Mills County v. Brown County

1. The first section of the act in question provides, in effect, where any county has been created or may thereafter be created out of any other county or counties, its proportion of the indebtedness of the old county existing at the time of its creation shall be the same as its taxable values at the time bear to the taxable values of the parent county; that a suit may be brought to recover the same in the District Court of either county, and that the court shall have power to make any order necessary to enforce its judgment. The second section provides, that the assessment rolls of the original county for the year in which the new county was created shall be conclusive evidence of the value of the taxable property in the respective counties, unless assessment rolls for the newly organized county shall have been made out in the same year, in which event the latter shall be the evidence of the taxable values of that county. Section third provides, that suits brought under the act shall have precedence in the courts, and in case of a recovery by the plaintiff, makes it the duty of the Commissioners Court of the new county to levy a tax for the payment of the judgment. The fourth section contains merely a declaration of emergency, for the purpose of suspending the rules, and of putting the act in force from the time of its passage. These provisions all relate to one subject matter, and we are of opinion that that subject is sufficiently expressed in the title, which reads as follows: "An act to provide for the payment by new counties of their proportionate share of the indebtedness of the older counties from which they were created." The contention seems to be, that the words "new counties" indicate a purpose to embrace within the provisions of the act only such counties as should be created after the law had taken effect, and therefore that the title is not broad enough under section 35 of article 3 of the Constitution to warrant the Legislature in making the act applicable to counties which had been created before its passage. But to this proposition we do not assent. As was suggested in the argument, "new" is a relative term. We have a striking illustration of this fact in the case of the holy scriptures. The canonical books which appeared upon the advent of the Christian era, though now nearly twenty centuries old, are known in group as "the new testament," in contradistinction to the former canonical books, which are known together as "the old testament." A county which has been taken from another, whatever its age, may properly be called a new county with reference to such other.

We think the law valid, that it embraces within its provisions Mills County, and that it confers jurisdiction over the controversy upon the District Court of Brown County.

2. We are clearly of the opinion that the act in question is authorized by section I of article 9 of the Constitution of this State.

3. That provision in the section of the Constitution mentioned in the question here propounded reads as follows: "When any part of a county is stricken off and attached to or created into another county, the part stricken off shall be holden for and obliged to pay its proportion of all the liabilities then existing of the county from which it was taken, in such manner as may be prescribed by law." This language is definite in its terms, and leaves no room for construction. It makes it the imperative duty of the Legislature to provide a method by which a new county may be forced to pay its proportionate part of the indebtedness of the old, existing at the time of its creation. "All the liabilities" definitely comprehend the whole, and preclude the idea that any abatement or equitable adjustment between the two counties was contemplated. Besides, there is not a word in the entire section which even tends to evidence a different intention. We conclude, that the Legislature in passing the act in question acted in strict pursuance of the constitutional provision which has been quoted; and that it was not authorized to allow the new counties credit for their proportionate share of the value of the public property belonging to the parent counties.

4. We think the act in question is constitutional. If it be conceded that the provision quoted from section 1, article 9, would be in conflict with section 1 of article 8, which declares, that "taxation shall be equal and uniform," it does not follow that provision is inoperative. Being parts of the same instrument, both provisions must stand; and the provision which makes a new county liable for a part of the indebtedness of the county from which it was created, being special in character, should operate as an exception limiting the scope of the general provision in regard to uniformity of taxation.

5. We are of opinion that it did not require a two-thirds vote of each house of the Legislature to give validity to the act. In order to create a new county from an old of a less area than 900 square miles or to reduce the area of an existing county below that limit, a two-thirds vote is demanded; but no such limitation is imposed in reference to prescribing the manner of enforcing the liability of a new county for its proportionate part of the debts of the old.

6. The effect of the decision in Mills County v. Brown County, 85 Tex. 391, is to hold, that what should be a proportionate share of the liabilities was not a legislative question. But we deem this unimportant. The opinion in that case lays down the rule by which the share shall be determined, and the Legislature in the act in question has announced the same rule. So, however we may look at it, it was not error for the court to refuse to allow Mills County credit for its proportionate part of the value of the court house, jails, and public bridges belonging to Brown County.

7. We think the Legislature did not exhaust its authority to legislate upon the subject by the passage of the Act of March 15, 1887, which was declared unconstitutional in the case cited above, between these same parties.

8. The Legislature never having prescribed by a valid act the manner in which Mills County should be obliged to pay its part of the debts of Brown County, the latter was unable to bring a suit to enforce the obligation, and therefore the statute of limitation did not begin to run against it until the passage of the law in question.

9. The act in question prescribes, that "if the plaintiff shall recover, it shall be the duty of the Commissioners Court of the newly created county to levy a special tax on all property in the territory taken from the plaintiff county, sufficient to pay off the judgment; and if the first levy be insufficient, to make said levy annually till the judgment is satisfied; and the judgment of the court shall order said Commissioners Court to make such levies." This provision expressly confers authority upon the court in which the judgment is rendered to make the order for the levy of the tax, and we see no good reason to doubt the validity of the provision.

If the question be as to the power of the court to direct the levy to be made upon that part of the new county which was taken from the old, we answer that the provision just quoted in effect provides that the levy shall be so ordered, and that the provision formerly quoted from section 1 of article 9 of the Constitution expressly declares, that it is "the part stricken off" that "shall be holden for and obliged to pay its proportion" of the liabilities of the old county.

Delivered February 4, 1895.