Bagby v. Bateman , 50 Tex. 446 ( 1878 )

Moore, Chief Justice.

This suit was brought by appellees, in their own behalf and in behalf of other taxpayers of Marion county similarly situated, to enjoin and restrain appellant, as sheriff', from collecting certain taxes particularly enumerated in their petition, and alleged to have been illegally levied and assessed upon their property by the County Court of Marion county. On the hearing of the case in the court below judgment was rendered against the plaintiffs (appellees in this court) in respect to all the taxes sought to, be enjoined by them, except a tax of forty-five cents on the one hundred dollars’ valuation of the taxable property of appellees levied by the County Court under and by authority of an act entitled “An act to authorize the county of Marion to audit and fund the debt of said county.” But as to this tax the judgment of the court was in' favor of appellees, and appellant was perpetually enjoined and restrained from its collection.

The case having been tried by the court without a jury, we cannot tell from the record upon what precise ground of objection to this tax it rested its judgment. From the briefs and arguments of counsel, however, we infer that it must have been upon the supposition that the act of the Legislature previously referred to, and under which it was levied, contravenes the provisions of section' 23 of article 12 of the Constitution of 1869, which was in force when the act was passed.

The section of the Constitution in question reads as follows : “ It shall be the duty of the Legislature to provide by law, in all cases where a State or county debt is created, adequate means for payment of current interest, and two per cent, as a sinking fund for the redemption of the principal; and all such laws shall be unrepealable until such principal and interest are fully paid.” It is insisted by appellees’ counsel, and we suppose must have been held by the court, that this section of the Constitution prohibits the Legislature-from enacting any law under which the State or county can issue bonds unless adequate means are provided for the payment of the current interest and precisely two per cent, as a sinking fund; that this section of the Constitution is a limitation of as well as a grant of power, and is both mandatory and restrictive; and, as counsel insists, it is absolutely essential to the validity of any such debtor bond that the sinking fund provided must be precisely two per cent.—nothing more and nothing less. If this is the proper construction of the Constitution, the judgment is unquestionably correct; for it is evident that the sinking fund provided in the act under .which this tax was levied does not conform to this requirement. The bonds authorized by the act run merely for ten years. The provision made in it for a sinking fund seems to be adequate for their payment in ten years from the date of issuance. But is this'the proper construction of this section of the Constitution ? It is certainly novel, and strikes us as startling. It is certainly in conflict with the construction which has been uniformly given to this section of the Constitution by the Legislature, as well as by the public generally; for certainly many debts have been created by the State and counties which must be held unconstitutional if appellees’ construction of this section is correct, without their having been called in question. We, however, can see nothing in either its language or spirit inviting, much less demanding it. The object of this constitutional provision was no doubt to give faith and credit to bonds which the State or counties might be forced to issue in cases of emergency. It was also intended to protect the people from the burden of a perpetual public debt by fixing fifty years as the limitation for its payment, and also to compel the generation by whom it is created to discharge its reasonable share of it; while, as is well known, there is a class of political theorists who entertain the most latitudinarian construction of the powers as well as the duty of the government, who favor liberal and often wasteful expenditures by it, who maintain that a public debt is a public blessing. Legislatures entertaining these views, if not restrained by constitutional limitations, might succeed in fixing a debt upon the people that could not be discharged by generations to come. Next to the rule “pay as you go,” there can, we think, be no better means devised to restrain the reckless creation of public debt than to fix the time within which it must be paid, and require the people by and for whom it is created to contribute in reasonable proportion to its discharge. The time of payment cannot extend beyond fifty years; but the object for its limitation plainly demonstrates that it should be discharged sooner if it can be done with due regard to public interest. The law here in question required the levy of a. tax adequate to pay the bonds within ten years. The sinking fund necessarily exceeds two per cent. This is all that the Constitution requires. We think, therefore, the court, instead of perpetuating the injunction for its collection, should have dissolved the preliminary injunction and have dismissed the petition.

Reversed and dismissed.