Southern Pine Lumber Co. v. Newton County Water Supply Dist., 6264

• Decision Date: 23 April 1959
• Docket Number: No. 6264,6264
• Citation: 325 S.W.2d 724
• Parties: SOUTHERN PINE LUMBER COMPANY et al., Appellants, v. NEWTON COUNTY WATER SUPPLY DISTRICT, Appellee.
• Court: Texas Court of Appeals

Page 724

325 S.W.2d 724

SOUTHERN PINE LUMBER COMPANY et al., Appellants, v. NEWTON COUNTY WATER SUPPLY DISTRICT, Appellee.

No. 6264.

Court of Civil Appeals of Texas, Beaumont.

April 23, 1959.

Rehearing Denied May 20, 1959.

B. F. Whitworth and Grady Trimble, Jr., Jasper, Ward R. Burke, Diboll, E. A. Lindsey, Newton, for appellant.

A. E. Rogers, Newton, E. G. Aycock, Ft. Worth, for appellee.

McNEILL, Justice.

The suit was instituted in the district court of Newton County by appellee Newton County Water Supply District to collect taxes, penalties and interest for the years 1956 and 1957 allegedly owed by appellant Southern Pine Lumber Company to appellee on certain lands in Newton County. The cause was tried before the court and a jury, and upon verdict judgment was rendered for appellee for the sum of $11,978.05, plus 10 percent attorneys fees provided by Article 7880-73, Vernon's Tex.Ann.Civ.St. This appeal has resulted from the judgment rendered.

Appellant bases its appeal upon five points, the first two of which assert that the Act of the Legislature creating the Newton County Water Supply District, being Chapter 359, 54th Legislature, 1955, p. 910, is unconstitutional. The third point urges that there were no valid levies of taxes for the years involved. The fourth point urges that the taxes levied against appellant's property were invalid for the reason that substantial amounts of personal property in the district were omitted from the tax rolls for the years involved, and that same resulted from the failure of appellee's tax officials to make a bona fide effort to put such property on the tax rolls. The fifth point urges that certain issues as found by the jury having to do with the assessment of personal property were answered by the jury unfavorably to it and in such way as to be against the great weight and overwhelming preponderance of the evidence.

We must first pass upon the two points urging the invalidity of the water supply district. The Act establishing this district contains seven sections, the first five of which are now Article 8280-174, Vernon's Texas Annotated Civil Statutes. Section 3 of this article is as follows:

'The district shall have and exercise, and is hereby vested with, all of the rights, powers, privileges, authority and duties conferred and imposed by the General Laws of this State now in force or hereafter enacted, applicable to water control and improvement districts created under authority of Section 59, Article XVI, of the Constitution, but to the extent that the provisions of any such General Laws may be in conflict or inconsistent with the provisions of this Act, the provisions of this Act shall prevail. All such General Laws are hereby adopted and incorporated by reference with the same effect as if incorporated in full in this Act. It shall not be necessary for the Board of Directors to call a confirmation election or to hold a hearing on the exclusion of lands or a hearing on the adoption of a plan of taxation, but the ad valorem plan of taxation shall be used by the district.'

Article 7880-76 of the General Laws referred to in the above section provides that when a district is organized by petition and order of the Commissioners Court or State Board of Water Engineers, before an election is called a hearing must be conducted as to whether 'there must be exclusions of land or other property' from the District. Appellant says that while the last sentence of Sec. 3 above quoted eliminates the necessity for a hearing as to exclusions of land it does not eliminate the hearing as to exclusions of 'other property' and the Act therefore discriminates against land and the owners of land and in favor of personal property and the owners of personal property.

It is fundamental that when a law duly enacted is attacked as unconstitutional it is presumed to be valid and doubts as to its unconstitutionality should always be resolved in favor of constitutionality and a construction will be given it, if reasonable, that will uphold it. Duncan v. Gabler, 147 Tex. 229, 215 S.W.2d 155. A study of the related articles, having in mind this rule of construction, brings us to the conclusion that the last sentence of Sec. 3 above is intended to and does do away with any and all hearings on exclusions not only as to land but also as to all other property in the district, for the first section of the Act provides that the boundaries of the District shall be co-incident with the boundaries of Newton County and Sec. 3 provides that the ad valorem plan of taxation shall be used by the District. To have provided for hearings as to exclusions of lands would have conflicted with Sec. 1 of the Act establishing the boundaries of the District. And by adopting the ad valorem plan in accordance with the general scheme of taxation without modification, it effectively made personal property as well as lands taxable. Appellant's first point is without merit.

Appellant's second point asserts since the Act creating the water supply district contains no express finding that the lands included therein would be benefited and does not give the right to a determination by the directors of the District that the lands of the appellant would be benefited by inclusion therein, the Act in unconstitutional. It cites the following cases in support: State ex rel. Merriman v. Ball, 116 Tex. 527, 296 S.W. 1085; Browning v. Hooper, 269 U.S. 396, 46 S.Ct. 141, 70 L.Ed. 330; Hydrocarbon Production Company, Inc. v. Valley Acres Water District, 5 Cir., 204 F.2d 212.

A distinction is drawn between districts which are established directly by a special act of the Legislature in carrying out the mandate of and in conformity with the Conservation Amendment to the Constitution of the State (Art. XVI, Sec. 59) Vernon's Ann.St., and those districts organized primarily for private purposes under the permissive terms of this section of Art. XVI of the Constitution and the general statutes. Brazos River Conservation and Reclamation District v. McCraw, 126 Tex. 506, 91 S.W.2d 665, 670. This case holds that as to those districts first mentioned, as is the Brazos River, etc. District, no hearing is necessary on the question of benefits. While the Brazos River Conservation case involved a much larger area than the Newton County Water District, yet the area in and of itself is not controlling and the language making the Water Supply District a governmental agency and body politic with the powers of government therein specified, and finding that the creation of such district is essential to the accomplishment of the purposes set forth in said Sec. 59, Article XVI, of the Constitution has the same effect as the language creating the Brazos River Conservation District, and makes the Newton Water Supply District one of the class first above mentioned having the full status of a governmental agency. The emergency clause of the Act creating the Newton County District reads:

'Sec. 6. The fact that there is a pressing need to develop the water resources within the boundaries of said district which otherwise are wasted to the Gulf of Mexico creates an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days in each House be suspended, and said Rule is hereby suspended, and this Act shall take effect and be in force from and after its passage, and it is so enacted.'

The district is a political subdivision of the State and stands upon the same footing as counties. Bennett v. Brown County Water Improvement District, 153 Tex. 599, 272 S.W.2d 498. It logically follows that property owners of the District are not entitled to a hearing on benefits to their property. Brazos River Conservation and Reclamation District v. McCraw, supra; Hancock v. City of Muskogee, 250 U.S. 454, 455, 39 S.Ct. 528, 63 L.Ed. 1081; Wight v. Police Jury, 5 Cir., 264 F. 705; Smith v. Wilson, D.C., 13 F.2d 1007.

Appellant relies upon Hydrocarbon Production Co., Inc. v. Valley Acres Water District, supra. This was a case also decided by the 5th Circuit. That case discussed Sec. 59 of Article XVI and Sections 52 and 56 of Article 3 of the Constitution. Among the holdings there made was the following:

'Further applying the principles above stated it is clear that in this case, where the Legislature itself directly created the district, the appellant has no constitutional right to a hearing on the question of benefits; that in carrying out the expressed constitutional mandate to conserve and use water for the irrigation of arid lands of the State the Legislature could authorize taxes to be imposed ad valorem upon all property within the District without regard to benefit. * * * Determination of the method of taxation is within the province of the Legislature.'

There quoted is the following from Memphis & Charleston R. Co. v. Pace, 282 U.S. 241, 245, 51 S.Ct. 108, 109, 75 L.Ed. 315 'Whether the tax shall be statewide or confined to the county or local district wherein the improvement is made, and whether it shall be laid generally on all property or all real property within the taxing unit, or shall be laid only on real property specially benefited, are matters which rest in the discretion of the state, and are not controlled by either the due process or the equal protection clause of the Fourteenth Amendment.'

Appellant's reliance upon State ex rel. Merriman v. Ball, supra, cannot aid it. There the Act providing for local landowning voters to initiate proceedings and having no provision for a hearing as to special benefits to lands in the district were held invalid. The following quotation (296 S.W. at page 1087) serves to explain the difference between that case and the present:

'At no stage of any of the proceedings of the district, either at or during the course of organization, or thereafter, is any provision made by the law for a hearing on the question of benefits to the land included in the...