A. J. Lindsey et al. v. State of Texas et al., 96 Tex. 586

WILLIAMS, Associate Justice. The Court of Civil Appeals for the Fourth District has certified the following statement and question for decision: “On the 24th day of October, 1894, in cause hfo. 168, styled the State of Texas v. Lindsey et ah, the State of Texas recovered, in the District Court of Edwards County, against Dick Lindsey as principal, and A. J. Lindsey, T. D. Lindsey, J. J. Jones, T. M. Payne, and Martin Moran as sureties, for the forfeiture of a bail bond of Dick Lindsey, a judgment for the sum of $6000, with interest thereon at the rate of 6 per cent per annum from date, together with costs of suit.

At its February term, 1897, the Commissioners Court of Edwards County, Texas, by an order duly entered upon its minutes, which purported to be made by virtue of . art. 845, Rev. Stats., in consideration of $500, sold, assigned and transferred to W. D. Walker the above described judgment. “On the 23d day of January, 1900, the State of Texas brought this suit against appellants, A. J. Lindsey, J. J. Jones, T. M. Payne, Martin Moran, W. D. Walker and W. A. Johnson, to set aside the order of the Commissioners Court transferring and assigning said judgment to Walker upon the grounds (1) that art. 845, Rev.

Stats., by virtue of which the transfer was made, is unconstitutional; and (2) that the sale of the judgment was procured by a fraud. “The answer of appellants admits the sale and transfer of the judgment to Walker; claiming the

article under which the sale was made is constitutional, and denies that any of them was guilty of any fraud in the procurement of such sale and transfer. On the trial the court refused to hear evidence upon or submit the issue of fraud, but instructed the jury as follows: “ ‘Gentlemen of the Jury: You are instructed that as the defendants invoke

article 845, Revised Statutes of Texas, which authorizes the commissioners court to sell the judgment in question, and the court being of the opinion that said

article of the statutes is in contravention of

section 55,

article 3, of the Constitution of the State of Texas, and therefore is void, and the plaintiff having sufficiently proven its right to recover in this case in an undisputed manner, you are charged to return your verdict for the plaintiff, and say by your verdict: “We, the jury, find in favor of plaintiff as against defendant a verdict as prayed for in plaintiffs’ original petition, and that the judgment lien of plaintiffs upon the lands described in plaintiffs’ original petition is valid and subsisting and should be foreclosed.” And sign said verdict by your foreman. I. L. Martin, Judge 38th Dist. of Texas.’ “Question: Is

article 845, Revised Statutes of 1895, constitutional?”

Article 845 is as follows: “Whenever the principal and sureties upon any judgment, the proceeds of which revert to, and belong to, any county, are insolvent so that under any existing process of law said judgment, or any part thereof can not be collected, the commissioners court of said county are hereby constituted a board to dispose of such judgment, and are hereby empowered and authorized, by such advertising as they may deem necessary, to offer for sale as they may deem to be the best interests of the county all the right of the county to such judgment.

And if by public sale, if the amount bid on the same should not be deemed sufficient they shall refuse to accept the same, and dispose of the same in any manner deemed by them most advantageous to the interest of the county, and upon sale shall make a proper assignment of said judgment to the purchaser.” The provision of the Constitution with which it is alleged to conflict is

section 55,

article 3, which reads thus : “The Legislature shall have no power to release or extinguish, or to authorize the releasing or extinguishing, in whole or in part, the indebt- > edness, liability or obligation of any incorporation or individual to this State or to any county or other municipal corporation therein.” That which the statute authorizes-is not the same thing as that which the Constitution forbids.

The subject matter of the constitutional provision is the “indebtedness, liability or obligation” of persons and corporations to State, county or other municipal corporations, and it is the releasing or extinguishing of. such indebtedness, liability or obligation that is inhibited. The evident meaning is that the debtor or obligor shall not be released, nor his debt, liability or obligation extinguished. The statute provides, not for this, but for a realization of the value of judgments, by sale or disposition to others than the debtor or obligor.

Such a disposition does not release the debtor nor extinguish his liability, but assigns it to another as a means of obtaining its value. To give to the Constitution the meaning contended for by appellee, it should be thus read: “The Legislature shall have no power to release or- extinguish, nor to sell, transfer or assign, etc., in whole or in part,” etc.

If it read thus, it would evidently forbid all sales of such claims, while appellee admits that sales for the full amount due upon them are permissible. ’ But we are not authorized to' import into the Constitution language which it does not use; and if the language supposed were used, no sale or assignment could be excepted. The argument is made that a sale of a judgment for less than its face value is a “release” of the right to a part of it, and therefore within the mischief intended to be prevented by the Constitution.

But such a transaction could not accurately be called a release, and we must take and apply the plain language of the Constitution as we find it and can not add to it so as to restrict the powers of the Legislature further than such language restricts it, in order to prevent a fancied mischief. “We are not to import difficulties into a Constitution by a consideration of extrinsic facts, when none appear upon its face.” Cooley, Const. Lim., 78. Besides we do not think that anything authorized by the statute comes within the mischiefs against which the inhibition in question is directed.

It is one thing to release debtors or extinguish their indebtedness, liabilities or obligations without payment or performance, and quite another to obtain by sale under fair and prudent management, the value of such assets. We answer that the statute in question is constitutional.