Lower Colorado River Authority v. McCraw, 6915.

• Decision Date: 22 May 1935
• Docket Number: No. 6915.,6915.
• Citation: 83 S.W.2d 629
• Parties: LOWER COLORADO RIVER AUTHORITY v. McCRAW, Atty. Gen.
• Court: Texas Supreme Court

83 S.W.2d 629

LOWER COLORADO RIVER AUTHORITY v. McCRAW, Atty. Gen.

No. 6915.

Supreme Court of Texas.

May 22, 1935.

Original petition for mandamus by the Lower Colorado River Authority against William McCraw, Attorney General.

Mandamus issued.

A. J. Wirtz and Powell, Wirtz, Rauhut & Gideon, all of Austin, for relator.

Wm. McCraw, Atty. Gen., and William C. Davis, Asst. Atty. Gen., for respondent.

Geo. D. Anderson, of Beaumont, C. R. Wharton, of Houston, and White, Taylor & Gardner, of Austin, as amici curiæ.

CRITZ, Justice.

This is an original mandamus proceeding, filed in this court by Lower Colorado River Authority, as relator, against William McCraw, Attorney General of Texas, as respondent, to compel him to approve $100,000 of the bonds of relator.

Relator was created a conservation and reclamation district, and as a governmental agency and body politic and corporate under and by virture of chapter 7, Acts 4th Called Sess., 43d Legislature, p. 19 et seq (Vernon's Ann. Civ. St. art. 8194 note). The act in question confers upon relator the right to sue and be sued in its corporate name. Also, it appears that the above act has been amended by the 44th Legislature so as to authorize relator to issue $20,000,000 of its bonds, instead of $10,000,000, as provided by the original act. Such amendment, however, in nowise affects the issues of this case.

Under the act creating this district, it was given power and authority to issue bonds for any corporate purpose not exceeding $10,000,000 (now $20,000,000). The act expressly provides that such bonds shall be payable solely out of the revenues to be derived by the district in respect of its properties, and that the credit of the state shall never be pledged, nor shall any tax ever be levied by the district for the payment of such bonds, or for any other purpose.

The act further provides that before any of the bonds of this district shall ever be sold, a certified copy of the proceedings in the issuance thereof shall be submitted to the Attorney General of this state; and if he shall find that they have been issued in accordance with law, he shall approve the same and issue his certificate to that effect.

After the above act became effective, the district issued its bonds in the amount of $100,000. All proceedings with reference to the issuance of such bonds were regular and in full conformity with the above act. In fact, it is admitted by the respondent that this mandamus should issue, unless it is held that the bonds here involved are invalid or illegal, on account of one or more of the matters involved in the following four objections:

"1. Sub-section (c) of Sec. 59 of Art. XVI of the Constitution makes it mandatory upon the Legislature to confer the power of taxation upon all districts created under said Section 59. The Act creating the Authority expressly denies this power to the Authority; this would place the provisions of the Act in direct conflict with the mandate of the Constitution, and would probably render invalid the organization of the Authority.

"2. Said sub-section (c) further provides that `the Legislature shall not authorize the issuance of any bonds or provide for any indebtedness against any reclamation district unless such proposition shall first be submitted to the qualified property tax-paying voters of such district and the proposition adopted.' While it is conceded that revenue bonds do not constitute indebtedness in Texas, this section refers to both bonds and indebtedness, and it cannot be contended that revenue bonds are not bonds in the ordinary sense of the term. As they are bonds within the meaning of said sub-section (c), an election would be necessary to authorize the issuance of the bonds.

"3. Section 30 of Art. XVI limits the duration of public office to two years. Section 30a permits the creation of certain boards with a tenure of six years. It is doubtful that the Authority is such a board as to justify the six-year term conferred upon its members.

"4. Section 56 of Art. III of the Constitution prohibits the Legislature from passing special or local laws exempting property from taxation. Section 16 of the Act purports to exempt the bonds of the Authority from taxation. This is a special law (so far as it attempts to do so) and this provision, in my opinion, is unconstitutional."

An examination of objections 1 and 2, supra, shows that they are founded on the theory that the act creating this district and authorizing the issuance of these bonds is unconstitutional and void, because in contravention of certain portions of section 59 of article 16 of our state Constitution, known as the "conservation amendment." We deem it expedient to here quote such constitutional provision in full. It is as follows:

"Sec. 59a. The conservation and development of all of the natural resources of this State, including the control, storing, preservation and distribution of its storm and flood waters, the waters of its rivers and streams, for irrigation, power and all other useful purposes, the reclamation and irrigation of its arid, semi-arid and other lands needing irrigation, the reclamation and drainage of its over-flowed lands, and other lands needing drainage, the conservation and development of its forests, water and hydro-electric power, the navigation of its inland and coastal waters, and the preservation and conservation of all such natural resources of the State are each and all hereby declared public rights and duties; and the Legislature shall pass all such laws as may be appropriate thereto.

"(b) There may be created within the State of Texas, or the State may be divided into, such number of conservation and reclamation districts as may be determined to be essential to the accomplishment of the purposes of this amendment to the constitution, which districts shall be governmental agencies and bodies politic and corporate with such powers of government and with the authority to exercise such rights, privileges and functions concerning the subject matter of this amendment as may be conferred by law.

"(c) The Legislature shall authorize all such indebtedness as may be necessary to provide all improvements and the maintenance thereof requisite to the achievement of the purposes of this amendment, and all such indebtedness may be evidenced by bonds of such conservation and reclamation districts, to be issued under such regulations as amy (may) be prescribed by law and shall also, authorize the levy and collection within such districts of all such taxes, equitably distributed, as may be necessary for the payment of the interest and the creation of a sinking fund for the payment of such bonds; and also for the maintenance of such districts and improvements, and such indebtedness shall be a lien upon the property assessed for the payment thereof; provided the Legislature shall not authorize the issuance of any bonds or provide for any indebtedness against any reclamation district unless such proposition shall first be submitted to the qualified property tax-paying voters of such district and the proposition adopted. (Sec. 59, Art. 16, adopted election Aug. 21, 1917; proclamation October 2, 1917.)"

It will be noted that the above constitutional provision appears as section 59a. It, however, is apparent that the intention was to add section 59, with three lettered subsections, (a), (b), and (c). In this opinion we so treat the matter.

If we understand and properly interpret objection No. 1, supra, it is founded on the theory that the various provisions of section 59 of article 16, supra, make it mandatory upon the Legislature to confer the taxing power upon all conservation and reclamation districts created thereunder. In our opinion, such constitutional provision is not susceptible of such a construction.

It is the rule of constitutional construction as applied to state Constitutions that an act is valid unless the Constitution by express terms, or by necessary implication, prohibits the Legislature from doing what it has attempted to do in the passage of the act. In other words, an act of a state Legislature must be held valid unless some superior law in express terms, or by necessary implication, prohibits its passage. Lytle v. Halff, 75 Tex. 128, 12 S. W. 610. It follows from the rule announced that this law does not violate section 59 of article 16 of our Constitution in the respect under consideration, unless it can be said that such constitutional provision contains language that expressly, or by necessary implication, requires conservation and reclamation districts organized by authority thereof to have the taxing power.

A reading of subsection (a) discloses that it is very broad and comprehensive in its scope. It declares that the conservation and development of all natural resources of the state are public rights and duties. This subsection then so comprehensively enumerates such natural resources as to include within the term every natural resource of the state. Finally, subsection (a) makes it the duty of the Legislature to pass all laws that are appropriate to conserve and develop such natural resources.

A reading of subsection (b) discloses that it is equally as broad and comprehensive as subsection (a). Under its terms and provisions, the Legislature has the power to divide the state into such number of conservation and reclamation districts as it may determine are essential or necessary to accomplish the purposes of the conservation amendment. Also, subsection (b) expressly declares that such districts shall be governmental agencies and bodies politic and corporate. Finally, subsection (b) expressly provides that conservation and reclamation districts organized under section 59, supra, shall have such powers of government, and the right to exercise such rights, privileges, and functions concerning the subject-matter of such amendment, as may be conferred by law.

A reading of subsection (c), supra,...