Anderson County Road Dist. No. 8 v. Pollard

• Decision Date: 04 June 1927
• Docket Number: (No. 4771.)
• Citation: 296 S.W. 1062
• Parties: ANDERSON COUNTY ROAD DIST. NO. 8 et al. v. POLLARD, Atty. Gen.
• Court: Texas Supreme Court

296 S.W. 1062

ANDERSON COUNTY ROAD DIST. NO. 8 et al. v. POLLARD, Atty. Gen.

(No. 4771.)

Supreme Court of Texas.

June 4, 1927.

Original mandamus proceeding by Anderson County Road District No. 8 and others against Claude Pollard, Attorney General. Writ awarded.

W. R. Petty and E. V. Swift, both of Palestine, and W. P. Dumas, of Dallas, for relators.

Claude Pollard, Atty. Gen., and D. L. Whitehurst, Asst. Atty. Gen., for respondent.

CURETON, C. J.

This is a mandamus proceeding brought by Anderson county road district No. 8, the county judge and county commissioners of Anderson county, against the Attorney General, for the purpose of requiring him to approve $500,000 of road bonds previously voted by the electors of the road district at an election held for the purpose. Anderson county road district No. 8 was created by order of the commissioners' court on the 13th of October, 1922, under authority of the Constitution and laws of the state, particularly section 52, art. 3, of the Constitution, chapter 2, tit. 18, Revised Statutes of 1911, as amended by chapter 203, Acts of 1917 Regular Session, and chapter 18, Acts 4th Called Session of the Thirty-Fifth Legislature, chapter 38, Acts of the 2d Called Session of the Thirty-Sixth Legislature, and chapter 41, Acts of 1921. In other words, the district was created under the road district laws of the state providing for the creation of districts by county commissioners' courts and the issuance of bonds by vote of the electors. The election was petitioned for by the voters, as provided by the statute, ordered by the commissioners' court, and held on the 21st of November, 1922, for the purpose of determining whether or not the bonds of road district No. 8 should be issued in the total principal sum of $1,500,000. No question is made but that the statute in all respects was complied with in all proceedings leading up to the election, nor is any question made but that the bonds were voted by the required constitutional and statutory majority. In due course all the bonds authorized by the election were issued, and, after approval by the Attorney General, sold or otherwise lawfully disposed of, save and except $500,000 thereof. This action was brought to require the Attorney General to approve the record as provided by law as to the issuance of the last installment of $500,000 in bonds previously voted, as above stated. The Attorney General has refused to approve the bond record, for reasons stated by him in his answer, to the effect that the Supreme Court of the United States, in the case of Browning v. Hooper (known as the Archer County Case), had declared the law under which the bonds were issued repugnant to the due process clause of the federal Constitution, and that the Legislature was without power to validate them as it had attempted to do in the statutes hereafter noted.

After the decision of the Supreme Court of the United States in the case of Browning v. Hooper, 269 U. S. 396, 46 S. Ct. 141, 70 L. Ed. 330, the Legislature was convened in special session by the Governor, for the purpose, among others, of passing necessary and proper legislation to validate and legalize state, county, commissioners' precinct, and special road district bonds or securities, whose validity had been brought in question by the decision in the Browning Case, and to cure defects in the issuance of such bonds or securities, etc. Tom Green County v. Moody (Tex. Sup.) 289 S. W. 381. At this special session of the Legislature an act was passed and approved by the Governor validating the creation of road district No. 8 of Anderson county, and validating all proceedings leading up to the issuance of the bonds here in controversy, and their issuance as well. The first and second sections of this validating act (Sp. Laws 39th Leg. 1st Called Sess. [1926] c. 52) read as follows:

"Section 1. That road district Number 8, of Anderson county, Texas, including within its limits the territory described and defined in that certain order of the commissioners' court of Anderson county, Texas, passed and adopted by said court on the 13th day of October, 1922, recorded in Book 19, page 292 et seq., minutes of the commissioners' court of said county, a certified copy of which order is on file in the office of the state comptroller of public accounts, is hereby created and established as a defined road district in said county, under authority of section 52, of article 3, of the Constitution of the state of Texas, with like effect as though the metes and bounds description thereof appeared herein, for the purpose of constructing, maintaining and operating macadamized, graveled, or paved roads and turnpikes, or in aid thereof, and such district is hereby made a body corporate and taxing district under the Constitution and laws of the state of Texas.

"Sec. 2. That the organization and establishment of said road district Number 8, of Anderson county, Texas, by the commissioners' court of said county, is hereby approved, ratified and confirmed, and the power and authority of said commissioners' court to create said territory into a separate road district and taxing district for the purpose of issuing bonds for purchasing roads from other districts, and further constructing, maintaining and operating macadamized, graveled, or paved roads and turnpikes, or in aid thereof, and to levy and collect annually a direct general ad valorem tax upon all of the taxable property therein appearing upon the assessment rolls for state and county taxes, in payment of such bonds, be and the same is hereby delegated, ratified, approved and confirmed."

The third section copied the order of the commissioners' court made in ordering the election at which these bonds were voted hæc verba, and declared that this order, which authorized the issuance of the bonds in controversy and the levy of a tax for their payment, etc., the notices of the election, the form of ballot used, the canvass of votes, the declaration of result, etc., are "hereby legalized, approved, and validated."

Sections 4, 5, 6, 7, and 8 relate to bonds which have been heretofore issued and disposed of, but voted at the same time and as a part of the same issue as the bonds here involved. Those which were previously issued and disposed of were validated by the act, and were declared valid and binding obligations of the district, and in all things relative to their issuance legalized and validated.

Section 9 legalized and validated the levy of taxes, expressly delegating to the commissioners' court the power to continue to levy taxes for the purpose of maturing the bonds.

Sections 10, 11, and 12 relate directly to the bonds in issue in this proceeding. These sections read as follows:

"Sec. 10. That, whereas, there now remains unissued and unsold bonds in the sum of five hundred thousand dollars ($500,000), of the said total authorized issue voted at the election held in said road district Number 8, on the 21st day of November, 1922, and, whereas, the commissioners' court of said county by the said order of February 8, 1925, expressly reserved the right to thereafter issue the said unissued bonds aggregating said five hundred thousand dollars ($500,000), in addition to the bonds that had been theretofore issued, and it is further enacted that the said unissued bonds shall be issued and delivered after approval thereof by the Attorney General of the state of Texas, and registration thereof by the state comptroller of public accounts, and the said order of the county commissioners' court reserving the right to issue such additional bonds is hereby approved and confirmed, and power and authority is hereby expressly conferred upon the said court to adopt all orders and to do all acts necessary in the issuance and sale of such unissued bonds, and the said court is hereby expressly authorized and empowered to levy a direct general ad valorem tax upon all taxable property in said road district, in addition to taxes heretofore levied for and on behalf of said district, for the purpose of paying the interest on and principal of the said unissued bonds, and which such taxes shall be levied, and proper provision made for their assessment and collection, in all things as provided by law.

"Sec. 11. That said orders, and all other orders adopted by said county commissioners' court in respect of said road district, bonds and taxes, as the same appears upon the records of said court, or copies thereof duly certified, are hereby constituted legal evidence of such orders, and shall be authority for said court to annually levy, assess and collect taxes in an amount sufficient to pay the principal of and interest upon said bonds as the same mature and become due, such taxes to be levied and assessed upon the value of taxable property in said road district as fixed for state and county taxes, and that any and all acts and proceedings had and taken by said court in the construction of roads and turnpikes from the proceeds of said bonds are hereby validated, approved and legalized.

"Sec. 12. That the Legislature hereby exercises the authority upon it conferred by section 52, of article 3, of the Texas Constitution, and declares said defined district as a road district, as above described, to have been legal and valid from the date of the adoption of said order, defining its boundaries, and confirms and ratifies said acts and proceedings of said court in respect of said election authorizing the issuance and sale of said bonds, and levy of taxes to pay principal thereof and interest thereon and the construction of roads and turnpikes with the proceeds thereof with like effect as though at the time or times said acts and proceedings were done or had, there existed statutory authority for the doing thereof, and the bonds of said district that have not been issued and sold, having been voted by the necessary majority of the qualified electors in conformity with the provisions...