Hunt County v. Rains County , 7 S.W.2d 648 ( 1925 )

The affirmance of the judgment in this case is based mainly upon the validating act of 1895 referred to in the opinion of Justice LEVY. It is, however, apparently conceded that in the original survey of Rains county the west boundary line was not correctly run according to the field notes contained in the act creating that county. The northwest corner was established approximately one mile west of where that corner should have been under the terms of the act. In other words, instead of running the north line of Rains county four miles into Hunt county, the surveyor ran it nearly five miles and there located the northwest corner of Rains county. He then ran south, or in a southerly direction, to the place called for in the act as the southwest corner of Rains county. The testimony was probably sufficient to warrant a finding that this original line remained unchanged and was recognized by the officials of both counties as the true west boundary line of Rains county for many years and up to the time of the passage of the validating act of 1895. In 1870, when Rains county was created, the Legislature had the power to establish the west boundary line as marked by the surveyor on the ground. Under the Constitution then in force the Legislature also had the authority to change the boundary lines of existing counties without the consent of the qualified voters of either county affected. But in the adoption of the Constitution of 1876 the following restriction was imposed:

"No part of any existing county shall be detached from it and attached to another existing county until the proposition for such change shall have been submitted, in such manner as may be provided by law, to a vote of the electors of both counties, and shall have received a majority of those voting on the question in each." See article 9, § 1, Constitution of the state of Texas.

At the time that provision became effective the wedge-shaped strip of territory which had been erroneously included by the surveyor within the limits of Rains county was either legally a part of Rains county or a part of Hunt county. Both of those were "existing counties" at that time, and this disputed strip was bound to be in one or the other. If it was then a part of Rains county it became such, not by virtue of the law creating that county, because the law did not include that territory, but by the act of the surveyor in running the line and the subsequent recognition of that line by the county officials. If the survey and its recognition were alone legally sufficient to establish the boundary line at that place, then the act of 1895 was not required to make legal that which was already legally established, and in so far as this controversy is concerned that act would be merely declaratory of a fact which was already legally established. On the other hand, if the disputed strip was never before legally a part of Hunt county, although actually claimed by Rains county, when the validating act was passed, then the act of 1895 did not affect the situation, because the Legislature had no authority to change the boundary line without the consent. of the voters of both Hunt and Rains county. A line between two adjoining counties cannot be changed without "detaching" territory from one and "attaching" it to the other; and such "detaching" and "attaching" could not at that time be done without the consent of the voters of both counties affected. Hence if the validating act of 1895 is needed to make the erroneous original survey the true boundary line between Rains and Hunt counties, the appellee is relying upon a law which the Legislature had no power to pass.

The exercise of that power at that time is justified in the opinion of the majority by calling that act a curative one designed to have a retroactive effect. The argument is made that if in 1879, when Rains county was created, the Legislature had the power to place the line where the surveyor ran it on the ground, the Legislature could in 1895 validate what had previously been done without legal authority. In support of that proposition reference is made to cases and textwriters which say, in effect, that in the absence of intervening property rights the Legislature may do retroactively what it had the power to do in the first instance. As a general proposition that is correct, but it cannot be applied to the facts of this case. Had there been no change in the organic law of the state restricting the power of the Legislature to alter county boundaries, undoubtedly the Legislature could have validated an illegal survey. But between the time Rains county was created and the passage of the act of 1895 the power of the Legislature had been restricted, and the authority to alter the lines of existing counties was made conditional upon the assent of the people of those counties. It will be found that in every case where the proposition relied on by the majority is approved in the authorities cited there had been no change in the legislative authority between the date of the original act and the time when the retroactive or curative statute was passed. The Legislature could not, under the guise of validating a former survey, establish a boundary line at a place where it could not be located without the consent of the people affected. The Legislature can never do indirectly that which it has no authority to do directly.

It is shown by the record that Hunt county is seeking to establish the true boundary according to the field notes of the act of 1870. That, in my judgment, should be the established boundary between the two counties, and for that reason I think the judgment of the trial court should be reversed and judgment here rendered in accordance with the prayer of Hunt county.