Texas Nat. Guard Armory Board v. McCraw

• Court: Texas Supreme Court
• Writing for the Court: Sharp
• Citation: Texas Nat. Guard Armory Board v. McCraw, 126 S.W.2d 627, 132 Tex. 613 (Tex. 1939)
• Decision Date: 29 March 1939
• Docket Number: No. 7492.,7492.
• Parties: TEXAS NAT. GUARD ARMORY BOARD v. McCRAW, Atty. Gen.

126 S.W.2d 627

TEXAS NAT. GUARD ARMORY BOARD v. McCRAW, Atty. Gen.

No. 7492.

Supreme Court of Texas.

March 29, 1939.

Original mandamus proceeding by the Texas National Guard Armory Board, relator, against William McCraw, Attorney General, respondent, to compel the respondent to approve the record concerning $4,500,000 of bonds executed by the relator.

Writ of mandamus refused.

Clark C. Wren, Asst. Atty. Gen., and Jesse E. Moseley, of Houston, for relator.

William McCraw, Atty. Gen., and Effie Wilson-Waldron, Grover Burton, and W. B. Pope, Asst. Attys. Gen., for respondent.

SHARP, Justice.

Texas National Guard Armory Board seeks to compel, by original mandamus proceedings, the Honorable William McCraw, Attorney General of the State of Texas, in his official capacity to approve the record concerning $4,500,000 of bonds executed by said Board.

The Texas National Guard Armory Board was originally created by the 44th Legislature, 1935, General Laws, page 462, chapter 184, and which was amended at the Regular Session of the 45th Legislature, 1937, c. 366, and is now known as Article 5890b, Vernon's Ann.Civ.St.

Throughout this opinion the Texas National Guard Armory Board will be designated as "the Board," and the last mentioned Act will be termed "the Act."

Relator and respondent have agreed to the following pertinent facts relating to this matter:

(a) The Board has applied for a Federal Government grant of $3,174,750, to aid it in constructing seventy-odd armories on sites located in fifty or more cities and towns in Texas, and donated to the Board; some of the armories being donated by private parties and some by municipalities, either in fee simple absolute, or by way of ninety-nine year lease.

(b) In connection with such application, the Board arranged to sell its revenue bonds, bearing interest at the rate of 4¼% per annum from their date until paid, falling due serially in a certain amount each year after the first year so that the whole issue will have fallen due on or before September 1, 1970; said bonds being secured by a trust indenture, naming the Fort Worth National Bank as trustee, and pledging the rents, issues, and profits of the buildings erected with the proceeds of the bonds to pay the same, after first paying the expenses of maintenance, including administrative expenses of the Board. The bonds, which the Attorney General has declined to approve, were authorized by resolution of the Board.

(c) That said buildings have been designed to accommodate the units of the Texas National Guards that are located in said cities and towns.

(d) That the Board proposes to lease such structures and their equipment to the State of Texas by the execution on the part of the Board of certain leases.

(e) That the lease term to be recited in said lease or leases will coincide with the biennium appropriation of the Legislature, so that each lease term will expire on the same day as the said biennium appropriation expires.

(f) That, with respect to each such lease, the rental therein provided to be paid by the State of Texas will be in compliance with Subdivision (i) of Section 2 of the Act (Vernon's Ann.Civ.St. art. 5890b, § 2(i); that is to say, "Sufficient to provide for the operation and maintenance of the property so leased, to pay the interest on the bonds, debentures or other evidences of indebtedness issued for the purpose of acquiring, constructing or equipping such property, to provide for the retirement of such bonds, debentures or other evidences of indebtedness, and the payment of the expenses incident to the issuance thereof, as well as the necessary and proper administrative expenses of the Board"; all to be determined by the Board and stated in the lease or leases in a proper and accurate manner.

(g) That the Adjutant General of the State of Texas is expected to execute each such lease or leases, and any renewal thereof, in behalf of the State of Texas.

(h) That the rents, revenues, and profits arising from said property are to be pledged by the Board, in the manner and form set out in the trust indenture.

(i) That the said buildings are to be constructed on sites of land deemed adequate by the Board for the purpose, which sites either have already been, or will be prior to the beginning of construction thereon, donated to or otherwise acquired by the Board.

(j) That a considerable number of such donations will be made by individuals or groups of individuals having no public status, but some of such donations either have been or will be made to the Board by the municipal corporations within whose territorial confines, or near whose territorial boundaries, such sites are located; the conveyance of such sites to transfer to the Board a fee simple title in some instances, and in other instances a lease-hold for a term of ninety-nine years, which shall require no payment on the part of the Board of rental or taxes,—the expressed consideration being the construction of buildings.

The Board has contracted to sell said bonds, but the law provides that said bonds may not be sold "until same shall have been approved by the Attorney General of the State of Texas and registered with the Comptroller of Public Accounts." Vernon's Ann.Civ.St. art. 5890b, § 2 (h). The Attorney General has refused to approve said bonds, based upon the following objections:

"First. The following sub-paragraphs of Section 2 of said Act [Vernon's Ann. Civ.St. art. 5890b, § 2], are void for unconstitutionality in that (i) authorizes the creation of a debt on behalf of the State in violation of Section 49, Article III of the Constitution of Texas [Vernon's Ann.St.], and (g), (h), and (i), taken together constitute the giving or lending and a pledge of the credit of the State in violation of Section 50 of said Article; and (i) in so far as it authorizes the Board to fix and determine the rentals to be paid by the State is a delegation of legislative authority in violation of Section 1 of Article 2 and of Section 1 of Article 3 of said Constitution.

"Second. That, in view of the provisions of Section 52 of Article 3 of said Constitution, the Board cannot validly acquire sites for armories by way of donations thereof from incorporated cities and towns, from which it follows that the pledge of the revenues from the buildings to be erected on such sites would be without effect and would not constitute the security contemplated by the Act which authorizes the issuance of said bonds.

"Third. That the Board is without authority to acquire or hold sites for armory buildings or to pledge the revenues from buildings erected thereon if the title in said Board is by way of a long term lease and not in fee simple absolute.

"Fourth. That, whether or not the third proposition be true, the Board is without authority to lease to the State of Texas any buildings it may erect on the sites held by the Board on long term lease since to do so would be a subleasing not contemplated or authorized in the said Act.

"Fifth. That the leases of the Board to the State of Texas, which the said Act contemplates to be made, can not be validly executed by or in behalf of the State of Texas from which it follows that any pledge, such as is contained in the said indenture, of the rents to be derived from leases to the State would be void and without effect."

Before considering the objections raised by the Attorney General to the validity of this Act, we will first consider the questions as to whether certain parts of this Act violate Sections 30 and 30a of Article 16 of the Constitution, Vernon's Ann.St.

Section 1 of this Act (Vernon's Ann. Civ.St. art. 5890b, § 1) provides that the Texas National Guard Armory Board shall be composed of three members. The Act also provides that: "The persons acting as the members of the existing Texas National Guard Armory Board shall constitute the members of the Board under the provisions of this Act. The members of the Board shall serve without compensation until their resignation in writing shall be accepted by the Governor of Texas, or until death or removal for malfeasance. Any vacancy shall be filled by the senior active officer of the Texas National Guard, after excluding such officers as shall then be members of the Board, whose name shall be certified to the Secretary of State by the Adjutant General of the State of Texas not later than fifteen days after such vacancy shall have occurred. Any such officer appointed to fill a vacancy shall qualify for office by taking and filing the constitutional oath of office with the Secretary of State."

In Section 30 of the Constitution the term of State officers, except members of the Railroad Commission and officers whose terms are otherwise fixed by the Constitution, shall not exceed two years. Section 30a stipulates that the Legislature may provide by law that the members of such boards as have been, or hereafter may be, established by law may hold their respective offices for a term of six years.

It is contended that since the officers will hold office until death, or until they resign or are removed for malfeasance, such provisions of the Act violate Sections 30 and 30a, supra.

It is well to keep in mind that we are dealing with statutes and provisions of the Constitution relating to military matters, and the power of the State to create an army and provide for its maintenance. The results of being unprepared for the World War are still fresh in the memories of our people. In order to avoid a repetition of such results, many laws relating to military matters have been passed by the Congress of the United States and by the legislatures of the various States. This Act is part of the program adopted by the Legislature of Texas relating to the organization and maintenance of the Texas National Guard.

Section 8 of Article 1 of the Constitution of the United States, U.S.C.A., furnishes the power to Congress to raise armies. It reads as follows: "The Congress...