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