Johnson v. Ferguson

• Decision Date: 06 December 1932
• Docket Number: No. 7918.,7918.
• Citation: 55 S.W.2d 153
• Parties: JOHNSON et al. v. FERGUSON et al.
• Court: Texas Court of Appeals

55 S.W.2d 153

JOHNSON et al. v. FERGUSON et al.

No. 7918.

Court of Civil Appeals of Texas. Austin.

December 6, 1932.

Rehearing Denied December 10, 1932.

Appeal from District Court, Travis County; J. D. Moore, Judge.

Suit by James E. Ferguson and others against Cone Johnson and others. From an interlocutory order granting, without notice, a temporary injunction, defendants appeal.

Order set aside, and temporary injunction dissolved.

James V. Allred, Atty. Gen., and Neal Powers and R. G. Waters, Asst. Attys. Gen., for appellants.

James E. Ferguson and Judge Ocie Speer, both of Austin, for appellees.

McCLENDON, C. J.

Appeal from an interlocutory order granting, without notice (ex parte), a temporary injunction, in a suit brought by taxpayers against the members and chief engineer of the state highway commission (called herein the commission), seeking to enjoin the making of further contracts for constructing state highways; such contracts (so it is alleged) being beyond the power of the commission to make and therefore illegal, because there existed no legislative appropriation available for that purpose. The comptroller was also made a party defendant and sought to be enjoined from issuing warrants in payment of contract obligations so created.

The relief sought is predicated upon two counts to the effect:

1. That chapter 13, General Laws Third Called Session 42d Leg. (H. B. No. 2, p. 15 [Vernon's Ann. Civ. St. art. 6674q—1 et seq.]), repealed that portion of chapter 286, Gen. Laws Reg. Sess. 42d Leg. (1931), making appropriation for such construction.

2. That such appropriation, if not repealed, had already been exhausted.

The first count of appellees' petition, which urges that chapter 13, above, repeals the above-stated appropriation, is predicated upon sections 4 and 5 of the chapter (Vernon's Ann. Civ. St. arts. 6674q—4, 6674q—5), more particularly upon the wording of the latter. These sections read:

"Sec. 4. All further improvement of said State Highway System shall be made under the exclusive and direct control of the State Highway Department and with appropriations made by the Legislature out of the State Highway Fund. Surveys, plans and specifications and estimates for all further construction and improvement of said System shall be made, prepared and paid for by the State Highway Department. No further improvement of said System shall be made with the aid of or with any moneys furnished by the counties except the acquisition of rights of way which may be furnished by the counties, their subdivisions or defined road districts. But this shall in no wise affect the carrying out of any binding contracts now existing between the State Highway Department and the Commissioners Court of any county, for such county, or for any defined road district. In the development of the System of State Highways and the maintenance thereof, the State Highway Commission shall, from funds available to the State Highway Department, provide:

"(a) For the efficient maintenance of all highways comprising the State System.

"(b) For the construction, in cooperation with the Federal Government to the extent of Federal Aid to the State, of highways of durable type of the greatest public necessity.

"(c) For the construction of highways, perfecting and extending a correlated system of State Highways, independently from State Funds.

"Sec. 5. All moneys now or hereafter deposited in the State Treasury to the credit of the `State Highway Fund,' including all Federal Aid money deposited to the credit of said Fund under the terms of the Federal Aid Highway Act, shall be subject to appropriation by the Legislature for the specific purpose of the improvement of said System of State Highways by the State Highway Department."

A brief résumé of the events leading up to the enactment of chapter 13 and of its general purposes and provisions will suffice to a clear understanding of the issue thus presented.

The commission was created by the act of 1917 (chapter 190, p. 416 et seq., General Laws 35th Leg.), establishing the state highway department. This act was amended from time to time, and its provisions carried forward into the 1925 codification of the Revised Civil Statutes under title 116, chapters 1 to 3, inclusive. The act provides for the establishment of a general system of state highways and for the designation of such highways by the commission. Certain rights and duties of supervision of the construction of state highways were originally vested in the commission; and provision was made whereby state and federal aid to such construction was extended to counties and road districts. Later the construction, improvement, and maintenance of state highways was vested exclusively in the commission. The revenues for such purpose, constituting the state highway fund, were derived in part from aid furnished by counties and road districts. Sections 3, 6, and 7, chap. 186, Gen. Laws 39th Leg., 1925 (R. S. arts. 6674c, 6674f, 6674g). Other sources of revenue included three-fourths of the state gasoline tax, and designated portions of motor vehicular license taxes (R. S. art. 6675 and amendments thereto [see Vernon's Ann. Civ. St. art. 6675a—1 et seq.]) and federal aid.

For a number of years past there had been an increasingly growing demand that counties and road districts be relieved of all expense in connection with state highways, and that some equitable reimbursement be made for what they had already expended in that regard. The need for such relief and reimbursement was regarded by the Governor as sufficiently acute to require that the Legislature be called in Special Session on August 30, 1932, to enact legislation to that end. The call recited that it was highly important that: "To the limits of the constitutional power of the Legislature, the taxpayers of Texas shall be relieved, at the earliest possible moment, of the onerous and unfair burden of taxation now resting upon them by which their homes and farms and ranches and other properties are taxed to support road bond issues, heretofore voted by counties and road districts for the purpose of aiding in constructing roads that are now state highways, which burdens ought to be assumed and paid by those using the highways, out of the State Highway fund."

And the purpose of the call in this regard was stated to be: "To pass legislation providing that outstanding issues of road bonds, heretofore issued by counties and road districts, for the purpose of aiding in constructing roads which are now state highways shall be assumed by the State; and that all taxes required to be levied upon property within such counties or road districts to support such bonds, shall not be collected by such counties or road districts from the taxpayers therein for this year, 1932, or succeeding years, but that the principal and interest on said bonds, as the same may accrue, shall be paid out of the State Highway fund."

It was under this call that chapter 13 was enacted.

The first section of the act (Vernon's Ann. Civ. St. art. 6674q—1) sets forth its general purposes. In substance, it recognizes that the contributions of counties and road districts to the construction of state highways were in the interest of the "general welfare, settlement and development of the entire State," that such counties and road districts had thereby "performed functions resting upon the State," and that "both a legal and moral obligation rest upon the State to compensate and reimburse" them.

By section 3 of the act (Vernon's Ann. Civ. St. art. 6674q—3) sections 3, 6, and 7 of chapter 186, Gen. Laws 39th Leg. (R. S. arts. 6674c, 6674f, 6674g), above alluded to, providing for county and road district aid, were expressly repealed.

Sections 4 and 5 of the act are quoted in full above.

Sections 6 to 9 of the act, inclusive (Vernon's Ann. Civ. St. arts. 6674q—6 to 6674q— 9), provide for the reimbursement; allocate for that purpose, as a "County and District Highway Fund," one-fourth of the proceeds of the gasoline tax; set up the machinery to effectuate the reimbursement through a "Board of County and Road District Indebtedness," which the act creates; and make two specific appropriations from the "County and District Highway Fund," to be applied by the board for the benefit of county and road districts equitably entitled thereto, one appropriation covering the balance of the present fiscal year ending August 31, 1933, and the other covering the remaining four months of 1933.

Section 11 of the act (Vernon's Ann. Civ. St. art. 6674q—11), repeals "all laws and parts of laws in conflict herewith"; and the emergency clause reads: "The fact that counties and defined road districts of this State should be immediately given the compensation and reimbursement provided for in this Act and that such relief and reimbursement cannot be given them without the passage of this Act creates an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days in both Houses be suspended, and such Rule is hereby suspended, and this Act shall take effect and be in force from and after its passage, and it is so enacted."

There is no express repeal of the appropriation, but it is contended by appellees that the provision of section 5 to the effect that the state highway fund shall be subject to future appropriation is inconsistent with an already existing appropriation. The inherent right of the Legislature to make a future appropriation of the fund already appropriated is urged as rendering section 5 supererogatory if the prior appropriation were not intended to be repealed; and under the rule that words and provisions embodied in a statute are presumed to effectuate some purpose, they must therefore be given effect other than that which would result from their entire omission. Though couched in our own language, we believe this is a fair and accurate statement of appellees...