text:
    KERENS NAT. BANK et al. v. STOCKTON et al.
    No. 4575.
    Supreme Court of Texas.
    June 10, 1931.
    Richard & A. P. Mays, of Corsicana, for plaintiffs in error.
    Callicutt & Upchurch, of Corsicana, for defendants in error.
   CURETON, C. J.

L. M. Morris and his first wife, Rosetta, owned ■ a 275-acre tract of land out of the Henderson survey in Navarro county, subject to a vendor’s lien for a large sum. The wife died, leaving surviving the husband and six minor children. Thereafter Morris purchased a 20-acre tract of land out of the Shed survey. He then married again, and with his second wife, Etta, and his five minor children (one of his children having married), lived on the 275-acre tract. Morris died, leaving a will. The will, omitting formal parts, reads:

“1.
“I desire that my body be buried in a decent Christianlike manner suitable to my circumstances and condition of life.
“2.
“I desire that all my just debts be paid out of my estate without delay.
“3,
“Subject to the limitations mentioned below and the powers hereinafter given my executor and guardian hereinafter named, I give and bequeath to my six children, viz:
“Oma Gladys Morris (Born Dec. 4, 1900); Margaret Emily Morris (Born Apr. 5, 1904): Marshall Barnett Morris (Born Nov. 3, 1906); Déla Mae Morris (Born Jan. 6, 1911); Phillip Wayne Morris (Born Aug. 13, 1912) and William Glen Morris (Born Aug. 30, 1914), all my property both real and personal, share and share alike, in fee simple forever. Should either of them die before I do without leaving children, then such part as would go to such deceased child or children, shall go, share and share alike, to the others then living. Should any of them be then deadj but then having living children, the child or children of such deceased shall receive its parents part of my estate, subject to the conditions imposed herein on its parent.
“4.
“It is my will that my estate be not partitioned among my' said children before the youngest one of my then living children shall be twenty-five years old. Three years after the marriage of either of them, as to such child, it shall be deemed, for the purpose of this section of my will, as being twenty-five years old.
“5.
“My property on this date, subject to section six hereof, is community property of myself and deceased wife, Rosetta P. Morris, but it is my desire that all of said community property be held under the terms of this my will as wholly mine, and should any . one or more of my children or grandchildren, taking under this will, not agree to and abide by the terms of this my will, then my executor hereinafter named shall deliver to such dev-isee or devisees the part of the estate such nonconsenting party or parties would have inherited from the said Rosetta P. Morris, only, and no part of my estate or life insurance shall pass to such party or parties not consenting to the terms of this .my will.
“6.
“My life insurance is payable to my said children, (or their guardian) and is to be subject to the control of the guardian I hereinafter appoint for them. I here give such guardian full authority to collect said insurance and to keep the same together as stated under section five hereof, and also to use the •same in paying any lien or debt against any property passing to said children by this will. He shall have full power to loan the same on first mortgage on real estate, not exceeding in amount fifty per ¡cent of the value of such real estate; to purchase land with the same; to collect such money so loaned; to sell said land so purchased, and to reinvest such money from time to time in like manner as he shall see fit. Any other funds he may have on hand belonging to them are also to be held and controlled by this section of my will.
“He shali have the right to pay for legal services' necessary, in his opinion, to guide him in his acts as guardian or as executor. At. his election, he may use said funds in any lawful manner, as executor of my estate, after they are collected, as fully as though such insurance was payable to my estate instead of to my said children.
“T.
“My executor shall have power to sell any land necessary, in his judgment, to best conserve my estate for my said children, or to pay my debts, and to reinvest the proceeds thereof as stated in section six hereof and under the conditions therein imposed.
“8.
“It is my will that the guardian of my said children give my said children an education suitable to their status and condition, in so far as he may be able, out of my estate, and for such purpose shall have the right to use the interest and corpus of my estate.
“9.
“I hereby appoint my friend, W. T. Stockton, to act as guardian of my said children, during their minority, and having full confidence in him, I direct that he act independent of the probate court, and that no bond or other security be required of him as such guardian. When my money is collected by him for them as guardian, he may then, at his election pay it to my said executor and thereafter handle it as such.
“10.
“I nominate and appoint my said friend, W. T. Stockton, to be executor of this my will, and direct that no security or bond be required of him as executor.
“11.
“It is my will that no- action shall he had in the county court in the administration of my estate other than to prove and record this will, and to return an inventory and ap-praisement of my estate and list of claims. He is to pay himself reasonable compensation for his, services.”

Stockton accepted the trust imposed by the will, and instituted suit in the district court of Navarro county to have the will construed. The decree in that case, among other things, declared that: “⅜ * * The widow, Etta Morris, and the minor children of L. M. Morris, deceased, have, and they are hereby given, and have set aside to them for their use and benefit (but subject to the purchase money liens against same as provided by law) as a homestead, 157½ acres of land, to-wit, the said 20-acre tract and an undivided one-half interest in and to the 275-acre tract to be used and shared by them as their homestead as provided by law in such case, so long as same is so used and occupied by them as required by law to hold a homestead acquired by inheritance as in this instance.”

The decree also disposed of all debts owing by Morris, as follows: “That the estate of L. M. Morris, deceased, is insolvent .and that there are no debts against said estate which are binding or collectible (except the first class claims and costs herein as found above) save and except the debts secured by lien on property belonging to said estate, and said W. T. Stockton is without power and shall not pay any debts against said estate except debts secured by liens at the death of L. M. Morris (and said first class debts and costs herein) and shall pay each only to the extent of its security.”

Kerens National Bank and the other plaintiffs fn error, as plaintiffs and interveners, respectively, in the instant case sought to set aside this advisory judgment and to establish and foreclose their liens as creditors of the deceased. The plaintiff and interveners were not parties to the Stockton-Morris suit. The trial court instructed a verdict for the plaintiff for its debt, $2;383.38, but otherwise in favor of the defendants and against the plaintiff and all interveners. On appeal the Court of Civil Appeals affirmed the judgment in part and reversed the same in part, and remanded the cause, with instructions. 281 S. W. 580.

The Court of Civil Appeals prepared an admirable opinion, with which we find ourselves generally in accord. We will therefore refer to that opinion for a full statement of the case, and treat it as the law of the case, except as modified by this opinion. That court correctly held, in effect, that the advisory decree in the suit brought to construe the will was not binding on the creditors of the Morris estate, in so far as it declared that claims other than secured debts should not be paid, and that the question as to the existence of an excess of property over the secured debts was subject to judicial examination in the present case. It therefore in part reversed the ease, but in doing so held that the children of the testator were entitled to a homestead of 200 acres out of the land owned by the estate, instead of 157.5 acres as allocated to them by the advisory decree.

We think this holding of the Court of Civil Appeals was error, but we predicate the conclusion of error wholly upon the fact that the defendants in error neither in the trial court nor in the appellate court requested an increase of the number of acres of land awarded by the advisory judgment of the district court to the heirs of L. M. Morris as a homestead. Neither the heirs nor their representative appealed from the advisory decree, nor have they in this case by any assignment of error complained of the action of the trial court in approving the original allotment to the heirs of 157.5 acres as a homestead. Under this state of the record it was error for the Court of Civil Appéals to increase the award to the heirs. 3 Texas Jurisprudence, p. 802, § 569.

The land involved was 295 acres, or 137 ½ acres in excess of the homestead allotment. We agree with the Court of Civil Appeals that thte excess may be sold in satisfaction of the debts of Morris, and that from its proceeds there must first be- paid, if it produces so much, the entire vendor’s lien debt against the whole tract, including the homestead. In other words, before anything out of this excess land becomes available for the payment of the general creditors of the estate, the vendor’s liens against the entire 295 acres must first be paid therefrom in the interest of the homestead claimants. 29 Corpus Juris, p. 877, § 242 (4), p. 1013, § 504; Pridgen v. Warn, 79 Tex. 588, 15 S. W. 559; Mackey v. Wallace, 26 Tex. 526; Harrison v. Oberthier, 40 Tex. 385; Chandler v. Young (Tex. Civ. App.) 216 S. W. 484; Pease v. Randle (Tex. Civ. App.) 191 S. W. 566; Pugh v. Whitsitt & Guerry (Tex. Civ. App.) 161, S. W. 953; King v. Hapgood Shoe Co., 21 Tex. Civ. App. 217, 51 S. W. 532, 534; Interstate Building, etc., Association v. Tabor, 21 Tex. Civ. App. 112, 51 S. W. 300; Henkel v. Bohnke, 7 Tex. Civ. App. 16, 26 S. W. 645, 646; Colwick v. Wright (Tex. Civ. App.) 275 S. W. 152, 155; Deaton v. Southern Irr. Co. (Tex. Civ. App.) 144 S. W. 294; Nolan v. Nolan, 155 Cal. 476, 482, 101 P. 520, 523, 132 Am. St. Rep. 99, 17 Ann. Cas. 1056; Freeman on Executions (3d Ed.) vol. 3, § 440; Pom-, eroy’s Equity Jurisprudence (2d Ed.) vol. 5, § 2292.

In Corpus Juris, supra, §. 242, the rule is stated as follows: “In some jurisdictions, in the absence of special statutes so providing, a person who has a lien on land superior to a debtor’s right of homestead need not resort to other property of the debtor before the homestead may be sold. On the other hand in most jurisdictions, usually by reason of statute so providing, all nonexempt property of the debtor, both real and personal, must be exhausted before the homestead can be sold; and it has been held that a debt- or may insist that recourse shall last be had to -the homestead property, and that the lien-holder whose security affects the homestead with other land shall resort, first, to the other lands, even though by so doing the security of other creditors on the same land may be impaired or destroyed.”

Texas has no statute on the subject, but the rule declared is accepted by our courts, as shown by the authorities cited.

In the case of Henkel v. Bohnke, supra, the Court of Civil Appeals in part said: “It is a rule of equity that where a person has a. lien upon two or more funds to secure the payment of a debt, on one of which funds another person has a similar lien, the holder of the first lien is required to satisfy his lien, so far as he can, from those funds on which the other has no claim; and the same doctrine applies where the same person is the. holder of the several liens, in marshaling the assets so as to secure the satisfaction of all his claims. But the court below, in the application of this equitable doctrine, disregarded the homestead rights of the defendant, which should have been taken into account. This right should be considered either as an incumbrance on the land, to be classed in the order in which it arose, which was next to the lien for the purchase money, or as creating an exemption or limitation to the equitable doctrine of marshaling assets because of injustice to the debtor, who, as the head of a family, is entitled, under our exemption laws, to have his homestead protected from sale, except, as in this case, for the purchase mopey. ' The practical effect of the judgment of the district court is to have the homestead sold for the satisfaction of the mortgage, which was executed subsequent to the acquisition thereof, and invalid a.s to so much of the land as might be included in the homestead. The exemption of the homestead from forced sale will protect it from the application of the rule of equity above stated. Colby v. Crocker, 17 Kan. 527; La Rue v. Gilbert, 18 Kan. 220; McLaughlin v. Hart, 46 Cal. 638; Brown v. Cozard, 68 Ill. 178; McArthur v. Martin, 23 Minn. 74; White v. Fulghum, 87 Tenn. 281, 10 S. W. 501; Dickson v. Chorn, 6 Iowa, 19 [71 Am. Dec. 382] ; Marr v. Lewis, 31 Ark. 203 [25 Am. Rep. 553] ; McCreery v. Schaffer, 26 Neb. 173, 41 N. W. 996; Bank v. Harding, 86 Iowa, 153, 53 N. W. 99; Flowers v. Miller (Ky.) 16 S. W. 705. A different conclusion, however, has been reached in some other states. See Thomp. I-Iomest. & Ex., § 656 et seq., to which may be added Bowen v. Barksdale, 33 S. C. 142, 11 S. E. 640. But the protection of the homestead in such case is supported by the greater weight of authority, and is more in consonance with the exemption laws of this state, if, indeed, the application of the doctrine contended for does not come within the positive prohibition of the constitution and laws exempting such property from forced sale.”

. Many sessions of the Legislature and three codifications of the statutes have taken place since the rendition of this opinion in 1894, without any change in the homestead laws in so far as there interpreted. The re-adoption of our homestead statutes in the Codes without change must be regarded as an adoption of the construction placed thereon in this opinion, and that shown in other opinions re'ndered prior to the several revisions of the Statutes. 25 R. O. L. p. 1075, § 297. Moreover, this opinion and others cited are clearly consistent with what this court had previously said on related questions, as shown by the authorities supra.

In 1899 the question again came before the Court of Civil Appeals in the case of King v. I-Iapgood Shoe Co., cited above. King owned two buildings, which adjoined. One of them was his homestead, but there existed a valid mechanic’s lien upon both. The shoe company was a creditor, and, after reducing its debt to judgment,' filed an abstract of judgment, and brought suit to subject both buildings to its debt and lien. The holder of the mechanic’s lien on all the property was made 'a party. The three-story building was found to be the homestead of King, and, of course the shoe company’s lien did not attach to it’. The question decided was whether or not the holder of the mechanic’s lien could be required to first subject the exempt property (against which the shoe company did have a judgment lien inferior, of course, to the mechanic’s lien) to the collection of its debt. The court held that King had the right to require the sale of the nonexempt property first, saying: “The defendant King requested the court to require the bank, in the enforcement of its lien, to sell first that portion of the property which was not exempt from forced sale, and this, as we have seen, the court refused to do; and in this, we think, the court committed an error for which the judgment must' be reversed. Under the authority of Pridgen v. Warn, 79 Tex. 588, 15 S. W. 559, we are constrained to hold that it was the right of the defendant King to have the property not exempt from execution sold, and the proceeds applied to the discharge of the'mechanic’s lien, before selling his homestead.”

In the case of Chandler v.'Young, 216 S. W. 484, 486, the Court of Civil Appeals in part said:

“It is the settled policy of this state to protect homesteads from forced sales. This- includes the policy of encouraging the acquisition of homesteads, where it can be done without injustice to those who have acquired liens upon lands subsequently dedicated to homestead purposes.
“When appellants established their homestead, upón the lands previously mortgaged, their homestead right'became perfect, except as to the right of the mortgagee to collect her debt from the proceeds of such land. If this can be done, without selling the homestead equity, conforming to public policy, requires that it shall be done. King v. Hapgood Shoe Co., 21 Tex. Civ. App. 217, 51 S. W. 532, 535; Henkel v. Bohnke, 7 Tex. Civ. App. 16, 26 S. W. 645; Pridgen v. Warn, 79 Tex. 594, 15 S. W. 559.” .

In Colwick v. Wright, 275 S. W. 152, 155, the Court of Civil Appeals, in an opinion by Chief Justice Gallagher, followed the rule, saying: “Ordinarily, an execution creditor holding a junior lien on a part only of property incumbered by a prior lien has a right, under the equitable rule of marshaling assets and securities, to require the prior lion to be satisfied out of that portion of the property not subject to his lien, and if such property is insufficient to satisfy such prior lien in full, to have the proceeds of the sale of the same applied as a credit thereon. This right, however, is an equitable one, and, by the great weight of authority, will not be applied to defeat homestead or other exemptions. In case of such exemptions, the debtor has a right to have the nonexempt property included in 'the primary incumbrance exhausted in satisfaction thereof, before resort is had to his exempt property. Pridgen v. Warn, 79 Tex. 588, 15 S. W. 559; Henkel v. Bohnke, 7 Tex. Civ. App. 16, 26 S. W. 645, 646; 26 Cyc. 933.”

The Supreme Court of California in 1863 announced the rule adhered to by us in this opinion. In 1909 the question was again reviewed by that court, in the light of long experience and judicial action by other states, and the rule as previously adopted by that court was approved. In the' case referred to, Nolan v. Nolan, supra, the court in part said-:

“The doctrine of the marshaling of assets and securities is of equitable creation, and in its early application was considered solely with regard to the respective rights of the creditors. The debtor was given no hearing, and allowed no voice in the matter. 1 Story’s Jurisprudence, § .640 et seq. It was to many courts a startling and reprehensible extension of the doctrine, when it was first announced, that the creditors’ rights could be interfered with by an equity arising in favor of the husband or wife by virtue of a homestead. Of the states which announced this extension California was among the earliest, if not the first. In Bartholomew v. Hook, 23 Cal. 277 (decided in 1863), a judgment had been recovered against the husband, and it had become a lien on his land. Subsequently the wife filed a declaration of homestead upon the land, and it was by this court decided that, though the creditor could have recourse to the homesteaded property if necessary for the recovery of his debt, yet the w'ife had, by her declaration of homestead, acquired such an interest in the land as to justify her in maintaining an action against the sheriff to compel him first to resort to the other property of the debtor husband before proceeding against the homestead. Following this came the case of McLaughlin v. Hart, 46 Cal. 639 (decided in 1873), which held that where A. and his wife had given to B. a mortgage upon a tract of land, upon 50 acres of which there was a declaration of homestead, and subsequently A. had given mortgages upon the same land, excepting the 50 acres affected by the homestead, to C. and D., upon foreclosure proceedings the'junior mortgagees could not compel B. to resort first to' a sale of -the homestead, to the end that their security might not be impaired; but, to the contrary, A. and his wife, by the equity of their homestead, could compel B. first to resort to and exhaust the lands not affected by it, even though the result of such procedure would be the destruction of the security of C. and D. The justice of this determination was soon recognized and declared in McCreery v. Schaffer, 26 Neb. 173, 41 N. W. 996; Colby v. Crocker, 17 Kan. 527; Brown v. Cozard, 68 Ill. 178; McArthur v. Martin, 23 Minn. 74; Mitchelson v. Smith, 28 Neb. 583, 44 N. W. 871, 26 Am. St. Rep. 357; White v. Fulghum, 87 Tenn. 281, 10. S. W. 501; Equitable Life Ins. Co. v. Gleason, 62 Iowa, 277, 17 N. W. 524; Flowers v. Miller (Ky.) 16 S. W. 705; Wilson v. Patton, 87 N. C. 318. * *
“Notwithstanding some contrariety of opinion, it may be said that, by the great weight of authority, the debtor who has mortgaged an existing homestead will be heard, upon a marshaling of securities, to insist that recourse shall last be had to the homestead property ; that a lienholder, whose security affects the homestead with other land, will at the instance of the debtor be compelled to resort ■ first to the other lands, even though by so doing the security of still other creditors upon these other lands is impaired or destroyed. Mr. Freeman considers the ques-. tion in the following language: ‘The more reasonable view is that the equities of the homestead claimants to retain their home are at least equal to that of their creditors to' have it sold, and therefore that chancery will not aid the latter by compelling the judgment creditor to first resort to the homestead. Perhaps a more difficult question is: May one who has a lien on the homestead and other, property be compelled by the homestead claimants to firsf resort to the latter?' On the one side, it is insisted that the right to compel a marshaling of assets never existed in favor of judgment debtors, but only in behalf of persons claiming under them, and that the creation of -the lien by the homestead claimants was, in effect, an 'agreement on their part that the lienholder might at his discretion sell any of the property which was subject to such lien, and that such agreement precludes such claimants from exercising any control over such discretion. But homestead 'laws should be liberally construed, and no intention should be presumed, nor should any interpretation be indulged, which is at variance with the natural and obvious purpose of the parties. The claimants, in the absence of any expression of a contrary intent, should be presumed to intend no further peril to their homestead than necessity demands, while he who receives a mortgage from them should be regarded as obtaining a mere security for his debt, and not the right to -employ that security in such a mode as to needlessly imperil the homestead.’ 2 Freeman, Executions, 440. This right of the homestead claimants, as we have seen, is one which they may exercise even to the detriment of junior incumbrances of the other lands. This is so, upon the principle that they, have taken their junior incumbrances with knowledge of the existing equities which the homestead carries, amongst which is the important one to direct the senior mortgagee to have recourse first to lands other than the homestead. That the weight of authority supports this view, in accordance with the early enunciation of this court, in McLaughlin v. H&rt, 46 Cal. 639, may be seen by an examination of the authorities collated in 26 Oyc. 933; 19 Am. & Eng. Ency. (2d Ed.) 1269; 34 Cent. Dig. cols. 357-359, § 3.”

This is the first time that the question has been directly presented to this court, and we deem the quotations made appropriate, although this opinion is lengthened thereby.

We agree with the Court of Civil Appeals that the insurance money, involved belonged to the heirs of Morris, and that the same constituted no part of his estate out of which the plaintiffs in error had the right to seek payment of their debts. The effect of the will, together with the acceptance by the heirs thereunder, was to create a testamentary trust for the benefit of the heirs, with the control of the insurance funds by the trustee or guardian, and to be exercised' by him for the benefit of the heirs. The will says so in so many words. In paragraph 6 of the will the testator defined the authority which he was conferring upon the guardian or trustee with reference to this insurance money. He gave the guardian authority, first, to collect said insurance; second, to use the same in paying any lien or debt against the prpperty passing to his children by the will. The guardian was given full power to loan the money on a certain class of mortgages, and within certain limitations to purchase the land, to collect the money loaned, to sell the land purchased, and to reinvest the money. He was likewise authorized to pay for legal services. Then, follows the only clause which the Court of Civil Appeals thought standing alone could reasonably be said to make the insurance money available for the payment of general creditors. This clause, a part of section 6 of the will, re-, ferring to the insurance money, reads: “At his election, he may use said funds in any lawful manner, as executor of my estate, after they are collected, as fully as though such insurance was payable to my estate instead of to my said children:” ’

It is to be noted that this clause merely confers a discretionary power upon the executor, to be exercised for the purpose of effectuating the primary trust' confided to him; which was, of course, to care for the property of the children. Had the testator intended that this insurance money should become a part of his estate for all purposes, he could have used very simple language" to express that purpose by stating that, although his insurance policies were payable to his heirs, yet his desire was that the same should become a part of his general estate, subject to all its liabilities. He did not do this, however, and we must assume from the care with which his language was apparently selected that his statement that his life insurance was payable to his children, but should be subject to the control of the guardian, meant that, although it was the property of his children, it would be subject to the control of the guardian for the purpose of effectuating the trust imposed by the will, for the period of time designated in paragraph 4 thereof. We think it unnecessary to discuss this question at length. The Court of Civil Appeals has disposed of the issue for reasons plain and satisfactory. To what it has said we will add, however, that, since the language above quoted from the will makes the insurance money available for use “in any lawful manner, as fully as though such insurance was payable to my estate,” only at the “election” of the executor, it necessarily follows that it is not so available under the will until the executor has elected to make it so. The word “election” signifies a free choice. New v. Smith, 94 Kan. 6, 145 P. 880, L. R. A. 1915F, page 771, Ann. Cas. 1917B, 362; If other portions of section 6 of the will, which makes disposition of the insurance fund, or any other part of the will, were intended to make this fund a part of the decedent’s estate for all purposes, there would have been no choice for the executor, guardian, or trustee to make — nothing for him to make an “election” about. Upon the whole, we are convinced that the insurance money is not available for the payment of debts except at the election of Stockton.

The plaintiffs in error insist that certain personal property of the estate lawfully subject to the payment of debts passed into the hands of Stockton. There are no fact findings before us as to this matter, and we refrain from discussing the question. We are reversing the ease generally, and this issue may be determined on the next trial.

The Court of Civil Appeals affirmed in part and in part reversed the case, with instructions. We believe, under all the facts, that justice will be better subserved by reversing the case generally as to all issues and parties. The judgments of the Court of Civil Appeals and of the district court are both accordingly reversed, and the cause remanded to the district court for trial in accordance with this opinion, and that of the Court of Civil Appeals where not in conllict herewith.


source: Caselaw Access Project

author: LEDDY, C. CURETON, C. J.

license: Public Domain

text:
    COLLINGSWORTH COUNTY et al. v. ALLRED, Atty. Gen.
    No. 5912.
    Supreme Court of Texas.
    June 10, 1931.
    Walter C. Woodward, of Coleman, C. C. Small and Edward Brown, both of Wellington, John D. McCall, of Dallas, and Caldwell & Raymond, of New York City, for relators.
    James Y. Allred, Atty. Gen., and Scott O. Gaines, Asst. Atty. Gen.,, for respondent.
    McBride, O’Donnell & Hamilton and W. P. Dumas, all of Dallas, as amici curite.
   LEDDY, C.

Relators seek the issuance of a writ of mandamus to compel the Attorney General of this state to approve $150,000 of bonds proposed to be issued by Collingsworth county for the purpose of building and constructing a courthouse.

Respondent concedes that the transcript of the record submitted for his approval, covering said issue of bonds, shows that the county has in all things substantially complied with the provisions of chapters 1 and 2 of title 22, Revised Civil Statutes of 1025 (articles 701-725), and that such record discloses all the facts essential to the validity of $150,000 of the bonds proposed to be issued. Respondent avers that his reason for refusing to approve said bonds was based solely on a decision rendered on February 18, 1931, by the honorable United States Circuit Court of Appeals for the Fifth Circuit, in the case of Shelby County et al. v. Provident Bank & Savings Company. It is shown that it was held in said cause that the amend-atory portion of section 52 of article 3 of the Constitution of Texas “negatives the conclusion that bonds of a county validly may be issued under legislative provision without a vote of two-thirds majority of the resident property taxpayers voting thereon who are qualified electors of the district or territory to be affected thereby, or for a purpose other than those which are enumerated in that provision.”

Respondent also avers that the questions involved in said decision are still in litigation, and that a motion for rehearing was filed and pending upon the docket of the court at the time the answer was filed herein. It may be said in passing that since th'e filing of respondent’s answer a motion for rehearing has been granted in said cause pending in the Circuit Court [ — — F.(2d)-], and the opinion theretofore rendered has been withdrawn. It does not appear, however, that any final disposition of the appeal in that case has been made by the Circuit Court of Appeals.

' In view of the holding of the United States Circuit Court of Appeals, it was entirely proper for the Attorney General, as a matter of precaution, to decline to approve said issue of bonds until an authoritative holding could be obtained from the court of last resort in this state.

Inasmuch as the. record shows that Collings-worth county has fully complied with the provisions of the statutes with reference to the issuance of $150,000 of the bonds proposed to be issued fbr the purpose of building a courthouse, it is entitled to the writ of mandamus to compel the approval of such record by the Attorney General; unless it be determined, as held by the honorable Circuit Court of Appeals in its opinion, that the amendment to article 3, § 52, of our Constitution, negatives the conclusion that bonds of a county may be validly issued under legislative provision without a vote of two-thirds majority of the resident taxpaying voters therein who are qualified electors of the district or territory to be affected thereby, or for a purpose other than those enumerated in that provision.

A proper determination of the issue thus raised necessitates the review of several provisions of our Constitution. Section 52 of article 3, originally adopted as a part of the Constitution of 1876, reads as follows: “The legislature shall have no power to authorize any county, city, town, or other political corporation, or subdivision of the State, to lend its credit or to grant public money or thing of value, in aid of or to any individual, association, or corporation whatsoever; or to become a stockholder in such corporation, association, or company.”

In 1904 this section was re-enacted with the addition thereto of the following;

“ * * * Provided, however, that under legislative provision any county, any political subdivision of a county, any number of adjoining counties, or any political subdivision of the state, or any defined district now or hereafter to bo described and defined within the state of Texas, and which may or may not include towns, villages or municipal corporations, upon a vote of a two-thirds majority of the resident property taxpayers voting thereon who are qualified electors of such district or territory to be affected thereby, in addition to all other debts, may 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, except that the total bonded indebtedness of any city or town shall never exceed the limits imposed by other provisions of this constitution, and levy and collect such taxes to pay the interest thereon and provide-a sinking fund for the redemption thereof, as the legislature may authorize, and in such manner as it may authorize the same, for the following purposes, to-wit:
“(a) The improvement of rivers, creeks and streams to prevent overflows, and to permit of navigation thereof, or irrigation thereof, or in aid of such purposes.
“(b) The construction and maintenance of pools, lakes, reservoirs, dams, canals and waterways for the purposes of irrigation, drainage or navigation, or in aid thereof.
“(c) The construction, maintenance and operation of macadamized, graveled or paved roads and turnpikes, or in aid thereof.”
Section 2 of article 11 of the Constitution, as adopted in 1876, is as follows: “The construction of jails, court-houses, and bridges, and the establishment of county poor-houses and farms, and the laying out, construction, and repairing of county roads shall be provided for by general laws.”

The conclusion reached by the United States Circuit Court of Appeals in its original opinion is based upon the proposition. that the provisions of the amendatory portion of section 52 of article 3 are exclusive, and that the Legislature is therefore without power to-authorize a county or any defined subdivision of the state to issue bonds except for the purposes and in the manner therein prescribed.

It is true in construing Constitutions that resort may be had to the well-recognized rule of construction contained in the maxim “expressio unius est exclusio alterius.” Arnold v. Leonard, 114 Tex. 535, 273 S. W. 799; Parks v. West, 102 Tex. 11, 111 S. W. 726; American Indemnity Co. v. Austin, 112 Tex. 247, 246 S.W. 1019; 6 R. C. L. p. 49. But such rule of construction will not be given effect where the facts and circumstances surrounding the adoption of the amendment demonstrate that the people in adopting the same intended a different meaning to he given to their action. Aransas County v. Coleman-Fulton Pasture Co., 10S Tex. 216, 191 S. W. 553; Nunnemacher v. State, 129 Wis. 190, 108 N. W. 627, 9 L. R. A. (N. S.) 121, 9 Ann. Cas. 711.

The fundamental purpose in construing a constitutional provision is to ascertain and give effect to the intent of the framers and of the people who adopted it. Aransas County v. Coleman-Fulton Pasture Co., 108 Tex. 216, 191 S. W. 553; Cox v. Robison, 105 Tex. 426, 150 S. W. 1149; Simmons v. Liglitfoot, 105 Tex. 212, 146 S. W. 871.

The Constitution must he read as a whole, and all amendments thereto must he considered as if every part had been adopted at the same time and as one instrument, and effect must be given to each part of each clause, explained and qualified by”every other part. Gilbert v. Kobbe, 70 N. Y. 361. Different sections, anlendments, or provisions of a Constitution which relate to the same subject-matter should be construed together and considered in the light of each other. Dullam v. Willson, 53 Mich. 392, 19 N. W. 112, 51 Am. Rep. 128; State v. Astoria, 79 Or. 1, 154 P. 399.

If the provisions of article 3, § 52, are in irreconcilable conflict with other provisions of the Constitution, the section later in point of adoption will be given controlling effect. But this rule will only be applied upon a determination that it is impossible to harmonize the provisions by any reasonable construction which will permit them to stand together.

While the provisions of section 52 of article 3 prior to its amendment prohibited the Legislature from authorizing any county, or other political corporation or subdivision of the state from lending its credit, it did not operate to prevent the Legislature from authorizing a county to lend its credit by the issuance of its negotiable bonds for any of the purposes mentioned in section 2 of article 11 of the Constitution. The effect of section 52 of article 3, as construed by our courts, was merely to declare that, except as otherwise provided in the Constitution, the Legislature could not authorize the agencies named to lend their credit for any purpose. The provisions of section 2 of article .11, within a short time after its adoption, were held by our Supreme Court to authorize the Legislature to grant counties the power to issue bonds for any of the purposes mentioned in said section. Robertson v. Breedlove, 61 Tex. 316; Mitchell County v. Bank, 91 Tex. 371, 43 S. W. 880.

The question then arises, Was the power conferred by the amended portion of section 52, article 3, adopted in 1904, intended to be exclusive? If so, then the Legislature of this state cannot validly authorize the issuance of bonds by a county for any purpose whatever except those enumerated therein. Suéh holding, would, in effect, declare that the adoption of the amendatory portion of section 52 wa's intended to, and did operate to, repeal the authority granted in section 2 of article 11, and also numerous other provisions of the Constitution under which our courts have held that the Legislature might authorize counties and other political subdivisions to issue bonds for various purposes.

An examination of the provisions of the amended portion of section 52 shows that it makes no reference to any other section of the Constitution; hence there is no expressed intention to repeal any such provisions. If it had been within the contemplation of the people in adopting said section to repeal numerous provisions of the Constitution under which elaborate systems of laws had been enacted giving the people of counties and other political subdivisions of the state the privilege of issuing bonds for various pur: poses, certainly some expressed intention to take away such rights should be found in the terms of the amendment itself. It is only by application of a rule of construction that it can be held a repeal of other provisions of the- Constitution was intended by the adoption of the amendatory portion of section 52. Such construction is not a favored one. As said by Chief Justice Phillips in Lasater v. Lopez, 110 Tex. 179, 217 S. W. 373, 376 : “The abrogation of an important public power of long existence and continued legislative sanction, whose lawful exercise will afford a public benefit, ought to rest upon surer ground than the mere construction of statutes. It ought to be found in clear legislative declara-' tion. There is where we would ordinarily look for it, and there is where it should be expressed.”

This rule thus aptly expressed by the Chief Justice applies with peculiar force when we have under consideration a repeal of several provisions of the Constitution, under each of which elaborate systems of laws for the issuance of bonds have been in force for more than a quarter of a century, and the people, during all of this time, have been continuously exercising the powers granted thereunder.

In our opinion, the evident purpose of the amendment to section 52 of article 3 was to enlarge the power of the Legislature rather than to restrict it. Under the provisions of section 52 as adopted in 1876, the Legislature was expressly prohibited from authorizing any political subdivision or defined district of the state to issue bonds for the purposes covered by the amendment. At that time there was no other provision in the Constitution which authorized the Legislature to grant such power. In order that the power then possessed by counties might be broadened and political subdivisions of the state and defined districts might be clothed with powers not then possessed, it was essential that section 52 should be amended in the form in which it was adopted. That the purpose of such. amendment was to confer broader and more liberal powers upon the Legislature in regard to authorizing the agencies named to issue bonds for the purposes specified, leaving unimpaired the vitality of other provisions of the Constitution, is declared by our Supreme Court in the case of Aransas County v. Coleman-Eulton Pasture Co., 108 Tex., 219, 191 S.W. 553, 555. In discussing the purpose of such amendment, Chief Justice Phillips, speaking for the court, said: “The amendment of 1903 to section 52 of article 3, which includes the subdivision quoted at the beginning of this opinion, was adopted at a- later time than any of the provisions above referred to. Upon the general subject of road improvement, it marked a radical departure from the previous policy of the State. It was the response to a public demand that provision be made whereby the State, and every section of the State, might be supplied through voluntary taxation with adequate, durable and permanent roadways. The former bounds of taxation for their construction and maintenance were set aside, and the political subdivisions named, in addition to all other debts, were, under legislative provision, given authority upon a requisite vote to issue bonds in the liberal amount of one-fourth of the assessed valuation of the real property of such districts. Not only was such authority given to counties and subdivisions of a county, but any number of adjoining counties were empowered to form themselves into a taxing district as a means of securing the improvement in the territory comprised by them. Different units for the necessary taxation, and therefore different units as the beneficiaries of the taxation, from those theretofore existing, were thus authorized. It was plainly designed that the extent of the improvement should not be limited alone to the necessities of a county, nor was it to be longer dependent alone upon the powers of a county. The purpose of the amendment was a broad one, its scope was large, its spirit liberal.”

If it be conceded that there is an apparent conflict between the provisions of the amendatory section and those of other provisions of the Constitution which granted the Legislature the power to authorize counties to issue bonds for various purposes, still it is our duty to reconcile such conflicts if the provisions of section 52 of article 3 are. fairly susceptible of a construction which will accomplish such result. Certainly it cannot be claimed that these provisions are not capable of an interpretation which will permit all provisions of the Constitution covering this subject-matter to be given full force and effect. Section 52, article 3, may be reasonably and fairly construed as being adopted for the sole purpose of enabling political subdivisions and defined districts to be brought from under the ban existing by reason of the provisions of section 52 as it formerly existed and to enlarge the powers of counties to issue bonds without affecting in any manner the power of the Legislature to authorize counties to issue bonds under other provisions of the Constitution. No part of the Constitution should be given a construction which is repugnant to expressed authority contained in another part, if its language-fairly admits of any other interpretation. Patterson v. Washington County, 136 Term. 60, 188 S. W. 613; Massey v. Glenn, 106 S. C. 53, 90 S. E. 321.

Contemporaneous legislative and executive interpretation of a constitutional provision is universally held to be entitled to weight. If the exercise of such power for a long period. of time has been unchallenged, and the provision of the Constitution under which it has been exercised is of doubtful construction, then such interpretation will be given great weight by the courts.

For more than a quarter of a century after the adoption of the amendatory portion of section 52 the Legislature, various state officers, including Governors, Attorneys General, and the officers of counties throughout the state have uniformly construed said amendment as not having the effect to take away any of the powers granted the Legislature by other provisions of the Constitution to provide for the issuance of bonds by counties for the purpose of building courthouses, jails, and the construction of public roads. The-language of our Supreme Court in G., H. & S. A. Ry. Co. v. State, 77 Tex. 367, 12 S. W. 988, 995, 13 S. W. 619, admirably fits the situation here presented. It was there said:

“But when, as in this ease, seven successive legislatures have, through a period of 13 years, acted upon a given construction of the constitution; when the department intrusted with the immediate administration of the land system of the state has uniformly concurred in that construction; and when successive governors of the state, eminent for their patriotism and intelligence (more than one of them having served with distinguished success in this court), have approved it — we feel that nothing less than an absolute conviction that they have all been wrong would justify us in so deciding.
“The' duty\ to decide correctly was as incumbent on them as it can be on ourselves.”

The people of this state knew at the time the amendment to section 52 was adopted that another provision of the Constitution had been construed by our courts and the Legislature tp authorize legislation permitting the issuance of bonds by counties for the purpose of building courthouses. They also knew that, because of taxing limitations, it would be impossible for the Legislature to provide for building of courthouses and jails by the various counties, as it was expressly commanded to do by the Constitution, without authorizing the -creation of an indebtedness running over a ■ long period of years. It is altogether probable that, if they desired to take away the power then possessed by counties, leaving them completely without means to construct necessary courthouses and jails, language clearly evidencing such a purpose would have been embodied in the amendment. They would not have left its meaning so obscure that their purpose to repeal the elaborate and necessary provisions then existing for the issuance of bonds by counties for these purposes would only appear through veiled implication or by mere resort to technical rules of construction.

Again, we find in the very language of the amendment itself evidence of an intention not to destroy, or in any way impair, the right of the Legislature to authorize the issuance of bonds under other provisions of the Constitution. In making provision for the issuance of bonds by counties and political subdivisions for purposes stated in the amendment, it is expressly declared that such districts may issue bonds “in addition to all other debts.” Plainly, this was a recognition of the existing power -of counties and political subdivisions to lawfully create debts, and the permission to issue bonds in addition to such debts necessarily presupposes the continued exercise of such right.

It is true that it was well within the power of the people in adopting the amenda-tory portion of said article to deny the right of counties to issue bonds for the purposes granted in other provisions of the Constitution, even though to do so would bring about the most disastrous consequences. But to give effect to a design which would lead to such result would require the support of a most direct and explicit declaration of such intention. McMullen v. Hodge, 5 Tex. 34; State ex rel. Clarke v. Irwin, 5 Nev. 111; Cooley’s Constitutional Limitations (8th Ed.) p. 153.

We think upon a fair consideration of the .language of the amendment, taking into account existing conditions, the effect and purpose of its adoption, and the absolute necessity of creating debts to build courthouses and jails, that it appears it was not within the contemplation of the people in adopting the amendment to section 52 to alter or repeal any provisions of the original Constitution. Such provisions, therefore, remain in full force, unimpaired by the adoption of this amendment. Ferrell v. Keel, 105 Ark. 380, 151 S. W. 269; In re McCormick, 72 Or. 608, 143 P. 915, 144 P. 425.

We conclude that a proper construction of the amendatory portion of section 52 of article 3 is that it was not intended to impair in any way the rights of counties to issue bonds under laws existing at the time of its adoption, but that its purpose was twofold,; First, to authorize the Legislature to enlarge the existing powers of counties to. issue bonds for the purposes specified therein; . and, secondly, to authorize legislation conferring upon political subdivisions and defined districts of the state a power not then possessed of issuing bonds for all of the purposes specified, subject to the limitations therein imposed.

The writ of mandamus will issue as prayed for.

CURETON, C. J.

The foregoing opinion is adopted as the opinion of the Supreme Court, and judgment will be entered in accordance therewith.


text:
    HENDERSON COUNTY et al. v. ALLRED, Atty. Gen.
    No. 5915.
    Supreme Court of Texas.
    June 10, 1931.

      W. P. Dumas, of Dallas, for relators.
    James V. Allred, Atty. Gen., and Scott C. Gaines, Asst. Atty. Gen., for respondent.
    J. M. Sanders, of Center, Oliver J. Todd, of Beaumont, Caldwell & Raymond, of New York City, and McBride, O’Donnell & Hamilton, of Dallas, as amici curiae.
   LEDDY, C.

Henderson county, through its proper officers, has been granted leave to file in this court its petition for mandamus to compel the Attorney General of this state to approve $148,000 of road and bridge funding bonds ordered issued by the commissioners’ court of said county under the express authority conferred by the terms of H. B. No. 448, Sp» Acts 42d Legislature (1931) page 121, c. 46.

The act in question is a local or special road law enacted for Henderson county without local notice having been given. Under its terms the commissioners’ court of Henderson county ,was authorized to fund into bonds of the county such of its legal indebtedness chargeable against the road and bridge fund as existed January 1, 1929, which might be represented by script or time warrants. It was also provided in said act that such funding bonds might he issued without the necessity of submitting the question of their issuance to a vote of the people of the county.

It is conceded that relator is entitled to the issuance of the writ of mandamus, unless respondent was justified in refusing to approve said issue of bonds upon either or both of the following grounds:

• First, because section 52 of article 3 of the Constitution as amended in 1904 prohibits the Legislature from authorizing any county to issue bonds except for the purposes named and upon compliance with the procedure therein outlined.

Second, because of the act of the Legislature authorizing the issuance of funding bonds by Henderson county without a vote of the people is violative of the provisions of section 9, article 8, and section 56 of article 3, of the Constitution of this state.

Respondent’s refusal to approve said bonds cannot be justified on the first of the above grounds, as we have this day decided in the case of Collingsworth county against the respondent herein [40 S.W.(2d) 13] that the adoption of the amendatory portion of section 52 of article 3 in 1904 did not affect or impair the right of the Legislature to authorize a county to issue bonds for any of the purposes authorized by other provisions of the Constitution.

Nor can the contention that the passage of the local or special road law for Henderson county is prohibited by the terms of section 56, article 3, of the Constitution, be sustained. This section of the Constitution provides: “The legislature shall not, except as otherwise provided in this constitution, pass any local or special law: * * ⅜ authorizing the laying out, opening, altering or maintaining of roads, highways, streets or alleys.”

The above provision is a'part of the original Constitution of 1S76. Its terms operated to prohibit the Legislature without proper notice having been given from enacting any local or special law in regard to public roads from the date of its adoption in 1S76 until December 19, 1890. On the latter date, however, section 9 of article 8 was amended. The amendatory portion of this article contained the following clause: “And the legislature may pass local laws for the maintenance of the public roads and highways, without the local notice required for special or local laws.”

On January 7, 1907, section 9 was again amended by changing its former terms, but the above provision with reference to the passage of local or special road laws was reenacted in the identical language in which it was originaly adopted.

From the above-quoted provisions of the Constitution, it will be readily seen that local or special road laws are expressly > exempted from the operation of the provisions of section 56, article 3. The power of the Legislature to enact such local or special laws without the required notice is therefore placed beyond cavil.

The question then arises, Has the latitude allowed the Legislature to pass a local or special road law been exceeded so as to bring the same within the condemnatory provision contained in section 56, article 3, which forbids the Legislature from passing any local or special law “regulating the affairs of counties, cities, towns, wards or school districts.”

In the case of Smith v. Grayson County, 18 Tex. Civ. App. 153, 44 S. W. 921, 923, in which writ of error was denied by the Supreme Court, the contention was made that the Constitution limited the purposes for which a local or special road law could be enacted to the “maintenance” of roads already constructed, and that the terms of the Constitution prohibited the passage of. a local or special law authorizing the building, laying out, and construction of public roads. This contention was denied and the conclusion reached by the court that it was the clear intention of the framers of the Constitution by the use of the word “maintenance” to “include all the necessary powers to provide and keep up a system of highways.”

A similar position was taken in the case of Dallas County v. Plowman, 99 Tex. 509, 91 S. W. 221, 222. It was likewise denied by our Supreme Court. It was expressly held that the authority to pass local and special laws for the maintenance of public, roads contained in the Constitution authorized “that body to confer upon a county power to do everything to which the taxes raised for the purpose may be lawfully applied.”

It will be noted that the special law in question empowers the commissioners’ court of Henderson county to fund into bonds “such legal indebtedness of the county chargeable against the road and bridge fund as it existed January 1, 1929.” It therefore appears that no indebtedness not legally incurred in the construction, maintenance, and operation of its public road system is authorized to be funded into bonds of the county. If the Legislature possessed the power to control by local or special laws the laying out, construction, and maintenance of public roads in Henderson county, which cannot be doubted under the foregoing decisions, then it must necessarily follow that it has the power to control and regulate by such a law the expenditure of all* funds used for such purposes. Undoubtedly, the Legislature might lawfully, by local law, have made provision for the issuance by the county of the warrants and script which it - has now authorized to be funded into negotiable bonds. The power to authorize the creation of such indebtedness and to provide the form in which it shall be evidenced necessarily includes the power to authorize a change in the form thereof. The special road law merely authorizes the county to change the form of its indebtedness theretofore lawfully incurred in the laying out, construction, and operation of its road system, and to extend its' time of payment. The practical effect of the special act in question is merely to permit the county to change the evidence of its indebtedness into a form of obligation more attractive to investors. The result sought to be accomplished is to diminish the interest rate of the county’s road obligations, thereby leaving more of the road and bridge fund taxes available for the construction and operation of its road system.

There is no inhibition in the Constitution to prevent the Legislature from empowering a county to issue'its negotiable bonds without a vote of the people, except the bonds authorized to.be issued, under the provisions of section 52 of article 3. Bell County v. Lightfoot, 104 Tex. 346, 138 S. W. 381. The right of the Legislature to authorize a county to issije bonds without a vote of the people, under other provisions of the Constitution than section 52 of article 3, has been definitely settled by the decision of our Supreme Court in the above case.

If it was within the power of the Legislature in the first instance to have authorized Henderson county by a local or special law to issue its negotiable bonds without a vote of the people and use the proceeds thereof for the laying out, constructing, and maintaining of its road system, upon what theory can it be held that it would be without power to authorize a change in the mere form of indebtedness lawfully incurred for such purpose? Indisputably the Legislature had the power to authorize Henderson county by local or special law to - issue warrants or bonds as a means of obtaining funds to be used in the building and operation of its road system without submitting the question as to the issuance thereof to a vote of the people of the county. This being true, it logically follows that, where an indebtedness has been lawfully incurred for road purposes by Henderson county and its obligations issued therefor in the form of script and warrants, that the Legislature may validly authorize the county to change such form of indebtedness by funding the same into the negotiable bonds of the county.

We are referred to the cases of Altgelt v. Gutzeit et al., 109 Tex. 123, 201 S. W. 400; Meyenberg v. Ehlinger, County Judge (Tex. Civ. App.) 224 S. W. 312, 315; Commissioners’ Court of Limestone County v. Garrett (Tex. Com. App.) 236 S. W. 970; and Austin Brothers v. Patton (Tex. Com. App.) 2S8 S. W. 182, as' being decisive of the invalidity of the special road law which' is here assailed.

A special road law was declared invalid in the Altgelt Case as an attempt to regulate the affairs of the county by changing the salaries of members of the commissioners’ court to a fixed compensation per year in lieu of the fees and per diem provided by the general law. In the Meyenberg Case the special road law w.as struck down because it authorized the Legislature to “levy a local tax for road purposes contrary to other provisions of the Constitution limiting the power of the Legislature in levying taxes.” In the Limestone County Case the special road law was declared void by the court because the Legislature was not authorized in passing a local law to create offices, and in the Austin Brothers Case the law involved was condemned because it authorized the creation of offices by local law and clothed the officers with functions already performed by existing officers under the provisions of the general laws.

It is obvious from the above cursory review of the cases relied upon that the holding in neither of them is in conflict with the conclusion we have reached in this case. All of the special laws condemned by the above decisions were attempts to regulate by local law the affairs of a county in direct contravention of the provisions of the Constitution of this state, while the special road law for Henderson county is merely an act by which the Legislature has made provision for the disposition of the county’s road taxes for a purpose for which they may be lawfully applied. The question as to whether it possessed the power to do this is set at rest by the decision of our Supreme Court in Dallas County v. Plowman, supra.

It is ordered that the writ of mandamus issue as prayed for.

CURETON, C. J.

The .foregoing opinion is adopted as the opinion of the Supreme Court, and judgment will be entered in accordance therewith.