Robertson v. Key , 240 S.W. 1013 ( 1922 )

Technical accuracy is not necessary in the description of the proposed road district. The statute does not require more than that the order of the commissioners "shall describe the boundaries thereof" in establishing and ordering election in a "defined road district of a county." Article 628, R.S. It is sufficient if the description is so definite and certain as to enable a surveyor to run it. A "call" by course for objects, natural or artificial, when distinctly called for, affords a sufficient certainty, unless proved to the contrary, of description of boundaries. There is no allegation showing or tending to show that any of the "calls" cannot be applied and harmonized in any reasonable manner or serve as a guide in determining and locating the area or confines of the road district. Therefore the allegation that "the metes and bounds" of the road district were described by "course and calls" would, in the absence, as here, of some controlling indication to the contrary, sufficiently show a proper "defined road district." The other several objections to the description are not tenable.

The objection alleged to the validity of the order for the election is not, we conclude, sufficient to declare the proceedings void. The alleged recitals of the order of the commissioners, reasonably construed, fairly mean, we think, to expressly and exclusively confine the election to the boundaries of road district No. 3, and to the resident property taxpaying voters of that particular defined road district. The words "in Denton county," as they appear in the election order, cannot be regarded as controlling or even misleading. The words "in Denton county" could and should properly be treated as surplusage words and not rendering the order vague or uncertain or void, in view of the clear restriction of the terms of the order that —

"Only qualified voters who are resident property taxpayers of said road district No. 3 of Denton county, Texas, shall be allowed to vote."

There is no allegation that voters of other districts or precincts voted in the election, nor is there any allegation that the election did not carry by the required two-thirds vote of qualified voters wholly residing within the boundaries of road district No. 3. There is therefore, we think, no sufficient allegation upon which to base a holding that the election order or the election held under it was legally insufficient and void for the particular reasons alleged.

The third alleged ground, as herein stated, is that the road district No. 3 "overlaps" and includes the town of Denton, and that before and at the time of the creation of road district No. 3 "the town of Denton had a large bonded indebtedness, a large part of which bonds had been issued by said town for the purposes of making good streets." It is urged that road district No. 3, under the Constitution and statutes, was void to the extent of that part of it which extends into and includes the corporate limits of the town of Denton, because a road district of a county cannot embrace a town which previously had created a bonded debt for street purposes. The petition only alleged that —

"The town of Denton had a large bonded indebtedness which had been issued by said town for the purposes of making good streets."

Such allegation, if proven as alleged, would not render the creation of road district No. 3 void to the extent of the territory embracing the corporate limits of Denton. It is expressly provided that "any defined road district now or hereafter to be described and defined within the state of Texas," upon being organized and established, "may or may not include towns, villages or municipal corporations," and may, "in addition to all other debts," by consent of the voters expressed in an election, "issue bonds or otherwise lend its credit in any amount not to exceed one-fourth of the assessed valuation of the real property of such district or territory" for the maintenance, construction, and operation of macadamized, graveled, or paved roads and turnpikes, or in aid thereof, Article 3, § 52, Constitution of Texas; articles 627-641, R.S. It has been expressly held that —

"The constitutional provision referred to does not prohibit the placing of an additional burden by taxation upon property located within a town or city which has already reached its constitutional limits of bonded indebtedness, but it prohibits bonded indebtedness of the municipality beyond a certain limit. In other words, the county government and city or town government are separate and distinct legal entities, and while each may embrace a particular territory, yet they are separate and distinct, and the imposition of a tax by one does not increase the indebtedness of the other." Moore v. Bell County (Tex.Civ.App.) 175 S.W. 849; Simmons v. Lightfoot, 105 Tex. 212, 146 S.W. 872.

Consequently, in reckoning the road bonded indebtedness "of the town of Denton," the road bonds of district No. 3, which is "a defined district of the county," are not to be considered. Further, the allegations, as made, do not, we think, show that the town of Denton was illegally embraced within the boundaries of road district No. 3 upon the ground of "overlapping the same territory" of "a political subdivision," within the meaning of article 637d, Vernon's Ann.Civ.St.Supp. 1918. It is not alleged that the town of Denton was already in a road district of the "county" previously created and established under the provisions of the statute in hand. The "overlapping the same territory" that is prohibited by article 637d refers to and is limited to territory of a road district already created and established under the act, and existing and having outstanding bonds, at the time the other proposed road district under the act is "thereafter" sought to be created. The prohibition of the article does not reach nor extend to a town acting in street improvement solely under its charter, and independent of and not under the general act considered.

There being no error on the part of the court in sustaining a general demurrer to the petition as presented, the judgment is affirmed.