Collingsworth County v. Allred

• Decision Date: 10 June 1931
• Docket Number: No. 5912.,5912.
• Citation: 40 S.W.2d 13
• Parties: COLLINGSWORTH COUNTY et al. v. ALLRED, Atty. Gen.
• Court: Texas Supreme Court

Page 13

40 S.W.2d 13

COLLINGSWORTH COUNTY et al. v. ALLRED, Atty. Gen.

No. 5912.

Supreme Court of Texas.

June 10, 1931.

Petition for mandamus by Collingsworth County and others against James V. Allred, Attorney General, to compel respondent to approve bonds proposed to be issued by Collingsworth County for purpose of building and constructing a courthouse.

Writ of mandamus granted.

Walter C. Woodward, of Coleman, C. C. Small and Edward Brown, both of Wellington, John D. McCall, of Dallas, and Caldwell & Raymond, of New York City, for relators.

James V. Allred, Atty. Gen., and Scott C. Gaines, Asst. Atty. Gen., for respondent.

McBride, O'Donnell & Hamilton and W. P. Dumas, all of Dallas, as amici curiæ.

LEDDY, C.

Relators seek the issuance of a writ of mandamus to compel the Attorney General of this state to approve $150,000 of bonds proposed to be issued by Collingsworth county for the purpose of building and constructing a courthouse.

Respondent concedes that the transcript of the record submitted for his approval, covering said issue of bonds, shows that the county has in all things substantially complied with the provisions of chapters 1 and 2 of title 22, Revised Civil Statutes of 1925 (articles 701-725), and that such record discloses all the facts essential to the validity of $150,000 of the bonds proposed to be issued. Respondent avers that his reason for refusing to approve said bonds was based solely on a decision rendered on February 18, 1931, by the honorable United States Circuit Court of Appeals for the Fifth Circuit, in the case of Shelby County et al. v. Provident Bank & Savings Company. It is shown that it was held in said cause that the amendatory portion of section 52 of article 3 of the Constitution of Texas "negatives the conclusion that bonds of a county validly may be issued under legislative provision without a vote of two-thirds majority of the resident property taxpayers voting thereon who are qualified electors of the district or territory to be affected thereby, or for a purpose other than those which are enumerated in that provision."

Respondent also avers that the questions involved in said decision are still in litigation, and that a motion for rehearing was filed and pending upon the docket of the court at the time the answer was filed herein. It may be said in passing that since the filing of respondent's answer a motion for rehearing has been granted in said cause pending in the Circuit Court , and the opinion theretofore rendered has been withdrawn. It does not appear, however, that any final disposition of the appeal in that case has been made by the Circuit Court of Appeals.

In view of the holding of the United States Circuit Court of Appeals, it was entirely proper for the Attorney General, as a matter of precaution, to decline to approve said issue of bonds until an authoritative holding could be obtained from the court of last resort in this state.

Inasmuch as the record shows that Collingsworth county has fully complied with the provisions of the statutes with reference to the issuance of $150,000 of the bonds proposed to be issued for the purpose of building a courthouse, it is entitled to the writ of mandamus to compel the approval of such record by the Attorney General; unless it be determined, as held by the honorable Circuit Court of Appeals in its opinion, that the amendment to article 3, § 52, of our Constitution, negatives the conclusion that bonds of a county may be validly issued under legislative provision without a vote of two-thirds majority of the resident taxpaying voters therein who are qualified electors of the district or territory to be affected thereby, or for a purpose other than those enumerated in that provision.

A proper determination of the issue thus raised necessitates the review of several provisions of our Constitution. Section 52 of article 3, originally adopted as a part of the Constitution of 1876, reads as follows: "The legislature shall have no power to authorize any county, city, town, or other political corporation, or subdivision of the State, to lend its credit or to grant public money or thing of value, in aid of or to any individual, association, or corporation whatsoever; or to become a stockholder in such corporation, association, or company."

In 1904 this section was re-enacted with the addition thereto of the following:

"* * * Provided, however, that under legislative provision any county, any political subdivision of a county, any number of adjoining counties, or any political subdivision of the state, or any defined district now or hereafter to be described and defined within the state of Texas, and which may or may not include towns, villages or municipal corporations, upon a vote of a two-thirds majority of the resident property taxpayers voting thereon who are qualified electors of such district or territory to be affected thereby, in addition to all other debts, may issue bonds or otherwise lend its credit in any amount not to exceed one-fourth of the assessed valuation of the real property of such district or territory, except that the total bonded indebtedness of any city or town shall never exceed the limits imposed by other provisions of this constitution, and levy and collect such taxes to pay the interest thereon and provide a sinking fund for the redemption thereof, as the legislature may authorize, and in such manner as it may authorize the same, for the following purposes, to-wit:

"(a) The improvement of rivers, creeks and streams to prevent overflows, and to permit of navigation thereof, or irrigation thereof, or in aid of such purposes.

"(b) The construction and maintenance of pools, lakes, reservoirs, dams, canals and waterways for the purposes of irrigation, drainage or navigation, or in aid thereof.

"(c) The construction, maintenance and operation of macadamized, graveled or paved roads and turnpikes, or in aid thereof."

Section 2 of article 11 of the Constitution, as adopted in 1876, is as follows: "The construction of jails, court-houses, and bridges, and the establishment of county poor-houses and farms, and the laying out, construction, and repairing of county roads shall be provided for by general laws."

The conclusion reached by the United States Circuit Court of Appeals in its original opinion is based upon the proposition that the provisions of the amendatory portion of section 52 of article 3 are exclusive, and that the Legislature is therefore without power to authorize a county or any defined subdivision of the state to issue bonds except for the purposes and in the manner therein prescribed.

It is true in construing Constitutions that resort may be had to the well-recognized rule of construction contained in the maxim "expressio unius est exclusio alterius." Arnold v. Leonard, 114 Tex. 535, 273 S. W. 799; Parks v. West, 102 Tex. 11, 111 S. W. 726; American Indemnity Co. v. Austin, 112 Tex. 247, 246 S.W. 1019; 6 R. C. L. p. 49. But such rule of construction will not be given effect where the facts and circumstances surrounding the adoption of the amendment demonstrate that the people in adopting the same intended a different meaning to be given to their action. Aransas County v. Coleman-Fulton Pasture Co., 108 Tex. 216, 191 S. W. 553; Nunnemacher v. State, 129 Wis. 190, 108 N. W. 627, 9 L. R. A. (N. S.) 121, 9 Ann. Cas. 711.

The fundamental purpose in construing a constitutional provision is to ascertain and give effect to the intent of the framers and of the people who adopted it. Aransas County v. Coleman-Fulton Pasture Co., 108 Tex. 216, 191 S. W. 553; Cox v. Robison, 105 Tex. 426, 150 S. W. 1149; Simmons v. Lightfoot, 105 Tex. 212, 146 S. W. 871.

The Constitution must be read as a whole, and all amendments thereto must be considered as if every part had been adopted at the same time and as one instrument, and effect must be given to each part of each clause, explained and qualified by every other part. Gilbert v. Kobbe, 70 N. Y. 361. Different sections, amendments, or provisions of a Constitution which relate to the same subject-matter should be construed together and considered in the light of each other. Dullam v. Willson, 53 Mich. 392, 19 N. W. 112, 51 Am. Rep. 128; State v. Astoria, 79 Or. 1, 154 P. 399.

If the provisions of article 3, § 52, are in irreconcilable conflict with other provisions of the Constitution, the section later in point of adoption will be given controlling effect. But this rule will only be applied upon a determination that it is impossible to harmonize the provisions by any reasonable construction which will permit them to stand together.

While the provisions of section 52 of article 3 prior to its amendment prohibited the Legislature from authorizing any county, or other political corporation or subdivision of the state from lending its credit, it did not operate to prevent the Legislature from authorizing a county to lend its credit by the issuance of its negotiable bonds for any of the purposes mentioned in section 2 of article 11 of the Constitution. The effect of section 52 of article 3, as construed by our courts, was merely to declare that, except as otherwise provided in the Constitution, the Legislature could not authorize the agencies named to lend their credit for any purpose. The provisions of section 2 of article 11, within a short time after its adoption, were held by our Supreme Court to authorize the Legislature to grant counties the power to issue bonds for any of the purposes mentioned in said section. Robertson v. Breedlove, 61 Tex. 316; Mitchell County v. Bank, 91 Tex. 371, 43 S. W. 880.

The question then arises, Was the power conferred by the amended portion of section 52, article 3, adopted in 1904, intended to be exclusive? If so, then the Legislature of this state cannot validly authorize the issuance of bonds by a county for any purpose whatever except those enumerated therein. Such holding, would, in effect,...