Sweeny Hospital District v. Carr, A-9845

• Decision Date: 22 April 1964
• Docket Number: No. A-9845,A-9845
• Parties: SWEENY HOSPITAL DISTRICT, Relator, v. Waggoner CARR, Attorney General of Texas, Respondent.
• Court: Texas Supreme Court

Page 40

378 S.W.2d 40

SWEENY HOSPITAL DISTRICT, Relator, v. Waggoner CARR, Attorney General of Texas, Respondent.

No. A-9845.

Supreme Court of Texas.

April 22, 1964.

Vinson, Elkins, Weems & Searls, William E. Stapp, Houston, for relator.

Waggoner Carr, Atty. Gen., Austin, Howard W. Mays, Asst. Atty. Gen., for respondent.

CALVERT, Chief Justice.

Relator, the Sweeny Hospital District, seeks a writ of mandamus requiring the Attorney General to approve certain construction and improvement bonds which the district proposes to issue under authority of Article 4494q-13. ¹ The writ is conditionally granted.

By an election held in the district on June 22, 1963, the majority of those voting voted for two separate propositions. The first proposition submitted creation of the Sweeny Hospital District with authority to levy annual taxes not to exceed seventy-five cents on the one hundred dollar valuation of all taxable property within the district, and the second proposition submitted authority for the Board of Directors to issue the bonds in question here. The Attorney General refuses to approve the bonds which the district proposes to issue for two reasons only, both of which relate to deficiencies in the authorizing statute.

Sec. 6 of Article 4494q-13 provides that no bonds shall be issued by the Sweeny Hospital District 'until authorized by a majority vote of the legally qualified property taxpaying electors' ² residing in the district and voting at the election. The first reason given by the Attorney General for refusing to approve the bonds is that the emphasized language permits authorization of bonds by an unconstitutional class of voters in that it does not require that the electors shall have 'duly rendered' their property for taxation. In connection with the objection the Attorney General points out that by the order and notice of election, which traced the wording of the statute and are in the bond transcript, the proposed bond issue was submitted to voters who were constitutionally ineligible to vote. A brief review of the history of constitutional provisions and judicial decisions relating to the levy of taxes, expenditure of funds, creation of indebtedness and issuance of bonds by municipal corporations and other governmental subdivisions will afford a better understanding of the Attorney General's objection and of our holding with respect thereto.

The descriptive language used in various constitutional provisions designating the classes of voters to which the matters mentioned must be submitted is itself varied.

The Constitution of 1876 required voter authorization of at least three such matters. Sec. 3, Article 6 provided that in all elections in cities and towns 'to determine expenditure of money or assumption of debt, only those shall be qualified to vote who pay taxes on property.' By Sec. 7, Article 11, counties and cities bordering on the coast of the Gulf of Mexico were authorized to levy taxes and create debts, evidenced by bonds, to construct sea walls, breakwaters, etc., 'upon a vote of two thirds of the taxpayers therein.' Sec. 10, Article 11 provided that citizens of cities and towns having a charter authorizing levy and collection of taxes for the support of a public institution of learning could continue to levy and collect taxes for that purpose if authorized by 'two thirds of the taxpayers of such city or town.'

In 1883, Sec. 3, Article 7 of the Constitution was amended to empower the Legislature to authorize school districts to levy ad valorem taxes, provided the levy was approved by 'two-thirds of the qualified property taxpaying voters of the district.' In 1904, Sec. 52, Article 3 of the Constitution was amended to empower the Legislature to authorize political subdivisions to issue bonds and lend their credit and to levy taxes to meet bond requirements for navigation, irrigation, drainage, and construction and maintenance of roads, 'upon a vote of a two thirds majority of the resident property taxpayers * * * who are qualified electors of such district.' In 1917, Sec. 59, Article 16 of the Constitution was adopted authorizing creation of conservation and reclamation districts with power to incur indebtedness and issue bonds, but only after being authorized to do so by 'the qualified property tax-paying voters of such district.'

In 1900, a Court of Civil Appeals had occasion in Hillsman v. Faison, 23 Tex.Civ.App. 398, 57 S.W. 920, no writ, to determine whether certain voters were qualified under the provisions of Sec. 3, Article 7 of the Constitution to vote in a school tax election. The Court held that one owning property subject to taxation in a school district on January 1st met the constitutional eligibility requirement of being a 'qualified property taxpaying voter' even though his property had not been assessed for taxes. Accord: Rhomberg v. McLaren, 2 Tex.Civ.App. 391, 21 S.W. 571 (1893), no writ. The holding was approved and followed with respect to qualification of voters in school tax elections in Winters v. Independent School Dist. of Evant, Tex.Civ.App., 208 S.W. 574 (1919), writ dismissed, and Barron v. Matthews, Tex.Civ.App., 29 S.W.2d 451 (1930), no writ.

In 1917, a Court of Civil Appeals was called upon in Kempen v. Bruns, 195 S.W. 643, no writ, to determine the qualifications of certain voters in a municipal bond election under the provisions of Sec. 3, Article 6 of the Constitution making eligible 'only those * * * who pay taxes on property in said city or incorporated town.' Citing Hillsman v. Faison, supra, the Court held that persons were qualified voters under the provision if they owned property subject to taxation on January 1st even though their property did not appear on the assessment rolls and they had not paid taxes.

This series of cases led to adoption of an amendment to the Constitution in 1932, which amendment now appears as Sec. 3a of Article 6 of the Constitution, and reads as follows:

'When an election is held by any county, or any number of counties, or any political sub-division of the State, or any political sub-division of a county, or any defined district now or hereafter to be described and defined within the State and which may or may not include towns, villages or municipal corporations, or any city, town or village, for the purpose of issuing bonds or otherwise lending credit, or expending money or assuming any debt, only qualified electors who own taxable property in the State, county, political sub-division, district, city, town or village where such election is held, and who have duly rendered the same for taxation, shall be qualified to vote and all electors shall vote in the election precinct of their residence.'

It will be noted that the provisions of Sec. 3a of Article 6 were made applicable not alone to political subdivisions in existence when it was adopted, but as well to districts 'hereafter to be described and defined.' Thereafter, in 1944, Sec. 9 Article 8 of the Constitution was amended to provide for reallocation of county taxes if approved by 'a majority of the qualified property tax paying voters,' and for an additional tax for maintenance of public roads if authorized by 'a majority of the qualified property tax paying voters.' The section was rewritten by amendment in 1956, but it still provides for an additional tax for maintenance of public roads if voted by 'a majority of the qualified property tax paying voters.'

Beginning in 1954, the Legislature initiated and the people adopted a series of amendments to Article 9 of the Constitution, authorizing creation of hospital districts with power to levy taxes and issue bonds. Some of the amendments expressly empower the Legislature to authorize the hospital districts to issue bonds and to assume indebtedness upon a favorable vote of electors, and define the class of electors to which the matter shall be submitted; others do not.

The first of the amendments authorizing creation of hospital districts was adopted in 1954, is now shown as Sec. 4, Article 9, and applies to Galveston County and counties having a population in excess of 190,000. The amendment expressly empowers the Legislature to authorize the creation of hospital districts in such counties with power to issue bonds for the purchase or construction of hospitals and to levy a tax not to exceed 75cents on the $100.00 valuation of property. The amendment does not require an authorizing vote of electors on the issuance of bonds or the levy of a tax, but it does provide that 'such district shall be approved at an election held for that purpose, and that only qualified, property taxpaying voters in such county shall vote therein.'

Sec. 5, Article 9, authorizing creation of hospital districts in the City of Amarillo, Wichita County and Jefferson County, was adopted as an amendment to the Constitution in 1958. By sub-section (a) of the amendment the Legislature is empowered to authorize the creation of hospital districts with boundaries coincident with those of the City of Amarillo and Wichita County, and to authorize such districts to issue tax bonds and levy a tax not to exceed 75cents on the $100.00 valuation of property. There is no requirement in the amendment that creation of these districts or the issuance of bonds by them be authorized by a vote of electors, but there is an express provision that 'no tax may be levied until approved by a majority vote of the participating resident qualified property taxpaying voters who have duly rendered their property for taxation.' The Legislature is also empowered by sub-section (c) of the amendment to authorize creation of two hospital districts in Jefferson County with authority to issue bonds for the purchase of sites and construction of hospitals and to levy a tax not to exceed 75cents on the $100.00 valuation of property to pay principal and interest on the bonds. With respect to these districts the amendment provides: 'The creation of such hospital...