Untitled Texas Attorney General Opinion ( 1942 )

Honorable George A. Hight
Chief Accountant
Board of County & District Road Indebtedness
Austin, Texas
Dear Sir: opinion No. O-4404
Re: Eligibility of Jefferson County
bond issue of $750,000 proceeds
of which were used in constructing
the Dryden Ferry Bridge, to partici-
pate in County and Road District
Bighway Fund. .~
The facts outlined in your letter of February 7, 19Lt2,are
these: under authority of House Bill 9, 4th Called Session, 433
Legislature, Jefferson County issued bonds in the sum of $750,000
to be use& in the construction of a bridge known as the Dryden Ferry
Bridge on State Highway No. 87 across theNeches River between Port
Arthur and Orange. These bon&s were issued in 1935 and their pro-
ceeds were immediately used in the construction of the brid e. That
section of'Highway 87 had been designated in September, 1922 .
You request our opinion as to whether such bonaaare eli-
gible for participation in the County and Road District Highway Fund
under the provisions of'House Bill 6, 47th Legislature, 1st Callea
Session.
House Bill 6 is amendatory of Chapter 13, Acts of the Third
Called Session of the l+2ndLegislature which was the first of our
"Road Bond Aaaumption'1laws, and whioh was passed in 1932. As amend-
ed, the first sectionof the Act now reads:
Weotion 1. It is expressly recognized and ae-
clared that all highways now or heretofore constituting
a part of the system of State Highways and that all
roads not constituting a part of such system, whiah
have been construoted in whole or in part from the pro-
ceeds of bonds, warrants, or other evidence of indebted-
ness issued by counties of the State of Texas, or by ae-
fined road districtsof the State of Texas, under the
laws authorizing the same~,have been,and are and will
continue to be beneficiaz to the State of Texas at
large, and have contributed to the general.welfare,
settlement, and development of the entire State, ana
that, by reason of the foregoing, a heavy and undue
burden was placed, ana still rests, upon the counties
and defined road districts and their inhabitants, and
both a legal,ana moral obligation rests upon the Stats
to compensate and reimburse such oounties and defined
road districts which, as aforesaid, have performed
functions resting upon the State. and have vaid emen-
n,“rl.
ses which were and are properly State expenses, all
for the use and benefit of the State, and to the extent
provided herein that the State provide funds for the
further construction of roads not designated as a part
of 'the State Highway System.
"Having heretofore, by an Act,.ofthe Legislature
(Chapter 13, Acts of the Third Called Session of the
Forty-second Legislature in 19321, taken over, acquired,
and purchased the interest and equities of the various
counties and defined road districts in and.to the high-
ways constituting a part of the system of them designat-
ed State Highways, it is further declared to be the
policy of the State to take over, acquire, purchase,and
retain the interest and equities of the various counties
and defined road districts in and to the highways, not
previously taken over, acquired, and purchased and con-
stituting on January 2, 1939, a part of the system of
designated State Highways, and to acquire and purchase
the interest and equities of the various counties~and
defined road districts in and to the roads not con&itut-
ing a part of the system of designated State Highways as
of January 2, 1939, and under the propisions of this Act
to acquire such interestand equities in such roads here-
after tp be constructed with money furnished by the
State, and to reimburse said counties and districts there-
for, and to prov$de for the acquisition, establishment,
'const?uction,extension and development of the system of
designated State Highways cd'Texas, from some source of
income other than,the revenues derived from ad valorem
taxes, it being expressly provided herein that the State
is not assuming, and has not assumed, any obl~igationfor
the construction, extension, and development of any of
the highways thus acquired ana purchased which do not
constitute a part of the system of designatea State High-
ways. And it is hereby determined that the further
provisions of this Act constitute fair, just and equit-
able compensation, repayment, and reimbursement to said
counties and defined districts and for their aid and .
assistance to the State,in the construction of State
Highways,and for the aonstruction of said roads,which
are ancillary to, but do not constitute a part of said
system of.State Highways, and fully discharges the
legally implied obligations of the State to compensate,
repay, and reimburse the agencies of the State for ex-
penses incurred at the instance and solicitatidn of the
State, as well as for expenses incurred for the benefit
of the State, and fully discharges the State's legally
implied obligation to such aounties and defined road
districts to.provide additional funds for the further
construction of roads not designated as a part of the
State Highway System."
..The,
-- Its
and 811
first
- quoted^paragraph
amencunents. -. is common to the original Aot
yne seoona quoted paragraph is in substan-
tially the sainewords as was the original law, insofar as its state-
ment of the policy of the State is conoerned, simply going further,
and taking over all such State Highways as were so designated be-
tween the date of the original Aot and January 2, 1939, and declaring
the intent to acquire such highways so designated after January 1,
1939.
Bon. George A. nlgn-c,rag:t?
2
Rouse Bill No. 9, Acts 43ra L,egislature,Fourth Called
Session, authorized the COIlStrUCtiOn of 8 bridge across the Neches
River between Jefferson and Orange Counties by the State Highway
Commission., The same law au$horized Jefferson County to hold an
election for the purpose of voting bonds in the sum of $750,OOO,th&
proceeds of such bond issue to be contributed to the Highway Com&s-
sion to be used in the oonstruction of such bridge. Section 5 of
said &use Bill 9 reads as follows:
"No loan or grant which may be obtained under the
provisions of this Act for the construction of such
bridge and the spproaches thereto shall be or become a
debt against the State of Texas or against the State
Highway Commission, but the saidbonds which may be
voted and issued by Jefferson County under the provisions
of this Act shall constitute the debt and obligation
solely of said Jefferson County. It is hereby declarea
to be the Legislativeintent that the bonds issued by
Jefferson County as provided herein shall not be assumed
by or paid off by the Board of County and.Road District
Bona Indebtedness, or out of any funds used by said
Board to retire County and Road District Bonas.f1
At the time of the passage of House Bill 9, it was
necessary that Jefferson County be specially authorized by the
Legislature to expend mone on theconstruction of such a bridge
because the provisions of ehapter 13, Acts of the 42na Legislature,
Third Called Session, expressly required that all future improve-
ments on State Highways should be under the direct control of the
State Highway Department by appropriations out of the State High-
way Fund.
It is now~contended that House Bill 9 has been repealed
and that as a result of sunh'repeal the bond issue of Jefferson
County voted in oonformity with the provisions of House Bill 9 are
eligible for participation in the County and Road District Highway
Fund under the provisions of House Bill 6, Acts 47th Legislature,
First Called Session. Said House Bill,6 defines "eligible obliga-
tions" as:
ffObligations,the prooeeas of which were
actually expended on State designated highways.tf
Section 6(a) of saia House Bill 6 provides in part as
follows:
Wet
evidenoes
ties or defined road aistrG%Ki
1939, have been designated a $%,? the
‘Estate Highways or any road that heretofore
has constituted a part of saia System and wkdch,has
been or may be changed, relocated or abandoned, tiheth-
er said indebtedness is now evidenced by the obliga-
tion originally issued or byrefunding obligations or
Hon. George A. Hight, Rage 4
both, shall be eligible to participate in the distri-
but on of the moneys coming into said County and Road
,DistrictHighway Fund, subject to the provisions of
this Act; provided, that such indebtedness the pro-
ceeds of which have been expended in the oonstruction
of roads which have been designated as a part of the
State Highway System after September 17, 1932, and
prior to January 2, 1939, shall participate in said
County and Road District Highway Funa as of the date
of the $s$g=ation of said road as a part of the State
system;
" * * *
"All bonds, warrants or other legal evidences
of indebtedness outstanding as of the date of the
designation hereinafter referred to, and issued by
a county or defined road district prior to January
2, 1939, in so far as amounts of same were issued
and the proceeds actually expended in the construe--
tion of roads that have been officially designated
as a part of the State Highway System subsequent to
January 2, 1939, shall be eligible to participate in
the distribution of the moneys coming into said
County and Road District Highway Fund as of the date
of designation of said road as a part of the State
Highway System. The amount of such bonds, warrants,
or other legal evidences of indebtedness outstanding
ss of the date of designation of such road as a,part
of the State Highway System shall be eligible for
pa,rticipation-inthe same manner as provided for
other bonds under this Act.
nIn addition to anaregardless of the otbr
provisions of this Act, all bonds,~warrents.oS.other
legal evidencas of Snaebtedness voted. or issued
without being voted by a county, ,road.districtor.ae-
fined road ai strict.prior,to.January 2,.1939. in so.
far as amounts of same ware,or~may beissued,ana the .'
proceeds actually expended in the oonstruction of
roads which'are now a part of the designated System
of State Highways or whioh have since, or which may
hereafter beaome a part of'the designatea System of
State Highways shall be eligible to participate in the
distribution of the moneys coming into said County and
Road District Righway Fund the same as proviaea for
other bonds under this .Aot and as of the date of the
designation of said road as a part of the State High-
way System; * * * 11(Emphasis ours)
If House Bill.9 whioh authorized the issuanoe of Jefferson
County's bonds and d.eclaredthe intent of the Legislature that they
should.never be paid by the Board of county and Road District Indebt-
edness, has been repealed, then the provisions of House Bill 6.might
be susoeptible of a construction rendering such bonds eligible for
participation in that Fund. It becomes necessary,-then, to consider
the question of whether or not suah law has bean.repealed. House
Bill NO. 990, RegularSession, 47th Legislature, assumes to repeal
House Bill 9. .If House Bill 990 correctly expresses theintent
of the~Legislature to repeal House Bill 9 in any event, we think it
is void as being in contravention of the constitutional provision
that no bill, except general appropriation bills, shall contain more
than one subject which shall be expressed in its title. Const. Art.
3, Sec. 35. House Bill 990, in such event, assumes to legislate up-
on two distinct, unrelated subjects, each'of which is expressed in
the titlesand in the body of the Act. One subject is the construo-
tion of bridges, ferries, tunnels, etc. ..incounties having a oertain
'population,from one point in the county to another point in the
county, and providing that they shall be paid for solely from the
revenue derived therefrom. The other subject is the,repeal of House
Bill No. 9. We see no connection between the two subjects. This
being true, House Bill No. 990 would bevoid and wholly ineffectual
to repeal House Bill 9. On the other hand, if the Legislature in-
tendea to repeal House Bill 9, only in the event of a conflict be-
tween the provisions of House Bill 9 and House Bill 990, then the
latter bill is ineffectual to repeal the former because there is no
conflict. The two treat of altogether different subjects. We are
convinced that House Bill 990 does not, in any event, operate as a
repeal of House Bill 9. On the other hand, if the Legislature in-
-tended to repeal House Bill 9. On the other hand, if the'Legislature
tended to repeal House Bill 9, only in the event of a conflict be-
tween the provisions of uouse.Bill 9 and House Bill 990,then the
latter bill is ineffectual to repeal the former because there is no
conflict. The two treat of altogether different subjects. We are
convinced that House BMl 990 does not, in any event, opsrate as a
repeal of House Bill 9.
Our attention has been called to the repealing clause of
House Bill 6, 4'7thLegislature, First Called Session. It reads as
follows:
"This.Act shall be cumulative of all other valid
laws,.but in the event of a conflict between any pro-
visions of this Aot snd any other Aot, either general
or special, the provisions of this Aat shall ,prevail.e
We think this clause is sufficient to repeal any-confliot-
ing provision of any other Act, general or special. (1 Sutherland
Stat. Const. (Lewis' 2nd Ed.) Sec. 276, p. 533). It remains to be
determined whether there is, in fact, such a conflict between House
Bill 6 and House Bill 9 that they may not stand to.gether. An exam-
ination of the provisions of House Bill 6 reveals that the first
quoted paragraph of Subsection 6a of Section 1 and the last quoted
paragraph of the same subseotion provide the only terms of the Aot
whereby the Jefferson County bonds could be eligible for participa-
tion. As previously pointed out, Subsebtion 1 of Seation 1 of House
Bill 6 reiterates the declaration of the policy of the State in the
same terms used in the original Act and all'previous amendments
thereto. It is a cardinal rule of construction that in oraer to
determine the intent of the Legislature all parts of an Aat must
be read and construed as a whole. National Surety Corporation v.
Ladd, 131 Tex. 295, 115 S. W. (2d) 600; 39 Tex. Jur. Sec. 113, p.
209. Applying this rule, we fina.that the original act passed by
the Legislature in 1932 (Cha ter 13, Acts of the Third Called Ses-
sion of the 42na LegislatureP V,ook over, scquired, and.purchased
the interest and equities of the various counties and defined road
districts in and to th.e.highways constituting a part" of the then
designated State Highways. In each subsequent A&s,-including House
Bill No. 6, here under oonsideration, the Legislature has reiterated
such acquisition of such interests and equities in such highways,
and has declared its intent to take over and acquire the interests
and equities of counties and road districts in such state designated
Bon. George A. Hight, page 6
highways as may have been designated subsequent to the time that the
original law w,aspassed and prior to the time each respective amend-
ment went into effect. Bearing these facts in mind we are of the
opinionthat in the first paragraph of Subseotion 6[a) of Seotion'
1, or House Bill 6, when the Legislature speaks of bonds, warrants
and other evidences of indebtedness issued by the respective counties
and districts, end maturing after January 1, 1933, and actually ex-
pended in the construction of roads comprising a part of the system
or designated State Highways on September 17, 1932, it had in mind
only those enumerated obligations which had been issued by the coun-
ties and defined road districts prior to the passage of the original
Act, and that as to such obligations it intended to continue the
provisions of such original Act in force.
The last paragraph of said Subsection 6(a) stipulates that
*in addition to and regardless of the other .provisionsof this Act*
the named legal,evidences of indebtedness issued prior to January 2,
1939, and actually expended in the construation of raads "now a part
of the designatea system of State Highways or which hafe since or
which may hereafter become a part ofI1such system shall-be eligible
for participation in the distribution of moneys coming into the Coun-
ty&Road District Highway Fund, "the dame as provided for other
bonds under this Act and as of the date of designation of said road
as a part of the State Highway System.n It is obvious that in this
provision the Legislature had no thought of including the Jefferson
County Bonds as being eligible for participation in such funds. At
the date of their issuanoe, and at the date of the passage of House
Bill 9, authorizing their issuance, Highway 87 was a State-designated
Highway, having been so designated in 1926. Such bonds, obviously,
could not participate "as of the date of the designation of said
. road ss a part of the State Highway System." They were not in exist-
ence at such date. We believe this paragraph relates only to such
bonds or other obligations as were issued for the construction of
roads which were not State designated Highways at the time of the
issuance of such obligation, but became parts of the System oSState
Highways subsequent to the voting or ,issuanceof suah.obligations.
We rind no repugnance between the provisions of House Bill
6 and those of House Bill 9., There being no conflict between such
provisions, House Bill 6 does not oper.ateto repeal any provision
of House Bill 9, and it stands as the clear expression of the Legis-
lative intent with respect to the Jefferson County Bonds. Our con-
clusion gains support when we consider the facts with reference to
House Bill 9. That Act was designed especially for the purpose of
authorizing Jefferson County to issue the bonas in question. It
was necessitated for the reason that Highway 87 was already a State
Highway at the time of its passage. By its.terms it speoiSiaally
provide& that Jefferson County should~contribute the bonds or the
proceeds thereof to the Highway Commission for the construction of
a specified bridge, and that,upon completion of same such bridge
should be the property of the State. The voters of Jefferson County
~knew the terms of that Act when the bonds were voted. The Legisla-
ture could not have been more emphatio in its declaration that Jef-
ferson County could not acquire an "interest" or an "equity" in the
bridge by the issuance of such bonds. And itis diSSicult~to see
by what stretch of the imegination we might now say that the State
is either actually or impliealy, legally or morally obligated to
Jefferson County by virtue of the expenditure of such bond issue,
Viethink it clear that there is no such obligation, and that there
has neverbeen such an obligation imposed upon the State by reason
of the issue and expenditure of these bonds. We think it equally
clear that the S&e cannot acquire any interest or equity of Jeffer-
son County in Highway 87, by the payment of such bonds. Jefferson
County had no interest or equity in such bridge at the time of the
voting and issuance 0s said bonds, and by~the~very terms of the l&w
authorizing such bond issue could never aoquire any. The purpose or
the law as declared by the Legislature is to acquire the interest and
equities of the several counties and defined road districts. Jeffer-
son County never having had such an interest or equity .inHighway 87
by virtue of such bond issue, the State could never acquire or tske
over any interest or equity by paying off such bonds.
Moreover, we think that when the Legislature authorized
the issue of these bonds under the terms and provisions of the Act
it authorized a contract between the State and Je?Serson County.
t'rhen
Jefferson county issued its bonds and contributed the proceeds
or the sale thereof to the Highway Commission it had accepted the
offer of contract and had complied with its obligations thereunder.
So far as Jefferson County was concerned the contract was complete.
When the State, through its Highway Commission, accepted the pro-
ceeds of such bonds and constructed the bridge in accordance with
the provisions of House Bill 9 the contract had been Sully executed
as to both parties. Each had fulfilled his obligation, and tpe
people of Jefferson County on the one hand, and the people of the
entire State on the other, were justified in considering that all
obligations of either party had been Sully executed, as between the
respective parties to the contract. It was hever contemplate% by
either party that the State should become obligated to Jefferson
County for the payment of the amount contributed by Jefferson County.
The law upon which such contraat was based and by virtue of which
it was executed expressly negatives that idea. The people of Jer-
Serson County, by their solemn declaration at the polls, agreed to
pay the indebtedness created by such bond issue. The people of Tex-
as are justified in relyingon such promise. Is we sh0uia determine
then that the Jefferson County bonds are eligible.for participation
under the terms of House Bill 6, it would seem that House Bill 6
would be ~unconstitutionalin so far as it permitted.such participa-
tion in that to such extent it would Abe a retroaotive law impairing
the obligation of contracts in contravention of Article 1, Section
16, of the Constitution.
On the other hand, if the fact that both parties acted
won, and carried the terms of the law 'into execution, eaoh relying
upon the acts and declarations of the other did not create a oon-
tract between the State and Jefferson County, tiponwhich each party
was entitled torely, we face a still further diffioulty in saying
. that the provisions of House Bill 6 make eligible for participation
the Jefferson County bonds. Since, for the reasons already stated,
Jefferson County hailno interest or equity, and has never acquired
any interest or equity in Highway 87 by reason of the issuance of
these bonds, and since, for the same reasons, the State owes no ob-
ligation, Le~galor moral to Jefferson County by reason of its on-
tribution of such funds, we are irresistibly drawn to the conclusion
that is such bonds should be allowed to mrticipate in the aistribu-
tion of funds coming into the County and Road District Indebtedness
Fund, suoh participation would-be in the nature of a grant of public
money to Jefferson County and within the inhibition of Section 51,
Article 3, of the Constitution. It is well settled that wheh a stat-
ute is susceptible of two different constructions, ,oneof which would
render it valid and the other invalid, that construction which re-
tains the validity of the statute is adopted. Tom Green County v.
1J;oody,
116 Tex. 299, 289 S.W. 391; 9 Tex. Jw. 483. In the Qom
Hon. George A. Fight, Page t(
Green County case, supra, the Supreme Court, speaking through Judge
Greenwood,said:
11* * * It is clearly our duty to'prefer that
oonstruction of the statutes whioh relieves them from
attack on grave constitutional grounds rather than to
adopt a construction no more definitely required by
the language used, which does bring their oonstitu-
tionality into serious doubt."
?lhilewe think it clear that House Bill 6 does not con-
fer eligibility for participation upon the Jefferson County bonds,
if the language can be said to be susceptible to the construction
sustaining eligibility, we think such construction would raise a'
grave doubt as to the constitutionality of such Act, and since it
is clearly susceptible to the construction we have placed upon it,
and since such construction gives effect to the Act as a constitu-
tional measure, we hold that there is no conflict between House Bill
6 and House Bill 9, and that, the described bonds of Jefferson
County are not, under the ter s of House Bill 6, eligible-for parti-
cipation in the funds of the B oard of County and Road District In-
aebtedness.
We trust that the above fully answers your inquiry.
-Yours very truly '
ATTORNEY GENWdL'OF TEXAS
By /s/ Fowler Roberts
Fowler Roberts
dPPROVED dI'R.14, 1942 Assistant
&/~r``ov~;~ers
dT&NEY~GENWdL
FR:ej:jrb This Opinion Considered
and Approved in Limited
Conference