#### HENDERSON COUNTY et al. v. ALLRED, Atty. Gen.

No. 5915.

Supreme Court of Texas.

June 10, 1931.

*18W. 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: * * 3⁄8 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 spe*19cial 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 *20of 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.