As a basis for the presentation of the questions involved in this suit, the following statement of its nature is admitted by the parties to be correct: By an act of the Legislature, approved March 15, 1887, Mills County was created out of territory taken from the counties of Lampasas, Hamilton, Brown, and Comanche.
Section 2 of the act provides, that the "new county shall defray all expenses incurred in perfecting its organization, and shall also pay its pro rata of the liabilities of the four several counties from which territory is taken to constitute it, in proportion to the territory taken and the territory remaining to the old county."
One-fourth of the territory of Mills County, the appellant, was taken from Brown County, the appellee.
Under the foregoing act the new county was organized September 12, *Page 394 1887. Brown County was at that date indebted in the sum of $60,000 for certain expenditures previously incurred in the erection of public improvements, which remained exclusively within the limits of Brown after the creation of Mills County. When this suit was instituted, March 4, 1889, Brown County had paid $16,000 of this indebtedness.
In this action appellee sued to recover one-fourth of this indebtedness, claiming that it was entitled to recover a sum bearing the same proportion to the entire indebtedness as the excised territory bears to the entire territory of Brown County before the territory of Mills County was cut off.
The court trying the case without a jury rendered judgment in favor of appellee for one-fourth of the indebtedness which had been paid by Brown County, and directed that the amount adjudged be paid out of the taxes to be collected out of a levy on all property subject to State tax in that portion of Mills County taken from Brown County. It further ordered, that the "defendant and its County Commissioners Court shall at the first term of levying taxes for county purposes thereafter also levy upon all property subject to State tax in said territory, such tax, not to exceed the amount fixed by law, as will be sufficient to pay off and discharge the judgment; and if the proceeds and collections are not sufficient to satisfy the judgment, then the same proceeding is to be kept up annually until the judgment is satisfied." The judgment further established the liability of appellant to appellee "for one-fourth of any amount of said indebtedness yet unpaid, which may be hereafter paid by appellee."
Appellant complains of this judgment, and insists, in effect, that if plaintiff was entitled to any relief, that relief should have been granted upon the basis of the relative taxable value of that portion of Mills County taken from Brown, and of the territory remaining with Brown; that to fix the liability of Mills County by the standard of territorial area involves a violation of section 1, article 8, of the State Constitution, requiring that taxation must be "equal and uniform."
In our opinion, the plain verbiage of section 2 of the act creating Mills County, already quoted, measures the liability of the latter by the standard of territorial area, not by that of the taxable value of the property in that territory. The language requiring payment "in proportion to the territory taken and the territory remaining to the old county" refers to the amount of that territory, not to the taxable value of the property therein situated. In our opinion the spirit of the Constitution requires that the taxable value of the property in the territory taken off, in its relation to the taxable value of the property in the territory left in the parent county, must be the criterion by which the indebtedness of and between the two counties should be apportioned. If, therefore, the act itself in *Page 395 the section referred to violates the Constitution, the judgment, in accordance with this section, should be set aside.
Article 9, section 1, of our Constitution, on the subject of the "creation and organization of counties," prescribes, that "when any part of a county is stricken off and attached to or created into another county, the part stricken off shall be holden for and obliged to pay its proportion of all the liabilities then existing of the county from which it was taken, in such manner as may be prescribed by law." This provision must be construed in subordination to article 8, section 1, requiring uniformity and equality in taxation; and the legislation contemplated must conform to that article. The provision of the act creating Mills County, fixing its liability according to the amount of territory, ignoring the taxable value of the property therein, imposed a different burden for the same purpose upon the citizen within that territory than he would have had to bear if there had been no severance of the county. The provision in question is, therefore, unconstitutional and void.
The duty is devolved upon the Legislature to provide for the apportionment of the indebtedness between the old and new county, and for the payment and enforcement thereof, but this duty must not be discharged in an arbitrary way. Regard must be had to the rule requiring the taxation to be "equal and uniform." The propriety of general legislation on this subject is suggested. As the appellee's action is founded upon an unconstitutional provision, the judgment of the lower court should be reversed and the cause dismissed.
Reversed and dismissed.
Adopted June 21, 1892.
Motion for rehearing was transferred to Court of Civil Appeals, Third District, and it was refused.