Moon v. Alred

• Decision Date: 26 June 1925
• Docket Number: (No. 108.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 277 S.W. 787
• Parties: MOON et al. v. ALRED, County Attorney, et al.
• Court: Texas Court of Appeals

277 S.W. 787

MOON et al. v. ALRED, County Attorney, et al.

(No. 108.)^*

Court of Civil Appeals of Texas. Eastland.

June 26, 1925.

Rehearing Denied December 11, 1925.

Appeal from District Court, Stephens County; Walter F. Schenck, Judge.

Action by O. L. Moon and others against O. H. Alred, County Attorney, and others, attacking validity of bond election. From the judgment, plaintiffs appeal. Affirmed.

Benson & Dean, of Breckenridge, for appellants.

John W. Hill and O. H. Alred, both of Breckenridge, for appellees.

PANNILL, C. J.

This a contest of an election authorizing the issue of $250,000 of bonds of Stephens county, for the purpose of the erection and equipping of the courthouse and the county jail and the purchasing of a site or sites therefor within said county.

The questions raised will appear, in the rulings hereinafter announced. Article 610, R. S. 1911, empowers the commissioners' court of any county to issue bonds; "for the erection of a county courthouse and jail, or either" when the proposition is approved by the qualified taxpaying voters. This statute differs materially from that of 1881 (Laws 1881, c. 9) under consideration in Robertson v. Breedlove, 61 Tex. 316; Nolan County v. State, 83 Tex. 182, 17 S. W. 823. The act of 1881 authorized the issuance of bonds of any county which has no courthouse, to erect a suitable building. These cases hold that bonds cannot be issued without an act of the Legislature conferring that power, and that the power given to erect public buildings did not of itself authorize the issuance of bonds; hence the holding of these cases, that bonds could not be issued to build a jail or a temporary structure to be used as a courthouse, until the courthouse was built, thereafter to be used as a jail. Subsequently our present statute was enacted. Now the commissioners' court is authorized by law to erect public buildings and issue bonds for the erection of a courthouse and jail or either.

It is urged that the decisions referred to are, under the present statute, authority for the proposition that, where the county has a courthouse, bonds cannot be issued to build another; regardless of how unsafe, insufficient, inadequate, or lacking in protection against fire it may be. It is a matter of common knowledge that the increase and development of portions of our great state have created a situation in many counties requiring the erection of new courthouses and jails to provide room for holding court and the transaction of public business, and in which to preserve public records of vital importance to every citizen; that bonds have been issued in such cases where such buildings still existed, and these bonds have been approved by the state's law officers and sold, and are now outstanding in many instances, amounting to many thousands of dollars. This long-continued construction of the present statute, extending through many succeeding administrations, while not binding, is strongly persuasive that the holding of the Supreme Court should be limited to the statute there construed and not applied to a later statute materially different. It is the purpose here to follow the decisions of our Supreme Court, "without variableness or shadow of turning" and to not, by refinement or attempts to distinguish, refuse the correct application of the law as declared by that eminent tribunal; but we are as much bound not to impute to that court holdings not intended, as to apply its rules of decisions to cases where such decisions are applicable. It is concluded that the cases discussed are not authority for the contention above stated.

If the commissioners' court has the power to issue the bonds involved in the present appeal, its judgment as to the necessity or advisability of such action is not subject to review, in the absence of corrupt motives. There being in the present case no allegations of fraud, except that, the county having a courthouse and jail, there was no necessity for another, and the order for the election constituted a fraud on the taxpayers. Such allegations present no issue within our jurisdiction. Robertson v. Breedlove, supra; Stratton v. Kinney County (Tex. Civ. App.) 137 S. W. 1170.

Next in order is the insistence that the commissioners' court is without power under article 610 to issue bonds to purchase a site or equipment for the courthouse and jail as sought to be done here. The question as to power to issue bonds for site or equipment, as an independent proposition, is not involved. The power to issue the bonds must be derived from the statute referred to, and it must be looked to in order to ascertain whether the authority is given. The rule of construction, as often declared by our Supreme Court, is:

"Whenever a power is given by statute, everything necessary to make it effectual or requisite to attain the end is implied. * * * The grant of an express power carries with it, by necessary implication, every other power necessary and proper to the execution of the power expressly granted." Terrell v. Sparks, 104 Tex. 191, 135 S. W. 519.

Hence it was held in that case, that an appropriation of $25,000, to be used by the Attorney General with the approval of the Governor in enforcing the laws of the state, authorized the employment of counsel to assist in prosecuting suits to recover land belonging to the school fund, although this was the Attorney General's duty under the law. The principle announced has been applied to varying states of fact, as shown in Imperial Irrigation Co. v. Jayne, 104 Tex. 395, 138 S W. 575, Ann. Cas. 1914B, 322. It is held in that case that an act authorizing the formation of corporations for irrigation purposes and to construct dams, etc., discloses the legislative intent to provide for dam and reservoir sites on public school lands. Also in Aransas County v. Coleman Fulton Pasture Co., 108 Tex. 216, 191 S. W. 553. In that instance bonds had been issued to build gravel highways, and it was there declared that the power to build roads included the power to build a bridge, several miles in length across a bay, in order to connect the different parts of the...