Texas National Guard Armory Board. v. McCraw ( 1939 )

I am in full accord with the judgment entered in this case. I am also in accord with the grounds set forth in the opinion of the Court on which such judgment is entered. If I properly interpret the opinion of the majority, its effect is to hold that if these bonds are again presented to the Attorney General for approval, with the record in conformity with the opinion, it will be his duty to approve them. I am not in accord with this part of the opinion. The following expresses my views:

Subdivision (h) of Section 2 of the Act under consideration here creates a board, whose duty it is to carry out and effectuate its provisions and purposes. It is provided that the persons acting as members of the existing Texas National Guard Armory Board shall constitute the Board under this Act. This means that the persons who constituted the Texas National Guard Armory Board at the time this Act became effective were constituted the Board thereunder. The Board existing at such time consisted of three members, being the three active senior officers of the Texas National Guard. Acts 1935, 44th Leg. p. 462, chap. 184. It follows that the Board created by this Act consisted in the beginning of three members, who were the three senior active officers of the Texas National Guard. The subdivision of this Act here under consideration then proceeds to provide: "Members of the Board shall serve * * * until their resignation in writing shall be accepted by the Governor of Texas, or until death, or removal for malfeasance." Thus, under the express terms of the Act, a Board is created whose members hold their respective offices for life, unless they resign, die, or are removed for malfeasance. To my mind, such a provision is in absolute contradiction and contravention of Sections 30 and 30a of Article XVI of our State Constitution.

Section 30, supra, limits the terms of all officers in this State, except members of the Railroad Commission and officers whose terms are otherwise fixed by the Constitution, to not exceeding two years. Section 30a, supra, so far as applicable here, stipulates that the Legislature may provide by law that the members of such boards as have been, or may hereafter be, established by law, shall hold their respective offices for a term of six years. Officers who hold office for life, unless they die, resign, or are removed for malfeasance, are not only unknown to our State Government, but are absolutely prohibited by our Constitution. It is my opinion that the Board created by this Act is unconstitutional and void, because in violation of Sections 30 and 30a of Article XVI of our State Constitution. The Act is utterly unworkable without a Board. It is therefore my opinion that the whole Act must fall, because of the unconstitutionality of the Board.

If I properly interpret the majority opinion, it holds that Sections 30 and 30a of Article XVI of our State Constitution are not violated in this instance in the terms of office prescribed for the offices filled by the members of this Board, because such offices are military and not civil offices, and because the persons who fill such offices are military officers, and not civil officers. I cannot agree to such a holding. The very Act which created this Board requires that its members shall take the constitutional oath of office prescribed for civil officers of our State Government. Such Act also provides that such Board shall be a body politic and corporate. It is also provided that such Board can sue and be sued. The duties of the members of this Board are, for all practical purposes, purely civil in their nature. The members of this Board must be members of the National Guard when they are first inducted into office; but thereafter they can sever all connection with the National Guard, and still serve as members of the Board for life. As already shown, the duties of this Board are purely civil. Not one lawful act or duty is authorized or required by this law of this Board that could not be authorized and required of the Board of Control, or any other civil State agency. In this connection, not one act or duty is required or authorized that could not be required or authorized of a board composed purely of members taken from the ordinary walks of life. It is of tremendous significance that this law makes this Board a body politic, and requires its members to take the constitutional oath of office. The Legislature had no power to require the members of this Board to take the oath of office prescribed by our fundamental law for civil officers, unless it regarded and had constituted them such officers; and to my mind the fact that such oath was required, furnishes conclusive proof that the Legislature intended the members of this Board to be civil officers.

To my mind, this Act, in so far as it authorizes rental or lease contracts with the State, and long-term bonds of the Board based thereon, presents a legal impossibility, and a legal paradox. According to the plan, the Board is constituted a State agency, and its members State officers. The Board acquires property in its name as such. The Board rents the property acquired by it to the State, by making rental contracts with another State agency, the Adjutant General. On such lease contracts the Board issues bonds, secured by the rents to be paid by the State. When the bonds are all paid, the properties held by the Board become, as a matter of law, the properties of the State. Under such a law, while the Board holds the legal title, such title holding is a pure fiction. The real title is in the State from the beginning. Thus we have one agency of the State taking the State's own property and leasing it to the State, for a stipulated rental to be paid by the State, and bonds issued on such rental. I cannot agree that such a scheme is possible. One cannot rent his own property to himself. If this scheme is good in law the State can issue bonds in any amount and for any term of years by the simple expedient of purchasing or leasing property in the name of some State agency, then have such State agency to rent or lease the property to the State by making rent or lease contracts with some other agency of the State, and then issue interest bearing bonds based on the rentals to be paid by the State. To my mind, such a law is a plain contradiction, and an evident evasion. I protest any holding that lends judicial approval to such an impossible scheme.

If I properly interpret the opinion of the majority, it holds that this law does not attempt to authorize lease contracts with the State, except for two years at a time. I agree with this holding. The record, however, makes some reference to long-term lease contracts. I do not know what is meant by this. I simply stand on the statement that I am of the opinion that, if this law is otherwise valid, lease contracts for two years at a time can be made. Of course, I do not believe that the law is otherwise valid, — for reasons I have stated.

The opinion of the majority condemns these bonds because the record shows that it is contemplated that some of the sites on which armories will be built will be donated by cities. The Act does not attempt to authorize such. The opinion says that it does not pass on the power of the Legislature to authorize such donations, because that question is not before the Court. If it is intended by the opinion to express a doubt on this question, I disagree. I have no doubt. To my mind, Section 52 of Article III of our State Constitution absolutely prohibits such a donation.

Section 46 of Article XVI of our Constitution, in effect, authorizes the Legislature to organize and discipline the Militia of this State "as they shall deem expedient, not incompatible with the Constitution and Laws of the United States." I do not believe that the phrase, "as they shall deem expedient," etc., has effect to authorize the Legislature, in military matters, to override or ignore any other part of our State Constitution. I think Section 46, supra, simply authorizes the Legislature to provide for organizing and disciplining the Militia, nothing more and nothing less. I think that in doing so the Legislature must not transgress any other part of our fundamental law. Of course, it must not transgress the Constitution and Laws of the United States. I attach no significance to the phrase, "as they shall deem expedient." Our government is founded upon the principle that in time of peace the civil authority predominates over the military authority.

Opinions delivered March 29, 1939.