Austin v. Gulf, Colorado, & Santa Fe Railroad , 45 Tex. 234 ( 1876 )

Moore, Associate Justice.

This suit was brought by appellant, Edward F. Austin, against the Gulf, Colorado, and Santa Fe Bailroad Company, Robert D. Johnson, William II. Williams, Bradford Hancock, Hugo Brosig, and C. A. Kaufman, the justices of Galveston County Court, and Joseph Atkins, -sheriff of Galveston county, to enjoin said sheriff from collecting a tax, which had been assessed by the County Court of Galveston county, to provide a sinking fund and,for payment of interest on certain- bonds issued and to be issued by said county to the Gulf, Colorado, and Santa Fe Eailroad Company, in pursuance of the stipulations of a contract between said County Court and said railroad company, to enjoin said justices from further assessing a tax for such purposes, and from, further issuing bonds to said company; and to enjoin and restrain said Gulf, Colorado, and Santa Fe Eailroad Company from negotiating and selling any of said bonds theretofore issued; and requiring said company to deliver up those already issued, to be canceled. The defendants seem to have voluntarily appeared, without the issuance, of citations. They filed a general and special demurrer, and answered to the merits, denying all the material allegations in the petition.

A jury having been waived, the Case was submitted to the judge of the court below, who, after hearing the petition, demurrer, answer, and evidence, refused the injunction and dismissed the petition. From this judgment the plaintiff prosecutes this appeal, on the following assignment of errors, to wit:

“ 1. That the court erred in refusing the injunction prayed for, and dismissing the bill.

“ 2. The corn’t erred in its ruling on the law.

“3. That the court erred in its ruling on the facts.

“4. That the court erred in giving judgment for the defendants, and that the judgment should have been for the plaintiff and the perpetuation of the injunction.”

An inspection of the record plainly shows that this assignment is too general and indefinite to serve the purpose for which an assignment of errors is intended, and that appellant has failed’ to distinctly specify in it the grounds upon which he relies for a reversal of the judgment. Taking them separately or together, they amount to no more than if appellant has said “the court erred in giving judgment for the defendants instead of for the plaintiff.”

An assignment of this kind might he sufficient, if the error complained of involved a single question of law or one issue of fact to be determined by the weight and preponderance of the evidence in favor of one or the other party, or merely the sufficiency of the evidence as a whole to support the judgment. But, evidently, it cannot be so regarded where the determination of the appeal involves the consideration, as in this case, of numerous and diverse character of rulings in the court below, both in regard to matters of law and fact. And we would feel fully justified by the statute requiring an assignment of errors, and by what has been repeatedly said by the court on this subject, if we treated the case as if no errors whatever had been assigned.

But as other suits of a like character might and probably would be brought if this case should go off without our passing upon the objections taken to the validity and legality of the bonds and tax which appellant seeks to enjoin, and as both parties insist that the decisions of the questions presented by the record at as early a day as practicable is a matter of great public interest, we conclude, that we may properly regard objection to the consideration of these questions, on account of the generality of the assignment of errors, as waived, The number of cases, however, which are submitted to us on defective assignments of error of like character, notwithstanding attention has been repeatedly called to the subject, and the delay and embarrassment it necessarily occasions the court in the prompt and satisfactory disposition of business in the present over-crowded condition of our dockets, leads us to admonish parties that unless in future they use more care in the preparation of their assignments of error, they need not be surprised to find their causes disposed of by this court, without considering or passing on questions which "were regarded in the court below and discussed in their briefs as of the most vital importance to their correct determination-

We are unable to say, from the record, whether the court rested its judgment on the questions of law raised by the demurrer or on the law as applicable to the facts developed on the trial, or on both. But as there was no distinct ruling upon the demurrer, unless the judgment in favor of the defendants on the issues of fact as well as those of law is correct, it should be reversed, as the defects in the petition, if any, might have been cured by amendment, if the demurrer had been ruled upon before going into trial on the issue of fact. Instead, therefore, of talcing up and disposing of the questions presented by the record in the order in which they arose in the court below, we will consider the objections which have been made to the judgment by appellant, and the grounds upon which he insists it should be reversed, or such of them as are deemed essential for the proper determination of the case.

A thorough analysis of appellant’s brief, in connection with the record, will show that all the objections taken by him to the judgment, which need be considered, are embraced in the following general propositions:

1. The county of Galveston was not authorized by law, on a vote of two thirds of the qualified voters of the county, to assess a tax to aid in the construction of internal improvements, or to become a stockholder in the Gulfj Colorado, and Santa Fe Eailroad Company, on the 15th of June, 1874, when the contract or agreement between said company and the county, acting through the County Court, was consummated.

2. If, by law, the county of Galveston had the power and authority to aid in the construction of internal improvements, and to have entered into such a contract as that proposed to the county by said railroad company, the County Court had not been authorized by a vote of two thirds of the legal voters of the county to do so, and therefore the action of said court, accepting the proposition of the company, ordering the issuance of bonds, and assessing the tax sought to be enjoined, was unauthorized, illegal, and void.

3. Though the acceptance of the proposition made by said railroad company was valid and binding upon the county, yet said company had not fulfilled the terms and stipulations of the agreement on its part when said court delivered said bonds and assessed said tax, and therefore its action was ultra vires, and the injunction prayed for should have been granted.

The different propositions suggested by and discussed in appellant’s brief, which, if well taken, may be claimed as tending to support these general propositions, which we have eliminated from them, will be considered in the order in which they may be suggested by our own minds, though not entirely the same in which they are discussed by appellant.

1. It seems not to he controverted, that prior to the repeal of the act of April 12, 1871, entitled “An act to authorize counties, cities, and towns to aid in the construction of railroads and other works of internal improvement,” counties might, on being authorized by a vote of two thirds of the qualified voters of the county, aid in the construction of internal improvements to the extent this might he done by an assessment of a tax not to exceed two per cent, upon the taxable value of the property of the county. But it is maintained that aid could only be given to such works by a direct donation of the amount annually realized from such a tax as might h.e assessed for tins purpose. To maintain this proposition, it must he held that the act of April 12, 1871, is in many if not all of its provisions unconstitutional, and that we must look to article 12 section 82 of the Constitution, not only to determine the power and authority by which counties and cities have to aid works of internal improvements, hut also the character of such aid and the manner and form in which it is to be extended. Evidently this section of the Constitution was intended for no such purpose. Whether municipal corporations, such as counties, cities, and towns, could by virtue of their corporate authority contribute aid to, or participate in the construction of works or internal improve-meat, and impose taxes to defray liabilities incurred thereby, and, indeed, whether the Legislature could confer upon them the power to do so, had been, previous to this provision being incorporated into our organic law, a question of great political interest and marked diversity of legal opinion. .It had occasioned stubborn if not bitter and accrimonious judicial discussion. And though the legislative authority to confer such power upon corporations had been sustained in a large majority of the courts in which it had been discussed, both courts and jurists of the highest authority and of prominent learning had most emphatically announced the contrary view. It was unquestionably the intention of the framers of the Constitution to put an end to this controversy in this State, by clearly and definitely fixing the conditions upon which such power might be exercised, and the extent to which the property within the counties might be burthened by its exercise.

The language of the Constitution is: “ The inferior courts of the several counties of this State shall have the power, upon the vote of two thirds of the qualified voters of the respective counties, to assess and provide for the collection of a tax upon the taxable property, to aid in the construction of internal improvements: Provided, That said tax shall never exceed two per cent, upon' the value of such property.” Now, while it is beyond question that the counties in this State, when authorized by a vote of two thirds of the qualified voters, may aid in the construction of internal improvements, certainly the manner of doing so is not attempted to be defined or settled. Shall it be done by a direct donation of money or property; by the loan of the credit of the county; by the indorsement of the bonds or contracts of the company or parties engaged in such work, or by the county becoming a stockholder or participant in the enterprise ? Aid might be given in either of these ways, or in various others which might be suggested. The manner in which it shall be given, and the conditions and stipulations upon which it is done, are unquestionably left to be determined by the municipal authorities at them own discretion, or under the guidance and direction of general or special legislation. If the former is the correct conclusion, as is insisted by one of the counsel for appellees, there is no force in this objection. In our opinion, however, the sounder conclusion is, that where there is a grant of poiver in the Constitution to a department of Government, or to a constitutional or statutory officer, or tribunal, without defining the manner and form on or by which it is to be exercised and carried into effect, the Legislature may legitimately prescribe reasonable rules by which this may be done. And though such power may not be taken away by the Legislature, and should it fail or refuse to legislate so as to provide for the efficient use and exercise of the power, the department, officer, or tribunal to whom it is delegated might possibly act in accordance with its own discretion, yet when the Legislature has made reasonable and appropriate provisions for its proper exercise, it should and will be exercised in conformity with such provisions.

This, we think, was done in. reference to the power in question, so far as the several counties of the State are authorized to aid in the construction of internal improvements by the act of April 12, 1871, previously referred to.

If this law is a legitimate exercise of legislative authority, of which we have no doubt, and was in force at the time of the consummation of the agreement between the county of Galveston and the Gulf, Colorado, and Santa Fe Bailroad Company, there can be no question that it was competent for the county to aid in the construction of said road by taking stock in said company; so, in either aspect, appellant’s objection, that the county could not aid the road by taking-stock, is fallacious.

But it is urged that this law had been repealed by the Legislature previous to that time. In support of this position, reference is made to an act approved April 22, 1874, and two acts passed May 2, 1874, amendatory thereof. The act of April 22,1874, unquestionably repeals the act of April 12, 1871, with the exception of certain counties, which are excepted out of the provisions of the act. But this act does not provide that it should take effect at any definite time. Consequently it coaid have no effect as a law until sixty days from the adjournment of the Legislature, which was subsequent to the acceptance by the county of Galveston of the proposition of said company to aid in the construction of said road. But it is said by the two acts passed May 2,1874, which took effect from their passage, the act of April 22, 1874, was amended, so as to be in force from the day on which they were passed, which was prior to the day on which the vote was taken on said proposition. But these acts were passed on the same day. "Under the general rule of statutory construction, laws relating to the same subject, enacted during the same session of the Legislature, are to be construed together, and are ordinarily to be taken as parts of the same act. These acts were not only passed at the same session of the Legislature, but on the same day, and relate to the same act, passed likewise at an earlier day of the same session of the Legislature. They are identical in every respect, except that the excepting clause in the one is somewhat broader than in the other. Unquestionably these acts must be construed together, and effect given to their entire provisions, if they are not in direct conflict; and if so, they would then neutralize each other. But it cannot he said, because the exceptions in the one are broader and more enlarged than in the other, that there is any such conflict between them. And the jiroposition for the county of Galveston to aid in the construction of said road, which was pending when they were passed, it will he seen, when we read them as one act, was expressly excepted from the operation of said act of April 12, 1871.

It is insisted, however, that tins exception in the act of May 2, 1874, is inoperative and void, because this part of said act attempts to provide for a distinct and different object from that expressed in the title of the act. (Const., art. 12, sec. 17.) This provision of the Constitution has been too frequently the subject of consideration by the courts to require now any very elaborate consideration. "While it has been always held to be mandatory, it has uniformly been decided, both by this court and in the courts of those States having similar constitutional provisions, that it should receive a liberal interpretation. Judge Cooley, referring to a similar constitutional provision, says: “ There has been a general disposition to construe the constitutional provision liberally, rather than to embarrass legislation by a construction whose strictness is unnecessary to tire accomplishment of the beneficial purposes for which it had been adopted.” (Cooley, 146, and eases there cited.)

“ifone of the provisions of a statute should be regarded as unconstitutional where they relate, directly or indirectly, to the same subject, have a mutual connection, and are not foreign to the subject expressed in the title.” (Phillips v. Bridge Co., 2 Met. Ky. R., 222; Smith v. Commonwealth, 8 Bush., 112.)

“ So long as the provisions are of the same nature, and come legitimately under one general denomination or object, we cannot say that the act is unconstitutional.” (State v. County Judge, Davis county, 2 Iowa, 284; See also Tadlock v. Eccles, 20 Tex., 792; S. M. Ins. Co. v. New York, 5 Sand., 19.)

Applying the principles laid down in these cases, and many others to like effect to which reference might be made, we think it quite evident that the objection made to this act on this ground is not well taken.

Mere limitations and restrictions by proviso, on the general scope of the law as indicated by the body of the act, ordinarily relate and are germane to its general object, and are of general and universal use, though no references are made to them in the title of the act. To require every limitation or qualification contained in the act to be expressed in the title, would require the title to be almost as long as the act itself. And to say that any such limitations on the general scope of a law was a distinct object from that intended by its general purposes, and therefore it could only be affected by a separate act, would tend greatly to embarrass legislation and often to defeat its real purpose. The object expressed in the title of this act is to amend a former act. The nature and character of the proposed amendment is not indicated in the title. The title can with no more propriety be said to warrant a change in the time when the amended law shall go into effect, than to except an additional country from its operation. If the law is unconstitutional in respect to one of these purposes, it surely must be so as to the other. They stand in. precisely the same category. But unquestionably it is valid as to both. Eeither of them are separate and distinct objects; they are both germane to, and legitimate for effectuating the objects expressed in the title.

It is also said that the exception in this act is unconstitutional, because it is an attempt “to revise and amend an act repealed, instead of re-enacting and promulgating it in full.” The Constitution says, “no law shall be revised or amended by reference to its title.” (Art. 12, sec. 18.) The statute of May 2,1874, was passed in strict conformity with this requirement of the Constitution. The act of April 22, 1877, which is revised and amended, is re-enacted and ’published at length. Eo previous act is revised or attempted to be revised, if to do so would be within this provision of the Constitution. The act of April 12, 1871, was still in force, and must have continued so, without an amendment of the act of April 22, 1874, for sixty days after the adjournment of the Legislature. The object of the law of May 2 was to effect its immediate repeal, except in certain localities, and not to revise it anywhere.

2. Under the second general ground of objection to the judgment, it is claimed that two thirds of the qualified voters of Galveston comity did not vote in favor of the proposition submitted by the railroad company to said county. The vote at the election ordered by the County Court, “for the proposition,” evidently was not equal to two thirds of the names on the registration list as qualified voters of Galveston county; and unless this had been the result of the election, appellant maintains that said proposition was rejected.

The act of April 12, 1871, directs, “ "Whenever not less than fifty freeholders of any county shall petition the County Court for an election to take the opinion of the electors of such county on a proposition that said county shall aid in the construction of a railroad or other work of internal improvement, either by taking stock, malting a loan, or malting a donation thereto, it shall be the duty of such County Court, at a meeting which shall be called within twenty days after the presentation of the petition, to order an election to be held 'in not less than thirty days nor more than forty days thereafter, to take the opinion of the electors of the county upon such proposition.”

And after prescribing for notice of the election, the manner of holding and conducting it, how and when the returns are to be made, it enacts as follows: “ Sec. 5. A special meeting of the County Court shall be held on the first Monday after the return day of such election, when the court shall ascertain and record the results of the election; and if two-thirds of the qualified voters of the county shall have voted in favor of the proposition at such election, then it shall be the duty of the court to make such orders and adopt such regulations as will give practical effect to the proposition so voted for,” &c.

The law, we think, plainly and directly negatives the appellant’s proposition. All persons duly registered are no doubt prima fade qualified voters, and should be admitted to vote, on the production of their certificates of registration. But it is two thirds of the qualified voters who must vote for the proposition to secure its adoption, and not two thirds of all whose names are found on the registration rolls. It is made the duty of the court to ascertain and record the result. Evidently the court may be unable to say from a count of the vote and an inspection of the registration list whether or not two thirds of the qualified voters have voted for the proposition. Yet it is the duty of the court to do so. A matter of great importance, involving judgment and discretion, is intrusted to its determination. It necessarily follows, that the court is empowered and must resort to and use the appropriate means to inform itself and enable it to arrive at a proper and correct conclusion. It could hardly be otherwise than that the registration list of such a county as Galveston would not have upon it the names of many persons who were not at the time of the election qualified voters. The change in this respect might in a comparatively short time in some instances be so great that an unanimous vote of the qualified voters would be less than two thirds of those registered as such.

It is also claimed that the declaration of the result of the election was unauthorized and void, because made at a time when the County Court had no legal authority to sit for such purpose. But the court met at the time provided by the statute. Yo specific time is indicated within which it must perform the duty with which it is intrusted. It was unquestionably authorized to continue its session until it was able properly to complete and discharge its duty. The legal presumption is that it did so. We cannot présume that it violated it3 duty or exceeded its authority for the purpose of impeaching its acts.

Other objections are made to the action of the court in ascertaining and declaring the result of the election. If, however, we were to concede the most that can be claimed for them, it would be found that they were mere irregularities or errors in the course of a judicial proceeding, for which the judgment and conclusion could not be impeached at the time and in the manner proposed by appellant in this case.

It is also insisted that said bonds are void, because payable in Yew York. Tins was a matter properly within the disereturn of the County Court in giving “practical effect to the proposition voted for.” It would be unreasonable to suppose that every minutiae to this end would or could be embraced in the proposition voted on. It is also a matter which in no appreciable manner affects appellant, and a court of equity will not hear liim complain of it.

The laws levying taxes for purposes of general revenue have no reference to taxes assessed under the special authority given for the levy of this tax. Consequently the act of June 3, 1873, on the subject of taxes, cannot be held to repeal it.

The objection that Galveston county did not pay five per cent, of its stock in cash at the time the proposition was accepted, is of no weight. Evidently the provision to tMs effect in the company’s charter has no application to aid extended by counties in the construction of railroads and other works of internal improvement by an exchange of the bonds of the county for stock.

The proposition for aid by the county was submitted and voted for in strict conformity with directions and requirement of the act of April 12, 1871. Unless its provisions on the subject .are shown to be illegal and void, the objection on this ground is of no force. We need not add anytMng further to what has already been said in reference to the constitutionality as well as construction and effect of this statute. Leaving the statute out of view, howevei’, we see no cause to object to the form in wMch the proposition was submitted. The substantial question to he determined by the election was, Shall the county aid in the construction of this road in the manner and to the extent proposed ? It is a poor compliment to the voters of the county to suppose that they could or did not understand the import and effect of the proposition submitted to them.

3. The railroad company stipulates that each section of five miles of the first fifty miles of its railroad shall he completed in the manner provided in the charter of the company, as a condition precedent to the.delivery to it of said bonds on each, section of five miles. By its charter, the company is required “to fully equip its road for passenger-travel and for transportation of freight, and operate it by steam, in like manner as other first-class roads.” It is insisted that the five miles of the road which has been inspected by the County Court, and found to be completed as stipulated 'in the proposition, is shown not to be operated by steam, (for passenger-travel and transportation, as we suppose;) therefore the County Court exceeded its authority in delivering to said company its ■bonds, and the injunction should have been for this reason granted. Evidently the stipulation in the proposition was never intended, and cannot be construed, to refer to the manner of operating this completed section of five miles of road. Obviously it had reference only to its character of construction. It could not have been supposed that it would be operated for travel .or freight. The purpose of the proposition and its acceptance by the county- was to aid and assist in the construction of .the road, and not to retard and embarrass -it by useless and idle speculations.

There is no error in the judgment, and it is affirmed.

Affirmed.

Justice Gould did not sit in this case.