Case Information
*1 Honorable C: S, Clark
Chairman, Board of Water Engineers
AustFn, Texas opinion NO. b-5938
. Dsar,Sir: Re: Does Article 78%3(A) V.A.C.S., contemplate that. a Waster Di6trlct may be created so as to,embrace in its,boundaries existing water control and improve- ment dlstrict~ and fresh water iupply asitrictq ana also addltlonal,territory not b any pranieed district? And related questions.
We acknowledge receipt of your request for an opinion on a number of questions pertaining to the authority of the Board of Water Engineers to create Harris Couuty Water Control and Improvement Master D+trict No. 1.
We have been furnished with Briefs on the questions by Judge James V. Allred of Houston aud Honorable J. E. Sturrock, Statistician of your Board, aud by Honorable C. D. Jessup of Houston. We have given careful consideration to the arguments for the proponents and opponents of this proposed District and we agree with both in some instances and disagree with both in others, but in view of thefact that we have determined to answer questions numbered one and two as hereafter indicated we deem it unnecessary at this time to answer the other questions submitted by you.
Since, as stated by you, this is the first petition for the creation of a master district which has been submitted to your Board, there have been no adjudicated cases dealing with the subject. We think that Mr. Sturrock has answered questious one and two in accordance with our views and we are therefore taking the liberty of quoting extepsively from his Brief.
The law is well settled that in construing a statute the Legislative intent is given primary consideration. Iu 39 Tex. Jur. #pO, page 166,, it is said that:
"The intention of the Legislature in enacting a law is the law itself; 'the essence of the law', and 'the spirit which gives life' to the enactment. Hence, the aim and object of construction
Honorable C. S. Clark, Page 2 (O-5938)
ie to ascertain and enforce the ~egialative intent, and not to defeat, nullify or thwart It".
"When the intent is plainly expressed in language of a statute, it must be given effect without attempting to construe or interpret the law. On the other hand, when it is necessary to construe an act in order to determins its proper meaning. it is settled by a host of decisions that the co&t-should f& endeavor to ascertain the leglrlative intent, from a general view of the whole enactment. Such @tent having been aacer- tained, the court will then seek to construe the statute so as to give effect to the purpose of the legislature, as to the whole and each material part of the law, even though this may mve a departure from the strict letter of the law as writ- ten by the Legislature.
"This la the fundamental capon and the cardinal, primary and paramount rule of con+-uctlon, which should always be closely observed and to which all other rules must yield. In- deed, In the conrrtruction of civil enactments, the courts are expressly convaanded to 'look d1~igentl.y~ for the intention of the Legislature, keeping in view at ali times the old law, the evil, and the remedy." (Underscoring ours). See Article 10 V.A.C.S.
Keeping in mfnd the above quoted "fundamental canon and ths cardi- nal, primary and paramount ruben of statutory ConstNction, we wU.l discuss questions numbers one and two.
Question No. 1 "Does Article 7880-3 (a) V.A.C.S., contemplate that a Master District may be created 60 as to embrace in its bouud- aries existing water control and improvement districts and fresh water supply districts and also additional territory not in any organized district?"
Article 7880-3, V.A.C.S., is section 3 of Chapter 25, General Laws of the Regular Session of the 39th Legislature, 1925, as amended. 0riginall.y section 3 read as follows:
"Sec. 3. Water control and improvement districts may be organized under the provisions of Section 59 of Article 16 of the Constitution for any one or more of the purposes therein provided as follows:
"Including the control, storing, preservation and 131s: tribution of its waters and flood waters, the waters of its rivers aud streams, for irrigation, power a@ all other use- ful purposes, the reclamatiou and irrigation of its arid, *3 Honorable C. S. Clark, Page 3 (o-5938)
semi-arid and other lq~ds needing irrigation, the reclamation and drainage of its overflowed &nds and other lands needing drainage, the coneervation and development of its forest, wa- ter and bydro-electric power, the navigation of Its coastal and inland watera, and the preservation and coneervation of all ruch natural resources of the State."
Section 4 of aaid Chapter 25 (Art. 7880-4) prescribes the area or areas that might be included in a water control and improvement district and reads aa followa:
"Sec. 4. Such districts may include the area of any county or counties, or any portion thereof, including towns, villages, or municipal corporations. Such districts may in- clude any county, any number of counties, or any political subdivision of the State, ana defined district or parts of any or all counties iu the State of Teraa." (Underscoring oura).
In 1927 the Lagialature amended Section 3 of Chapter 25 (Acts 1927, 1st C.S. 40th Leg. ch. 107, p. 496), aud added the following Jsnguage~:
"and such districts when organized shall have power to control any 6hortage or harmful excess of waters by any me- chanical means".
In the same Act, the Legislature amended Section 4 (Art. 7880-4) by adding the following language to the original Act:
"and the land composing said districts need not be in one body, but may consist of saparate bodies of land sepa- rated by land not embraced in the district; provided, how- ever, that each segregated area must cast a majority vote in favor of the creation of the district before such seg- regated area ten be included in the district.
"Provided that no district provided for in this Act shall embrace territory situated in more than one county except by a majority vote of the property tax paying vo- ters residing within the territory in each county sought to be embraced within said District".
Now than let us look for the legislative intent Fn the passage of the original Sections 3 and 4 aud in the imendments adopted thereto.
Under the water control and improvement district Act, as amended in 1927, au ordinary water control and improvement district could, and may now, be created to embrace "any county and number of counties or any politi- cal subdivision of the State, and defined districts or parts of any.or all counties in the State of Texas", that is--embrace all the territory now *4 ‘.
L .
Honorable C. S. Clark, Page 4 (O-5938)
propoeed to be included in the Harris County Water Control ana Improvement Waster District No. 1. But there was no provision In the law authorieing existing districts to act jointly, pool and coordinate their facilitiee and resources, and operate works for t&e common benefitof the several districts. Therefore the Legislature, In 1929 (Acts 1929, Regular Session &et Leg. Ch. 280, p. 578) further amended Section 3 (Art. 7880-3) for the sole purpone of enabling districta already created, or that may hereafter be created, "under Chapter 25 or under &ther Chapter 2, 3, 4, 6, 7 or 9 of Title k~8", to or- ganize themnelvee into a "Master District" in order to "pooltheir resource0 when necessary economically to make preliminary Buurveyr, to adopt 8 plan to coordinate the plants, improvements an@ facilities of the several conOtltuent districts, to the improvements and facilities propored to be constructed and furnished by the Waster Dietrict, to provide improvements for the common bene- fit of the several districts, or to enable such districtr jointly to make pur- chases, or to maintab, or to operate works for the common benefit of the E- era1 districte". (See Art. 78&-3(c).
Section h (Art. 7880-4) was not amsnded by~the 1929 Act, which we think clearly shows that the Legislature intended that only those areas em- braced in one or more districta created and operating under Chapter 25 or un- . der either Chapter 2, 3, 4, 6, 7, or 9 of Title 128, may be included in a Master District, otherwise, it would have amended Section 4 so as to provide that districts to be Waster District6 may embrace areas included in defined districts as well as areas not included in any defined district a6 it did do in the passage of Art. 7622a, V. A. C. S., in 1927, relating to water improve- ment districts.
The language used iu that part o- e Art. 7880-3 relating to the crea- tion of "Master District", such as "(b) Districts to be created as &aster Dis- tricts. . .*; "(c) Districts to be created as Master Districts may be created in order to enable districts to pool their resources~ etc. a ."; (d) "Such Districts when created shall have the power to levy and collect taxes, O a . which shall be in addition to other taxes that may be lawfully levfed by the several districts constituting a part of such Master District"; "(e) m . s constitute a separate voting unit, and 11.o existing district may be included in a Waster District unless the proposal so to do is approved by a majority of the voting qualified electors of such constftuent districtJfl clearly dic- tates a negative answer to Question No. 1 and It is so answered.
Questl.on Ko. 2
"Does the statute contemplate that a ordinary water con- trol aud improvement district may 'be designated and act as a Master District for itself arLd other districts, or does it con- template that a separate Master Estrict &all be created t.o Act for all?"
The History of the water control srd improvement district Act lead- ing up to the amendment of Sectiou 3 (Art. 7880-3) thereof in 1929, and the express provisions of said section, au*wer this question to the effect that *5 Honorable C. g. Clark, Page -5 (o-5938)
the statutes contemplate that 8 eeparate Master District shall be created to act for all'co@ituent distr&ct.r, which is a further reason why Question No. lshouldbe anewwed inthe negative. The petition now before the Board eeeks the creation of Harris Cow&y Mater Co@zol and Improvement Ma#er Dletrlct no. 1, having all the power8 of an ordlnwy water control and improvement dia- trict over the uno?eited territory, and, at the eeme time BE a l&setter Dletrict for itself f3nd 12 exletting dl*rlctr. There la no authority, expreen or implied in the water control end improvemeqt dlltrict Act for any such set-up.
We, therecore, hold t&t the correct enewer to question No. 2 Ie that the etatutee contempl+ie @~Peparate Matier District shall be created to act for all conetituent d@tTictl in mattera of common benefit to the several districts.
Your6 yery truly APPROVED MAY 15, 1944 moRNEY - OF TEx4.s /I-S/ Oeo. P. Blackburn By /s'/ Fagan Dickson
(Acting) ATWXWEX - OF TEXAS
Fagan Dickson Aeeist@, FD:ncd:lm
APPROVED OPINION CoEQIlTpEE BY /e/ OS CBAZRMAN