*1 County Wilson, v. Will Cameron Attorney of Texas General July A-7101. Decided
No. 162) (326 2d Series Spence Gibson, Graham, Gibson, Austin, F. & T. Brownsville relator. Mays Texas, Attorney Howard W.
Will Wilson. General Lewis, and Robert T. Attorney General, respon- Assistants dent. *2 opinion
MR. Justice Norvell delivered the of the Court. original This proceeding County, is an in which Cameron relator, require seeks writ mandamus to Honorable Will Wilson, Attorney Texas, respondent, approve General $80,000.00 in revenue proposes which relator to issue pursuant provisions 6079c, of Art. Ann. Texas Vernon’s Stat., purpose making existing Civ. additions to trailer Respondent facilities in Blanca Isla Park on Padre Island. specified declining bonds, has namely: approve three reasons for
1. Article 6079c is unconstitutional local because is a special prohibited law and hence Article Sec. 56 of Texas Constitution. 2. comprehend Article 6079c does not the construction of purpose
trailer facilities as an authorized for which re- venue bonds be issued. of trailer facilities financed re- “county
venue bonds is not business.” authority primarily supporting as relied proposition that Article 6079c invalid is the of this decision in County, Court Miller v. El Paso 1000, opinion by holding 2d. in- Chief Justice Alexander. population valid a applied law which to El bracket Paso County, this Court said: . III, Constitution, “Section Article Vernon’s State St., reads, part,
Ann. as follows: “ not, except ‘Sec. 56. The shall as otherwise Constitution, pass any special law, provided or au- in this local thorizing :
[*] [*] “ cities, ‘Regulating towns, counties, the affairs of wards or district; school “ duties of ‘Creating offices, prescribing districts; school
officers, counties, cities, towns, election
$ [*] * * [*] “ made law can be ‘And in all other cases where * * enacted; special applicable, no local or law shall be against inhibition
“The of this constitutional in- It special one. enactment of is a wholesome local laws se- granting special privileges and to prevent tended to possible. throughout far as uniformity cure of law the State prac- early period many of the states It is said that at enacting means an efficient tice of and local laws became” personal easy the advancement enactment laws for *3 encouraged reprehensible public interests, rather and ’ trading suppres- practice “logrolling.” It was for and practices adopted this provision in sion of that such a was such R.C.L., 820, p. many and of the other states 25 Union. Sec. provision,
“Notwithstanding constitutional above recognize to courts in the a rather broad legislative purposes and enact laws make classifications though legislation may regulation be thereof, even such fact, or, applicable only particular a affect class legislation particular locality; must a such inhabitants of uniformly apply all come within be intended to who designated Act, must in the classification classification enough class must be based be to include sustantial broad distinguishing from legitimately such class on characteristics sought accom- respect public purpose to be others with words, legislation. there must plished by proposed other be substantial reason classification.” Rodriguez Gonzales,
Similarly, Texas 227 v. 148 through court, Hick- speaking Justice Chief 2d S.W. man, said: a law is primary test whether and ultimate
“The the classi- basis for special there is reasonable or is whether operates equally law, the law and whether made fication Tynan, County Texas class. Bexar v. all within County, 467; Paso Miller v. El 2d 97 S.W. Construction, Statutory (2d Ed.), 1000; 1 Sutherland Sec. 203.”
Both “population cases cited were bracket” cases which the special they applied only. Court held to be laws as to one Rodriguez The classification involved in the case without interest and type affords an generally illustration of act held invalid as a opinion: quote local and law. from the We “In provision order applicable Act to be to a particular delinquent following taxes, suit for all of the condi- exist, tions must absence of of them would inapplicable: (a) render it must The tract in a be bor- dering Grande; 1,000 (b) acres; Rio must excess (c) persons must be owned ten or more in undivided inter- ests; (d) portion title to all or a thereof must emanate from grant King Spain.” from the Attorney objects classification to which the General 6079c, that contained in Article Sec. 1 which is as : follows provisions eligible “The applicable of this Act all ‘Eligibile’ County An counties. is one which borders on the Gulf any island, part of Mexico within whose boundaries is located islands, island, suitability park purposes. suitable for island, islands, part park purposes of such of an island for conclusively shall when the established Commissioners Court County finding passed of such shall in an have made order island, islands, part by it that such of island is or are suit- park purposes.” able for
A statute under constitutional attack is to
be construed
reasonably possible,
Gabbler,
valid if
Duncan
Texas
v.
147
It
In order to come within the Mexico, (2) its (1) embrace within Gulf must border part Gulf, an island situated in the island or boundaries park purposes. (3) is suitable which
29 islands in the Gulf of 1 The maintenance of on throughout undoubtedly people Mexico is a matter of interest popular recreational is one of our most Coast State. Gulf large parts of year people from all Texas areas. Each numbers opportunities and the United themselves States avail boating swimming fishing, in the ocean. afforded there for has that a statute In a number of decisions it been said meaning Constitution even local or though within operation confined to a restricted its or enforcement throughout area, persons things if the State are affected or people thereby operates upon subject at in which if Authority large are Lower River v. interested. See Colorado Stephenson Wood, McCraw, 629; v. Texas 83 S.W. 2d 125 246; Rogan, Texas Reed v. 94 34 S.W. 2d Navigation District, Willacy County 255; Atwood 59 S.W. v. n.r.e.); King (wr. ref. App., 284 v. Texas Civ. S.W. (wr. Sheppard, App., w.m.). 2d 682 ref. Texas Civ. enforcement statute is Where the confined area, question of whether it deals with a restricted purely interest is an matter rather local im- determining constitutionality. portant consideration in When grants powers imposes upon duties a statute class of counties, primary and ultimate test is whether there is a oper- reasonable and whether the law basis the classification equally ates all within class.
All Texas are authorized Arts. 6078 and 6081e, Stat., acquire improve Ann. Vernon’s Texas Civ. county parks land for use as purposes issue tax bonds for such upon qualified property a favorable vote of the tax- payers. The statute now under confers consideration improve- additional to finance Texas Coastal Counties parks by means of ments their Gulf revenue bonds. argues properly developed Gulf island Relator ordinary county park in that the quite different from the former many patronized by who do not reside in largely by recog- inhabitants. the latter is used local We while usually provided by nize that demand conveniences many county parks may greater along coast than in in- *5 relatively larger expect a areas. It also reasonable to land near to be served located number of nonresidents richly in a endowed with situated section less ocean points. distant visitors from attractions that draw natural might presence natural attractions of such The absence well ing proper constitute a basis for classification in a deal- statute financing with the county parks. permitted A law which along the counties velopment the coast to issue revenue for the de- parks of their would not be invalid because similar granted was every one of their inland counter- parts. fact, large if particular number of nonresidents aof park facilities, make use of its it would seem that the sale distinguished of revenue bonds as from tax bonds would be an entirely way provide suitable pay for such recreational advantages. The fact that applicable only Article 6079c is to island Legislative does not render the classification unreasonable. geography coastal of Texas affords a distinction reasonable between the island on the one hand and the mainland map other. Most greater of the State discloses that the part of the Gulf Coast is penin- bordered islands or island-like sulas. Most proper mainland opposite beaches on the Gulf occur openings chain, in the located, island cities where and towns are largely passes open because of the existence of these into arrangements sea. Here there is no need for financial the construction of beach existence facilities. Because of the large populations by, development close of mainland beaches naturally has place. development taken island beaches is another matter.
Padre Island with which are here concerned lies we within Nueces, Kleberg, Kenedy, Willacy Counties of and Cameron. long It 135,000 is 110 miles approximately and contains acres of land. tip The southern of the island not far distant from city Corpus Brownsville while the northern end is near the large having poulation Christi. There are no centers of access to the island situated near the coast between Brownsville Corpus typical example Christi. Padre Island is a of the barrier wide, beaches, composed Its beach. clean of fine sand and broken slope gently upward shell which from the sea to the sand dunes portion provide near the central ideal con- the island almost swimming, fishing ditions for surf But and similar recreations. importance, wholly primitive undeveloped of more this is a area, expanse largely and has remained beach so because of large inaccessibility popula- its distance from and centers of undoubtedly tion. similar conditions as to other While exist beaches, same said the mainland shore cannot be out, beaches, park. pointed line As heretofore these mainland being opposite proximity passes to or in close situated generally population centers. to the sea are near Island
31 physical characteris- parks, as to mainland different from both say cannot degree development public use. for We tics and Legislature, is based which by made that the classification distinction, void. and hence is unreasonable duly at- enacted is applicable a law rule is that “when unconstitutional, and presumed to valid the law is tacked as always constitutionality be resolved as to its should doubts Gabler, constitutionality.” pointed in Duncan v. out favor of As peculiar 155, 229, 158, rule “This has 147 Texas 215 S.W. legis- law, importance testing validity ‘the a state for special agency department exercise lative is not made legislative powers, specifically with but is intrusted defined Cooley’s general authority to at discretion.’ Consti- make laws Ed., Limitations, p. Before an enact- tutional 175.” 8th Vol. legislative be nullified grounded upon this discretion ment coming proscription of Article 56 of Con- within the Sec. stitution, clearly appear is reasonable it there no must Legislature support adopted by the the classification basis for be a substantial the Act. This lack of reasonable basis should thing recog- something merely apparent and not not real. but We nize in the legislative to make classifications for a broad County,
purposes. El Miller v. Paso and ex- 2d 1000. Because territorial breadth State, interests, tent of the climatic and economic and varied regulation transportation, problems the attendant and growing population, needs incident to a have active we been again legislation and demand will faced with the need generally, yet which, which affects all of the State apply locality compara- in its tively will direct legislation not number of counties. Such is small good, common, generally public has or at least been government. legislative scope so declared branch legislation by expanding not of such should be restricted nullifying of Article 56 of Constitution. effect Sec. opinion, Attorney for de- our second reason General’s
clining approve taken. are the bonds not We cited well construction of no authorities which hold or indicate comprehended by As trailer facilities Article 6079c. out, county may pointed and maintain above establish park. thereto, may maintain As an incident construct and provide parking space sanitary toilets and facilities. It also lights, electricity fans other me- for motor vehicles and nothing place appliances. trailer more than chanical A electricity sup- space, sanitary parking facilities where plied to traveling those who make use of house trailers while country about purposes. for recreational or business At the present time, County operates Cameron such a on Padre *7 improve Island known as Isla Blanca Park and now desires to enlarge and the facilities used in connection therewith. 5 objection Likewise the legality third the the is of bond untenable. As argument, seriously we understand the it does dispute premise the county may operate that a and establish public parks. acquiring maintaining and of legitimate governmental a authority. See, King field of state v Sheppard, App., 682, w.o.m.; Texas Civ. wr. ref. S.W. . State, 664, ref., Schooler v. App., Texas Civ. 175 S.W. 2d wr w.o.m., relating Big Bend National Park. Counties are “essentially They instrumentalities of State. are the means the whereby powers through the the State exerted a form and government agency obliga of local performance those the large.” County tions which the owes State at Bexar Linden, v. 110 Texas 761. Both constitutional S.W. grants statutory and and to counties are broad com prehensive. part in Article Sec. 18 of the Texas Constitution provides: County chosen, County
“The Commissioners so with the Judge presiding officer, compose as County shall Commis- Court, jurisdiction sioners’ which shall exercise such and county Constitution, over all as is business conferred State, prescribed.” laws hereafter be directly County, Malloy It was held in v. Galveston Texas App., acquisition Civ. 2d 163 that land for a public purpose constituted a under Article application This Vernon’s Stats. court refused an for writ also, of error. See Article Ann. Vernon’s Texas Stats. is, however, attempted public parks A distinction between supported (Article 6078) the sale tax financed bonds through (Article established those the use revenue bonds. 6079c). It is stated in brief that: though ownership opera-
“Even conceded public park by county, using only, tion a a tax funds function, 6079c, governmental supra, pur- of a Article exercise grant ports to certain construct and ¿ operate producing facility park, pro- a revenue which, being ducing net revenue of revenue service proprietary function, county upon constitu- forbidden grounds.” tional suggested If
We are unable to follow distinction. business,” re- “county of a it remains so maintenance gardless of whether tax the revenue bond bond method or proprietary device is utilized. The distinction between governmental determining tort important while function liability city, village, point largely town beside determining question now before us.
From has the writ of man- been said it follows what accordingly prayed damus should issue as It is so ordered. for. Opinion July 8, delivered *8 joined by Mr. and Justice Walker Justices Calvert dissenting.
Smith my opinion In special regulating Article is a 6079c law the affairs of counties and therefore pro- unconstitutional under the 3, visions pointed 56, of Article the Section Texas As Constitution. majority opinion, in the out all counties in the state by general authorized to tax for acquisi- statute issue the improvement tion county and parks. land for use as Article upon 6079c political confers not more than fourteen of these power the improving subdivisions their additional to obtain funds for county parks issuing by revenue To within bonds. come by county (1) classification established the statute must: Mexico, (2) border on the Gulf and have within its boundaries part pri- at park purposes. least of an island suitable for mary special and ultimate test of is a or whether it law classification, there is a whether reasonable basis for this operates equally all whether the law within the class. If classification is not on a reasonable and substantial dif- based kind, bearing proper ference or circumstance re- in situation statute, purpose ft is a lation to the law. Rod- riguez Gonzales, 2d 791. v. upholding by statute, made the classification the ma- parks park”
jority state that the words “such or in Sec- necessarily parks to located on islands tion 2 refer situated in the 1. The statute not of Mexico indicated Section does Gulf place, provide. require 1 does not so In the Section first of Mexico. An near Gulf in even qualifying island be lies within if it will suffice or inland lake river county found the Commissioners and is boundaries place, purposes. In the second suitable Court eligible Legislature to authorize intended clear thereby granted county to exercise merely located financing those parks and not of all its on islands. authority issue revenue bonds noted that It should be a,n eligible county. upon The statute only power conferred prescribes powers and provides the creation
also originally enacted As of Park duties of Board Commissioners. subject. earlier law only This the latter it dealt with on the Gulf applied which bordered also park purposes within and had an island suitable Mexico boundaries, jurisdiction did not limit provided that parks islands. located on Section the Board to might “for the any county which came within classification any1 public maintaining operating equipping, upon county” the Board of said confer owned operate equip, maintain and Park Commissioners emergency “there parks. clause recited that such operate county great maintain and need for such boards places such courts located in and other located on islands Leg., p. ties.” 51st ch. 218. Acts improve- to issue revenue bonds The additional eligible counties when county parks ment of was conferred *9 p. 486, Leg., Acts 52nd the statute was amended 1951. that re- present it is clear the terms of the law ch. 304. Under county development any may of for the enue bonds be issued operated by of Park that can the Board Commissioners. Legis- adopting amendment the that in the 1951 I cannot believe operating previously that had been lature intended boards which respective anywhere county parks in their located parks and have island concerned with should thereafter be the im- procure the issuance of revenue bonds no speak of provement parks 2 does in other locations. Section phrase substantially same county parks park,” “such merely original and was in the act used at least six times was if this therefrom. Even into the amended statute over carried Legislature unwilling so, I would attribute to were not county park of a board the creation an intention' to authorize by Emphasis throughout opinion supplied the writer. 1.— op- that jursidiction parks was not to have all owned and over by county erated its unless such limitation on language. expressed unequivocal board was in clear and caption emergency clause of the 1951 amendment show, moreover, that was the and intention of enlarge lawmakers powers rather restrict permit Board any park improving and to revenue bonds to be issued for eligible According county. caption owned an amending prior by “providing was statute increasing for and “providing Park Board” and obtaining of funds Board of Park Commissioners and authorizing acquisi- them to issue revenue bonds to finance the permanent tion improvements and other facilities connected with poses.” any park parks pur- incident to one or more emergency “legislation clause states that is de- signed provide financing an operating efficient method of public parks eligible facilities of counties.” my opinion legislative intent is clear and the statute authorizes the issuance of improvement revenue bonds any public eligible county owned an whether located on county. or elsewhere in the Relator conceded in argument oral meaning effect, if this is its the law is unconstitutional. inescapable, The latter conclusion because problems development needs of one in the of in- parks terior are not different from those of another simply because the former border of Mexico and Gulf have an park purposes island suitable for within its boundaries. provisions Under the County may of Art. 6079c Cameron issue developing Hidalgo revenue bonds for County line, Hidalgo adjoining park while with an on its side line could not defer improvements the cost similar ex- cept by issuing tax provided Obviously in Art. 6081e. kind, there is no substantial difference in situation or circum- might stance of the two counties or their constitute a reasonable basis for the classification.
My conclusion would not merely be different if the statute eligible county authorized an to issue revenue bonds for im- *10 proving parks Large located on islands in the Gulf of Mexico. numbers of are also attracted to the mountains of West Texas, large lakes, inland and to other sections of the majority that state. The reason the classification is valid be- remained undeveloped and have are beaches cause island inaccessibility to largely of their distance from so because Assuming this large moment that population. for the centers of proper relation circumstance bears difference situation or statute, thereon a classification purpose of the based to however, not, the line undoubtedly reasonable. This would apply all does not by present The statute drawn law. having locations that attractions and ideal natural distance undeveloped their from remained because of have inaccessibility large the little population. Instead centers of privileges may con- group enjoy that geographical charac- thereby is fixed for all time ferred specified of counties West therein. The situation teristics having suitable remote parts the state but Texas and other county parks is developed as not substan- sites which should be counties, the law tially that coastal from different apply no mat- to the former hereafter not now and cannot does operate simply great may does not be. It their need ter how possess the char- the class which upon all members of equally entirely upholding majority point to which acteristics classification. different my in situa- place, that the difference third view with island
tion or circumstance of the coastal counties park im- not so related to the issuance of revenue bonds classifi- provements for the a reasonable basis to constitute particularly majority seem to be cation made concerned, Art. 6079c. be, the law they the fact that as I think should over suitable counties with does not even embrace all coastal however, said, locations sites near ocean. It is from undeveloped their remoteness because of have remained large population while main- inaccessibility centers ques- generally population centers. The near land beaches relationship this difference and arises as to the between tion then park improvements means right funds for obtain of revenue the issuance than tax Unless revenue rather bonds. than the appropriate in situation is more feasible proper basis other, not afford the difference does ap- question and majority do face classification. up- granted must be the classification parently it for take matter how irrelevant found no can be if difference held the statute. the same practicable only financing method of The revenue bond *11 operation when net revenues derived from of the establish- they ment will be sufficient retire mature. as Where bonds provided opportunities the facilities recreation are and the substantially park same, suppose it that a is reasonable to great population patronized located near centers of be will many more situated in an isolated and inac- cessible area. noted in the ma- On basis of the differences jority opinion, therefore, financing improvements by park likely means of a revenue is for main- bonds more to be feasible park land than for on one located an island. grant question feasibility,
Aside from the a county develop park by to one its island means of revenue neighbor bonds required when its to issue tax to borrow making improvements site, funds for the same on a mainland justified only higher can probably if the former will serve a proportion of pay nonresidents taxes. who no local Relator re- cognizes argues properly developed this when it that Gulf park quite ordinary island park different from an in that the patronized by many people former is who do not reside in the county largerly while the latter used local inhabitants. not, however, suggest any It does difference in island that might greater cause them to attract number of nonresidents park than a large mainland located on Gulf and near centers population. A coastal park with no suitable island have on site the coast that is even more desirable and attractive to visitors from other counties than an island location in an ad- joining county. The ntimbers of both residents and nonresidents depend upon that use the facilities of each will various circum- relationship stances that have no difference on which the statutory certainly classification is There is no reason based. that believe will serve more nonresidents simply because it situated in a remote and inaccessible area. McQuillen, pointed
As out the courts have declared time again geographical distinctions should not control the McQuillen, Municipal Corporations, classification. Law p. 100, 4.59, ed. 3rd Vol. note 94 and authorities Sec. geographical there cited. In most cases here characteristics simply any way subject to the related obviously necessary statute. It is not successful use ful be located on an island. that a Mexico The mere fact borders on the Gulf of or has bearing feasibility, pro- no island has real financing development by the issuance of priety or need for bonds, conferred bonds instead of tax revenue ap- eligible equally or even more often counties will improvements propriate located in inland *12 grant thus have or on the mainland near the coast. We privileges group without to a select of counties for the classification. reasonable basis state, deny petition I for writ all the reasons would For of mandamus. July
Opinion delivered 1959. City R. B. Davis Et Al v. Lubbock and Urban Agency City Lubbock, Texas. Renewal No. A-7072. July Decided 699) (326 Series