardy, Bruce L. San J.

Antonio, appellant. Cadena, City Atty., Carlos C. L. Charles Smith, Green, City Atty., Asst. Hubert W. Dist. Atty., Gittinger, L. G. Mur- J. John Antonio, ray, Attys., Asst. Dist. San appellees. MURRAY,

W. O. Chief Justice. This suit was instituted Bexar municipal corporation, provisions under created of Sec. 4 of Constitution, Art. IX of Texas Ver- Ann.St., against non’s B. Crosby Jack capacity his official Auditor against Bexar and also Antonio, City of San seek- Declaratory Judgment ing construing provisions 4 of Art. IX of Sec. Tex- Art. Vernon’s Ann.Civ.Stats., the enabling act thereun- der, purpose of determining custody and control certain 9, 4, Constitution, also Article under sinking funds interest and § bond delin- Dis- proceeds derived from certain trict proper- was submitted quent taxes. The case vote of *3 ty tax-paying and conclu- statement of facts voters of Bexar agreed an declaratory- law, reads in a resulted follows: sions of and 13, para- the effect that Sec. judgment to hospital districts County-wide 4. “§ Ann. 2, Article Vernon’s graph of may lawby unconstitutional, legislature The is “Sec. Civ.Stats., and county-wide pro- creation Hospital is entitled to the authorize District not having in counties Hospital Districts by ceeds taxes levied 190,000and pri- population in excess hospital purposes for a district, power to County, with hospital or to the creation Galveston acquisi- purchase, to the for that it is not entitled issue bonds further op- construction, tion, hospital maintenance interest bond hospi- any county owned respectively. held eration by is tal, hospital system prosecuted The this District where county city appeal. operated by jointly a provide for county, to within paragraph The second Sec. Hospi- county-wide to the transfer 4494n, V.A.C.S., Art. which the trial court land, any of the title tal District unconstitutional, held to be fol reads as sep- equipment, jointly or buildings or : lows assumption owned, for the arately delinquent taxes portion of “That outstanding bond- any the district of by for counties on levies cities and owed by issued theretofore ed indebtedness hospital sys- county present city and for the establish- county city Legislature, Acts 48th under tems facilities; hospital hospitals or ment of con- 1943, Chapter page shall seventy- not to exceed levy- a tax Hospital Dis- paid to be tinue Hundred One cents on the ($.75) five county as collect- city trict tax- of all ($100.00) Dollars valuation ed, Hospital District applied district, pro- such able within property purposes for which taxes however, vided, district shall that such were levied.” originally election approved at an held only qualified, court correct holding purpose, was If Statute is paragraph unconstitu- voters taxpaying this therein; provided it tional,' judgment county then the insofar as af- vote shall upheld. further, taxes fects should that such question it is approaching responsibility In well full shall assume hospital system hospital keep in mind that old care to medical and providing City-County Hospitals county, under which inhabitants of the needy operated municipal was not a cor- were cities there- county thereafter such poration. It legal entity was a and had other tax for hos- levy in shall taxes; power levy no provided was simply pital purposes; a further joint agency through the City that should such District con- operated hospitals their struct, support hospital maintain needy. legal system, that the same shall entity under the charge against Sec. never become a IX, Constitution, 4 of Art. Texas pow- Texas, with nor shall State of direct er to 75‡ and collect up appropriation ever be made valuation all $100 taxable property construction, Legislature for main- within the which is improvement co-extensive tenance the said County. with Bexar hospitals. Should the Leg- 250: Hospital1 2. During

islature enact laws in antici- the existence enabling pation System adoption the City paid gas this amend- elec ment, invalid trical Hos such Acts shall not be services to the facilities of the pital System. charac- because their anticipatory paid total amount- ter. $44,089.02. these Added Nov. 1954.” services state- City's set-up 3. The is one- rather full financial make will here We 1949, the during where it the- Prior borrows use ment facts.' Hospitals lender year repays current fiscal and Southton B. Green Robert *4 year, In County. following with taxes the tax operated collected by were V.A.C.S., System, the 4494i, Hospital the time during the pursuant to Article agreement money City in existence the into an was City County entered borrowed Hospital Sys- hospitals, year each to help said finance the joint support of the for tem, ad- in make interest hospitals so had to provided doing would that these An- bor- payments San to amount the lender on the ministratively operated by the By Sytem. Hospital mon- payments The interest on the rowed. tonio-Bexar amended, the Hospital finally support the agreement, ey help borrowed to this as opera- System $13,909.02. the toward to totaled City agreed contribute for $110,000 Hospital System tion of the City by the tax levied Under the ten cent 1, 1949,and period commencing August the the pursuant to its contract with 1949, thereafter 31, ending December Hospital the paid to City the collected operation said Hos- to to the contribute $2,716,084.40. all the -If System total of a System money raised pital the amount to ten pursuant collected taxes were tax an valorem City the ad by levy by no delin- there were cent tax if per on the valuation of .10 $100 approxi- outstanding, a total of quent taxes purposes. subject taxes for such to col- $2,982,912.98 have been mately would the City transferred to by the lected City between agreement This the $3,- Hospital System. In fact total of in effect until about County remained June 478,278.44(not the of assess- including cost Hospital System was 28, 1955, when the taxes), either ing and the collecting was Hospital Dis- appellant the abolished paid the Hos- to or used for the benefit of the the existence of During created. trict pital System by the which amount is City the for between contract con- System, City far excess the amount the support the joint the Hospital System. to give to said tracted paid Sys- only the to the required by tem amount 1953, May, Legislature passed In agreement with Coun- aforementioned hereinafter refer- Article V.A.C.S. expendi- following ty, but also made Act”, “the Anticipatory red to as which thereto tures and contributions addition upon adoption to become effective was Hospital System: the benefit of for proposed constitutional amendment general to be to the submitted voters at 20, 1955, January 1.On Ordinance November, election This enact- 20898, appropriated Council No. to the enabling ment was act of Article $704,196 and set aside sum of from the 4, 9, adopted, provided Section when General Fund made this the transfer to the newly Hos- created to exclusive sum available use of land, pital Districts “title to buildings, Hospital, part Robert B. Green equipment.” Hospital System, be used said Hos- November, pital System 9, its defray 1954, In operating ex- Article 4, Section adopted amount penses, System as an amendment was to the Con- provided, stitution and City. 'from did withdrew Antici-

251 newly der the transfer patory Act, 52 of Art. §§ n land, 3, Texas Constitution, Districts “title Legislature equipment.” authority without 'buildings, require over to the District May, 1955, Anticipatory In Act was proceeds taxes in issue. 1955, Legislature (cid:127)amended Acts Chapter 54th S.B. Legislature, part Section reads in as follows: “The .and, the-\ providing in addition Legislature power shall have no to make buildings and land, .transfer of “title to any grant or making authorize the (cid:127)equipment” Act and Anticipatory did the grant public moneys individual, Amendment, Legisla- the Constitutional individuals, association of municipal or provided ture transfer of * * corporations whatsoever; other *.” (cid:127)taxes forth. as collected as above set provides part Section as follows: pursuant to On or about June Legislature power “The shall have no .Article Sec. any county, city, authorize *5 town or other amended, 4494n, V.A.C.S., the (cid:127)Article political corporation or subdivision of the ap- duly by the -District established was State lend grant public its credit or qualified proval majority the the thing of, or aid value in or to voters, Hospital System the was any individual, corporation or association (cid:127)abolished. * * whatsoever, District, Upon of the the establishment Hospital The District was created under 4, 9, Citypursuant the to Article Sec. provisions 9, the Sec. of Art. 4494n, Constitution, V.A. and Article the Texas Constitution and a vote of the n C.S., lands, to the District the transferred people Bexar County. The Constitution included which “buildings, equipment through Legislature the gave to it the food, supplies, réc- drugs, things power levy collect an ad valorem portion ords, addition, unspent etc. In the equal tax almost County that the n ofthe system. up set the funds can county pur- collect for all the District. was transferred to poses. The through Legis- Constitution the required Hospital lature the when District however, refused City and The payment created to assume the of all out- delinquent on levies taxes to transfer the standing bonded indebtedness theretofore pursuant Hospital System benefit the -hospital purposes by issued for either the be claimed this section to to Section 13 County City, required or the the unconstitutional. City County and to transfer to the Hos- District, Hospital takes- the Appellant, pital land, the District title to buildings ple- Legislature position that equipment jointly severally or or owned hospital districts power establish nary The through them. Constitution hos- provide for the transfer to the and to required Legislature District County any- City or pital from district responsibility to assume full for providing without constitutional desires thing it needy medical and care to inhabit- therefore, and, that Sec. authority, fact County ants of and relieved the County 9, providing the title to 4 of Art. in duty. from such However, equipment” “land, buildings or would Legislature passing enabling in an act to prohibit transferred, transfer does carry effect into went fur- delinquent from taxes. proceeds provided, ther than the Constitution and paragraph in the second of Sec. 13 of Art. V.A.C.S., 4494n, correctly held court County trial 13, transfer paragraph of Art. also Sec. should second Dis- V.A.C.S., was unconstitutional. Un taxes 4494n, trict all levied before the Constitution, provided Texas collected there when it hut creation of the District 13, in Legisla paragraph presume that the second of Sec. Art. after. We must V.A.C.S., duty new that it would be the ture well that when the knew County unlawful to transfer to the District created it would proceeds collected to transfer belonging question. in Art. §§ to either of them in violation A directly 'point case is Harris expressly given Con 51 and unless Mann, Flood Control District v. 135 Tex. so, authority with this stitutional do 140 S.W.2d 1104. There the 4 of Art. of Sec. mind the framers Flood Control District instituted a manda- carefully selected of the Constitution proceeding mus Supreme in the Court to prop providing language they used require Attorney approve General to erty which was to be transferred proposed certain issues of to be is- bonds land, buildings They new named district. sued Legislative District. In the separately owned equipment, jointly Acts creating without stopped there. authority, constitutional passed there were 271, 167 S. Sheppard, v. 140 Tex. Cramer provisions two to the effect that should the Newman, 147; Markowsky W.2d necessity arise the Commissioners’ Court In view of Tex. 136 S.W.2d supplement could granted. the State taxes men delinquent taxes fact that were Court, holding that these tioned, presume the framers we must unconstitutional, were said: *6 adopted 4, the voters who of Section and not delinquent taxes should it intended that pertinent here, “So far as Section 52 speculate might as to be transferred. We of Article III of our State Constitution delinquent taxes why they did not include prohibits Legislature the from author- They real the reason. and never determine izing any county credit, to lend its that, of in the may realized case have public grant money to or thing of val- money from the had borrowed it ue, any corporation aid of in whatso- money the hos this and advanced to bank already ever. We have that this held system need pital would governmental agency is a District They bank. pay note at the to off its body politic corporate, separate a great it would be may thought that have independent County. from Harris have to burden, hardship nuisance that, plain It follows under the terms- many years so separate keep accounts III, supra,, of Section 52 of Article to account to able as to be part County- no of the funds of Harris every dollar collected each and District pledged can be used to the bonds years through the delinquent taxes these on of this District.” an may thought that They have to come. valuation tax of $100 ad valorem 750 District principle It is a well-known all the of law furnish would However, that when one section we not are need. ever it would expresses general intention to do Sec. or not why the framers of with concerned particular thing 3, (Art. to do a 51 to include delin and! 9, not see fit 4, §§ did Art. 52), expresses par and another section be donated taxes in quent incompatible ticular intention County to the new Hos with the intention, 9, (Art. general 4) they did that the § is sufficient that it pital particular is intention to be feel that considered we in instance In not. exception. an nature of est exclusio alte- “Expressio unius maxim, Shepperd, Tex., 721; Harris v. 291 Legislature S.W.2d applied, be should rius” Grayson County, Smith v. 18 Tex.Civ.App. authority and violated its exceeded 153,44 3, S.W. 921. Art. 51 52 Secs. provisions

253 to the ing to transfer be 4, considered 9, must Thus, Article § 52. funds derived 51 and exception to Article §§ an purpose collection of taxes levied are which provisions Constitutional supporting carrying old on open more not are ambiguous and Hospital System constitutional without interpretation, construction one authority, than did in violation of so Sections re effect without full given their must 51 52 Con- of Art. Ill our State Shep v. consequences. Cramer gard stitution, properly held trial court and the 147; Raw S.W.2d pard, Tex. 167 140 paragraph and unconstitutional. void Tex.Civ.App., S.W.2d Drake, lins v. 349. brings us to a consideration This question land, buildings sinking funds inter phrase “title to Neither means est derived therefrom. the Con ambiguous and not, equipment” Therefore, we says. stitutional of Sec. Art. what exactly enabling passed Legis nor go have further act should not amendment, requires it is since lature of this construction November, sinking transfer perfectly clear hand, Texas, they placed acting in their had people when purpose funda re fixing funds for capacity sovereign they issued tiring bonds had theretofore Constitutional mental law of the State purpose building hospitals 9, 4), deciding (Art. Amendment § purchasing equipment. These “land, buildings equipment” the title newly created trust funds and beneficial funds are should transferred district, any lan thereof owners holders including owners are the Cahill, City of delin bonds. Austin guage whatsoever that would include v. 536; Tex.Civ.App., taxes, prescribed in definite Rittenoure quent S.W. they Cir., equip only land, buildings Edinburg, 5 F.2d terms that *7 portions unpaid these and The have granted would -to the District bonds ment District, by the Collingsworth not. been assumed taxes now would 473, why Allred, this is no reason these funds County 40 S.W.2d but v. 120 Tex. The 13; Armory Board be turned over District. should to Texas National Guard 627; McCraw, 613, payment has 126 that bonds 132 Tex. S.W.2d fact v. Employees Trustees been assumed as between Farrar v. Board Texas, appellant System appellant appellees, Tex. makes Retirement 688; Orange appellees secondarily primarily liable and 243 S.W.2d Deason v. liable, appellees Improvement Water but as between the and the Control & One, appellees primarily are still Dist. 151 Tex. 244 S.W.2d bondholders No. Tex., 981; Lindsey, pp. Purcell S.W.2d liable. 6 § § Tex.Jur. 729-730. to us decisions has cited Appellant question can be no There büt that Leg- held that the where is other States require appellees can bondholders to public health dealing with islature payment these trust funds to the apply have in it would not which powers broad them, held but the bonds this furnishes involving matters not other dealing with why appellees reason no should aban- welfare, such public but public health trust these their and turn don trust funds in their constitutions have must States newly to a over District. Ill, 51 and as Art. §§ such nor Neither the statutes Constitution. of our permit them do require Appel- to so. enacting to have the second undertook Legislature lees bond owners The parties to this 4494n, requir- suit so 13 Art. made that this mat- paragraph of Sec. * * * is system hospital all interested where the disposed with might ter city jointly county If operated by a denied. present, this was parties but * * * pro- county, within to funds pay trust appellees these should county- con- vide for the transfer to to new district without over wide title to bondholders, District of the they would sent of the any land, equipment, joint- buildings bond- thereby their duties discharge ly or separately owned, and for these funds. holders trustee of assumption any out- by the district of this Constitutional If the framers indebtedness, standing bonded thereto- appellees intended Amendment had fore any county city issued Hospital District should turn over to hospitals establishment of hos- very these, funds,'it been have trust would pital facilities; a tax not The provided. easy for have so 'them to seventy-five exceed ($.75) cents on believe tous they not leads fact that did One ($100.00) Hundred Dollars valua- they not so intend. did tion of property all taxable within district, provided, however, such appellant’s holdings render The above approved district shall be at an points immaterial. other election held purpose, for that affirmed. judgment only qualified, taxpaying voters in county shall vote there- (dissenting). BARROW, Justice in; provided further, that such Hos- pital District shall assume full re- opinion majority I do not concur with sponsibility for providing medical and Bexar holds that' insofar as it needy care inhabitants of re- are not San Antonio and the county, county and thereafter such Bexar quired pay over levy any cities therein shall not now * other tax purposes; *. collected hand, were levied Should Legislature enabling enact interest pay County and by the in anticipation laws adoption the bonds discharge pay off and on and amendment, such Acts shall not by the assumed been which have be invalid because of anticipatory their I con- do District. Nor County Hospital character.” County and holding that cur the Hos- required City are not (cid:127) Legislature, pursuant to the au- levied *8 pital District all thority granted by the Constitution, en- and as interest County such and acted the law governing creation, assumption of fund, prior to the sinking operation maintenance and of the District to be col- collected and bonds but such setting and forth the rights and duties assumption. such lected since responsibilities and District, county city respect and the thereto, authoriz- with Amendment The Constitutional being County Article Bexar Vernon’s of the Ann.Civ. the creation ing Stats. adopted District, the 1954 at Hospital IX, 4) insofar (Art. § Election General Section 2 provides of the Act for the suit, reads fol- as pertinent as is levy and collection of the tax mentioned lows: provides also and for the collection of Legislature may fees The for the Assessor 4. “Sec. and Collector county- Taxes, provides: the creation of and authorize then law “The residue collections, in counties Hospital Districts of tax after deduction wide of dis- population in excess of counts and fees for having a assessing and collecting, in Galveston 190,000 deposited shall district depository; only $123,546.37 sink- for the interest and be withdrawn and such funds shall' Hospital ing fund added. for of the Emphasis retirement provided as herein.” indebtedness, bonded it had been that for provides Section 4 the Act practice County place such thereto- obligations assumption legal of all County deposit” funds on “time with the County City and fore contracted Depository earned interest transfer the mainte- support and building thereon to the General of the Coun- Fund including facilities, nance of such ty. Depository, The City City had in the by either payment issued all bonds pay- sinking interest and funds for the provides purposes, of them such for indebtedness, ment Hospital of its bonded complete release for the full and $2,003.72 the sum July as of liability for City County all That such funds also has including the payment obligations, deposit” “time placed interest but has duty provide interest thus earned back in said fund. payment such bonds. It is argued by appellees because that ap- provides The statute also neither this nor the statute amendment pointment Hospital Man- a Board of passed expressly that thereunder directs management agers, provides that the County in- shall turn these physical financial affairs of the terest and sinking funds over the Hos- the district shall vest such Board. pital District, funds, they keep may they may although used not be stipulated parties Bexar It purpose. other Here have a situation we all has assumed County District bonds, payment prin- where the of these Article indebtedness called bonded cipal interest, obligation is made the of the State Constitution § of the District. Ann.Civ.Stats., as 4494n Article Vernon’s duty are relieved them amended, and that the Commissioners’ levy any purpose, or to taxes for that County, on behalf Court of Bexar they at the same time retain the funds an ad valorem has levied which under the law cannot be used for year creation of tax each since the purpose. opinion majority other be- said bonds. That to retire any requirement does not even make 1, 1955, year and each ginning October applied these funds shall ever thereafter, Tax-Assessor-Collector payment of these bonds. due collected the taxes has transmitted same District and has said Appellees further contend that inasmuch Hospital Dis- That District. to the provides the constitutional amendment paying to the been trict they shall transfer necessary the amounts land, buildings title installments on the meet current equipment, jointly separately turn, for- they, in have been bonds, and owned, provide not expressly did agent paying amounts to the warding such they should transfer the interest and *9 bondholders, delinquent and that of the funds, sinking “Expres- that the doctrine City by made the levies on taxes applies, alterius” sio unius est exclusio hospital bond interest and County for transfer of excludes the the interest and collected, funds, have de- been sinking levied, sinking funds assessed and col- County, City in the by both posited, payment the of lected for the sinking interest and respective would, indeed, This be bonds. a strict Hospital- establishment since funds construction. District. by Supreme the Court said in As Col Allred, County County lingsworth v. 120 stipulated that the Tex. further It was trial, 15: 40 S.W.2d of the sum time the hand at had 256 as- levy, out in detail for Constitu the method the construing

“It is true pay the sessment may of tions be had collection taxes that resort bonds, expressly providing that such construction well-recognized rule of collecting ‘expressio proceeds, assessing maxim less contained in the * * * fees, deposited “shall de- unius be the district exclusio alterius.’ est pository,” controlling But of will method such rule of construction given be cir withdrawal facts and thereof. effect where the adoption surrounding cumstances It is obvious that framers of of the amendment that demonstrate adopted amendment and the voters who people a adopting intended same same intended that meaning different their given disposi- custody, should have control and action. County Aransas v. Coleman- tion of the in- sinking interest and funds Co., Fulton Tex. Pasture case, portion volved in this as well that S.W. 553.” any delinquent of been taxes which have levied and purpose pay- for assessed purpose construing fundamental ment of years prior such during the bo.nds a provision constitutional to ascertain is to the creation of district but collected the, give effect to the framers intent equally collected thereafter. It people adopted Collings who it. obvious having County worth Allred, v. supra; Aransas indebtedness, assuméd such it was bonded County Co., v. Coleman-Fulton Pasture deprived intended that it should be supra. obliga- carrying means such out is that settled rule when tion. Another well enjoins power, a confers a constitution judgment I would reverse confers, implication, any by duty; it also it affects the interest and trial insofar as necessary power for the exercise incidental held sinking by now either performance the other. of one An- San County Bexar or Jayne, Imperial v. 104 Tex. Irr. Co. appellant, judgment and render tonio Thomas, 575; v. 101 Tex. Griner 138 S.W. District, County recover Bexar 1058; Youngblood parte Ex 36, 104 S.W. appellees, Bexar against judgment 509; State, S.W. Tex.Cr.R.

v. Antonio, Texas, County, of San County, Tex.Civ.App., 272 Stites Sutton possession, title control for S.W. 506. by sinking them funds now held each of hospital bonds, payment' proposition that has we have Here has been assumed bonded indebtedness qualified upon, once all voted been County Hospital appellant, Bexar again voters of Bexar further, appellees, Bexar taxpaying voters such qualified Antonio, of San each Hospital District has been which the under pay appellant, over them be ordered to payment has assumed Hospital District, all City bonded indebtedness County and all which were portion of the taxes hospital purposes and is made incurred purpose levied assessed payment fully responsible thereof. creating paying fund interest completely re- County and are pay bonds assumed the Hos- off the duty to such bonds or to lieved when pital District, as and purpose. Here we tax are collected. *10 by authority enacted statute have also amendment, respectfully dissent. spelling I constitutional