It is contended in this motion, by appellant's counsel, that we erred in holding that appellee's action was not barred by the statute of limitations; and also in holding that the demand sued upon had not theretofore been placed before a court having jurisdiction thereof, and dismissed under laws that were at such time constitutional. The ground upon which we based both holdings is that from the time Buchel and Foley counties were created up to the time they were abolished, and the territory which composed them incorporated into Brewster County, no action could have been brought to establish the demand sued upon against either Buchel or Foley County. Our opinion grounded on this reason was not, as the motion would imply, hastily formed, but reached after giving the facts of the case, the statutes, and opinions of the Supreme Court deemed applicable by us, careful, patient, and mature consideration, and we thought we had plenty of time, and had given to it a mature consideration of the questions involved in this case. With no other purpose in view than to correct our former opinion, if it should be by us deemed erroneous, we have, with the assistance of the argument of counsel, embodied in this motion, again thoroughly considered the questions involved, and have found no reason for changing our opinion as formerly expressed upon any of them. Was it necessary, after Buchel and Foley counties were created, for Presidio County to bring an action to establish the demand sued upon, and, if necessary, against whom should such an action have been brought? In Mills County v. Lampasas County, 90 Tex. 607, Chief Justice Gaines, in construing the statute of 1893, Revised Statutes 1895, articles 764, 765, says: "It may seem, upon first blush, that it is unreasonable to presume that the Legislature intended to provide a suit as the only means of fixing the liability in such a case, and that such a proceeding would have been prescribed only in the event of a failure of an attempt at an amicable adjustment. The argument would not have been without force if the claim were one against the county. But the county has officers and agents of
its own selection, who may represent its interests. Not so with a mere part of the county. The majority of such voters in such part might not control the election of any member of the commissioners court, and hence the Legislature may have considered it unjust to confide to a body, not of their own selection, the power by an agreement with the parent county to fix upon them the liability. The Legislature may, with good reason, have considered a direct suit as the safest method by which the matter could be adjusted, and liability fixed, with justice to all parties." From this it is clear that where a part of a county is composed of territory excised from another county it is necessary for the parent county to bring a suit to establish its demand against the excised territory for its pro rata share of the indebtedness existing against the county at the time it was cut off from the county from which it was taken. The reason given for this applies with equal force to a county such as Buchel or Foley, created wholly from the territory of one county, and, while unorganized, attached to another for judicial purposes. Such unorganized county has no officers or agents of its own selection who may represent its interests. The majority of its voters may not control the election of any member of the commissioners court, and the Legislature may have considered it equally unjust to confide to a body not of its own selection the power by an agreement with the parent county to fix upon it a liability; and may with good reason, have considered a direct suit as the safest method by which the matter could be adjusted, and the liability fixed, with justice to all parties. To us it seems clear from the opinion referred to of the Supreme Court that it was necessary for Presidio County to bring suit to establish its demand against Buchel and Foley. When that opinion was delivered, sections 3 and 4 of the Act of April 3, 1889, were, as they are now, in full force, for they were carried into the Revised Statutes of 1895, and are there articles 766 and 767. These sections only enjoin upon the Comptroller and the Commissioners Court of Brewster County the levy and collection of a tax on property in the territory composing the unorganized counties of Buchel and Foley, to pay the pro rata share of the debt due by such unorganized counties to Presidio County, after their liability for such debt is established. But the Act of 1889 nowhere prescribes how such liability shall be established. If it was not necessary to establish this liability by suit, why did the Legislature, in the Act of 1893, provide for the venue of such a suit, and prescribe what evidence should be conclusive of the property and value thereof remaining in the parent county, and the excised territory at the date of the creation of such new county? To our minds, justice requires that the demand should be established in this manner. If a suit is not necessary, the unorganized counties would be at the mercy of the parent county. Taxes for debts which did not exist, were illegal, or had been discharged by payment might be assessed against them, and, not being entitled to a day in court, they would have no redress for such wrongs.
Having found that it was necessary for Presidio County to bring
action to establish its demand against Buchel and Foley counties, the next question is against whom should it have brought such action. One against whom a debt is sought to be established is ordinarily a necessary party to a suit for its establishment, and, if he has no representatives authorized to appear and defend such suit, he is a necessary party before judgment can be obtained. The law did not, while Buchel and Foley counties were unorganized, and attached to Brewster, give the last named county authority to appear and defend a suit brought against either of such unorganized counties. Nor was any one given authority to represent them in such a suit. Therefore it seems clear to us that to fix such demand by judgment the suit therefor would necessarily have to be brought against Buchel and Foley counties. But they were unorganized, and were therefore not bodies corporate, invested with rights and powers, and charged with responsibilities and duties, and had no legal existence (Reeves County v. Pecos County, 69 Tex. 178), and could not be sued. Neither county having ever organized, Presidio County could not bring and maintain an action upon its demand against them until they were abolished by the Act of 1897, and the territory, which composed them, incorporated in Brewster County. It follows from what we have said that, as it was necessary for Presidio County to establish its demand by suit, and as it could not bring its action against Buchel and Foley counties while they existed as unorganized counties, and could only sue after they were abolished, the statute of limitations did not run against appellee until Buchel and Foley were abolished, and that the District Court of Brewster County had no jurisdiction of the suits brought therein (and afterwards dismissed) by Presidio County against Buchel and Foley. We have carefully examined all the grounds set out in the motion for rehearing, and concluded, upon mature deliberation, that none of them is well taken. The motion is overruled.
Overruled.
Writ of error refused.