Rutledge v. Atkinson, 8588.

• Decision Date: 13 January 1937
• Docket Number: No. 8588.,8588.
• Parties: RUTLEDGE et al. v. ATKINSON, County Judge, et al.
• Court: Texas Court of Appeals

101 S.W.2d 376

RUTLEDGE et al. v. ATKINSON, County Judge, et al.

No. 8588.

Court of Civil Appeals of Texas. Austin.

January 13, 1937.

Appeal from District Court, Irion County; John F. Sutton, Judge.

Suit by Cul Rutledge and others against R. J. Atkinson, County Judge, and others. From a judgment in favor of the defendants, plaintiffs appeal.

Affirmed.

W. A. Wright, of San Angelo, for appellants.

Upton & Upton and Travis E. Baker, all of San Angelo, for appellees.

McCLENDON, Chief Justice.

This case involves, as its controlling question, the validity of that portion of chapter 128, p. 328, Gen. Laws Reg.Sess. 43d Leg., 1933 (Vernon's Ann.Civ.St. art. 1601), which increased from five to ten years the time in which an election for removing a county seat could not be held after a prior election for that purpose. The suit was by taxpaying citizens of Irion county to enjoin the county judge and other officials from moving the county seat from Sherwood to Mertzon, in accordance with an election held on September 5, 1936; a previous valid election retaining the county seat at Sherwood having been held April 2, 1927; and to enjoin the negotiation of bonds voted to build a courthouse at Mertzon. Both Sherwood and Mertzon are less than five miles from a railroad, and therefore the exceptions relating to towns not so situated are not involved. Concededly, the election was valid and carried in favor of the removal by the requisite vote. The trial court held the 1933 act invalid in the particular named, because that subject was not embraced in the title of the act as required by article 3, § 35, Texas Constitution.

Article 1601, R.C.S.1925, and the 1927 amendment thereof (chapter 185, p. 264, Gen. Laws 40th Leg.Reg.Sess.), fixed at five years the time within which such election could not be held after a prior election. The title to the 1933 act reads: "An Act to amend Article 1601, Chapter 5, Title 33, of the Revised Civil Statutes, of the State of Texas, 1925, as amended by Acts 1927, 40th Legislature, Regular Session, Page 264, Chapter 185, so as to require all indebtedness against a courthouse or courthouses shall be paid in full before the county seat of any county can be moved from its present location; repealing all laws or parts of laws in conflict herewith; declaring a rule of construction, and declaring an emergency."

The body of the act, in addition to the unpaid courthouse indebtedness, repealing construction, and emergency provisions, increased to ten years the time within which a subsequent election might not be held.

The question thus presented has been specifically adjudicated in favor of the trial court's holding in Ward Cattle & Pasture Co. v. Carpenter, 109 Tex. 103, 200 S.W. 521, Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799, 803, and, in principle at least, in a number of other cases which will be found cited in 39 Tex.Jur. pp. 102-105, § 48. The rule announced in these cases is to the effect that, although an act may be amended in any germane particular by an amendatory act, the title of which merely refers to the act or article sought to be amended, without specifying in what the amendment consists, yet when such title states the particular respect in which the amendment consists, any amendment not germane to that specified is invalid as being repugnant to the invoked constitutional provision.

In the Carpenter Case the act involved sought to amend the stock law, "so as to include" (so runs the title) certain named counties. The body of the act omitted Matagorda county, theretofore included. The act was held invalid in this particular. We quote from the opinion (Chief Justice Phillips writing): "The purpose of the constitutional provision in respect to the title of legislative acts is well understood. It is that by means of the title the legislator may be reasonably apprised of the scope of the bill so that surprise and fraud in legislation may be prevented. True, according to previous decisions of this court, if the title had only declared that the purpose of the Act was to amend Article 7235 of the Revised Statutes, it would have supported an act amending the article so as to omit Matagorda County. But with this title announcing, as it does, that the article was to be amended in a particular way, no legislator would reasonably have conceived that it was to be amended in another way exactly contrary to that stated. This is a case illustrating the wisdom and justice of the constitutional provision."

In Arnold v. Leonard the involved titles provided for amendment of designated statutes (the married women's property laws) "by providing" certain specified things. The reasoning in the Carpenter Case was approved in the following quotation (Associate Justice Greenwood writing): "The caption is not content to state a purpose to amend certain statutes, but proceeds to specify the nature of the proposed amendment. Thus the caption declares that the amendment consists of a provision authorizing the wife, on order of the district court, to convey her separate real estate, bonds, and stocks without joinder by her husband, when he is insane or has permanently abandoned his wife. This language not only gives no notice of an intention to change the status of certain property from community property to the wife's separate property, but completely disguises any such intention. A caption concealing the true purpose of a statute, and stating an altogether distinct and foreign purpose, is necessarily deceptive, and cannot be sustained as complying with section 35 of article 3 of the Constitution. Ward Cattle & Pasture Co. v. Carpenter, 109 Tex. [103] 105, 200 S.W....