
    ROGAN et al. v. BOBBITT, Atty. Gen.
    No. 1351—5487.
    Commission of Appeals of Texas, Section A.
    June 25, 1930.
    
      O. E. Gibson, of Austin, and A. E. Master-son, Oarlos B.' Masterson, A. ’R. Rucks, and Follett, Evans & Hill, all of Angleton, for relators.
    C. D. Jessup, of Houston, as amicus eurise.
    Robert Lee Bobbitt, Atty. Gen., and D. L. Whitehurst, Asst. Atty. Gen., for respondent.
   CRITZ, J.

The facts involved in this case are substantially as follows:

On and prior to May 12, 1924, there had been created by the commissioners’ court of Brazoria county, Tex., Brazoria county road districts Nos. 5, S, 9, 10, 23, and 24, which we hereafter designate old road districts Nos. 5, 8, 9,10, 23, and 24, and all of these districts combined had outstanding bonded indebted-nesses, aggregating $423,000. Also on and prior to said date of May 12, 1924, there had been created Brazoria county drainage district No. 6, with an outstanding bonded indebtedness of $202,000.

On said date of May 12, 1924, the commissioners’ court of Brazoria county entered an order creating what we will designate as new road district No. 5, .in said county. This new district included the territory formerly comprising the above-mentioned old road districts Nos. 6, 8, 9,10, 23, and 24, and some additional territory. Also part of said new road district No. 5 was a part of-the above drainage district. Later the bonds of new road district No. 5 were voted in the sum of $455,000, $423,000 of which were voted for the purpose of taking up the outstanding bonds of the six old road districts, and $32,000 for new road construction.

• About October 1, 1924, the transcript of the record and proceedings pertaining to the $455,-00Ó proposed bond issue for new road district No. 5 was presented to the then attorney General of Texas, for approval, as required by law, but he refused to approve said transcript or bond record, because bonds of the new road district 5, and the drainage district No. 5, exceeded the constitutional limit of 25 per cent, of the valuation of the part of the land which was comprised in both said districts. It is then shown that nothing more was done or attempted to be done with reference to new road district No. 5, until after May 13, 1929, as will later be shown in this opinion.

With matters standing in the condition above shown, and with the commissioners’ court at all times continuing to .levy taxes in old road districts Nos. 5, 8, 9, 10, 23, and 24, to meet their original bond issues, and no further effort being made to issue the bonds of new road district No. 5, but after passage of the several road bond validating acts, general and special, of the First Called Session of the Thirty-Ninth Legislature, the commissioners’ court of Brazoria county, on April 11, 1927, established what we will designate as new road district No. 23 of Brazoria county, composed of the territory originally comprising old road districts Nos. 23 and 24, above mentioned. Also, as will readily be seen, new road district No. 23 was composed of territory originally a part of new road district No. 5. Later the bonds of new road district No. 23 were voted in the sum of $256,-000, part of which was to be used in retiring the outstanding bonds -of the two old road districts Nos. 23 and 24, and part for new construction. These bonds have been duly issued, approved, and sold, and the proceeds expended for the purposes for which they were voted and issued. It will here be noted that the bonds of new r.oad district No. 5, had already been voted to take up the same brands of old road districts Nos. 23 and 24.

On May 13, 1929, the commissioners’ court of Brazoria county entered an "order constituting said Brazoria county drainage district No. 5, without change of name, a conservation and reclamation district. Thereafter the conversion of said drainage district, and the conservation and drainage district thus created were validated by Special Act of the First Called 'Session of £he Forty-First Legislature, Senate Bill No. 134 (chapter 36). By reason of these matters, and proceedings in .regard to the drainage district, the Attorney General has ruled that the constitutional provision prohibiting the bonded indebtedness exceeding 25 per cent, of the taxable real property within such drainage district has been removed. Also by .reason of these facts the valuation of taxable real property situated in new road district No. 5 is sufficient to support its voted bond issue in so far .as the impediment that formerly existed by reason of the bonds of the drainage district is concerned. .

It is further shown that a short time after the validation of the conservation and drainage district by the Special Act of the First Called Session of the Forty-First Legislature the bond record of new road district No. .5 was brought down to date, and request again made to the Attorney General for its approval which was again denied. This suit followed to compel such approval.

From the statement we have made it is evident that all proceedings had with reference to the formation of a new road district No. 5, and the issuance of its bonds, and al] proceedings had with reference to the formation of old road districts Nos. 5, 8, 9, 10, 23, and 24, whose territory in the main comprise the territory of new road district No. 5, together with the issuance of their respective bonds, were and are unconstitutional and void except in so far as they have been validated and rendered lawful by the several validating ■acts, general and special, of the First Called ■Session of the Thirty-Ninth Legislature of this state. Browning v. Hooper, 269. U. S. 396, 46 S. Ot. 141, 70 L. Ed. 330 (Archer County Case).

An examination of the several legislative acts with reference to these matters shows that the above-mentioned Legislature passed two general validating acts, which are chapters 10 and 17, General Laws First Called Session Thirty-Ninth Legislature. Also the same Legislature, at the same called session passed special laws expressly validating each of the six original old road districts, and their bonds, wdiose bonded indebtednesses new road district No. 5 voted bonds to take up. The special laws referred to are as follows:

“Act validating original Road District No.' 5, chapter 97;
“Act validating original Road District No. 8, chapter 99;
“Act validating original Road District No. 9, chapter 100;
“Act validating original Road District No. 10, chapter 101;
“Act validating original Road District No. •23, chapter 107;
“Act validating original Road District No. 24, chapter 108; of the Local and Special laws, 39th Legislature, first called' session, 1926.”

It will be noted that at the time the Thirty-Ninth Legislature passed the above six special acts validating old road districts Nos. 5, 8, 9, 10, 23, and 24 of Brazoria county, and their respective bonds, the bonds of new road district No. 5 had already been voted to take up and retire the very bonds of said six old districts so specially validated. Also, at the very time these six special validating acts were passed new road district No. 5 .and all proceedings theretofore had with reference to the voting and issuance of its bonds were subject to the same constitutional objections that the six old districts and their bonds were subject to, and the same necessity existed to pass a special validating act with reference thereto that existed with reference to the six old districts; yet the Legislature, notwithstanding the above facts, did not validate, or attempt to validate, new road district No: 5, except in so far as such district and its bonds might be included in the legislative intent in enacting the two general validating acts above mentioned. If it was necessary, by , special acts, to validate the six- old districts and their respective bonds, it was. equally as necessary, by special act, to validate new road district No. 5, which had been formed to take up and retire the bonds of the six old districts. In other words, we think that the peculiar facts with reference to this particular road district and its voted bonds demonstrate a legislative intent not to validate new road district No. 5, whose bonds had never been issued, approved, or sold. Furthermore, we think the Attorney General had the right to presume such to have been the legislative intent, and that he acted lawfully, and not unlawfully, in refusing to approve the bond record of new road district No. 5. This view is ■further strengthened by the fact that a subsequent Legislature refused to specially validate new road district No. 5, though a bill was introduced therein for such purpose.

, We do not wish to be understood as holding that all road districts and their bonds that have not been specially validated are void. What we hold is that under the peculiar facts' of this particular case, it was evidently not the legislative intent to validate new road district No. 5 of Brazoria county, Tex.

We recommend that the mandamus here sought be in all things refused.

OURETON, C. J.

Opinion of Commission of Appeals adopted, and mandamus refused.  