Thompson Brown et al. v. Wm. H. Graham.
(Case No. 1493.)
1. Constitution and statute construed — Taxation.— Construing art. VIII, see. 9, of the constitution, and. art. 1515, R. S., in so far as they refer to taxation for the erection and repair of public buildings, held,
' (1) The power to make an addition to a public building is included in a grant of power to erect and repair such building.
(2) The object of the provisions in the constitution and statutes, authorizing the levy of a tax for public buildings, was to enable the different counties to provide suitable public edifices for the people, leaving it to the proper authorities to determine whether this could best be done by erecting new houses, or repairing and adding to old ones.
(3) A construction cannot be given to the laws conferring power to levy taxes for the “ erection of 'public buildings,” which would limit the exercise of the power to the erection of new houses, when the object of the law could often be attained by erecting, at less expense, additions to public houses already built.
Appeal from De Witt. Tried below before the Hon. H. Olay Pleasants.
. On the 9th of August, 1881, the commissioners’ court of the county of De Witt levied a special tax of one-fifth of one per cent, on all property subject to taxation in that county on the 1st day of January, 1881; the levy being for building an addition to and repairs on the court house.
Appellants, on the 28th of February, 1882, applied to the Hon. IT. Olay Pleasants, judge of the judicial district, alleging that the levy of the special tax was illegal, unconstitutional and void, and that the collection thereof would result in great and irreparable loss, damage and injustice to appellants. A preliminary writ of injunction was granted, restraining the collector from further procedure in the collection of the tax. The collector of taxes, as well as the county of De Witt, being made parties defendant, on the 9th of June, 1882, filed general and special exceptions to the sufficiency of the petition, as well as answer on the merits. On the 16th of June, 1882, the court sustained the general exceptions and overruled the special exceptions of the defendants, dissolved the preliminary injunction and dismissed the cause, from which ruling the plaintiffs below appealed.
W. R. Friend, for appellants.
I. Art. 1515, B. S., authorizes the levy of a special tax for “ the erection and repair of public buildings, not an addition to a-nd repairs ” thereon. The statute confers all the power the court possessed, and this power cannot be. exercised unless plainly and *255unmistakably conferred. Grace v. The State, 9 Tex. Ct. App., 38; 1 Dillon on Mun. Corp., secs. 16, 25, 89; 2 id., sec. 763; Cooley on Taxation, pp. 202-208, 209 and 257; Cooley on Const. Lim., pp. 192, 195.
II. Sec. 1; cb. 31, Acts of 1879, though containing no express words to that effect, revised the subject matter of art. 1515, E. S., was intended as a substitute for same, and operated as a repeal thereof. Stirman v. The State, 21 Tex., 734; Tunstall v. Wormley, 54 Tex., 476.
III. The levy of the special tax complained of was unauthorized by sec. 1, ch. 31, Acts of 1879, which authorized a special tax “ to .erect or complete ” court houses and jails, and conferred no power on the commissioners’ court to levy such a tax “ for building an addition to and repairs on the court house.” Authorities same as on first proposition.
IY. The words “ an addition to and repairs on the court house,” used in the levy, are indefinite and obscure. If the words “ addition to” should be held of the same import as “ erection of,” and the words “ repairs on ” should be held unauthorized, the whole levy would be infected by the unauthorized part of same, and was thereby illegal and void. Dean v. Lufkins, 54 Tex., 265.
Y. Power to -repair public buildings does not confer power to erect same. 1 Dillon on Hun. Corp., sec. 140.
Stockdale & Proctor and Rud Kleberg, for appellee.
Willie, Chief Justice.
The county commissioners’ court of De Witt county levied a special tax for the year 1881 of one-fifth of one per cent, for the purpose of building an addition to and repairing the court house. A large number of the tax-payers of the county united in suing out an injunction, restraining the collection of the tax, on the alleged ground that the county had no power, under our constitution and laws, to impose a special tax for building an addition to a court house. A general demurrer to the bill of injunction was sustained below and the suit dismissed, and this judgment is brought here for revision.
Art. YIII, sec. 9, of the constitution, provides that no county shall levy more than the one-half of the state tax, except for the payment of debts already incurred, and for the erection of public buildings not to exceed fifty cents on the one hundred dollars in any one year. Art. 1515, B. S., is to the effect that this special tax shall not be levied except for the payment of debts incurred prior *256to April 18,1876, and for the erection and repair of public buildings. The statute of 1879 gives the county commissioners’ court power to levy such special tax to raise a fund to erect or complete, or complete payment for the construction of court houses or jails.
It is claimed that the power to erect, repair or complete a public building does not include the power to make an addition to it. It is true that the county commissioners’ court can levy no taxes unless the power to do so be plainly and unmistakably conferred. The authority must be given either in express words or by necessary implication. 2 Dillon on Mun. Corp., § 763. It is no more than a reasonable construction of language, to hold that power to erect an entire building expressly authorizes the construction of a portion of it. It certainly does by necessary implication.
Should the commissioners’ court come to the conclusion that a larger court house is needed to meet the demands of the public business of their county, and they agree upon its plan and dimensions, and find that they can secure a building conforming to them in every respect, either by erecting a new structure, or altering, repairing and enlarging the old one, and that the latter mode will be less expensive by half than the former, is there any reason in holding that they can levy the tax for the more expensive mode of attaining their object, when they could not for the other, though the structure which is the result is precisely the same in every particular?
The object of the foregoing provisions of our constitution and statutes was to enable the different counties to provide suitable public edifices, leaving it to the judgment of the proper authorities whether this should be done by building new houses or by repairing and adding to old ones, when they could thus be rendered suitable to the purposes of the county. The word “ erect,” contained in all the foregoing provisions, was the most comprehensive term that could be used to embrace all such improvements.
To hold that a county whose court house, with proper repairs and additions, co-uld be rendered commodious and useful in every respect, must pull it down and build an entirely new one, would be to charge our law-givers with an intent to encourage an unnecessary expenditure of the public money. Such a consideration would not, in itself, authorize us to infer a power when not expressly given or necessarily implied. Tet when the language used is capable of including authority to do an act not mentioned in terms, such construction of it is greatly aided by considerations of public advantage which it would certainly produce.
The point made by appellant that the act of 1879 repeals by im*257plication art. 1515, R. S., is immaterial, since the same general term is used in both acts, and the authority to levy the tax may be derived from either.
[Opinion delivered January 9, 1883.]
The judgment of the court below is affirmed.
Affirmed.