58 Tex. 321 | Tex. | 1883
At the time of the passage of the act which gave rise to this controversy, neither Trinity nor Polk county could interpose any obstacle to the legislation. Hor could the latter refuse to accept the territory thereby attached, and assume municipal control over the same. The whole matter rested entirely with the law-making power of the state, which, for the purposes of . government, could at will apportion the territory of the state into such political divisions as it willed, subject to the then constitutional limitations upon that power, and require of the people of such divisions the performance of public duties. These local political
Mr. Cooley, in his work on Constitutional- Limitations, p. 296, appropriately remarks: “ Whether they assume those duties or ex-
ercise those powers, the people of the political divisions are not allowed the privilege of choice; the legislature assumes this division of the state to be essential in republican government, and the duties are imposed as a part of the proper and necessary burden which the citizen must bear in maintaining and perpetuating constitutional liberty.”
So in detaching that portion of Trinity county described in the act, and in attaching the same to Polk county, the legislature assumed that it was expedient and for the general good. It was not essential that either of these counties should consent to the proceeding, for the act was as effectual without as it could have been with such consent.
The legislature then had full power over the subject. This, however, is not now the case. Sec. 8, art. IX, of the constitution of 1876, provides that “Ino part of any existing county shall be detached from it and attached to another existing county until the proposition for such change shall have been submitted, in such manner as may be provided by law, to a vote of the electors of both counties, and shall have received a majority of those voting on the •question in each.”
This legislative control over the matter, without regard to the wishes of these, two counties, is a consideration that should be borne in mind in construing and interpreting the act.
Appellant zealously urges the proposition that the latter clause of section 1 of the act is a proviso which in effect constitutes a condition precedent, and until performed Polk county could not rightfully assume municipal control over the attached territory; also that, as the proviso had not been complied with, it became absolute, and in that sense is repugnant to the body of the act, and in effect worked a repeal thereof.
It is not necessary in this case to enter upon that extensive field of legal' learning concerning the effect of provisos to legislative acts, beset as it is with artificial rules and nice distinctions, a discussion of which could lead to no practical result. For in our opinion the clause under consideration is not a proviso in that sense urged, but that it more nearly approaches a reservation, and must be construed as if the word “provided” had been omitted. Its true
To assume that the clause is a proviso constituting a condition precedent, as claimed, would lead to confusion, and seemingly, at least, have the legislature to do a foolish thing. Under such a construction, the territory must in fact and in law remain a portion of Trinity county until that jot rata is paid. That could only be done by the levy of a tax by the county court of Trinity county, which under the constitution must be equal and uniform throughout the county. And so long as it remained a part of Trinity county, I apprehend that it would necessarily have to aid in defraying the current expenses of the county; for these citizens would hardly be allowed to share in the benefits without assuming some of the burdens of the county government. If, then, the people of Trinity county desired to retain this territory, this could be accomplished by so levying tax, and expending the money arising therefrom, that the existing debt would never be paid. In this way a solemn enactment of the legislature would be effectually annulled by the action of the county court of Trinity county; and whether' or not it would ever be operative, in any event, is made to depend upon the action of that court. Such a result could not, in our opinion, have been intended by the legislature.
The true construction of the act is that the territory therein de-' scribed became absolutely and unconditionally a part of Polk county upon the approval of the act; and that by the clause directly under consideration, a liability was sought to be retained against the citizens of that territory for their fro rata of the existing debt of Trinity county.
There is nothing in the proposition that appellee could not assume municipal control over the attached territory until the lines designated in the act had been run and defined. The several provisions of the statute, as well as decisions referred to by appellant as supporting that proposition, have reference solely to the creation and organization of new counties.
Ho controversy is shown to exist between the parties as to the true location of their lines, and the record shows no necessity for running and marking the same.
From these conclusions, it results that appellant cannot recover of appellee the territory described in the act, nor the amount of the taxes levied and collected by appellee upon the subject of taxation therein.
. As was said by Chief Justice Parker in Hampshire v. Franklin, 16 Mass., 86, “By general principles of Taw, as well as by judicial construction of statutes, if a part of the territory and inhabitants of a town, are separated from it by annexation to another or by the erection of a new corporation, the remaining part of the town or the former corporation retains all its property, powers, rights and privileges, and remains subject to all its obligations and duties, unless some express provision to the contrary should be made by the act authorizing the separation. The same principle will apply with equal force when a county is divided.”
It is not necessary to consider or determine in this case, whether it would be within the constitutional power of the legislature to impose upon appellee, without its consent, a liability for a portion of the appellant’s existing indebtedness; for an examination of the provisions of the act under consideration manifests no such intention upon the part of the legislature. The intent, as there disclosed, is to hold the citizens of that particular territory, and not Polk county, bound for a fro rata of appellant’s existing indebtedness. This indebtedness was not created for the benefit of Polk county, and is in no sense the indebtedness of that county; no obligation whatever, either legal or moral, rests upon it to pay any portion of the same.
It is not perceived how the county court of Polk county could have legally levied and collected a tax from the citizens of that territory for the purpose of paying a portion of Trinity county’s indebtedness. The power of that court, under then existing laws, to levy and collect taxes, was limited to specific purposes, such as defraying its own county expenses and paying its own county indebtedness. That court could not legally levy and collect a tax upon all or any portion of the citizens of the county for the purpose of paying the indebtedness of Trinity county, in the absence of express legislative authority, so given as to exempt these citizens from double taxation or unequal burdens. Ho such power, however, was conferred upon the county court of Polk county by this or any other legislative enactment.
We are clearly of the opinion that there was no cause of action against appellee asserted in the petition and amendment thereto; and that the court below correctly sustained the general demurrer to the petition and dismissed the case.
However, there is error in that part of the judgment which awards execution against appellant for costs of suit. The statute expressly provides that “ No execution shall be issued on any judgment against any county.” Pasch. Dig., art. 1050; R. S., art. 679.
We therefore report that the judgment in this particular ought to be reformed, and in all other respects affirmed.
Judgment reformed.
