Untitled Texas Attorney General Opinion ( 1947 )

R-362
THEA
~..
June .ll, 1947
Bon, John M. Steele opinion No. "v.244.
County Attorney
Lubbock County ‘- ,, ‘Be: Obligatioh ,,of emiuty te
Lubboak, Texas purchase right-of -way
8for a highway. across
lands 'onceannexed aud
then purportedly re-
linquished ,by. a home ; , ~,Y
,~ rule city.
Dear Sir8
. ., We refer to your letter of April’lO, 1947, in
which you requested an .opinion of . this Department as
followst
” :
“The clty~ of Lubbobk is-. a ‘Home E$l.s
City since Its orgahisation in 1917. Prior
,to 1934, the City annexed certain land. In
1934 the CZty,~by Ordlnauce Do. 519, a copy
of which I enclose, puvported to ~ellnqulsh
and discontinue the lapddescribed in the
Ordinance; ~, ‘tlie State Highway Gonssission
BOWproposes td aonstruat a highway across
this disputed laud? It la therefore ueces-
sarg to determine who is to purchase the
right-of-way, the City or the Oouuty.
“It is the Gontentlon of the County of
Lubbock that the purported Ordinance is in-
valld,and of no force and effect, and there-
Sore, it is the obligation of the city of
~Lubbook to purchase such right-of-way. In
this .counectlon, I would also call your
attention to Article 1176 b2, ‘validation of .~
ordinances of Home Rule cities’, publiehed~
in compliance with charters~. Article ,973
ldiscontinuingterrltory’, and in coonectlon .
with the lat.e~,~&ticle, note the word ‘uhin-
habited’. It ,$a the contention of the County
that this terrltotig was at that time inhabi-
ted. I would appreciate your very valued
opinion on this controversy.
Eon. John H. st*.el&- Pegs '2
',
"It la tkieaontultion Of the county
that other th@ &tlelb 973, th@me i.i ho
provision for dlscontintring terz%toq and
that the pmpaeed ordinances eneloue&+1D
this letter is ImufficMnt, legally, Co
discontlnub territory of a city once It Is
aoaexed. I would further call your atten-
tion, If it would be or aq help, ~that &
1934 .tdaeolty of Lubbock ~88 l.Lebleoxi
bond ,is~aues."(Emph&
several outtstandlng
sla OUPS))
On l&r 10, 1947, at our requesmt, you subaltted
addltioual iuforstlqn relrtw to the s@me subject mat-
teF jhich is in pert-as followst
m we wish to call jouv attention
to a &e&&l dot passed by t&b 43d LeeIs-
l+tstrrre In 1934. Satahspeclel act 1s her
Article 118gd of Vernon's Gidl Statutes.
"Xnce the Inception of this aontro-
reray between the City .%ud County of Lubbook,
It IULSbeen our contention that Ordliuxnce
519 of the City of Lubbock mia Invalid be-
cause the territory supposedly rell4uished
was lnbablted, a min&blted, amI therefore,
ati ordbaance was 'in violation of Article
973, Vernon's Civil Statute8,
%wever, if Irtlcle 11826 is coastltu-
tlonal then regmdless of the orlginal~in-
validity of the city ordinance, the seme is
now valid,' and mm approved and mtlfled by
the Legislature.
"Ue suggest t&at you give this vallQrt-
lng act of the Legislatureyour close scm-
tiny, and, Lf ooa&venlent,please adFse me
your opinion aa to the above fincts.
You also aqnt us a eopr of the ordlnume pars44
by the City of Lubbock, dated Jplr 26, 1934, ~h.iCad%a-
continued OF relSn&.shed the psrt1Cul.w territory pot I8
question.
Article 973, V.CiS., IS as fol+ws:
\
Bon.‘John M. Steele - Page.3
_)
‘,,. ~“Uhenevdr~thePe ejEfsts’wlthiu the
.’corporate’. l-t8 Of any clt* or town
orgaulzed’under the ge&al-laws within
this State~terrltorj to~‘the extent of .
at least ten aOres, aontiguour, unln- A
habited and adjoining the lines of any
such city or town, the mayor and city or
town council m&y by ordknance~duly passed,
discontinue said territory as a part of
said city or town; and when said ordinance
has been duly passed, the mayor shall enter
..’ an order to that effect on the minutes or
.. records of the.afty,or town council; and,
from and after the entry o? such order,
. said territory &a$1 cease to be a part of
said city or town.
.’ The Cit;s ok Lubbo$c_is a home rule city aud-
‘has adopted In Its ,charter all the powers authorized by
Article 1177, .y.C.S~.; therefore, Article 973, supra, is
applicable.‘t;o~:sald.&ity.
: (
*
.``
According to your letter, the particular terri-
tory involved was Uhabited and not tminhabitedu``o``
time such ordlnanae was’wssed by the City of L ,
and’vas not i]l conformity with A&iale 973;-.supra.’ Hever-
theless, thi$.being a question of fact and further, since
the city council passed the ordinance, it Is presumed
that the city council fouud all the facts pecessary for
-. .. its ,validi.ty. As a matter bf law, it is presumed to be
valid until the above .facts are shown in a court trial and
the ordinance set aside.
You stated in your letter that in 1934, the City
of Lubbock was liable on several outstanding bond Issues
and intimated that this might prevent the city from dls-
continuing or relinquishing the territory in question.
Insofar as we are able to ascertain, there’i,s
n&.hi``Ih the statutes or Constitution vhich pr?hibits
such a procedure and, in view of Article 971, V.C.S., we
believe-that the territory may be relinquished even
though there are outstanding bond issues, If such relin-
quishment is in other respects justified. Ue also fail
to find any case vhere the Texas Courts have passed on
this particular question; however, in 43 Corpus Jurls, p.
149, Sec. 130, we find the. follovingo
sessed, levied, 05 due, but not paid, at
the time of the detachment of territory
embrecing the lands taxed may be SUbsQ-
quently colleoted by the municlpallty
fFOlS the PeI’SOna liable, Uhllethe m-
cipalltg may not have the power, after
the exclusion of ‘territory, to. enforae a
lien on excluded land fortaxes~due,at
the tine of the exc1uslon, the owner is
not released from liability for t4e taxes,
and his property remaining within the city
may be aold fop the entire tax.” 1-P--,
sis oara) ,
1
Also, %ln Miller v. Plnevllle, 8g’s,W. 261, a
Kentucky coupt passing on this same question had this to
sayi
“It is insisted that section 3483,
&. St. 1903, which providea for the ~a-
duction of the territory of munioipalities, *: -
Is unconstitutional, because only the city
0~ taxpayer within the territory proposed
to be stricken off can make a dafenae or
file a remonstrance, and .becauae ,the de-
fense is Us&ted to show ,that the majority
of taxpayers within the proposedlatrlcken 1
territory are against We change In the
city limits, and that suoh a change will A \
impose unjust burdens on the taxpayers
within the territory to be rtricken off. ,
The question raised is anawe+ed by the mew . .
,statement that, if the Legislature can add .,
fo OP reduce the liaita’ Of a city at till,
then the power slso, exista to llmlt the
defense to a proceeding instituted by aukhoP- :
ity of the LeglslatuFe. to: alter or ‘charrge th0
limits of a municipalit
Legislature is. supreme G ‘% ``~e``;%d ~.
Sa to whether it exercises its authtiity
wisely cannot be questioned.”
In view of the foregoing, it is the Opinion Of
this Department that the territory may be relinquished by
-.
Hon. John W. Steele - Page 5
the City of Lubbodk,Eli the s&me is othervise justified,
even though there are outstanding bonds against the
The question of the right of bond holders to sub-
yz*the ~ellnquishedterritory to the payment of bonds
outstandlng at the date of the rellnqulsbment is not
hem involved.’
In Septembex 1934, the Leglalatrule passed
Artlole 1182d, V*CA., as a validating statute, and if
said statute Is constitutional, the aforementioned ordl-
nence being voidable only and not void, is now valid WI-
til it has been directly attacked in a Court of ooape-
tent jurisdiction and found to be invalid.
Article 11826, V.CISi, is aa f6ilowat
“That the Leglslatwe of the State of
Texas hereby validates, ratifies and approves
all ordlnances~ relfnqufahlng, discontfnuiiag,
and segregating any territory vlthin the co*- .
porate limit8 .* -iU@ Borne Rule City In this
state, havlag a, 1.pulation of mope than tvengy
thousand (26,000 3” lnhkbitauts and less than
twenty-one thousaud (21,000) inhsbitaats, ac-
.cording to the last preceding Federal census;
,uhich city has adopted a charter uuder Article.
11, Seation 5, OS the Const%tution .of the State
,: of Texm and the p~ovl~qlon~ of Chapter 147,
Act8 of the Regular Session~‘of the 33rd Legls-
,.’la$re of ,the State of ,,Texaa, passed in 1913.
;c;a,19;3, 43rd Leg., 3rd C.S.,.p. 53, ob. 30,
. I
Seation 56 of Article III,;ot the, State Consti-’
tution, provldes in part 48, followtt~ ,I ,.,
,,. ,.
“Seci 56~; ThenLeglsLature shall noi, ``-
liOept aa okhetiVi4e @w&lsd~: Iq @xta Conati-
tutloa, pals airy kod~l’df ‘@ecia$. law,.author-
~%lngt ,‘,: ‘: ,_‘,, ., .,
. b,,.. ‘,
“Reguia&ag the affairs of counties,
cities, towna, wards or schoo& districts;. . **
Our question, is whether ‘btlcle 1182d, supra, is . j
itself a local and special law aa belng repugsaut, to hour
Constitution.
.,
Hon. John M. St&elk - Pige 6’,
The census shows ‘that Lubbock ‘was the only
city in the ‘State having a popula#iod:‘~oS Pot less thaa i
20,000 nor more &an 21,QOO for thb,~yeu 1930. lhir
in aud of itselr does.not necessarily make the law a
local or, apeoial one; but let us look fuH.her. aEticle
1182d, supra, ,is, m&sly a validating statute and deals
with only those ordinances which had already been passed
at the t+e of the~euactment of 11828..
Validating sta~tutes are ouly applicable to’
those ~things ribI& have ..prevlously occuzrred and never
deal with’ auythiug ,which may hapben in the future. The
1930 census being .the oontrolling factor, then only
those things occupz$.ng:in the interiti period, I. 8. those
between the years 1930 and September, 1934 (date of the
enactment oft the s~tatut) vould be,,val+dated.
It ins tme ‘that other ~,aktlLea may move iuto~ the
partloulm populat%on bra&et ttdt out in ~the Aat., yet,
time the statute validatea only those ordinances in ef-
feot prim to the tin@ of the euactraent of the statute,
and, further, ainoe a validating statute can only ratitf
those things already in exlatenoe at the tine, it is
readily apparentthat the statute could never, upon auy
contingency, apply to,any other city, '~, ~,
In GBay v. Taylor, 227 u'.5, 51: the Suprem
Court of the United States defined a local law am
“The phrase ‘local law’~means, primarily,
at least, a law that In fact, if not in fora,
io directed only to a specific spot.!,, :
In the ease of City ‘of Ft’; Worth. v. Bobbitt, 36
S.Y. (2nd) 470, Judge CritZ he9 pla to ,seyt
.’ .‘i.
=&inact which designates a particular
city or county by name, or by a description
so qualified that a partienlar city or county
is plainly intendad &nd that no other can
reasonably be expeoted to have the distlnguiah-
lng cheractsrlatics, and whan,e ,operation ie
llmited to such cfity or cmin$y, Is hold to be
local or speoial.
Xn the case of Bexer County v. Tynan, et ~01; qy
S.Y. (2nd) 467, the Supreme Court had this to sayt
Hon. Sohn M. Steele - Page 7
“It is well reaogni&ed that ‘iti detelc-
aining whether a law is public, general,
special or local the coWts will look.to
its substance and practical operation ratA-
er than to its title, form and waseologg,
because otherli%e prohibitions of the fun-
damental law against special legislation ~
would be nugatory.’
I
. . .
“‘The rule is that a classification
csnnot be adopted orbitrarlly upon a gMund
which has no fomdation in difference of
situation co' ctiowsstances of the mnloi-
palities placed in the different classes.
There muat be some Ireasonable relation be-
tween the situation of mpieipalitlss
classified and the purposes aud objeots to
be ,atteined. There must be something + * *
rhleh in so18 reasonable de#rea aceounta-IoF
the di?isZon lhto olasaea.’ ,:
When ie looi to the pracrtical 6pmatilon of the
Act in question, it is the opinion of this Departunt
that the attempted cla+islficatlon Is so unreasouable and
arbitrary; as to indibte beyond doubt,that the purpom of
the Legislature was to single out the CSty OS Lubbock;
In view of the foregoing, jgP.,ffe respectfully
l4vlsed that it iS the opinion of this Depaxtment thrt
Irtiole 1182d is a local and special law, beiiag iu vio-
lation of, Section 56, Article’ 1x1, of the Constitution,
and is therefore void. yet, as. ,atitsd before, since tha
ordinance is voidable only, the sam is ‘valid until it has
been di.reaOly attacked in a ~court tifoollprtstkt juHrdlotion
and fouad to bq ‘igvalld~ Therafoue, you am respectfully
advised that It Xr:the opinion of this Department that uu-
tll said o~dlnau~behas been hsld .invalld in a suit ‘directly
attacki the same, the psrtlcular teprltory isPot legal1
a palt 7o the City of Lubbook, and the county is under obl I -
gatlon to purchase such right of uay, ii one is to be (Lo-
quired.
The ordinance passed by the City of
. ‘Lubbock relinquishing certain territory fro8
the city is voidable only,azttj
not void. The
.
Hon. Jobn*M. Steele - ‘,Page 8 :
ordinance ievalid until diliectly attacked
in a Court of competent jurisdic%ion and
round to be invalid.
Art. 11826, validating certain ~01l.m
quiahments, is void, .&elng In violation
of Sec. 56 cf Art. III of the Cons itutlon.
City of Ft. Worth v. Bobbitt, 36 $ .W. (2W)
i 70; Be* County V. !Pynan, et al, 97 S.W.
2nd) 467) Pet, the ordinance passed by the
d lty of Lubbook rellnQtiahlng aertain terri-
torf Pot hvLng been held Invalid by court
adWon, is presumed to be vrlid, and such
territory is not a psrt of the City. 9b.e
county Is lrgally under ob$igation to pe-
ohaae the p t of vag through such terri-
aory, if au3P rl@it of way Is to be acquired,
tmleas such ordirrance is 8et Uide -XV dIma
BAodjr
.