(dissenting).
I do not concur with the majority opinion insofar as it holds that' Bexar County and the City of San Antonio are not required to pay over to the Bexar County Hospital District the sinking funds now on hand, which were levied and collected by the County and City to pay interest on and pay off and discharge the bonds which have been assumed by the Bexar County Hospital District. Nor do I concur in the holding that the County and City are not required to pay to the Hospital District all delinquent taxes levied by the County and City, as such interest and sinking fund, prior to the assumption of such bonds but collected and to be collected since such assumption.
The Constitutional Amendment authorizing the creation of the Bexar County Hospital District, adopted at the 1954 General Election (Art. IX, § 4) insofar as is pertinent to this suit, reads as follows:
“Sec. 4. The Legislature may by law authorize the creation of countywide Hospital Districts in counties having a population in excess of 190,000 and in Galveston County, * * * where the hospital system is jointly operated by a county and city within the county, * * * to provide for the transfer to the countywide Hospital District of the title to any land, buildings or equipment, jointly or separately owned, and for the assumption by the district of any outstanding bonded indebtedness, theretofore issued by any county or city for the establishment of hospitals or hospital facilities; to levy a tax not to exceed seventy-five ($.75) cents on the One Hundred ($100.00) Dollars valuation of all taxable property within such district, provided, however, that such district shall be approved at an election held for that purpose, and that only qualified, property taxpaying voters in such county shall vote therein; provided further, that such Hospital District shall assume full responsibility for providing medical and hospital care to needy inhabitants of the county, and thereafter such county and cities therein shall not levy any other tax for hospital purposes; * *. Should the Legislature enact enabling laws in anticipation of the adoption of this amendment, such Acts shall not be invalid because of their anticipatory character.”
The • Legislature, pursuant to the authority granted by the Constitution, enacted the law governing the creation, maintenance and operation of the District and setting forth the rights and duties and responsibilities of the District, the county and the city with respect thereto, being Article 4494n, Vernon’s Ann.Civ. Stats.
Section 2 of the Act provides for the levy and collection of the tax mentioned and also provides for the collection of fees for the Assessor and Collector of Taxes, and then provides: “The residue of tax collections, after deduction of discounts and fees for assessing and collecting, shall be deposited in the district depository; *255and such funds shall' be withdrawn only as provided herein.” Emphasis added.
Section 4 of the Act provides for the assumption of all legal obligations theretofore contracted by the City and County for the building and support and maintenance of such hospital facilities, including the payment of all bonds issued by either of them for such purposes, and provides for the full and complete release of the City and County from all liability for the payment of such obligations, including the duty to provide interest and sinking funds for the payment of such bonds.
The statute also provides for the appointment of a Board of Hospital Managers, and provides that the management of the physical and financial affairs of the district shall vest in such Board.
It is stipulated by the parties that Bexar County Hospital District has assumed all bonded indebtedness called for by Article 9, § 4, of the State Constitution and Article 4494n Vernon’s Ann.Civ.Stats., as amended, and that the Commissioners’ Court of Bexar County, on behalf of the Hospital District, has levied an ad valorem tax each year since the creation of the District to retire said bonds. That beginning October 1, 1955, and each year thereafter, the Tax-Assessor-Collector of Bexar County has collected the taxes due said District and has transmitted same to the District. That the Hospital District has been paying to the City and County the amounts of money necessary to meet current installments on the hospital bonds, and they, in turn, have been forwarding such amounts to the paying agent of the bondholders, and that delinquent taxes on levies made by the City and County for hospital bond interest and sinking funds, as collected, have been deposited, by both City and County, in the respective hospital interest and sinking funds since establishment of the Hospital-District.
It was further stipulated that the County had on hand at the time of trial, the sum of $123,546.37 for the interest and sinking fund for retirement of the Hospital bonded indebtedness, and that it had been the practice of the County to place such funds on “time deposit” with the County Depository and transfer the interest earned thereon to the General Fund of the County. The City had in the City Depository, as interest and sinking funds for the payment of its Hospital bonded indebtedness, the sum of $2,003.72 as of July 31, 1957. That the City also has such funds on “time deposit” but has placed the interest thus earned back in said fund.
It is argued by the appellees that because neither this amendment nor the statute passed thereunder expressly directs that the County and City shall turn these interest and sinking funds over to the Hospital District, they may keep such funds, although they may not be used for any other purpose. Here we have a situation where the payment of these bonds, principal and interest, is made the obligation of the Hospital District. The County and City are relieved of the duty to pay them or to levy any taxes for that purpose, and at the same time they retain the funds which under the law cannot be used for any other purpose. The majority opinion does not even make any requirement that these funds shall ever be applied to the payment of these bonds.
Appellees further contend that inasmuch as the constitutional amendment provides that they shall transfer to the Hospital District the title to any land, buildings and equipment, jointly and separately owned, and did not expressly provide that they should transfer the interest and sinking funds, that the doctrine “Expres-sio unius est exclusio alterius” applies, and excludes the transfer of the interest and sinking funds levied, assessed and collected for the payment of the Hospital bonds. This would, indeed, be a strict construction.
As said by the Supreme Court in Collingsworth County v. Allred, 120 Tex. 473, 40 S.W.2d 13, 15:
*256“It is true in construing Constitutions that resort may be had to the well-recognized rule of construction contained in the maxim ‘expressio unius est exclusio alterius.’ * * * But such rule of construction will not be given effect where the facts and circumstances surrounding the adoption of the amendment demonstrate that the people in adopting the same intended a different meaning to be given to their action. Aransas County v. Coleman-Fulton Pasture Co., 108 Tex. 216, 191 S.W. 553.”
The fundamental purpose in construing a constitutional provision is to ascertain and give effect to the intent of the, framers and the people who adopted it. Collingsworth County v. Allred, supra; Aransas County v. Coleman-Fulton Pasture Co., supra.
Another well settled rule is that when a constitution confers a power, or enjoins a duty; it also confers, by implication, any incidental power necessary for the exercise of one or the performance of the other. Imperial Irr. Co. v. Jayne, 104 Tex. 395, 138 S.W. 575; Griner v. Thomas, 101 Tex. 36, 104 S.W. 1058; Ex parte Youngblood v. State, 94 Tex.Cr.R. 330, 251 S.W. 509; Stites v. Sutton County, Tex.Civ.App., 272 S.W. 506.
Here we have a proposition that has been voted upon, once by all the qualified voters of Bexar County and again by the qualified taxpaying voters of such County, under which the Hospital District has been created and has assumed the payment of all County and City bonded indebtedness incurred for hospital purposes and is made fully responsible for the payment thereof. The County and City are completely relieved of any duty to pay such bonds or to levy any tax for such purpose. Here we also have a statute enacted by authority of the constitutional amendment, spelling out in detail the method for the levy, assessment and collection of taxes to pay such bonds, and expressly providing that the proceeds, less assessing and collecting fees, “shall be deposited in the district depository,” and controlling the method of withdrawal thereof.
It is obvious that the framers of the amendment and the voters who adopted the same intended that the Hospital District should have custody, control and disposition of the interest and sinking funds involved in this case, as well as that portion of any delinquent taxes which have been levied and assessed for the purpose of payment of such bo.nds during the years prior to the creation of the district but collected or to be collected thereafter. It is equally obvious that the Hospital District having assuméd such bonded indebtedness, it was not intended that it should be deprived of the means of carrying out such obligation.
I would reverse the judgment of the trial insofar as it affects the interest and sinking funds now held by either the County of Bexar or the City of San Antonio and render judgment that appellant, Bexar County Hospital District, recover judgment against the appellees, Bexar County, Texas, and City of San Antonio, for the possession, title and control of the sinking funds now held by each of them for the payment' of hospital bonds, which bonded indebtedness has been assumed by appellant, Bexar County Hospital District, and further, that appellees, Bexar County and City of San Antonio, and each of them be ordered to pay over to appellant, Bexar County Hospital District, all that portion of the delinquent taxes which were levied and assessed for the purpose of paying interest and creating a sinking fund to pay off the bonds assumed by the Hospital District, as and when such delinquent taxes are collected.
I respectfully dissent.