Seydler v. Border ( 1938 )

On Motion for Rehearing. This court is indebted to the able counsel for the appellees for an argument in support of their motion for rehearing herein that moves its members to recall the perplexed response of King Agrippa to the apostle Paul: "Almost thou persuadest me to be a Christian." But, at the same time, it must also recall this declaration from our Supreme Court in Vincent v. State, Tex.Com.App., 235 S.W. 1084, 1088: "It is a well-established rule that the court will always lean in favor of the validity of a legislative act; that, if there be a reasonable doubt as to the constitutionality of a statute, the court will solve the doubt in favor of the statute; that, where the Legislature has been left a discretion, the court will assume that the discretion has been wisely exercised; that where the construction of a statute is doubtful it will adopt such construction as will harmonize with the Constitution, and enable it to take effect."

The gist of that argument is thus quoted in hæc verba: "It is the contention of appellees that Section 52, which includes the original section and the 1904 amendment, must be construed as a whole, and that as a whole, the express language, the evident and obvious intention, of that section is to prohibit the Legislature from authorizing counties to issue bonds for any purpose other than those purposes enumerated in that section or elsewhere provided for in the Constitution, whatever that purpose may be, private or public."

It is followed by quotations from these authorities as vindicating its soundness: Simmons v. Lightfoot, 105 Tex. 212, 146 S.W. 871; Aransas County v. Coleman-Fulton Pasture Co., 108 Tex. 216, 191 S.W. 553; Bexar County v. Linden, 110 Tex. 339, 220 S.W. 761; Garrett v. Commissioners' Court, Tex.Civ.App. 230 S.W. 1010, 1011, reversed, Tex.Com.App., 236 S.W. 970; State v. Bank of Mineral Wells, Tex.Civ.App. 251 S.W. 1107.

Each and all of these relied-upon opinions dealt with controlling states of fact, hence with applications of amended section 52 of article 3, which are thought to be distinguishable from the one existing here; indeed, the expressions of our Supreme Court in only one of them — Bexar County v. Linden, supra — seem to lend support to the general construction the appellees so contend for, and that, as appears to this court, is only seeming. The court was there dealing with a statute requiring district attorneys to pay into the county treasury the excess fees of their offices, and, while its review of the constitutional provisions deemed to bear upon the matter, inclusive of amended section 52 of article 3, contained expressions apparently in support of the appellees, the statute was upheld, upon the conclusion that such disposition of the fees was in no sense a grant of public money as a gratuity to the county, but, on the other hand, its effect was but to apply such funds to the uses of the State as a government, acting through the county as one of its agencies or units.

That holding, therefore, rather than in reality lending comfort to the appellees in their view, furnishes support for the contrary one thus expressed in the original opinion herein: "Both before and since the amendment in 1904 of this section 52, our courts seem to have uniformly construed it as placing a restriction upon the power of the Legislature to authorize counties and cities to gratuitously grant public money, or so lend their credit, to or in aid of any individual or private commercial-enterprise, but not as interdicting them from raising money by bond-issues for such a public and humanitarian purpose as relieving the sick, by the operation themselves of such hospitals as the one herein contemplated."

So, applying the principle of the Linden Case here, there was no authorization by this statute to the giving away of the public money, nor to its application to other than strictly governmental purposes and uses, but only a permission to the counties as state agencies to raise money, pursuant to a favorable vote of the people, as a method of safeguarding, under its own auspices, the public health as one of the vital interests of its people.

The motion for rehearing will be overruled.

Overruled.

PLEASANTS, C. J., absent