Glenn v. Dallas County Bois D'Arc Island Levee Dist.

On Motion for Rehearing. After filing motion for rehearing, appellee filed motion to certify to the Supreme Court the questions on which the result of this appeal necessarily depended. This motion was granted, and the following certification made on the 11th day of January, 1924:

"First question: Since the allegations of fraud were included only in the supplemental answer, filed in response to appellee's first supplemental petition, should they be ignored in considering the general demurrer because they were not embodied in the first amended original answer, or should they be considered as a defense to the cause of action, notwithstanding the pleading which contains them is denominated as a supplemental answer?

"Second question: Do the commissioners of appraisement constitute a court of special jurisdiction whose findings of benefits to land and whose laying of assessments against it constitute decrees and judgments of a court such as may not be collaterally attacked for fraud?

"Third question: Since the bonds had already been sold before the suit was instituted, was the purchaser of them a necessary party to the suit under the allegations of the parties?

"Fourth question: If the commissioners of appraisement do not constitute a court in the sense that their orders and decrees, apparently regularly made under the statute, are not to be considered as the judgments of a judicial tribunal, can a suit for the collection of a delinquent assessment, on its face appearing to have been regularly made in conformity with the statutory provisions of chapter 44, of the acts of the Thirty-Fifth Legislature, be resisted upon allegations of fraud?"

These questions were answered by opinion of Commission of Appeals (268 S.W. 452), filed in this court on the 7th day of March, 1925, as follows:

The reply given to the first question is that the allegations in the supplemental answer are not to be considered by the Court of Civil Appeals as a defense to the cause of action.

The second question was not answered, but was discussed in connection with, and in a measure included in, the answer to the fourth question, to wit, the court in disposing of said question stated:

"There is no necessity of going to the extent of saying that the judgment of the board, like the commissioners of appraisement in the present litigation, may not be set aside on collateral attack for bad faith, gross abuse of discretion or dishonest motives attributable to the constituents of the tribunal itself, because such elements are lacking in this case; but there is no difficulty in saying, by force of the holdings that have been noted, that, whether such a board be considered as a court or as merely an assessing body, its final action after the statutory hearing is not subject to collateral attack for fraudulent misrepresentations of the supervisors of the district, for incorrect but honest action on the part of the commissioners or for wrong result. So that the second and fourth questions may be answered together. The reply given to them is that the alleged defense of fraud was not good." *Page 142

To the third question:

"That under the allegations and pleas the purchaser of the bonds was not a necessary party."

It is contended by appellant that the first question was not answered, the answer thereto only being that "there appears to be no reason for disturbing its decision," referring to the action of the trial court in sustaining the general demurrer to the supplemental answer. In this it is very apparent that due effect has not been given by appellant to the following language of the opinion, which must be reckoned with in determining the scope and meaning of the answer to this question, to wit:

"The district court sustained plaintiff's demurrer to the first amended original answer, which is the ruling referred to in the certified question, and also its demurrer, just above mentioned, to the first supplemental answer. The defendant contended in the Court of Civil Appeals that this was error because the first supplemental answer rendered the first amended original answer good as against general demurrer. * * * The point for investigation is therefore whether the Court of Civil Appeals may consider the first amended original answer as aided by the first supplemental answer in a case where it was not so viewed below. * * * The Supreme Court in Crescent Ins. Co. v. Camp et al., 64 Tex. 521, held that the trial court should not have considered a supplemental petition as an amendment to the original, because, `under the rules, the defects in the petition could only be cured by an amendment, whilst the supplement is confined to the avoidance of matter of defense set up in the answer.' * * * In the present instance the supplemental answer was not allowed to remain; demurrer was sustained to it. And the first amended original answer also left the case on demurrer. * * * The rules in their interpretation in the Camp Case were not departed from by the district court, but were obeyed. There appears to be no reason for disturbing its decision. The reply given to the first question is that the allegations in the supplemental answer are not to be considered by the Court of Civil Appeals as a defense to the cause of action."

Giving the above language its commonly accepted meaning, having due regard for the context in which used, but one conclusion can be reached as to the answer made, to wit, that the trial court did not err in sustaining appellee's general demurrer to appellant's first amended original answer and supplemental answer, and that this court could not consider as a defense to appellee's cause of action the allegations contained in appellant's supplemental answer. Said answers determine this appeal as originally presented adversely to appellant, and further discussion would be unnecessary but for other questions advanced by appellant since the filing of the motion for rehearing.

Appellant contends that because the plan of reclamation did not provide for hill drainage, and appellant was assessed for such drainage, that the action of the commissioners of appraisement in that respect is void, in that said commissioners did not have jurisdiction to make such assessment. Therefore appellee's general demurrer to the allegations that the commissioners of appraisement had no jurisdiction to make the assessment on account of the fact that hill drainage was not a part of the plan of reclamation should not have been sustained.

In reply to this contention, it is urged by appellee that same is without merit, for the reason that the issue is not one of jurisdiction but of alleged false representation as to the improvements to be made. It may be assumed that section 21 of the Laney Act (now articles 5584 1/2 to 5584 1/2tt, inclusive, comprising 63 sections, vol. 2, 1922 Supplement, V. T. C. C. S.), in positive terms prohibits the making of any assessment for any purpose not included within and for the purpose of carrying out the plan of reclamation as finally approved by the state reclamation engineer, which represents the purpose and object of the creation of the district, and for the accomplishment of which the district is authorized by law, through means of the issuance of bonds and the levy of a tax, to retire same, to use its credit for the purpose of accomplishing the purpose of its organization. For this purpose the commissioners of appraisement unquestionably had jurisdiction to assess the benefits to property owners residing in the district, by reason of the improvements to be made therein, and as a basis for taxation this body acted within the authority of the law; and, though it may be conceded that the commissioners imperfectly discharged this duty in considering elements of benefit which they were not authorized to consider, such remise of duty or erroneous action will not, in the absence of fraudulent conduct on the part of said commissioners, present a question of want of jurisdiction as to the act thus performed, and subject to a collateral attack the order entered as their findings on the matter before them. The jurisdiction of the commissioners to act in this respect depended upon the judgment of the commissioners' court creating the district, the proper selection of the board of supervisors, the selection by that board of the commissioners of appraisement, their qualifying as such by taking the oath prescribed by law, and organizing as commissioners of appraisement for said levee district.

The organization of appellee district is affirmatively shown by the judgment of the commissioners' court entered for that purpose, as a governmental agency with authority to pledge its credit as a political subdivision of the state for carrying out the purpose of its creation. Therefore the judgment entered by the commissioners' court on the proceedings had for the purpose of establishing its *Page 143 existence, was, in the very nature of things, intended by the Legislature to be immune from collateral attack unless the vice that would destroy its existence affirmatively appeared on the face of such judgment entry. Appellant is not in position to attack the corporate existence of appellee, as this can only be done by quo warranto proceedings. Wilmarth v. Reagan (Tex.Com.App.) 242 S.W. 726.

Appellant was one of the moving figures in the organization of the district. He had an opportunity to be advised of all the proceedings had in that respect, as well as all proceedings that occurred thereafter around which now centers this litigation. He was charged with knowledge of the provisions of the law governing the organization of and the conduct of the affairs of the district, and had access to and could have become advised by the record of all proceedings had in that respect. An examination of the report of the state reclamation engineer would have disclosed to him that the promise he was relying upon could not be fulfilled, because the law prohibited it from being carried out, in that the plan did not provide for hill drainage.

The case of Bloomquist v. Board of Supervisors, 188 Iowa 994,177 N.W. 95, by the Supreme Court of Iowa, involved a state of facts similar to the facts of this case, and therefore so much in point that we make the following quotation therefrom in support of our disposition of this proposition:

"Assuming for the moment that the action of the board thus set forth was irregular and illegal, could the illegality be cured by the party adversely interested? The board had complete jurisdiction of thesubject-matter; that is, of the drainage proceeding. The illegalitycomplained of was one which the board itself could have readily cured bycorrecting its procedure. The power of the plaintiffs to waive correct procedure was quite coextensive with the power of the board to correct its procedure. If the illegality defeated the jurisdiction of the board in anysense, it was a jurisdiction of the res and not of the subject-matter. It was therefore subject to waiver by the party adversely affected, and his consent to jurisdiction was thereby implied. McLain v. City Council,189 Iowa 264, 176 N.W. 817.

"We hold, therefore, that the objection to jurisdiction thus raised by plaintiffs was waived before the board, and that the plaintiffs can be heard on appeal only on the objections presented to the board."

This is not in conflict with the holding in the case of Wilmarth v. Reagan, supra, which holds that the action of the appraisers is not so final and conclusive as to prevent the district court from having jurisdiction to determine on its merits an action attacking assessments of benefits and damages for the combined fraud of supervisors and appraisers, filed before the rights of innocent third parties intervened.

As a special tribunal created by law to perform the duties as pointed out in the Laney Act, the commissioners of appraisement appointed for appellee constituted a special tribunal, and, although by said act it is provided that the orders, decrees, or judgments entered by said commissioners in the course of performance of the duties enjoined upon them by law shall be final and conclusive, yet same are not protected against collateral attack for bad faith, gross abuse of discretion, or other fraudulent conduct on the part of the members of the tribunal seasonably and properly instituted. Glenn v. Dallas County, etc. (Tex.Com.App.) 268 S.W. 452; Wilmarth v. Reagan, supra. However, appellant's allegations as to fraud, etc., are not sufficient to bring the case within the rule announced in Wilmarth v. Reagan.

It is contended by appellant that the judgment of the lower court is not supported by the pleadings and the evidence, in that the law requires the matter of organizing a district to be submitted to the state reclamation engineer, who shall determine the necessity, feasibility, and probable cost of reclaiming the land of such district from overflows, and therefore it was incumbent upon appellee, by the introduction of proper proof, to have established, in compliance with such provision of the law, not only the filing of a report by the state reclamation engineer, but the plan of reclamation as adopted by appellee. Appellant in this respect contends that the evidence does not show that any plan of reclamation was ever filed, or the plan of reclamation as adopted.

Section 2 of the Laney Act (Vernon's Ann.Civ.St. Supp. 1922, art. 5584 1/2a), directs that, as a part of the order to be entered by the commissioners' court acting on the petition filed to create a levy improvement district, the clerk be directed "forthwith to issue a notice of the filing of such petition and of its general purport, stating the time and place of hearing, which shall be mailed forthwith to the state reclamation engineer at his office in Austin, Texas;" and section 5 (article 5584 1/2b), makes it the duty of the state reclamation engineer, upon receipt of said notice, forthwith, by himself or deputy, to examine said proposed district for the purpose of obtaining the necessary information "to enable him to determine the necessity, feasibility, and probable cost of reclaiming the lands of such districts from overflows, and the proper drainage thereof, together with the costs of organizing such district, * * * and file his written report in respect to the matters concerning which he has investigated. * * *" Section 7 of said act (article 5584 1/2bbb) provides for the hearing and the proceedings to be had upon the petition, the following language showing clearly that the report of the reclamation engineer must be considered, and the effect thereof carried into, the *Page 144 judgment of the court creating the district, to wit:

"If, upon the hearing of such petition it be found * * * that the proposed improvements are desirable, feasible, and practicable, and would be a public utility and a public benefit, and would be conducive to public health, then such court shall so find and render judgment deciding such findings and creating and establishing such district, which judgment and findings shall be embodied in an order which shall be entered of record in the minutes of said court."

The judgment entered creating appellee district by express recitals shows that all of the above requirements were complied with, and, as incorporated therein, purport absolute verity in the face of a collateral attack; and, being the best evidence, not only that such proceedings were had, but that all of the requirements of the law in order to organize appellee district had been complied with, nothing appearing upon the face of the record affirmatively to the contrary.

That a judgment creating a levee improvement district under this act should not be subject to collateral attack is conclusively established by the following concluding provisions of said section 7, to wit:

"A levee improvement district created as herein specified shall be a governmental agency and a body politic and corporate with such powers of government and with the authority to exercise such rights, privileges and functions concerning the purposes for which it is created as may be conferred by this act, or any other law of this state to the benefits of which it may become entitled."

This, in our opinion, is ample authority to justify the conclusion reached on this proposition.

In reference to the constitutionality of the act, it is first suggested that the commissioners of appraisement do not constitute a court, because the Legislature cannot confer upon the commissioners' court authority to create another court; and, second, that the act is void for the reason that it confers upon the commissioners' court the authority to organize a levee district, and that the Legislature cannot confer upon the commissioners' court authority to transact any business other than county business, and that the organization of such districts does not constitute county business; third, that the act is void because it authorizes these districts to be created out of parts of more than one county. The act was passed in obedience to and under the authority of section 59, article 16, of the Constitution of Texas, which was adopted as an amendment in 1917, as follows:

"The conservation and development of all of the natural resources of this state, including the control, storing, preservation and distribution of its storm and flood waters, the waters of its rivers and streams, for irrigation, power and all other useful purposes, the reclamation and irrigation of its arid, semiarid and other lands needing irrigation, the reclamation and drainage of its overflowed lands, and other lands needing drainage, the conservation and development of its forest, water and hydroelectric power, the navigation of its inland and coastal waters, and the preservation and conservation of all such natural resources of the state, are each and all hereby declared public rights and duties; and the legislature shall pass all such laws as may be appropriate thereto.

"There may be created within the state of Texas, or the state may be divided into, such number of conservation and reclamation districts as may be determined to be essential to the accomplishment of the purposes of this amendment to the Constitution, which districts shall be governmental agencies and bodies politic and corporate with such powers of government and with the authority to exercise such rights, privileges and functions concerning the subject-matter of this amendment as may be conferred by law."

Under a most careful analysis of the terms of the Laney Act, we have failed to find a single one that is not sanctioned by or in keeping with the plain provisions of the above constitutional amendment; in fact, every provision, in some form, is essential in order to keep faith with the sovereign will of the people. As to the means to be employed and the proceedings to be had to accomplish its purpose, the Constitution leaves that to the wisdom of the legislative judgment of the state. This was not abused or in any respect transcended. This is evident from a comparison of the provisions of the constitutional amendment and the terms of the legislative enactment. The Legislature did not attempt to confer upon the commissioners' court the authority to create another court, to wit, the commissioners of appraisement, but brought that body into existence by plain provisions of said act, and only provided for the selection of the individuals who should constitute this special tribunal; all authority and power being conferred by the provisions of the act creating the tribunal. The commissioners' court is not authorized to and has not the power to confer any authority upon said commissioners, or to relieve them of the performance of any duty required by the act. The only authority conferred by the act upon the commissioners' court in reference to the commissioners of appraisement is the appointment by a majority vote, after the creation of the district, of three supervisors for such district (see section 15 of said act [article 5584 1/2ee]); said supervisors in turn being authorized under section 19, as same existed prior to amendment by Acts 1921, Thirty-Seventh Legislature, First Called Session, c. 50, § 1 (Vernon's Ann.Civ.St. Supp. 1922, art, 5584 1/2fff), to appoint three disinterested commissioners who shall be known as commissioners of appraisement. Said *Page 145 commissioners are now required to be appointed by the commissioners' court.

To sustain appellant's position would be to hold that the provision for the existence of the commissioners of appraisement as found in the act had nothing to do with the creation of that body, and that same was not created until the commissioners' court, in exercising authority conferred upon it, had selected the individuals who were to constitute the personnel thereof. In other words, it would be to hold that the appointees were "the court" and not members thereof. We hold that the act of the Legislature created "the court," and the only power conferred upon the commissioners' court in reference thereto was to select appellee's supervisors. This is illustrated by the judiciary provisions of our state Constitution and the acts of the Legislature in pursuance thereof, which provide for the judiciary of Texas. The voters, in selecting the judges of the different courts, do not create the courts, but only supply by the expression of their choice at the ballot box the individuals who are to serve as judges of the different courts. Certainly it cannot be contended that, in making this selection, the electorate creates the courts any more than it can be contended that, by the appointment of the board of supervisors, who, in turn, selected the commissioners of appraisement, that the commissioners' court created the commissioners of appraisement. Williams v. Castleman, 112 Tex. 193, 208, 247 S.W. 263, § 10 at page 270.

Is the act void because the Legislature cannot confer upon the commissioners' court authority to transact any business other than county business? Within the meaning of the Constitution creating and conferring jurisdiction upon commissioners' courts, we think it is proper to give to the term "county business" a broad and liberal construction so as not to defeat the real purpose that was intended to be accomplished by the law in providing that the commissioners' court shall exercise such power and jurisdiction over all county business as is conferred by the Constitution and the laws of the state, or as may be hereafter prescribed; and not that meaning which would restrict the powers of jurisdiction to the business of the county in and for which said court was created, but to any and all business of that county and any other business of that county connected with or interrelated with the business of any other county properly within the jurisdiction of such courts under the Constitution and laws of the state. This is not in conflict with the holding of the Supreme Court in the case of Electric Light Co. v. Keenan, 88 Tex. 201,30 S.W. 868, in which the court held that the commissioners' court could not be required to perform the duties imposed upon it by an act of the Legislature requiring it to take charge of and administer the affairs of the defunct corporation of the city of Seymour, whose charter had been declared void, because this was not "county business" within the meaning of the provisions of the Constitution above quoted. The decision of this case must be limited to the question before the court which clearly shows that the business thus intrusted by the act of the Legislature to the commissioners' court was not "county business" of Baylor county, or of any other county related to or connected with business of Baylor county. This decision involved the validity of an act of the Legislature making it the duty of the commissioners' court to act in matters that were not in any respect county business, while the act in question only confers jurisdiction to act in reference to matters that are of public concern to the people of the county, therefore, county business.

This exact question has been directly decided contrary to appellant's contention in the case of Wharton County Drainage District v. Higbee (Tex.Civ.App.) 149 S.W. 381, in which writ of error was denied.

This brings us to consider the third proposition involving the constitutionality of the act, to wit, that the act is void because it authorizes levee improvement districts to be created out of parts of more than one county. This authority is expressly conferred upon the Legislature by section 59, art. 16, supra; therefore, the Legislature was strictly within the authority conferred by said constitutional provisions in passing the act now challenged on this ground. Manifestly, this amendment to the Constitution authorized the Legislature to provide for the creation, organization, and government of these districts in such manner as it might deem appropriate, without regard to county boundaries or the agencies selected by the Legislature for that purpose. The conservation of natural resources of any county in the manner provided by this amendment is essentially a part of the business of the county, whether confined within the particular county of the commissioners' court exercising jurisdiction or embracing as a part of the district lands located in other counties; for, as an incident to the exercise of that business — that is, the business of creating levee improvement districts as authorized by said provision of the Constitution — it is essential that these districts shall in some instances comprise parts of more than one county. In many instances a stream against which protection is sought forms a boundary of two counties; in other instances, as in this case, the nature of the stream is such that proper protection could not be afforded by a levee constructed in one county only. The Constitution, as it existed prior to the adoption of the conservation amendment, *Page 146 supra, did not authorize the creation of these districts in more than one county, and one of the main purposes of the conservation amendment was to correct this vital defect, because, in all probability, it had been found impractical in many instances to secure protection by levee which was limited to one county only, and the public interest of the state can by no means be restricted to the limits of any one county.

Appellant further contends that the commissioners of appraisement do not constitute a court, because there is lacking the element of impartiality. This undoubtedly is based upon the proposition that, insomuch as the members of the board of control are selected by the commissioners' court, and that in turn, the board of control selected the commissioners of partition, that the interest of the members of the board of control in the district, being property owners therein, would put them in the attitude of having selected for their benefit, and for the benefit of the district at large, the personnel of the commissioners of appraisement; in effect, selecting the judges to try a case in which they were interested. Therefore a hearing before such body would not be due process of law. The board of appraisers in the discharge of the duties imposed by law could only act for the benefit of the district as a whole; the entire proceedings being for the purpose of determining the basis for the levy of a tax to take care of the cost of improvements to be made under the plan of reclamation, and not for the purpose of determining any controversy between the levee district and any of its members, or between the members themselves. A careful examination of the act discloses that in no respect could the commissioners of appraisement, in the discharge of the duties imposed by the terms thereof, be called upon to determine any matter that, on account of the selection of the commissioners, might lack the element of impartiality. It should be borne in mind that, notwithstanding the act makes conclusive and final the determination of any of the questions by the commissioners of appraisement that that body is authorized to pass upon, yet, if in the course of the proceedings it should develop that they were assessing property for benefits not authorized by law, or were arbitrarily considering such benefits or refusing to assess property for such benefits, the levee district or any member thereof undoubtedly would have the right to invoke the remedy by injunction to restrain such unjust proceedings, or, where the case would authorize it, by mandamus to compel the observance of the law governing the proceedings of that body. Hibben v. Smith, 191 U.S. 310, 24 S. Ct. 88, 48 L. Ed. 195; Shank v. Smith,157 Ind. 401, 61 N.E. 932, 55 L.R.A. 564.

The following rule of law announced in Hibben v. Smith, supra, determines this proposition adversely to appellant:

"Assuming the necessity of a hearing before an assessment can be made conclusive, the law may provide for that hearing by the body which levies the assessment, and after such hearing may make the decision of that body conclusive. Although, in imposing such assessments the common counsel or board of trustees may be acting somewhat in a judicial character, yet the foundation of the right to assess exists in the taxing power, and it is not necessary that in imposing an assessment there shall be a hearing before a court provided by the law in order to give validity to such assessment. Due process of law is afforded where there is opportunity to be heard before the body which is to make the assessment, and the Legislature of a state may provide that such hearing shall be conclusive so far as the federal Constitution is concerned."

In the case of Spring Valley Waterworks v. Schottler, 110 U.S. 347,4 S. Ct. 51, 28 L. Ed. 173, an attack was made upon the constitutionality of an act authorizing the board of supervisors of any city or county to regulate the rate to be charged by water corporations furnishing water to the public within its limits. In disposing of the case, the Supreme Court of the United States said:

"It is said, however, that appointing municipal officers to fix prices between the seller and the buyers is in effect appointing the buyers themselves, since the buyers elect the officers, and that this is a violation of the principle that no man shall be a judge in his own case. But the officers here selected are the governing board of the municipality, and they board when performing the duty which has been imposed upon them. Their general duty is, within the limit of their powers, to administer the local government, and, in so doing, to provide that all shall so conduct themselves, and so use their own property, as not unnecessarily to injure others. They are elected by the people for that purpose, and whatever is within the just scope of the purpose may properly be intrusted to them at the discretion of the Legislature. * * * By the Constitution and the legislation under it, the municipal authorities have been created a special tribunal to determine what, as between the public and the company, shall be deemed a reasonable price during a certain limited period. Like every other tribunal established by the Legislature for such a purpose, their duties are judicial in their nature, and they are bound in morals and in law to exercise an honest judgment as to all matters submitted for their official determination. It is not to be presumed that they will act otherwise than according to this rule." Shepard v. Barron, 194 U.S. 553 (24 S. Ct. 737), 48 L. Ed. 1115; Hibben v. Smith, supra; City of Paris v. Brenneman (59 Tex. Civ. App. 464),126 S.W. 58; Pierce v. City of Huntsville (185 Ala. 490), 64 So. 301 (Supreme Court of Alabama); Oates v. Cypress Creek Drainage District (135 Ark. 149), 205 S.W. 293 (Supreme Court of Arkansas). *Page 147

From a careful examination of the authorities above cited, and others not cited, we have reached the conclusion that the act is not subject to any of the defects urged, or the proceedings had under the act void on account of any of the attacks made thereon. This necessarily leads to the conclusion that the motion for rehearing should be granted, the judgment heretofore entered reversing and remanding this cause set aside, and that the judgment of the trial court should be affirmed. It is therefore accordingly so ordered.

Motion granted, and judgment of the trial court affirmed.