Untitled Texas Attorney General Opinion

104 OFFICE OF THE ATTORNEY &NERAL OF TEXAS AUSTIN GROVERS6LLERS ATroRH~I OrnERAl. Honorable R. 5. Peden, Jr. County Attorney natagorda county Bay city, Texas Dear Slrr Opinion lo. o-6823 Rex Summmy male of real emtate for delinquent taxem without foreclosure or li We have received and considered 24, 1945, in which you have given urn the b on the captioned subject. Your letter clualon reached in our Oplnlon Ho. O-68 7328~ ir ‘void and without any contravention of the mandate of Sec. 13 of Art. 8, and that the to onact any lav vhich vould ca the Constitution itself .” at thla time is that the r tax colleotor to selm and payment of de- under the Con- ken away br an act Honorable R. S. Peden, Jr., page 2 *Provision shall be made by the first Leglsla- ture for the speedy sale, without the necessity of a suit in Court, of a sufficient portion of all landrnand other property for the taxes due thereon, . . . We have given very careful consideration to the authorl- ties presented by you, and to many others In the effort to arrive at the just, proper and reasonable constructlon of Aztlcle 73288. An act of the Legislature Is not to be declared unconstitutional lightly. The rules of statutory construction have been stated v.sPioualy (LB follovsr “Every r&aonable doubt 8s to the validity of the act must be resolved ln favor of eustalnlng It, ahd . . . the enaotment vi11 net be held to be ln- valid unless the court finds lt absolutely neaesssry ao to held.” 9 Tex. Jur. 476 1 58. “It will nit be presumed that the Legislature intended to pass an act ln violation of the Constl- tution, and the act will not be so construe! when it Is auscsptlble of a different construction. White .v, Fahring, 212 S.W. 193. One important oorollaxy sf the general doctrlno that It la the duty of the courts, If posalble, to censtrue a statute 80 as to permit Its provisions being upheld Is recognized ln interpret- ing statutes which ln their terms are broad enough to cover matters vlthout 8s well as within the jurisdiction of the legislative body. Tkls general doctrine Is th8t within certain limits the courts, ln order to uphold a statute, may restrict Its application to the leglt- imate field of legislation. A statute should net be given a broad construction if Its validity can be saved by a namower one. This rule has been followed by the United States Supreme Court ln a number of cases--Sproles v. Blnford, 286 U.S. 374, 76 L. Ed. 1167, 52 S. Ct. 581, inter alla--and adopted by the Supreme Court of Texas ln Maud v. Terrtll, 200 S.W. 375, in theee terms: “where the term used ln a statute are general, reasonably admittlng of a conetructlon whloh does not :%I% ~~‘a~h~01~~~~e~i~~eb~tane~~~;8tf&9 ii?el%n”p- stitutlon though, literally, it be susceptible of a broader metaning whloh vould conflict with the COnsti- tution.” Honorable R. 5. Peden, Jr., page 3 The sequence of events loading up to the Act of 1929 throw oonsld4rable light on the intention of the Leglslatur4 In passing it. Long prior to 1929 the Leglslnture had parsed a mm- ber OS statutes specifying the procedure to be followed ln the suma~y sale of reel property for delinquent taxes in compliance vlth the directions of Section 13 of Article 8 of the Constltu- tlon. And in 18% were passed the first of the statutes defining the procedure to be folloved In judlclsl ssles of real property for taxes, as was within the inherent paver of the Legislature, and also within the purview of the mandatea of Section 15 of Article 8 of the Constitution. It cannot, be questioned that vlthout a statutory procedure to guide them, tax collectors would bo unable to make summary sales ‘vlthout the neoesslty of a suit In oourt.” It Is not necessary SOP ua to recite here the history of rummary aalea under the rules of procedure thus given br the Logisle turo . Each legal xwqulrsment pertaining to the aale of t$e land had to be complied with strictly and rorupulousl~, and the courts unlformlp exacted of one asserting title under 8 sum- mary sale strict proof of such compliance. The r44ult vaa lnevi- table that buyers vere reluctant to purchase at suah summary sales, and the land seldom sold for anything like a fair price. With all of this before it, the 4lst Legislature in 1 29 passed House Bill Ho. 195 (design&ted by Vernon as Article 73280 s vhlch provided as Sollovst "SoCtlM 1. That all ralee of real estate made SOP the oollecti.on OS dellnqwnt taxes due th4p4on rball be made only sfter the Sorealosure ef tax lien securing same has been had In a court of aompetent jurisdiction In accordance with existing lsvs gov- 4rnl.n.g the foreclosure of tax lions in dollnqu4nt tax suits. “Section 2. All lavs nnd parts of laws in conflict vlth the provisions of this Act be and the same are hereby r4pealsd. “Section 3. . . ." Ye cannot, and will not, now preswm that at the time of the passage of this Act the Leglsiature YES unavnre of the prescribed mode of amending the Constitution, or that It thought It could amend or negntlve the Constitution by one of Its statutes. Nor will we presume that the Legislature lntsnded to violate the Constitution by Honorable R. 9. Peden, Jr., pagc 4 this act. The only reasomble construatlon vhlch can be plsaed on this statute la that the Legislature vae thsreby repealing the statutes previously passed presoriblng the procedure to be followed In tiummaryaales of real estate. This It did, and no more, as vns hold ln our Opinion No. O-683. Viewed in this light, there can be no question of the constltutlonallty of Article 7328a. To sttempt to give the terms of the statute sny broader meaning, to vhlch perhaps ln lItmU term8 thoy may be susceptible, Is to make Its constltutlonallty subject to grsve question. This ve will not do. Since the ado tlon of the aaondmont of Section 13 of Artlalu 8 In 1932, the L glslature has not seen Sit to enact the leglrletlon necessary to effectuate raid section insofar as It regard4 4umamry sales 0s p481 ertate. Ye therefore rsarrim our Opinion Ho. o-683; and reiterate that until the Legislature enacts suah rtatutos and either 4xp~4saly, or by necssrary lmplloatlon, repeslr Article 73288, that article must oontlnue to prevail as the latest effective leglrlatlve lxpresslon on the subject. V4Py tNlJ yOlW4 ATTOFUtHY QHHEHAL OF TEXAS Arthur L. Uoll4r Assistant ALM/JCP