Kaufman County Levee Imp. Dist. v. National Life Ins. Co., 13411.

• Decision Date: 26 March 1943
• Docket Number: No. 13411.,13411.
• Citation: 171 S.W.2d 188
• Parties: KAUFMAN COUNTY LEVEE IMP. DIST. NO. 10 v. NATIONAL LIFE INS. CO.
• Court: Texas Court of Appeals

171 S.W.2d 188

KAUFMAN COUNTY LEVEE IMP. DIST. NO. 10 v. NATIONAL LIFE INS. CO.

No. 13411.

Court of Civil Appeals of Texas. Dallas.

March 26, 1943.

Rehearing Denied April 23, 1943.

Appeal from District Court, Kaufman County; G. O. Crisp, Judge.

Action by the Kaufman County Levee Improvement District No. 10 against the National Life Insurance Company for delinquent taxes and foreclosure of a tax lien. From a judgment of dismissal, plaintiff appeals.

Reversed and remanded.

Leo R. Tresp, of Dallas, for appellant.

Read, Lowrance & Bates, of Dallas, for appellee.

LOONEY, Justice.

Kaufman County Levee Improvement District No. 10, the appellant herein, organized under the Canales Act, passed by the 35th Legislature, Vernon's Ann.Civ.St. arts. 8176, 8194 to 8197, as authorized by § 59 of Article 16 of the Constitution, Vernon's Ann.St., brought this action against National Life Insurance Company, the appellee, for delinquent taxes, and to foreclose its tax lien upon land situated within the District. Appellee filed a plea in abatement, based on several grounds; among others, (1) because the persons acting as supervisors of the District were not named in the petition; and (2) because the three supervisors of the District were disqualified, in that, they were nonresidents of the District, hence had no authority to represent it or authorize the institution of the suit. In answer to the plea in abatement, appellant alleged that Byron Alstot, W. E. Burgess and H. A. McCormick were the duly qualified and acting supervisors of the District, under regular appointment by the Commissioners' Court of Kaufman County. At the hearing, it was not denied, but admitted, that these supervisors were nonresidents of the District and were at the time of their appointment. It was also shown that Mr. Leo R. Tresp, attorney for appellant, was regularly employed by the supervisors and directed to bring the instant suit. Appellee's plea in abatement was sustained on the grounds just mentioned and the suit was dismissed, from which, this appeal was prosecuted.

Appellant assigns error on the action of the court in dismissing the suit for the reasons stated. We think the suit was properly brought, notwithstanding the names of the supervisors were not mentioned in the petition. Under Arts. 8016 and 8017 R.C.S., the institution and prosecution of the suit in the name of the District was authorized. However, in its supplemental pleading, appellant having alleged the names of the supervisors, and it being admitted that they were nonresidents of the District, appellee concedes that the first ground set up in the plea in abatement is important only when considered in connection with the second ground. The second and main contention of appellee, in the court below and here, is that the three persons acting as supervisors, who employed the attorney and caused the suit to be instituted, being nonresidents of the District, in law were not supervisors and had no authority to represent the District. This proposition is based upon the contention that the question under consideration is controlled by the provisions of § 14 of Art. 16 of the Constitution, which provides that: "All civil officers shall reside within the State; and all district or county officers within their districts or counties, and shall keep their offices at such places as may be required by law; and failure to comply with this condition shall vacate the office so held." This Constitutional provision made its appearance first in the Constitution of 1845 as § 9, Art. 7, reading identically as it reads in the present Constitution, except the language "and failure to comply with this condition shall vacate the office so held", was added when the present Constitution was adopted. The language, as it first appeared in 1845, also constituted § 9 of Art. 7 of the Constitution of 1861; also as § 9, Art. 7 of the Constitution of 1866; also as § 12, Art. 12, of the Constitution of 1869. So, it seems that the section, except the penal provision added in 1876, has persisted in the identical language as first introduced in 1845.

The question presented is: Does this provision apply to improvement districts, such as appellant, created under recent amendments to the Constitution? We do not think so. The provision has the same meaning today that it had when first adopted as a part of the Constitution of 1845; the language added in 1876, the penal provision, did not alter its meaning. A fundamental rule is that constitutions should receive a consistent and uniform interpretation, so that they shall not be taken to mean one thing at one time and another thing at another time. 6 R.C.L., p. 46, § 39. Constitutions do not change with the varying tides of human affairs, but the will of the people as expressed therein remains inflexible until repealed or changed by amendment. 11 Am.Jur., p. 659, § 50.

Improvement districts, such as the District involved here, were unknown in 1845 when § 14 of Art. 16 became a part of the constitutional law of the state; nor did such districts come into existence until after the constitutional amendment known...