Henderson County v. Allred

• Decision Date: 10 June 1931
• Docket Number: No. 5915.,5915.
• Citation: 40 S.W.2d 17
• Parties: HENDERSON COUNTY et al. v. ALLRED, Atty. Gen.
• Court: Texas Supreme Court

40 S.W.2d 17

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

No. 5915.

Supreme Court of Texas.

June 10, 1931.

Petition for mandamus by Henderson County and others against James V. Allred, Attorney General, to compel the respondent to approve road and bridge funding bonds ordered issued by the commissioners' court of Henderson County.

Writ of mandamus granted.

W. P. Dumas, of Dallas, for relators.

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

J. M. Sanders, of Center, Oliver J. Todd, of Beaumont, Caldwell & Raymond, of New York City, and McBride, O'Donnell & Hamilton, of Dallas, as amici curiæ.

LEDDY, C.

Henderson county, through its proper officers, has been granted leave to file in this court its petition for mandamus to compel the Attorney General of this state to approve $148,000 of road and bridge funding bonds ordered issued by the commissioners' court of said county under the express authority conferred by the terms of H. B. No. 448, Sp. Acts 42d Legislature (1931) page 121, c. 46.

The act in question is a local or special road law enacted for Henderson county without local notice having been given. Under its terms the commissioners' court of Henderson county was authorized to fund into bonds of the county such of its legal indebtedness chargeable against the road and bridge fund as existed January 1, 1929, which might be represented by script or time warrants. It was also provided in said act that such funding bonds might be issued without the necessity of submitting the question of their issuance to a vote of the people of the county.

It is conceded that relator is entitled to the issuance of the writ of mandamus, unless respondent was justified in refusing to approve said issue of bonds upon either or both of the following grounds:

First, because section 52 of article 3 of the Constitution as amended in 1904 prohibits the Legislature from authorizing any county to issue bonds except for the purposes named and upon compliance with the procedure therein outlined.

Second, because of the act of the Legislature authorizing the issuance of funding bonds by Henderson county without a vote of the people is violative of the provisions of section 9, article 8, and section 56 of article 3, of the Constitution of this state.

Respondent's refusal to approve said bonds cannot be justified on the first of the above grounds, as we have this day decided in the case of Collingsworth county against the respondent herein that the adoption of the amendatory portion of section 52 of article 3 in 1904 did not affect or impair the right of the Legislature to authorize a county to issue bonds for any of the purposes authorized by other provisions of the Constitution.

Nor can the contention that the passage of the local or special road law for Henderson county is prohibited by the terms of section 56, article 3, of the Constitution, be sustained. This section of the Constitution provides: "The legislature shall not, except as otherwise provided in this constitution, pass any local or special law: * * * authorizing the laying out, opening, altering or maintaining of roads, highways, streets or alleys."

The above provision is a part of the original Constitution of 1876. Its terms operated to prohibit the Legislature without proper notice having been given from enacting any local or special law in regard to public roads from the date of its adoption in 1876 until December 19, 1890. On the latter date, however, section 9 of article 8 was amended. The amendatory portion of this article contained the following clause: "And the legislature may pass local laws for the maintenance of the public roads and highways, without the local notice required for special or local laws."

On January 7, 1907, section 9 was again amended by changing its former terms, but the above provision with reference to the passage of local or special road laws was reenacted in the identical language in which it was originaly adopted.

From the above-quoted provisions of the Constitution, it will be readily seen that local or special road laws are expressly exempted from the operation of the provisions of section 56, article 3. The power of the Legislature to enact such local or special laws without the required notice is therefore placed beyond cavil.

The question then arises, Has the latitude allowed the Legislature to pass a local or special road law been exceeded so as to bring the same within the condemnatory provision contained in section 56, article 3, which forbids the Legislature from passing any local or special law "regulating the affairs of counties, cities, towns, wards or school districts."

In the case of Smith v. Grayson County, 18 Tex. Civ. App. 153, 44 S. W. 921, 923, in which writ of error was denied by the Supreme Court, the contention was made that the Constitution limited the purposes for which a local or special road law could be enacted to the "maintenance" of roads already constructed, and that the terms of the Constitution prohibited the passage of a local or special law authorizing the building, laying out, and construction of public roads. This contention was denied and the conclusion reached by the court that it was the clear intention of the framers of the Constitution by the use of the word "maintenance" to "include all the necessary powers to provide and keep up a system of highways."

A similar position was taken in the case of Dallas County...