Harris County Water Control and Imp. Dist. No. 39 v. Albright

• Decision Date: 06 January 1954
• Docket Number: No. A-4364,A-4364
• Citation: 153 Tex. 94,263 S.W.2d 944
• Parties: HARRIS COUNTY WATER CONTROL & IMPROVEMENT DIST. NO. 39 et al. v. ALBRIGHT et al.
• Court: Texas Supreme Court

Page 944

263 S.W.2d 944

153 Tex. 94

HARRIS COUNTY WATER CONTROL & IMPROVEMENT DIST. NO. 39 et al. v. ALBRIGHT et al.

No. A-4364.

Supreme Court of Texas.

Jan. 6, 1954.

Rehearing Denied Feb. 10, 1954.

Burke Holman, Fred W. Halbkat, I. J. Saccomanno and Robert A. Jircik, Houston, for appellants.

Smith & Wills, Eugene A. Smith, Jamail, Mead & Jamail and Herman W. Mead, Houston, for appellees.

CALVERT, Justice.

This is a direct appeal from a judgment of the 125th District Court of Harris County prosecuted under authority of Rule 499-a, Texas Rules of Civil Procedure.

Appellant District lies wholly within Harris County and was created by order of the State Board of Water Engineers.

Appellees as resident, taxpaying and qualified voters in appellant District, owning real property therein subject to taxation, sought and obtained an injunction against appellant District and its directors restraining and enjoining the processing and sale of bonds of the District in the sum of $975,000 and the levy and collection of a tax to pay such bonds and the interest thereon. The basis of the suit was the asserted invalidity of the order of the State Board of Water Engineers creating the District, it being contended that the statute under which the State Board purported to act had been declared unconstitutional by this Court in Deason v. Orange County Water Control and Improvement District No. 1, Tex.Sup., 244 S.W.2d 981, and, in any event, that the statute conferred the power to create the District on the Commissioners' Court of Harris County rather than on the State Board.

No fact issues were involved and both parties filed motions for summary judgment. The motion of appellees was sustained, the trial court in its conclusions of law sustaining both of appellee's contentions.

We are met at the outset with a motion by appellees to dismiss the appeal on the theory that Rule 499-a does not authorize it.

The pertinent portion of Rule 499-a reads as follows: '(b) An appeal to the Supreme Court directly from such a trial court may present only the constitutionality or unconstitutionality of a statute of this State, or the validity or invalidity of an administrative order issued by a state board or commission under a statute of this State, when the same shall have arisen by reason of the order of a trial court granting or denying an interlocutory or permanent injunction.'

The particular reasons advanced by appellees in support of their motion to dismiss are these: (1) the trial court did not declare the statute involved unconstitutional but found that it had theretofore been declared unconstitutional by the Supreme Court in the Deason case, supra, and simply applied the rule of state decisis; (2) the judgment of the trial court did not enjoin the enforcement of the order of the State Board of Water Engineers but only enjoined the sale of the bonds and the levy of a tax, and (3) the State Board of Water Engineers is not a party to the suit.

It is sufficient to the jurisdiction of this court if the appeal lies under either the first or the second part of the Rule. Because we are of the opinion that it lies under the second part, we need not notice the first part.

The trial court's judgment granting the injunction against the sale of the bonds and the levy of the tax by the directors of the District was based entirely on its conclusion that the State Board's order was invalid. That this brings the appeal within the second part of the rule is settled by the opinion of this court in Board of Water Engineers v. Colorado River Municipal Water Dist., Tex.Sup., 254 S.W.2d 369. There is no language in the rule indicating that the state board or commission issuing the order must be a party to the suit in order for the direct appeal to lie. The motion to dismiss is overruled.

Passing to a consideration of the main issues in the case, we do not agree with the conclusions of the trial court on which its judgment was based.

It was not the intention of this court in the Deason case to declare the whole of Article 7880-3a, V.A.C.S., unconstitutional, nor do we now regard that as a necessary result of our holding in that case.

Title 128, Chapter 3A, Vernon's Annotated Civil Statutes, covering and including Articles 7880-1 through 7880-147zl, deals with water and improvement districts. Article 7880-3a was added by Acts of the 41st Legislature in 1929, and prior to amendment by Acts of the 47th Legislature in 1941, the pertinent part thereof read as follows:

'That water control and improvement districts now existing, or hereafter to be created, may include in their purposes and plans all works, facilities, plants and appliances, in any, all, manners incident to, helpful or necessary to the collection, transportation, processing, disposal and control of all domestic, industrial, or communal wastes, whether of fluids, solids or composites, and further to gather, conduct, divert and control local storm waters, or other local harmful excesses of water: * * *.'

By the amendment of 1941 the colon at the end of the foregoing quotation was removed and these words were added: 'and to purchase, own, and operate fire engines and all necessary fire-fighting equipment and appliances.'

In the Deason case the issuance and sale of bonds of the Orange County Water Control and Improvement District No. 1 was attacked on the ground that a substantial part of the proceeds was to be used for fire-fighting purposes, appliances and equipment, it being contended that the statutory provision authorizing the issuance of bonds by the District for such purposes was unconstitutional. That contention was sustained. That was the only attack made on the constitutionality of the article. It was the only question before the court and was the only one ruled on by the court. It certainly does not follow as a necessary result that the whole of the article either was or must be declared unconstitutional and invalid.

The remainder of Article 7880-3a falls as a result of the Deason opinion and judgment only if it appears that the offending provision is not separable from the remainder. We will hold it separable unless it appears that the legislature would not have enacted the section without the offending provision, or that the remainder does not present an independent, complete and workable whole without it. City of Dallas v. Love, Tex.Civ.App., 23 S.W.2d 431, affirmed 120 Tex. 351, 40 S.W.2d 20; San Antonio Ind. School Dist. v. State, Tex.Civ.App., 173 S.W. 525, writ refused; 9 Tex.Jur., Constitutional Law, § 56, pp. 473-474; City of Taylor v. Taylor Bedding Mfg. Co., Tex.Civ.App., 215 S.W.2d 215, writ refused. The legislative history of the article establishes beyond question that the legislature would have enacted the remainder thereof without the offending provision because it had done so. Moreover, the remainder of the article was a complete and workable whole before the offending provision was added in 1941 and it remained so after that...