J. M. Harrell, County Attorney, et al. v. J. H. Lynch et al., 65 Tex. 146

Robertson, Associate Justice. It was claimed by the appellees in the court below that the removal of the county seat of Bowie county from Boston to Texarkana was not effected by the election of September 24,1885, on two grounds: first, that illegal votes and fraud produced the majority counted for Texarkana in that election; and second, that the law under which the election was held was unconstitutional and void.

Upon the latter ground, without reference to the former, the court below rendered a decree perpetuating upon the petition of appellees an injunction restraining appellants, the county officers of Bowie county, from transferring their offices and the county records and archives to Texarkana. On this appeal the appellants contend that the law under which the election was held was constitutional, and that the district court of Bowie county was without power to question the declared result of that election.

The theory upon which the court below held, and on which the appellees here contend that the act of April 10, 1879, under which the election was had, is repugnant to the constitution, is that

section ten of that act being manifestly void upon the authority of ex parte Towle, 48 Tex., and ex parte Whitlow, 59 Tex., there is not enough of the law left to effectuate the object of the law, or that

section ten forms so material a part of the act that the legislature would not have passed it if the invalidity of that

section had been anticipated, It was upon this theory that the act of March 13,1875, also providing for the removal of county seats, was held to be repugnant to the constitution in ex parte Towle. The third

section of the act of 1875 provided that the result of the county seat election authorized by the act should be ascertained by the presiding justice of the county and declared in a certificate, and that this certificate should be prima facie evidence of the truth of the matters therein stated. What was to be done with the certificate was not provided.

It was not given the force and effect of a declaration, political or judicial, that the object of the election, the refusal to remove, or the removal of the county seat, had been accomplished, but .only in any proceeding or inquiry in which the. result, of the election should come in question the certificate of the presiding justice should be “prima facie evidence of the truth of the matters therein stated.” In the enactment of this

section it was evidently contemplated, from the excitement attending such elections in the past, and the dissatisfaction with the result manifested by appeals to the courts in every form suggested by the learning of counsel, and on every ground imaginable in law, that the contest provided for by the fourth

section would be instituted in every case in which it was authorized. This contest was to be had in the first instance in the commissioners court, but it was provided that it could be had de novo on appeal, and on some contingencies, originally, in the district court.

An appeal was also given from the district to the supreme court, and until the final adjudication of the contest the county seat was required to “remain at the place antecedently fixed by law.” It was held that the jurisdiction attempted to be conferred by the act upon the district and supreme courts could not be exercised by those courts under the constitution, and that the provisions of the act were insufficient, and not intended to effect the removal of the county seat unless the contest provided for could be had. The entire act was therefore void.

The opinion in the Towle case was not delivered until February 7, 1878, and the result of that case was that there was no law in force regulating the removal of county seats. The constitution (art. 9, sec. 2) required the legislature to pass laws “regulating the manner of removing county seats.” The legislature passed no such laws at its first session under the constitution of 1876, for the reason doubtless that the act of 1875 was considered all the legislation needed.

But at the next session of the legislature, the Towle case having disclosed the necessity of legislation in obedience to the constitution, the act of April 10, 1879, was passed. All doubt should be eliminated from the conviction that the later enactment has repealed, rather than cured, the fault in the act of 1875, before we could properly declare' the act of 1879 void. That

section ten of the act of 1879 is unconstitutional was held by this court in ex parte Whitlow, on the authority of the Towle case. This

section and

section four of the act of 1875 attempt to confer upon the district and supreme courts precisely the same unauthorized jurisdiction. The two sections of the acts in the unconstitutional feature are so nearly identical as to exclude the idea that the legislature believed that one could be void and the other valid.

If the legislature had re-enacted the act of 1875, in one view the re-enactment might have been valid, though the original act was void, as the re-enactment would not be considered a reiteration of the validity of the law, but as a declaration of the intention of the legislature that such parts of it as were not repugnant to the constitution should be enforced without regard to the void provisions. The void provisions of the act of 1875 were held to taint the entire act. The same void provisions are re-enacted in

section ten of the act of 1879, but if the act without

section ten would accomplish the object of the law to regulate the manner of removing county seats, then, though the right of contesting the election would not exist, it would be fair to infer that it was the intention of the legislature, already advised of the invalidity of

section ten, that the other parts of the law should be enforced. In these other parts the act of 1879 is a decided improvement on that of 1875.

Section four of the later act provides that the officer ordering the election shall “declare the result,” which shall be entered upon the records of the commissioners’ court, and shall state the name of the place from and that to which the county seat is removed, and a certified copy of this “entry” is required to be recorded in the registry of deeds.

Section five then provides that where this ‘ ‘ entry ’ ’ is made the county seat shall be removed to the place elected, and “ such place shall thereafter be the county seat of such county.” The Towle case was decided by a divided court. The legislature so framed the act of 1879 as to give the voter the desirable right of contest if that case should be overruled, a possibility the more considerable, as the author of the opinion in the Towle case had ceased to be a member of this court.

If, on the other hand, the Towle case should be adhered to, the right of contest would be denied, but a valid law would be in force in obedience to the mandate of the constitution. Our conclusion is that it was the purpose of the legislature that the other sections of the act of 1879 should be enforced whether

section 10 was valid or not, and that these other sections amply provide the means of accomplishing the object of the law. Appellees also complained that the declared result of the election was brought about by fraud and illegal votes, and, as there is no remedy at law, they have invoked the jurisdiction of equity to granl them relief from the wrongs about to be inflicted through the forms of law. The threatened wrong is the removal of the county seat. In the Towle case, and in the case of Walker v.

Tarrant Co., it has been held by this court that voters in a county have in the location of the county seat no such interest as will form the basis of a suit or action. In the Towle case this court volunteered the suggestion of a means by which such litigable interest could be created by law. The suggestión was never acted upon. As no man has a property right in the location of the county seat, its unlawful removal (no more than a trespass upon the court-yard) gives him no cause of action.

Being deprived of no right, the depreciation in the value of his property is not a wrong for which a court of equity, in the absence of a legal remedy, would invent the means of redress. A valid law authorized the election, the election has been held, the agents appointed to ascertain and declare the result have performed that duty. This accomplishes the fact, and the law here ends the controversy. If a wrong has been done, the usurpation of the power to prescribe a remedy would be a still greater wrong.

The judgment of the court below must be reversed, and as nothing is left in the case for further litigation, the cause will be dismissed. Bevebsed and Dismissed. [Opinion delivered November 6, 1885.]