I concur with the majority opinion in its determination that the declaratory judgment suit filed by George W. Brown, Jr., should not have been dismissed, and also in the portion of the opinion validating the bond issue. I do not concur with that portion of the opinion dealing with 'hold harmless agreement' or 'indemnity agreement' made by Jefferson County with the United States Government.
In my opinion the resolution adopted by the Commissioners' Court of Jefferson County July 16, 1965, in which Jefferson County agreed to 'hold and save the United States free from damages that may result from construction of the project' is void because it violates Art. 11, § 7 of the Constitution of the State of Texas and because it is against public policy.
This order is void under Art. 11, § 7, supra, because the amount of the debt assumed by Jefferson County is unlimited in amount. The amount having no limit, it is impossible for Jefferson County to provide for the collection of at least 2% of the debt each year as a sinking fund. The mere statement in the resolution that a tax was levied does not satisfy this requirement. The amount of the debt assumed by Jefferson County might well exceed the legal taxing limit placed upon the County.
The judgment rendered by the Honorable Joe J. Fisher, in Cause No. 4915, styled, 'Levingston Shipbuilding Co. v. The Honorable Stephen Ailes, in the United States District Court for the Eastern District of Texas, Beaumont Division, made no determination that Levingston Shipbuilding Co. could not recover damages because of the construction of the proposed bridge. The only decision made in such cause was that Levingston Shipbuilding Co. was not entitled to enjoin the construction of the bridge. In fact, such judgment makes a specific finding that Levingston Shipbuilding Co. will be damaged by the construction of the bridge. Such finding being set forth as follows:
"This Court finds that since the Sabine-Neches Canal is the only feasible access that the Plaintiff has to the Gulf of Mexico, the minimum vertical clearance of 138 feet above mean low tide, is not adequate for the Plaintiff's use in constructing and repairing mobile off-shore drilling rigs of a height in excess of 138 feet, and is therefore an obstruction to Plaintiff's established and potential use of the waterway, and Plaintiff will suffer an injury special and peculiar in kind because of its ues not being protected." (emphasis added)
The requirement that Jefferson County enter into an indemnity agreement as a condition precedent to the construction of the bridge by the United States Government, indicates that there is danger of liability. The extent of such liability cannot be known at this time, and there is a possibility that this obligation could bankrupt Jefferson County. Should a final judgment be obtained by Levingston Shipbuilding Co., it would become an obligation due immediately and not one which could be extended over a long period of time.
I do not place the narrow construction of the Texas N. O. R. R. Co. v. Galveston County case, 141 Tex. 34, 169 S.W.2d 713, as set forth in the majority opinion. The portion of the opinion quoted by the majority that the clause under consideration was void because it violated Art. 11, § 7, supra, does not indicate to me that the Commission of Appeals was holding such clause to be void only because of the failure to levy a tax. It is not so stated in such opinion, and my construction of such opinion is that the clause under consideration in such case was void under Art. 11, § 7, supra, for several reasons, one being because the amount was unlimited. These expressions are made by the Commission of Appeals in such opinion:
*Page 256"Manifestly, the parties making the contract could not then determine either when the county would become
obligated under the clause in controversy or the extent of any such obligation. So far as they could foresee, it might accrue in a few days or not until after the lapse of centuries; it might amount to a few dollars or to many thousands." (emphasis added)
We are bound to follow this Commission of Appeals case, especially in view of the fact that we have been cited no cases holding that a county may enter into an indemnity agreement where the amount is unlimited. This is not the situation which existed in the case of Anderson v. Parsley, 37 S.W.2d 358, in which it was stated that the exact amount of the debt, including interest thereon and time of maturity, was rarely known at the time the debt was authorized. Such case involved the construction of a courthouse, and even though the 'exact' amount might not be known at the time of the levy of the tax, such ultimate amount was to be determined by the Commissioners' Court and was not for an unlimited amount. In the present case, the Commissioners' Court of Jefferson County has no means of controlling the ultimate debt which the indemnity agreement created. Such debt depending only upon the amount of damages the Levingston Shipbuilding Co. or anyone else might be able to establish, the extent of which it is impossible to foresee at this time.
It has been suggested that the liability of Jefferson County was limited in time to the construction period only. It is not so stated in the resolution, and no limitation as to time is prescribed. The provision 'that may result from construction of the project' is not a limitation as to time, but is clearly defining only the nature of the damages being indemnified by Jefferson County.
The majority opinion, if upheld by the Supreme Court, would establish once and for all, the validity of the indemnity agreement, and in the event of future litigation this question would be foreclosed. If a judgment or judgments for damages because of the construction of the bridge is or are obtained, the legality of the indemnity agreement could not be questioned.