277 S.W. 787 | Tex. App. | 1925
This a contest of an election authorizing the issue of $250,000 of bonds of Stephens county, for the purpose of the erection and equipping of the courthouse and the county jail and the purchasing of a site or sites therefor within said county.
The questions raised will appear, in the rulings hereinafter announced. Article 610, R.S. 1911, empowers the commissioners' court of any county to issue bonds; "for the erection of a county courthouse and jail, or either" when the proposition is approved by the qualified taxpaying voters. This statute differs materially from that of 1881 (Laws 1881, c. 9) under consideration in Robertson v. Breedlove,
It is urged that the decisions referred to are, under the present statute, authority for the proposition that, where the county has a courthouse, bonds cannot be issued to build another; regardless of how unsafe, insufficient, inadequate, or lacking in protection against fire it may be. It is a matter of common knowledge that the increase and development of portions of our great state have created a situation in many counties requiring the erection of new courthouses and jails to provide room for holding court and the transaction of public business, and in which to preserve public records of vital importance to every citizen; that bonds have been issued in such cases where such buildings still existed, and these bonds have been approved by the state's law officers and sold, and are now outstanding in many instances, amounting to many thousands of dollars. This long-continued construction of the present statute, extending through many succeeding administrations, while not binding, is strongly persuasive that the holding of the Supreme Court should be limited to the statute there construed and not applied to a later statute materially different. It is the purpose here to follow the decisions of our Supreme Court, "without variableness or shadow of turning" and to not, by refinement or attempts to distinguish, refuse the correct application of the law as declared by that eminent tribunal; but we are as much bound not to impute to that court holdings not intended, as to apply its rules of decisions to cases where such decisions are applicable. It is concluded that the cases discussed are not authority for the contention above stated.
If the commissioners' court has the power to issue the bonds involved in the present appeal, its judgment as to the necessity or advisability of such action is not subject to review, in the absence of corrupt motives. There being in the present case no allegations of fraud, except that, the county having a courthouse and jail, there was no necessity for another, and the order for the election constituted a fraud on the taxpayers. Such allegations present no issue within our jurisdiction. Robertson v. Breedlove, supra; Stratton v. Kinney County (Tex.Civ.App.)
Next in order is the insistence that the commissioners' court is without power under article 610 to issue bonds to purchase a site or equipment for the courthouse and jail as sought to be done here. The question as to power to issue bonds for site or equipment, as an independent proposition, is not involved. The power to issue the bonds must be derived from the statute referred to, and it must be looked to in order to ascertain whether the authority is given. The rule of construction, as often declared by our Supreme Court, is:
"Whenever a power is given by statute, everything necessary to make it effectual or requisite to attain the end is implied. * * * The grant of an express power carries with it, by necessary implication, every other power necessary and proper to the execution of the power expressly granted." Terrell v. Sparks,
Hence it was held in that case, that an appropriation of $25,000, to be used by the Attorney General with the approval of the Governor in enforcing the laws of the state, authorized the employment of counsel to assist in prosecuting suits to recover land belonging to the school fund, although this was the Attorney General's duty under the law. The principle announced has been applied to varying states of fact, as shown in Imperial Irrigation Co. v. Jayne,
It is concluded that the order for the election did not submit two separate unrelated propositions and is not ruled by the case of Adams et al. v. Mullen (Tex.Civ.App.)
On the trial, appellants introduced evidence, raising the issue, that a large number of voters whose names appeared on the poll lists were not qualified — some of them because they had not paid poll taxes; others because they did not appear on the tax rolls as property tax payers for the preceding year. The number of these alleged illegal voters were sufficient to invalidate the election, if proof had been adduced that they voted for the issuance of the bonds. No such proof was in evidence. There is no showing in the record that appellants tendered the ballot boxes, and no exception appears, showing a request at the trial for the counting of the ballots and a refusal. In the absence of such a showing, we cannot review the assignments relating thereto. It is only when there is a showing that, for any reason the true result of the election cannot be determined, or where sufficient number of qualified voters were denied the right to vote as would have changed the result, that we are authorized to declare the election void under article 3063, R.S. In other cases it is incumbent upon the contestant to prove that, had the illegal voters not been permitted to vote, the result would have been different. Cantwell v. Suttles (Tex.Civ.App.)
We are further without jurisdiction to review the conduct of the election in question, because there is no proof in the record that notice of this contest was given as required by articles 3051 and 3077, Vernon's Sayles' Civil Statutes. Cauthron v. Murphy,
The above holding renders it unnecessary to examine the assignments relating to the failure of the court to file within 10 days conclusions of fact and law. If we were called upon to decide that question, it appears that it is without merit, for the reason that there is a statement of facts here approved and filed within due time and the evidence is not conflicting. Insurance Co. v. Gamble et al. (Tex.Civ.App.)
In conclusion, the writer desires to state that this opinion violates the rule against protracted opinions. But the questions of law involved are, some of them, new in this state and of great public importance, and the amount of the bonds of commanding value. The appellants have filed an able, clear, and *790 forcible brief, in which all of the authorities tending to sustain their contentions have been cited, and which brief has been carefully considered.
Concluding that the judgment of the trial court was correct, all of the assignments are overruled, and the judgment of the trial court is affirmed.
RIDGELL, J., disqualified.