Electric Light Company v. Keenan , 88 Tex. 197 ( 1895 )

1. We are of the opinion, that the Commissioners Court of a county can not be required to provide for the sale of the property of a supposed corporation, the charter of which has been declared void, and for the disposition of the same for the settlement of the debts due by it. The powers which the Commissioners Courts may be compelled to exercise are defined in the Constitution in the following language: "The county commissioners so chosen, with the county judge as presiding officer, shall compose the County Commissioners Court, which shall exercise such powers and jurisdiction over all county business as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed." Art. 5, sec. 18. The powers which the Legislature may require them to exercise are confined by this section to county business; and we think it clear, that the administration of the effects of a dissolved corporation and the payment of its debts are not such business.

Persons who have conveyed property to an ostensible corporation are not in a position to plead its illegality as against its creditors. The latter, when its organization has by due course of law been annulled, have a superior natural right to so much of the property acquired in its name as may be necessary to satisfy their demands. Therefore, there would seem to exist no constitutional impediment which would prevent the Legislature from providing a method by which such creditors may enforce their rights. The difficulty arises when the attempt is made to impose the administration of the assets upon the county commissioners, as a court, and to compel them to perform it. Whether, if they should voluntarily act, their action would be legal, is a question we are not asked to determine. They may have the power to do an act which it is not their legal duty to perform. In the case of Brown v. Wheelock, 75 Tex. 385, it was held, that the District Court, acting under the statute as a special tribunal, could remove the disability of minority, though it was gravely doubted whether it could be compelled to do so.

2. If the sale of the property of a dissolved corporation and the distribution of the proceeds of such sale among its creditors is not a business pertaining to a county, neither is the levy of a tax for the payment of such debts a duty which may be devolved upon the Commissioners Court as county business. That the Legislature can not by any method impose a tax upon the people of a territory embraced within the limits of an ostensible corporation, which has been judicially declared never to have been legally created, for the payment of the debts of the supposed municipality, is announced in Ewing v. Commissioners Court, 83 Tex. 666. The doctrine laid down may not have been necessary to the decision of that case, but the reasons for the announcement given in the opinion are, we think, conclusive of the question. Though tersely stated, the argument needs no elaboration. The expression in White v. Quanah, ante, p. 14, that "by the dissolution of the old corporation its property passed into the control of the Commissioners Court of that county, and the court was thereby invested with the power to levy taxes to pay the debts of the dissolved corporation," is merely an announcement of the declaration made by the statute. It was not intended to declare the statute valid. The question of the constitutionality of the statute was not involved in that case, and its decision was waived. In a subsequent part of the opinion, the court say: "The question as to whether or not the Legislature can confer upon the majority of the inhabitants of a certain district of country the power to charge upon the property of the minority debts for which they were not before liable, is not before the court in this case, and is not therefore decided, but is expressly left open for consideration when the case involving it shall come before this court." It could not have been intended to leave open the question there stated, and at the same time to hold, that the Legislature had the power to levy a tax for the purpose indicated, without a vote.

We answer the second question in the negative, which renders the answer to the third unnecessary, except in so far as it has been herein before incidentally answered.

Delivered April 25, 1895.

DENMAN, Associate Justice, did not sit in this case.