R-362



# THEA

**~..** June .ll, 1947
Bon, John **M.** Steele opinion No. "v.244. County Attorney Lubbock County ‘- ,, ‘Be: Obligatioh ,,of emiuty te Lubboak, Texas purchase right-of -way 8 

### fora highway. across 

### lands 'once

annexed aud then purportedly relinquished ,by.a home ; ,~, Y ,~ rule city. Dear Sir8

.., We

### refer to your letter of April’lO, 1947, in which you requested an opinion of this Department as followst . . ” :
“The clty~ of Lubbobk is-.a‘HomeE$l.s City since Its orgahisation in 1917. Prior ,to 1934, the City annexed certain land. In 1934 the CZty,~by Ordlnauce Do. 519, a copy of which I enclose, puvported to ~ellnqulsh and discontinue the lapddescribed in the Ordinance; ~,‘tlie State Highway Gonssission BOW proposes td aonstruat a highway across this disputed laud? It la therefore uecessarg to determine who is to purchase the right-of-way, the City or the Oouuty.

“It is the Gontentlon of the County of Lubbock that the purported Ordinance is invalld,and of no force and effect, and there**Sore,** it is the obligation of the city of ~Lubbook to purchase such right-of-way. In this .counectlon, I would also call your attention to Article 1176 b2, ‘validation of .~ ordinances of HomeRule cities’, publiehed~ in compliance with charters~. Article ,973 ldiscontinuingterrltory’, and in coonectlon with the lat.e~,~&ticle, note the word ‘uhin- . habited’

. It ,$a the contention of the County that this terrltotig was at that time inhabited. I would appreciate your very valued opinion on this controversy.

### Eon. John H. st*.el& - Pegs'2 ',

"It la tkie

aontultionOf thecounty that other th@ &tlelb 973, th@mei.i ho provision for dlscontintring terz%toq and that 

### thepmpaeed ordinances eneloue&+1D this letter is ImufficMnt, 

### legally,Co discontlnub territory of a city once It Is aoaexed. I would further call your attention, If it **would be**  **or aq**  help, ~that & 1934 

### .tdae

olty 

### of Lubbock~88 l.Leble oxi severalouttstandlng **bond** 

### ,is~aues."(Emph& **sla OUPS))**  Onl&r 

### 10, 1947, at our requesmt, you subaltted addltioual iuforstlqn relrtw to the s@mesubject mat**teF jhich**  is **in** 

### pert-as followst

m we wish to call jouv attention to a &e&&l dot passed **by** t&b 43d LeeIsl+tstrrreIn 1934. 

### Satah speclelact 1s her Article 118gd of Vernon's Gidl Statutes. "Xnce the Inception of this aontro

### reraybetweenthe City .%udCounty of Lubbook, It IULS

been our contention that Ordliuxnce 519 of the City of Lubbock 

### mia Invalidbecause the territory supposedly rell4uished 

### was **lnbablted,** 

### a min&blted, amI therefore, ati **ordbaance** was 'in violation of Article 973, Vernon's Civil Statute8, %wever, if Irtlcle 11826 is coastltutlonal then regmdless of the orlginal~invalidity of the city ordinance, the seme is 

### now valid,' 

### andmm approvedandmtlfled by the Legislature.
"Ue suggest 

### t&atyou give thisvallQrtlng act of theLegislatureyour close scmtiny,and, Lf ooa&venlent, pleaseadFse me your opinionaa to the abovefincts.


### You also aqntus a eoprof the o rdlnume pars44 by the City of 

### Lubbock,datedJplr 26, 

### 1934,~h.iCad%acontinued OFrelSn&.shed the psrt1Cul.w territory pot I8 question. Article 973, V.CiS., IS 

### as fol+ws: \. .

: (

*

-. .. Bon.‘John M. Steele - Page.3 _)

‘,,. 

### ~“Uhenevdr~thePe ejEfsts’wlthiu the

.’corporate’

. l-t8 Of any clt* or town

..’

. orgaulzed’under the ge&al-laws within this State~terrltorj to~‘the extent of at least ten 

### aOres,aontiguour, unln- A . habited and adjoining the lines of any such city or town, the mayor and city or town council m&yby ordknance~duly passed, discontinue said territory as a part of said city or town; and when said ordinance has been duly passed, the mayor shall enter an order to that effect on the minutes **or** records of the.afty,or town council; and, 

### from and after the entry o? such order, said territory &a$1 cease to be a part of 

### said city or town.

.’ The Cit;s ok Lubbo$c_is a home rule city aud-

‘has adopted In Its ,charter all the powers authorized by Article 1177, .y.C.S~.; therefore, Article 973, supra, is applicable.‘t;o~:sald.&ity.

.~~ According to your letter, the particular territory involved was Uhabited and not tminhabitedu~~o~~ time such ordlnanae was’wssed by the City of L , and’vas not i]l conformity with A&iale 973;-.supra.’ Hevertheless, thi$.being a question of fact and further, since the city council passed the ordinance, it Is presumed that the city council fouud all the facts pecessary for its ,validi.ty. As a matter bf law, it is presumed to be valid until the above .facts are shown in a court trial and the ordinance set aside.

You stated in your letter that in 1934, the City of Lubbock was liable on several outstanding bond Issues and intimated that this might prevent the city from dlscontinuing or relinquishing the territory in question.

Insofar as we are able to ascertain, there’i,s n&.hi~~Ih the statutes or Constitution vhich pr?hibits such a procedure and, in view of Article 971, V.C.S., we believe-that the territory maybe relinquished even though there are outstanding bond issues, If such relinquishment is in other respects justified. Ue also fail to find any case vhere the Texas Courts have passed on this particular question; however, in 43 CorpusJurls, p. 149, Sec. 130, we find the. follovingosessed, levied, 05 due, but not paid, at the time of the detachment of territory embrecing the lands taxed maybe SUbsQquently colleoted by the municlpallty **fFOlS** the **PeI ’** **SOna** liable, Uhllethe mcipalltg maynot have the power, after the exclusion of ‘territory, to. enforae a lien on excluded land fortaxes~due,at the tine of the exc1uslon, the owner is not released from liability for 

### t4e taxes, **and** his property remaining within the city maybe aold fop the entire tax.” 1-P--, sis oara) , 1 Also, %lnMiller v. Plnevllle, 8g’s,W. 261, a Kentucky coupt passing on this same question had this to 

### sayi

“It is insisted that section 

### 3483, &. St. 1903, which providea for the ~aduction of the territory of munioipalities, *:- Is unconstitutional, because only the city 0~ taxpayer within the territory proposed to be stricken off can makea dafenae or file a remonstrance, and .becauae ,the defense is Us&ted to show ,that the majority of taxpayers within the proposedlatrlcken territory 

### are against We change In the 1 city limits, and that suoh a change will A \ impose unjust burdens on the taxpayers within the territory to 

### be rtricken off. The question raised is anawe+ed 

### by themew ,

. . ,statement that, if the Legislature can add ., fo OP reduce the liaita’ Of a city at till, then the power slso, exista to llmlt the defense to a proceeding instituted by **aukhoP-** : ity of the LeglslatuFe. to: alter or ‘charrge th0 Legislature is. supreme G ‘% ~~~e~~;%d ~. limits of a municipalit Sa to whether it exercises its authtiity wisely cannot be questioned.” In view of the foregoing, it is the **Opinion Of**  this Department that the territory maybe relinquished by

-.**Hon.** 

### John W. Steele - 

### Page 5

the City of 

### Lubbodk, Elithe s&meis othervisejustified, even though there are outstanding bonds against the

The question of the right of bond holders to subyz*the 

### ~ellnquished territory to the payment of bonds outstandlng at the date of the rellnqulsbment is not hem involved.’

In Septembex 1934, the Leglalatrule passed Artlole 1182d, V*C A., as a validating statute, and if 

### said statute Is constitutional, the aforementioned 

### ordlnence being voidable only and not void, is now valid WItil it has been directly attacked in a Court of ooapetent jurisdiction 

### and found to be 

### invalid.

Article11826,V.CISi,is aa 

### f6ilowat

“That the Leglslatwe of the State of Texas hereby validates, ratifies and approves all ordlnances~ relfnqufahlng, discontfnuiiag, and segregating 

### any territory vlthin the co*-

. porate limit8 .* -iU@ BorneRule City In this state, havlag a, 1.pulation of mope than tvengy thousand (26,000 3”lnhkbitauts and less than twenty-one thousaud (21,000) inhsbitaats, ac- .cording to the last 

### precedingFederal census; ,uhich city has adopted 

### a charter uuder Article. 

### 11, Seation 5, OSthe Const%tution .of the State ,: of Texm and the p~ovl~qlon~ of Chapter 147, Act8 of the 

### RegularSession~‘of the 33rd Legls-

,.’la$re of ,the State of ,,Texaa, passed in 1913. ;c;a,19;3, 43rd 

### Leg.,3rd **C.S.,.p.** 

### 53, ob. 30, I



### . Seation 56 of Article III,;ot the, State Consti-’ 

### tution,provldes in part 48,followtt~ ,I ,.,

“Seci 56~; ,,. ,.



### Then LeglsLatureshall noi, ~~- 

### l iOept aa okhetiVi4e @w&lsd~: Iq @xta Conatitutloa, pals airy kod~l’df ‘@ecia$. law,.author- ~%lngt ,‘,: ‘: ,_‘,, ., .,

.b,,.. ‘,

“Reguia&ag the affairs of counties, cities, towna, wards or schoo& districts;.

. ** Our question, is whether ‘btlcle **1182d,** supra, is itself a local **and** special **law** aa belng repugsaut, to hour Constitution. . j

### .,

Hon. John M. St&elk - Pige 6’,

The census shows ‘that Lubbock ‘was the only city in the ‘State having a popula#iod:‘~oS Pot less thaa 20,000 

### nor more &an 21,QOO 

### for thb,~yeu1930. lhir in aud of itselr does.not necessarily make the 

### law a localor, apeoial one; but let us look fuH.her. aEticle 1182d, supra, ,is, m&sly a validating statute and deals with only those ordinances which had already been passed at the t+e of the~euactment of 11828..

Validating sta~tutes are ouly applicable to ’ those ~things ribI& have ..prevlously occuzrred and never deal with’ auythiug ,which mayhapben in the future. The 1930 census being .the oontrolling factor, then only those things 

### occupz$.ng:in the interiti period, I. 8. those between the years 1930 and September, 1934 (date of the enactment oft the **s~tatut)** vould be,,val+dated.

It instme ‘that other 

### ~,aktlLea may

### moveiuto~ the partloulm populat%on 

### bra&et ttdt out in ~theAat., yet, time the statute validatea only those ordinances in effeot 

### prim to the tin@ of the euactraent of the statute, and, further, ainoe a validating statute can only ratitf those 

### thingsalreadyin exlatenoe at the tine, it is readily apparentthat the 

### statute could never, upon auy contingency, 

### apply to,anyothercity, '~, ~,

In 

### GBay v. Taylor,227 

### u'.5, 51: the Suprem Court of the United States defined a local law 

### am

“The phrase ‘local law’~means, primarily, **at** least, **a law**  that In fact, if not in **fora,** io directed only to a specific spot.!,, : In the ease of City ‘of Ft’; 

### Worth.v. Bobbitt, 36 S.Y. (2nd) 470, 

### Judge CritZ he9 

### pla to ,seyt

.’

.‘i.

=&in act which designates a particular city or county by name, or by a description so qualified that a partienlar city or county is plainly intendad &nd that no **other** can reasonably be **expeoted** to have the distlnguiahlng cheractsrlatics, and whan,e,operation ie llmited to such cfity 

### or cmin$y,Ishold to be 

### local or 

### speoial. Xn the case of Bexer County v. Tynan, et ~01; qy S.Y. (2nd) 467, the Supreme 

### Courthad this to sayt i**Hon.** Sohn M. Steele -

“It is well aining whether a 

### reaogni&ed that ‘iti detelclaw is public, general, special or local the coWts will look.to its substance and practical operation ratA**er** than to its title, form and waseologg, because otherli%e prohibitions of the fundamental law against special legislation ~ would be nugatory.’ I

. . . Page 7

“‘The rule is that a classification csnnot be adopted orbitrarlly upon a gMund which has no fomdation in difference of situation co' ctiowsstances of the mnloipalities placed in the different **classes.** There muat be some Ireasonable relation between the situation of mpieipalitlss classified and the purposes aud objeots to be ,atteined. There must be something + * * rhleh in so18 reasonable de#rea aceounta-IoF the di?isZon lhto olasaea.’ ,: Whenie looi to the pracrtical 6pmatilon of the Act in question, it is the opinion of this Departunt **that** the **attempted** cla+islficatlon Is so unreasouable and arbitrary; as to 

### indibte beyond doubt,that the purpom of the Legislature was to single out the CSty OSLubbock;

In view of the foregoing, jgP.,ffe respectfully 

### l 4vlsed that it iS the opinion of this Depaxtment thrt Irtiole 1182d is **a** local and special law, beiiag iu violation **of,** Section 56, Article’ 1x1, of the Constitution, and is therefore void. yet, as. ,atitsd before, since tha ordinance is voidable only, the sam is ‘valid until it has been 

### di.reaOly

attacked in a ~court tifoollprtstkt juHrdlotion and fouad to 

### bq ‘igvalld~ Therafoue, you am respectfully advised that It Xr:the opinion of this Department that uutll said 

### o~dlnau~be has been hsld .invalld in a suit ‘directly 

### attacki the same, the psrtlcular teprltory isPot legal1 

### a palt o the City of Lubbook, 

### and the county is 

### under obl -

7 I gatlon 

### to purchasesuch right of uay, ii one is to be (Loquired.

The ordinance passed by the City of

. ‘Lubbock relinquishing certain territory 

### fro8 the city is voidable 

### only,azttj not void. TheHon. Jobn*M. Steele - ‘,Page 8 :

ordinance ievalid until diliectly attacked in a Court of competent jurisdic%ion and 

### roundto be invalid. Art. 11826, validating certain ~01l.m quiahments, is void, .&elng In violation of Sec. 56 cf Art. III of the Cons itutlon. iCity of Ft. Worth v. Bobbitt, 36 $.W. (2W)
d70; Be* County V. !Pynan, et al, 97 S.W. 2nd) 467) Pet, the ordinance passed by the lty of Lubbook rellnQtiahlng aertain territorf Pot hvLng been held Invalid by court adWon, is presumed to be vrlid, and such territory is not a psrt of the City. 9b.e county Is lrgally under ob$igation to peohaae the p t aory, if au

3P of vag through such terrirl@it of way Is to **be** 

### acquired, tmleas such ordirrance is 8et **Uide** -XVdIma

BAodjr

. .