E. L. Twing et al. v. Wm. H. Rhodes et al., 118 Tex. 410

Mr. Presiding Judge HARVEY delivered the opinion of the Commission of Appeals,

Section A. The Court of Civil Appeals for the Ninth District has certified various questions, only one of which requires an answer. An answer to some of the questions submitted is rendered unnecessary by the answer made to that one question; others involve a consideration of matters of fact of which we are not sufficiently advised by the certificate.

The facts shown in the certificate, which have a bearing on the question to be answered, are substantially as follows: The appellees, as residents and tax-payers in what is known as Road District No. 4 of Shelby County, sue various holders of bonds purporting to have been issued by said road district in the year 1919, in pursuance of the provisions of Articles 627 and succeeding Articles of the Revised Civil Statutes of 1911. The members of the Commissioners’ Court of said county, and the tax collector and tax assessor of the county are also made parties defendant.

The plaintiffs seek to have all said bonds cancelled and declared void, and to enjoin the levy, assessment, and collection of taxes for the payment of said bonds. It is claimed that all the bonds are void for lack of power in the district to issue them, in that said district had no such legal existence, at the time the bonds were issued, as to give it legal authority to issue the bonds and levy taxes to pay same.

The district was formed in the year 1919 in pursuance of the provisions of the statutes above mentioned; and an election was held to determine whether or not said bonds should be issued and sufficient taxes levied to pay same. At the election more than two-thirds of the voters therein voted in favor of the issuance of the bonds and the levy of the tax. All the proceedings relating to the establishment of the district, the election, the issuance of the bonds, and the tax levy, conformed to the statutes mentioned above.

The road district was composed of a portion of said county, and had not been created or defined by the legislature for any purpose. None of the plaintiffs signed the petition for the election, and none was given an opportunity to be heard respecting the inclusion of his lands within the boundaries of the district. In the same year, after the Commissioners’ Court had passed an order directing the issuance of the bonds, the bonds were duly prepared and signed; and, under order of said court, were delivered to one E. L. Twing, who paid nothing for them.

They were subsequently sold by Twing to the various holders who are parties defendant herein. No part of the proceeds of the sales has ever been received by the county treasurer for the credit of the road district. All such proceeds were appropriated by Twing to his own use. The various bond holders, who are parties defendant herein, claim to be holders in due course. One of the questions.certified reads as follows : “What was the legal effect, as to the validation of this road district and of these bonds, of

Chapter 17 of the General Laws of the First Called Session of the Thirty-Ninth Legislature of Texas, approved October 18, 1926?” Among the purposes of the legislature in passing sections one and two of the Act mentioned in the certified question, was the purpose to ratify the formation of all road districts which had theretofore been formed in pursuance of the provisions of

Article 627 and succeeding sections of the Revised Statutes of 1911, and amendments thereto; and thus invest such districts, from the time of their formation, with all the power and authority they would have had if they.had been created and defined by law, as bodies corporate, in the first instance. This purpose was accomplished by the passage of said two sections of the Act. At the time these districts were originally formed, any “defined district”-in a county had authority under said pre-existing statutes to issue bonds and levy taxes as prescribed in those statutes.

In order, however, for this authority to be effectually exercised, it was necessary that such district be created by the legislature or under properly delegated legislative authority. Browning v. Hooper, 269 U. S., 396.

Since the legislature was authorized to create and define the districts in the first instance, (State Constitution, Art. 3, Sec. 52), its ratification of the formation of the districts which had been formed previous to the passage of the Act in question, had effect to give said districts, from inception, the legal status of “defined districts” created by the legislature as bodies corporate; and all bonds and tax levies, which met the requirements of the pre-existing statutes, became valid. Anderson County Road District v. Pollard, 116 Texas, 547.

All the bonds involved in this suit were validated by the Act in question; and those holders who acquired them before the passage of the Act can no longer be deprived of the character of holders in due course, by the mere fact that the bonds, because of lack of power in the district to issue them, were invalid when acquired. What has been said furnishes answer to the certified question set out, and we recommend that it be so answered. The opinion of the Commission of Appeals answering the certified question is adopted and ordered certified. C. M. Cureton, Chief Justice. \