Moore v. Commissioners' Court

• Decision Date: 10 February 1915
• Docket Number: (No. 5453.)
• Citation: 175 S.W. 849
• Parties: MOORE v. COMMISSIONERS' COURT OF BELL COUNTY et al.
• Court: Texas Court of Appeals

175 S.W. 849

MOORE v. COMMISSIONERS' COURT OF BELL COUNTY et al.

(No. 5453.)

Court of Civil Appeals of Texas. Austin.

February 10, 1915.

Rehearing Denied April 15, 1915.

Appeal from District Court, Bell County; John D. Robinson, Judge.

Action by T. T. Moore against the Commissioners' Court of Bell County and others. Judgment for defendants, and plaintiff appeals. Affirmed.

A. W. Gibson, of Rogers, and Morrison & Lewis, of Cameron, for appellant. Lewis H. Jones, of Rogers, and W. O. Cox, of Temple for appellees.

KEY, C. J.

T. T. Moore instituted an injunction suit, by which he sought to restrain the commissioners' court of Bell county from selling certain bonds which had been issued, and which he alleged were about to be sold by that court for road district No. 10 of Bell county; and he also sought to restrain the tax collector from collecting the taxes levied to pay interest and create a sinking fund for the redemption of the bonds. The district judge granted a temporary restraining order to remain in force until the 31st day of August, 1914, at which time the case was set for further hearing. The defendants filed an answer, but we do not deem it necessary to set out in full the pleadings of either party, and content ourselves with saying that the questions of law hereafter discussed were and are presented by the pleadings. At the time set there was a further hearing, as a result of which the trial court held that the plaintiff was not entitled to injunctive or other relief, and he has appealed.

The validity of the bonds and the levy of the taxes were assailed on the following grounds, as stated in appellant's brief.

"(1) That there is no provision of law conferring authority on the commissioners' court of a county to create a road district or corporation out of territory less than an already existing political subdivision of the county, and that therefore the attempted creation of such district is void.

"(2) That even if the authority can be found in the commissioners' court by implication to create such a district, yet that the provisions of the statutes embraced in articles 627 to 641 are obnoxious to section 19 of the Bill of Rights of the Constitution of Texas, and section 1 of the fourteenth amendment of the Constitution of the United States, in that and because the method providing for the creation of said road district by the statutes mentioned are of such character as to take the appellant's property by taxation, without due process of law, and to deny him the equal protection of the law, for the reason that it is sought thereby to create a corporation with the power of taxation, and there is a total failure to provide for a hearing by appellant or any other person interested in the creation of said district, and that there is no provision by which an interested person can be heard or allowed to state his objections to the creation of such district, and that the methods employed are too vague, indefinite, and uncertain to constitute due process of law.

"(3) That the field notes of the district are too vague, indefinite, and uncertain to close or define the territorial limits of a corporation with power to levy and collect taxes.

"(4) That the levy and collection of 75 cents taxes on the $100 valuation of property is excessive and unconstitutional as applied to the appellant, for the reason that in said purported road district, and entirely surrounded by the territory thereof, is situated the incorporated city of Rogers, which is a city of less than 5,000 inhabitants incorporated under the general laws of the state, and that said city before the issuance of said road bonds had issued and sold waterworks bonds of said city in the sum of $14,000, and had levied taxes to the full constitutional amount of 25 cents on the $100 valuation of all property in said city to pay the interest and create a sinking fund for the redemption of said bonds, and in addition thereto had also levied the full constitutional limit of 15 cents on the $100 valuation on the property of said city for streets and bridges; and for those reasons is it contended that the territory comprising the city had no authority to `lend its credit' in the issuance of the road bonds, for the reason that its `total bonded indebtedness' and rate of taxation were thereby made to exceed the limits provided by the Constitution.

"(5) That in the order of the commissioners' court calling the election, and in the notices, and in the publication of said election, it was provided and stated that the issue of bonds to be voted on in said election should bear interest at the rate of 5 per cent. per annum and mature 40 years from date, but that the bonds had not been issued in accordance with such order and notices of election, and that said order and notices of election had been violated for the reason that the bonds had been issued bearing interest at 5 per cent., payable semiannually, and that they should mature annually every year from 1915 to the end of the 40 years."

All of the foregoing questions have been ably presented in this court by counsel for appellant, maintaining the affirmative, and by counsel for appellees, maintaining the negative. Each of these questions have received careful consideration at the hands of this court, and our conclusion is that the trial court ruled correctly when it decided the points referred to against appellant's contention, and some of the reasons for that conclusion will now be stated.

In 1904, section 52, title 3, of the Constitution of this state, was so amended as to confer power upon the Legislature to authorize any county, any political subdivision of the county, any number of adjoining counties, or any political subdivision of the state, "or any defined district now or hereafter to be described and defined within the state of Texas," in addition to all other debts, by a vote of two-thirds majority of the resident property tax-paying voters, to issue bonds or otherwise lend its credit in any amount, not to exceed one-fourth of the assessed valuation of the real property of such district or territory, for certain designated purposes, one of which is the construction, maintenance, and operation of roads and turnpikes, or in aid thereof. It is specifically stated in that article that the territory which might be authorized by the Legislature to issue bonds, etc., "may or may not include towns, villages or municipal corporations"; and it is also therein stated that the total bonded indebtedness of any city or town shall never exceed the limits imposed by other provisions of the Constitution. Acting under that constitutional provision, in 1909 the Legislature passed the road law, which now comprises articles 627 to 641, inclusive, of the present Revised Statutes. Article 627 reads as follows:

"Power to Issue Road, etc., Bonds and Levy Tax for Interest and Sinking Fund. Any county in this state, or any political subdivision or defined district, now or hereafter to be described and defined, of a county, is hereby authorized and empowered to issue bonds, or otherwise lend its credit, in any amount not to exceed one-fourth of the assessed valuation of the real property of such county, or political subdivision, or defined district thereof, and to levy and collect such taxes to pay the interest upon such bonds and provide a sinking fund for the redemption thereof, for the purpose of constructing and maintaining and operating macadamized, graveled or paved roads and turnpikes, or in aid thereof."

The other articles relating to that subject cover all the details necessary for the election and the issuance and sale of the bonds. It was under that law that the commissioners' court of Bell county was proceeding when this suit was instituted. The main question in this case, and the point which seems to be urged with greatest confidence by appellant, involves the construction to be placed upon the language of the Constitution, and also the statute, which reads, "or any defined district now or hereafter to be described and defined." Counsel for appellant contend that while that language in the Constitution may authorize the Legislature to create and define additional districts itself, or may authorize it to prescribe the mode and manner in which such districts may be created by the commissioners' court, before any action is taken looking to the issuance of...