Maud v. Terrell

• Decision Date: 06 February 1918
• Docket Number: (No. 3035.)
• Citation: 200 S.W. 375
• Parties: MAUD, County Tax Collector, v. TERRELL, State Comptroller.
• Court: Texas Supreme Court

200 S.W. 375

MAUD, County Tax Collector, v. TERRELL, State Comptroller.

(No. 3035.)

Supreme Court of Texas.

February 6, 1918.

Application for mandamus by Robert Maud, Tax Collector of Travis County, to compel H. B. Terrell, State Comptroller, to credit his account with certain disbursements. Application granted.

N. A. Rector and Lightfoot, Brady & Robertson, all of Austin, for relator. B. F. Looney, Atty. Gen., and G. B. Smedley, Asst. Atty. Gen., for respondent.

PHILLIPS, C. J.

The right of the relator to the mandamus here sought against the Comptroller depends upon the validity of the Act of the Thirty-Fifth Legislature, Chapter 166, amending Article 7491 of the Revised Statutes so as to authorize—its title states— "the Comptroller to appoint and contract with persons to collect inheritance taxes."

It appears that as authorized by the Act the Comptroller, substantially in its terms, has entered into a contract with R. B. Humphrey whereby, for the maximum compensation allowed, his services have been engaged for the doing of those things in this relation which the Act provides. Through his offices a certain collection of such taxes has been made in Travis County. Out of the taxes collected the relator has paid him his commission therefor, but the Comptroller, on the advice of the Attorney-General, refuses to credit the relator's account with the amount so paid. If the Act is valid, the relator is entitled to the credit. If it is invalid, the credit was properly refused, since in that event the Comptroller's contract with Humphrey is of no force and the latter was not entitled to the commission.

The validity of the Act is challenged upon the ground that its necessary effect is to substitute the person or persons whom the Comptroller may thus employ for the county attorneys of the State in the prosecution of suits by the State for such taxes in the district and inferior courts; and for the Attorney-General in their prosecution in the Supreme Court, supplanting them in the discharge of their constitutional duties and denying their right to perform them. This position has been very strongly presented by the able Assistant Attorney General, Mr. Smedley, who appears for the respondent.

If such is the necessary effect of the Act and its provisions in respect to the functions of the person or persons whom the Comptroller is authorized to engage for the services named are not separable, it is condemned by the Constitution. That instrument, by Section 21 of Article 5, lodges with the county attorneys the duty of representing the State in all cases in the district and inferior courts, with the right in the Legislature to regulate by law the respective duties of district and county attorneys where a county is included in a district having a district attorney; and by Section 22 of Article 4 that duty as to suits and pleas in the Supreme Court is confided to the Attorney-General. With the limitation existing in the authority of the Legislature, under Section 22 of Article 4, to create additional causes of action in favor of the State and intrust their prosecution, whether in the trial or in the appellate courts, solely to the Attorney-General, the powers thus conferred by the Constitution upon these officials are exclusive. The Legislature cannot devolve them upon others. Nor can it interfere with the right to exercise them. Brady v. Brooks, 99 Tex. 366, 89 S. W. 1052; Harris County v. Stewart, 91 Tex. 133, 41 S. W. 650; State v. International & Great Northern Railroad Co., 89 Tex. 562, 35 S. W. 1067. It may provide assistance for the proper discharge by these officials of their duties, but since in the matter of prosecuting the pleas of the State in the courts the powers reposed in them are exclusive in their nature, it cannot, for the performance of that function, obtrude other persons upon them and compel the acceptance of their services. Wherever provision is made for the services of other persons for this express purpose, it is the constitutional right of the Attorney-General and the county and district attorneys to decline them or not at their discretion, and, if availed of, the services are to be rendered in subordination to their authority.

An act of the Legislature is not to be declared unconstitutional unless plainly so. The presumption is that the Legislature acted in the light of the Constitution, with the intention to observe it rather than violate it. Where the language of the particular enactment is unambiguous and the conflict with the Constitution is hence apparent, there is no alternative but to declare the enactment void. In such cases words cannot be read into a statute or out of it to save it. But where the language is of doubtful meaning, reasonably susceptible of different constructions, rendering the act valid if construed in one sense and invalid if construed in another, that construction will be adopted which sustains the act rather than destroys it. Likewise, where the terms used in a statute are general, reasonably admitting of a construction which does not condemn it, the language will be restrained in its operation so as to harmonize the statute with the Constitution though, literally, it be susceptible of a broader meaning which would conflict with the Constitution. These are just and wise rules. They are of general application. They exist because courts are not to sit as severe and anxious critics of legislative expression, or as censors of the form in which statutes are written. It is the duty of courts to see that the Constitution is observed in the enactment of laws, and to fearlessly declare a law void which violates the Constitution. But these rules are for their guidance as an injunction that the language used in the writing of statutes is not always precise; that frequently terms of doubtful meaning are employed; that where this is true and the terms used reasonably admit of it, that construction is to be applied which will uphold the law; and that it is only where the language plainly contravenes the Constitution are they warranted in holding a law invalid.

The test, therefore, to be used in determining the validity of this Act is simply whether by plain and unambiguous language it deprives the county attorneys...