The opinion of the majority recognizes that there must be legislative authority, either express or implied, to authorize a school district to vote to assume the outstanding bonded indebtedness of another district, the territory of which has been included in a new district. As to the correctness of that proposition, there is no room for difference of opinion. It is also recognized in the majority opinion that in this case there was no express legislative authority for holding the election that was held in the Truscott independent school district to determine that question. There is therefore squarely presented the question of whether or not there exists by implication any general law applicable to the class of districts in question which authorizes the holding of such election. The writer takes the view that there was no such lawful authority. The Constitution provides: "And the legislature may authorize an additional ad valorem tax to be levied and collected within all school districts, * * * for the further maintenance of public free schools, and the erection and equipment of school buildings therein; provided, that a majority of the qualified property taxpaying voters of the district, voting at an election to be held for that purpose, shall vote such tax," etc. Constitution, art. 7, § 3.
If the Legislature itself has authority to authorize the holding of an election for the purpose mentioned, such authority must be implied from the provisions of the Constitution above quoted. Since constitutional provisions are at once both enabling and limiting, the last-named characteristic has the effect of restricting legislative power to one or both of the two things mentioned, namely, (1) "for the further maintenance of public free school," and (2) "for the erection and equipment of school buildings therein." It is manifest that the constitutional provisions require legislation. In other words, they are not self-operative. For instance, it will perhaps not be gainsaid that, if the Legislature only enacts that a tax may be levied and collected "for the further maintenance of public free schools," no district could issue bonds "for the erection and equipment of school buildings." On the other hand, if the only legislation under authority of the said constitutional provision was to levy a tax "for the purpose of the erection and equipment of school buildings," there would be no lawful authority for a school district to vote a maintenance tax.
If, as held by the majority, there exists by implication legislative authority for a district to assume the bonded indebtedness of a former district, it becomes an interesting inquiry as to which of the two purposes named in the Constitution is such authority referable? Does it come under the authority to authorize by an election a tax "for the further maintenance of public free schools," or "for the erection and equipment of school buildings"? It is perhaps safe to say that such authority must exist, if at all, under the latter. Were the question one of first impression, the writer could never bring himself to agree that such authority can be implied from said constitutional provision. The question would seem to me to be governed, for example, by the same principle upon which it is held that authority to collect a bond or note does not imply the authority to accept in payment another bond or note. In each case there is involved a substitution of different obligations in such a way as to be subject to the same principle. But the question of constitutional authority appears to have been settled favorably to the existence of authority in the Legislature to authorize school districts to vote upon themselves the assumption of the pre-existing indebtedness theretofore voted upon a part of the district. Yorktown Independent School District v. Affierbach (Tex.Com.App.) 12 S.W.2d 130.
It is therefore not the purpose of the writer further to discuss that question, or call in question the correctness of the said decision.
The question here is: Conceding that the Legislature had the power, by either general or special law, to authorize an election in the Truscott independent school district to determine whether or not that district would assume the indebtedness of the former district, has the Legislature in fact exercised such authority by the enactment of any law? As pointed out in the majority opinion, a number of decisions have stated that there was such authority under the general laws. If so, it is a matter, it seems to me, that should be capable of easy and ready verification. Under the special act of the Legislature creating the Truscott independent school district it is provided that that district shall have and exercise and be vested with all the rights, powers, privileges, and duties of a town incorporated under the general laws for free school purposes only, and the board of trustees of said district shall have and exercise all of the rights, powers, privileges, and duties conferred and imposed by the general laws upon the trustees of independent school districts incorporated under the general laws of the state for free school purposes only. This being the full measure of the grant of authority to such district, what provision or provisions of any general law applying to a town incorporated under the general laws for free school purposes only, or to the trustees of independent *Page 219 school districts, implies the authority in question? I think it safe to say that, if any such authority is to be implied from any general law, such general law is comprised within some one or more of articles 2784, 2785, 2786, 2787, 2788, 2789, and 2790 of the Revised Statutes of 1925. Article 2784 authorizes trustees of an independent school district "to levy and cause to be collected the annual taxes and to issue the bonds" therein authorized "subject to the following provisions: * * * In independent districts for the maintenance of schools therein, an ad valorem tax, not to exceed one dollar on the one hundred dollars valuation of taxable property of the district. * * * In * * * independent districts, for the purchase, construction, repair or equipment of public free school buildings within the limits of such districts and the purchase of the necessary sites therefor, a tax not to exceed fifty cents on the one hundred dollars valuation, such tax to be for the payment of the current interest on and provide a sinking fund sufficient to pay the principal of bonds which said districts are empowered to issue for such purposes."
It is then provided that the amount of maintenance tax and bond tax shall never exceed $1 on the $100 valuation and for the adjustment of the maintenance tax so as to keep the total within said limit. It is further provided that no tax "shall be levied, collected, abrogated, diminished or increased, and no bonds shall be issued hereunder, until such action has been authorized by a majority of the votes cast at an election held in the district for such purpose, at which none but property tax paying qualified voters of such district shall be entitled to vote."
It is apparent from the above that the Legislature has liberally construed its authority under the above-mentioned constitutional provisions. Especially is that true as to the provision material here, authorizing the Legislature to empower school districts to vote bonds and a tax "for the erection and equipment of school buildings therein." The mandate of the Constitution is thus expanded by legislative construction to include, in addition to erection and equipment, the purchase of school buildings, the repair of same, and the purchase of necessary sites for school buildings. Would it not seem that the Legislature is assuming to exercise about all the authority that the Constitution permits? Then we are asked to add by simple implication to the foregoing legislative grant of authority to independent school districts yet another, which is the authority to call and hold an election to determine whether or not a school district, owing maybe no debts, shall assume and tax itself to pay the debts of another municipality. What is there in the above-mentioned grant of authority from which should be implied the unmentioned authority to assume such debts? Does the implication arise from the fact that the new district succeeds to the property for which the assumed indebtedness paid? Expressions are to be found in some of the decisions which would seem to so suggest. But, if so, the fallacy of that view could perhaps be no better illustrated than by the facts of this case, which show that the property received constituted a liability instead of an asset. Is the authority in question to be implied from the provision authorizing the formation of school districts to include in whole or in part pre-existing districts with a bonded indebtedness? A sufficient answer to such query is that it is not absolutely essential that a new district assume the indebtedness of a former district, and certainly it cannot be contended that such authority is to be implied merely because it may tend to promote the purposes involved in the re-establishment of districts.
The statutes manifest quite plainly the legislative intent that school districts shall exercise their powers in specific ways. Would it be contended that, under authority of an election to vote bonds to "repair" a school building, the trustees would be authorized to purchase a "site," or, under authority to "equip" a building could it be contended that a district would be authorized to "repair"? Under subdivision 4 of said article a tax could not be abrogated under authority of an election to diminish just about as certainly as that it could not be in creased under authority to diminish it. The entire procedure in the articles of the statutes mentioned is prescribed with such minuteness of detail as in my opinion to exclude rather than include by implication a purpose or intent to authorize an election to assume indebtedness. Since, as before suggested, if the Legislature had granted the power in question, it must be implied from the grant of authority "for the purchase, construction, repair or equipment of public free school buildings * * * and the purchase of necessary sites therefor," it is significant that in article 2786 it is provided that all bonds shall be sold to the highest bidder for not less than their par value and the proceeds deposited in the depository to be "disbursed only for the purpose for which said bonds were issued," etc. The sale for cash would seem to exclude a transaction involving the exchange of one kind of obligation for another. Article 2787a prohibits the use of any tax money in the redemption of bonds, except such as are lawfully levied and collected for that particular purpose. To this provision there is one exception, and that is the case of redemption of bonds for the purpose of being refunded. Upon first view it may appear that here is a provision from which to imply authority to substitute new obligations of a district for the old obligations of a district of subsequently included in the new, but article 2789 very clearly shows that such is not the case. By the last-named article it is shown that the refunding is only *Page 220 an expedient for reducing interest on the bonds. That it could not include the creation of a new obligation such as is involved in assuming an outstanding indebtedness is clearly manifest by the provision that no election shall be necessary. To undertake to read into that provision an implication of the authority in question would be to bring the law within the inhibitions of the Constitution.
It will perhaps serve no useful purpose to attempt a full review of the decisions in which it has been suggested that the authority in question exists under the general law. No such question was involved or discussed in Crabb v. Celeste Independent School District, 105 Tex. 194,146 S.W. 528, 39 L.R.A. (N.S.) 601. No election had been held to assume indebtedness and the question before the Supreme Court was whether, in the absence of same, the new territory could be taxed to pay the debts of the old. It is plain that the determination that a tax could not be levied and collected against the new territory for the debts of the old in nowise involved a consideration of the question of whether there existed legislative authority to vote upon such question. The negative expression in the opinion scarcely amounts to even a dictum.
In Burns v. Dilley County Line Independent School District (Tex.Com.App.) 295 S.W. 1091, the special act plainly provided for the assumption of the indebtedness. Besides the election referred to as being authorized by the general law was one to vote a tax for the support of public free schools. There was therefore no occasion for the court to consider whether there was any general law authorizing an election to assume the indebtedness.
In Tilton v. Dayton Independent School District (Tex.Civ.App.)2 S.W.2d 889; Love v. Rockwall Independent School District (Tex.Civ.App.)194 S.W. 659; Love v. Rockwall Independent School District (Tex.Com.App.)238 S.W. 642; Henderson v. Miller (Tex.Civ.App.) 286 S.W. 501; Gerhardt v. Yorktown Independent School District (Tex.Civ.App.) 252 S.W. 197; McPhail v. Tax Collector (Tex.Civ.App.) 280 S.W. 260; Hill v. Smithville Independent School District (Tex.Com.App.) 251 S.W. 209; and Willamar Independent School District v. Lyford Independent School District (Tex.Civ.App.) 8 S.W.2d 239 — there was reference in each to the supposed fact that the general law authorized such elections, but in neither of them was it necessary for a decision, as the special acts in question expressly undertook to give such authority.
In Geffert v. Yorktown Independent School District (Tex.Civ.App.)285 S.W. 345, the court discussed the power of the Legislature to grant such authority, but did not deal with the question of whether the Legislature had in fact done so, nor does it appear that such a question was in the case.
The only case that the writer has found in which the suggestion as to the existence of such authority under the general law was material is Terrell v. Clifton (Tex.Civ.App.) 5 S.W.2d 808, 810. In that case the authority was said to be Rev.St. 1925, art. 2922h. Article 2922h is a part of a comprehensive and complete statute governing rural high schools. Since it in terms applies to rural high schools, by an elementary rule of exclusion, as the writer sees it, it can have no application to the district in question. Whether the expression in Yorktown Independent School District v. Afflerbach (Tex.Com.App.)12 S.W.2d 130, 133, to the effect that the authority in question existed under the general law, was necessary to the decision, involves a question of construction. The special act there considered provided that the trustees of the district created by the act "shall provide according to law for the assumption by the district of its pro rata part of all outstanding bonded indebtedness of school districts or parts of school districts included in the territory of the district created" by the act. But for the words "according to law" it is clear that the provisions of the special act, aside from the question of constitutionality, constitute full and complete legislative authority for the district to assume the debts. I think the words "according to law" should be construed, not to have any reference to any other law which by its own terms fully authorizes the assumption, but rather to the mode of doing so, such as by the holding of an election at which property tax paying voters only should vote, and a majority be necessary to carry the election. In other words, the special act itself expressly evidences the legislative intent that the district should have authority to assume the indebtedness, and a reference to the general law could at most be nothing more than a legislative construction of the general laws as granting such authority. Such construction, if erroneous, as I think it is, does not detract from the fact that the special act clearly portrays the legislative purpose to expressly grant the authority in question.
But, after all, it matters not how often it may have been repeated that the general law affords the authority in question, if it does not, that fact is conclusive. I respectfully submit that there is no general law from which legislative authority can be legitimately implied for an independent school district, such as this, to hold an election and by majority vote to assume the preexisting indebtedness of another district. *Page 221