                                                                   R-362



              THEA



~..
                                  June .ll,   1947

      Bon, John M. Steele          opinion No. "v.244.
      County Attorney
      Lubbock County        ‘- ,, ‘Be: Obligatioh ,,of emiuty te
      Lubboak, Texas                     purchase right-of -way
                                        8for a highway. across
                                         lands 'onceannexed aud
                                         then purportedly re-
                                         linquished ,by. a home ; , ~,Y
                         ,~              rule city.
      Dear Sir8
            . .,   We refer to your letter      of April’lO,     1947, in
      which you requested an .opinion of . this Department as
      followst
                                      ” :
                    “The clty~ of Lubbobk is-. a ‘Home E$l.s
             City since Its orgahisation       in 1917.    Prior
             ,to 1934, the City annexed certain       land.    In
             1934 the CZty,~by Ordlnauce Do. 519, a copy
             of which I enclose,      puvported to ~ellnqulsh
            and discontinue      the lapddescribed      in the
             Ordinance; ~, ‘tlie State Highway Gonssission
             BOWproposes td aonstruat a highway across
             this disputed laud?       It la therefore    ueces-
              sarg to determine who is to purchase the
             right-of-way,     the City or the Oouuty.
                   “It is the Gontentlon of the County of
            Lubbock that the purported Ordinance is in-
            valld,and    of no force and effect,       and there-
            Sore,   it is the obligation      of the city of
           ~Lubbook to purchase such right-of-way.             In
            this .counectlon,    I would also call your
            attention    to Article    1176 b2, ‘validation       of .~
            ordinances of Home Rule cities’,          publiehed~
            in compliance with charters~.         Article   ,973
            ldiscontinuingterrltory’,         and in coonectlon            .
            with the lat.e~,~&ticle,      note the word ‘uhin-
            habited’.     It ,$a the   contention   of the County
            that this terrltotig      was at that time inhabi-
            ted.     I would appreciate     your very valued
            opinion on this controversy.
Eon. John H. st*.el&- Pegs '2
                          ',


              "It la tkieaontultion Of the county
      that other th@ &tlelb        973, th@me i.i ho
      provision   for dlscontintring   terz%toq   and
      that the pmpaeed ordinances      eneloue&+1D
      this letter    is ImufficMnt,     legally, Co
      discontlnub    territory  of a city once It Is
      aoaexed.    I would further call your atten-
      tion, If it would be or aq help, ~that &
      1934  .tdaeolty of Lubbock ~88 l.Lebleoxi
                         bond ,is~aues."(Emph&
      several outtstandlng
      sla    OUPS))

              On l&r 10, 1947, at our requesmt, you subaltted
addltioual      iuforstlqn relrtw   to the s@me subject mat-
teF jhich     is in pert-as followst
              m      we wish to call jouv attention
      to a &e&&l dot passed by t&b 43d LeeIs-
      l+tstrrre In 1934.  Satahspeclel act 1s her
      Article    118gd of Vernon's Gidl  Statutes.
              "Xnce    the Inception   of this    aontro-
      reray between the City .%ud County of Lubbook,
      It IULSbeen our contention     that Ordliuxnce
      519 of the City of Lubbock mia Invalid be-
      cause the territory   supposedly rell4uished
      was lnbablted,   a  min&blted, amI therefore,
      ati   ordbaance was 'in violation   of Article
      973, Vernon's Civil Statute8,
             %wever,   if Irtlcle    11826 is coastltu-
      tlonal then regmdless       of the orlginal~in-
      validity   of the city ordinance,     the seme is
      now valid,' and mm approved and mtlfled by
      the Legislature.
           "Ue suggest t&at you give this vallQrt-
      lng act of the Legislatureyour close scm-
      tiny, and, Lf ooa&venlent,please adFse me
      your opinion aa to the above fincts.
          You also aqnt us a eopr of the ordlnume pars44
by the City of Lubbock, dated Jplr 26, 1934, ~h.iCad%a-
continued     OF relSn&.shed     the psrt1Cul.w     territory   pot I8
question.
             Article    973, V.CiS.,   IS as fol+ws:
                                \
                       Bon.‘John   M. Steele   - Page.3

                                           _)
                                ‘,,. ~“Uhenevdr~thePe  ejEfsts’wlthiu   the
                           .’corporate’. l-t8     Of any clt* or town
                             orgaulzed’under     the ge&al-laws       within
                             this State~terrltorj      to~‘the extent of            .
                             at least ten aOres, aontiguour,         unln- A
                             habited and adjoining      the lines of any
                             such city or town, the mayor and city or
                             town council m&y by ordknance~duly passed,
                             discontinue    said territory     as a part of
                             said city or town; and when said ordinance
                             has been duly passed, the mayor shall enter
                       ..’   an order to that effect       on the minutes or
                  ..         records of the.afty,or       town council;    and,
                             from and after the entry o? such order,
                       .     said territory     &a$1 cease to be a part of
                             said city or town.
                                 .’ The Cit;s ok Lubbo$c_is a home rule city aud-
                       ‘has adopted In Its ,charter all the powers authorized by
                        Article    1177, .y.C.S~.; therefore,   Article   973, supra, is
                        applicable.‘t;o~:sald.&ity.
     :            (




              *
                                          .~~
                                      According to your letter,     the particular   terri-
                       tory involved was Uhabited and not tminhabitedu~~o~~
                        time such ordlnanae was’wssed         by the City of L           ,
                        and’vas not i]l conformity with A&iale 973;-.supra.’ Hever-
                        theless,    thi$.being     a question of fact and further,     since
                        the city council passed the ordinance,          it Is presumed
                        that the city council fouud all the facts pecessary for
-.       ..             its ,validi.ty.     As a matter bf law, it is presumed to be
                        valid until the above .facts are shown in a court trial and
                        the ordinance set aside.
                                   You stated in your letter    that in 1934, the City
                        of Lubbock was liable   on several outstanding bond Issues
                        and intimated that this might prevent the city from dls-
                        continuing or relinquishing   the territory   in question.
                                     Insofar as we are able to ascertain,     there’i,s
                        n&.hi~~Ih     the statutes or Constitution    vhich pr?hibits
                        such a procedure and, in view of Article       971, V.C.S., we
                        believe-that    the territory may be relinquished     even
                        though there are outstanding bond issues,       If such relin-
                        quishment is in other respects     justified.     Ue also fail
                        to find any case vhere the Texas Courts have passed on
                        this particular    question; however, in 43 Corpus Jurls, p.
                        149, Sec. 130, we find the. follovingo
     sessed, levied,      05 due, but not paid, at
     the time of the detachment of territory
     embrecing the lands taxed may be SUbsQ-
     quently colleoted        by the municlpallty
     fFOlS  the PeI’SOna    liable,    Uhllethe    m-
     cipalltg    may not have the power, after
     the exclusion      of ‘territory,   to. enforae a
     lien on excluded land fortaxes~due,at
     the tine of the exc1uslon,         the owner is
     not released from liability         for t4e taxes,
     and   his property remaining within the city
     may be aold fop the entire tax.”            1-P--,
     sis oara)     ,
                                           1
            Also, %ln Miller v. Plnevllle,        8g’s,W. 261, a
Kentucky coupt passing on this same question had this to
sayi
               “It is insisted  that section 3483,
       &. St. 1903, which providea for the ~a-
       duction of the territory      of munioipalities,         *: -
        Is unconstitutional,    because only the city
        0~ taxpayer within the territory     proposed
        to be stricken off can make a dafenae or
        file a remonstrance,    and .becauae ,the de-
        fense is Us&ted to show ,that the majority
        of taxpayers within the proposedlatrlcken                      1
        territory   are against We change In the
        city limits,   and that suoh a change will                   A \
        impose unjust burdens on the taxpayers
       within the territory     to be rtricken off.                          ,
        The question raised is anawe+ed by the mew                       . .
       ,statement that, if the Legislature      can add                   .,
        fo OP reduce the liaita’ Of a city at till,
        then the power slso, exista to llmlt the
        defense to a proceeding instituted      by aukhoP-    :
        ity of the LeglslatuFe. to: alter or ‘charrge th0
        limits of a municipalit
        Legislature   is. supreme G ‘%     ~~~e~~;%d       ~.
        Sa to whether it exercises     its authtiity
        wisely cannot be questioned.”
            In view of the foregoing,       it is the Opinion     Of
this   Department that the territory       may be relinquished     by


                                            -.
Hon.   John W. Steele           - Page 5


the City of Lubbodk,Eli the s&me is othervise justified,
even though there are outstanding bonds against the
        The question of the right of bond holders to sub-
yz*the    ~ellnquishedterritory   to the payment of bonds
outstandlng at the date of the rellnqulsbment   is not
hem involved.’
           In Septembex 1934, the Leglalatrule passed
Artlole  1182d, V*CA., as a validating     statute,  and if
said statute Is constitutional,    the aforementioned   ordl-
nence being voidable only and not void, is now valid WI-
til it has been directly   attacked in a Court of ooape-
tent jurisdiction  and found to be invalid.
                 Article 11826, V.CISi, is aa f6ilowat
              “That the Leglslatwe         of the State of
       Texas hereby validates,        ratifies     and approves
       all ordlnances~ relfnqufahlng,           discontfnuiiag,
       and segregating       any territory     vlthin the co*- .
       porate limit8      .* -iU@ Borne Rule City In this
       state, havlag a, 1.pulation of mope than tvengy
       thousand (26,000 3” lnhkbitauts         and less than
       twenty-one thousaud (21,000) inhsbitaats,              ac-
      .cording to the last preceding Federal census;
      ,uhich city has adopted a charter uuder Article.
       11, Seation 5, OS the Const%tution .of the State
   ,: of Texm and the p~ovl~qlon~ of Chapter 147,
       Act8 of the Regular Session~‘of the 33rd Legls-
   ,.’la$re       of ,the State of ,,Texaa, passed in 1913.
       ;c;a,19;3,      43rd Leg., 3rd C.S.,.p.       53, ob. 30,
           .                                                                     I

                 Seation    56 of Article    III,;ot   the, State    Consti-’
tution, provldes           in part 48, followtt~           ,I ,.,
                                      ,,. ,.
                 “Seci   56~;   ThenLeglsLature shall      noi,            ~~-
       liOept aa okhetiVi4e @w&lsd~: Iq @xta Conati-
       tutloa,     pals airy kod~l’df        ‘@ecia$. law,.author-
       ~%lngt         ,‘,:  ‘:                       ,_‘,,  ., .,
              . b,,..      ‘,
                 “Reguia&ag the affairs   of counties,
       cities,      towna, wards or schoo& districts;.              . **
            Our question, is whether ‘btlcle 1182d, supra, is                        .   j
itself  a local and special law aa belng repugsaut, to hour
Constitution.
                                     .,
Hon. John M. St&elk -             Pige    6’,




            The census shows ‘that Lubbock ‘was the only
city   in the ‘State having a popula#iod:‘~oS Pot less thaa                   i
20,000   nor more &an 21,QOO for thb,~yeu 1930. lhir
in aud of itselr    does.not necessarily    make the law a
local or, apeoial one; but let us look fuH.her.       aEticle
1182d, supra, ,is, m&sly a validating      statute and deals
with only those ordinances which had already been passed
at the t+e of the~euactment of 11828..
           Validating  sta~tutes are ouly applicable   to’
those ~things ribI& have ..prevlously occuzrred and never
deal with’ auythiug ,which may hapben in the future.     The
1930 census being .the oontrolling    factor, then only
those things occupz$.ng:in the interiti period,    I. 8. those
between the years 1930 and September, 1934 (date of the
enactment oft the s~tatut) vould be,,val+dated.
             It ins tme ‘that other ~,aktlLea may move iuto~ the
partloulm     populat%on bra&et ttdt out in ~the Aat., yet,
time the statute validatea        only those ordinances in ef-
feot prim to the tin@ of the euactraent of the statute,
and, further,     ainoe a validating   statute can only ratitf
those things already in exlatenoe at the tine, it is
readily apparentthat      the statute could never, upon auy
contingency,    apply to,any other city, '~, ~,
          In GBay v. Taylor, 227 u'.5, 51: the Suprem
Court of the United States defined a local law am
               “The phrase      ‘local  law’~means, primarily,
       at least,       a law that    In fact, if not in fora,
       io   directed      only to a specific    spot.!,, :
               In the ease of City ‘of Ft’; Worth. v. Bobbitt,           36
S.Y.   (2nd)    470,     Judge CritZ      he9   pla   to   ,seyt
                                                               .’ .‘i.
              =&inact which designates a particular
       city or county by name, or by a description
       so qualified   that a partienlar   city or county
       is plainly intendad    &nd that no other can
       reasonably be expeoted to have the distlnguiah-
       lng cheractsrlatics,   and whan,e ,operation ie
       llmited to such cfity or cmin$y, Is hold to be
       local    or     speoial.
               Xn the case of Bexer County v. Tynan, et ~01; qy
S.Y.   (2nd)    467, the Supreme Court had this to sayt
Hon. Sohn M. Steele         - Page 7


                “It is well reaogni&ed that ‘iti detelc-
          aining whether a law is public,    general,
          special or local the coWts will look.to
          its substance and practical    operation ratA-
          er  than to its title, form and waseologg,
          because otherli%e prohibitions    of the fun-
          damental law against special legislation      ~
          would be nugatory.’
                I
                  . . .
                 “‘The rule is that a classification
          csnnot be adopted orbitrarlly         upon a gMund
          which has no fomdation         in difference   of
          situation    co' ctiowsstances    of the mnloi-
          palities    placed in the different       classes.
          There muat be some Ireasonable relation         be-
          tween the situation       of mpieipalitlss
          classified    and the purposes aud objeots to
          be ,atteined.     There must be something + * *
          rhleh in so18 reasonable de#rea aceounta-IoF
          the di?isZon lhto olasaea.’               ,:
           When ie looi to the pracrtical 6pmatilon of the
Act in question,   it is the opinion of this Departunt
that the attempted cla+islficatlon   Is so unreasouable and
arbitrary;   as to indibte   beyond doubt,that the purpom   of
the Legislature   was to single out the CSty OS Lubbock;
           In view of the foregoing,     jgP.,ffe respectfully
l4vlsed  that it iS the opinion of this Depaxtment thrt
Irtiole  1182d is a local and special law, beiiag iu vio-
lation of, Section 56, Article’ 1x1, of the Constitution,
and is therefore void.    yet, as. ,atitsd before,    since tha
ordinance is voidable only, the sam is ‘valid until it has
been di.reaOly  attacked in a ~court tifoollprtstkt juHrdlotion
and fouad to bq ‘igvalld~    Therafoue, you am respectfully
advised that It Xr:the opinion of this Department that uu-
tll said o~dlnau~behas been hsld .invalld in a suit ‘directly
attacki    the same, the psrtlcular     teprltory  isPot    legal1
a palt 7o the City of Lubbook, and the county is under obl I -
gatlon to purchase such right of uay, ii one is to be (Lo-
quired.




            The ordinance passed by the City of
    . ‘Lubbock relinquishing certain territory  fro8
       the city is voidable only,azttj
                                     not void.    The
                                                           .

Hon.   Jobn*M. Steele       - ‘,Page 8   :



       ordinance ievalid    until diliectly attacked
       in a Court of competent jurisdic%ion     and
       round to be invalid.
              Art. 11826, validating   certain ~01l.m
       quiahments, is void, .&elng In violation
       of Sec. 56 cf Art. III of the Cons itutlon.
         City of Ft. Worth v. Bobbitt,     36 $ .W. (2W)
       i 70; Be*     County V. !Pynan, et al, 97 S.W.
         2nd) 467) Pet, the ordinance passed by the
       d lty of Lubbook rellnQtiahlng     aertain terri-
       torf Pot hvLng been held Invalid by court
       adWon, is presumed to be vrlid,        and such
       territory   is not a psrt of the City.      9b.e
       county Is lrgally    under ob$igation    to pe-
       ohaae the p      t of vag through such terri-
       aory, if au3P rl@it of way Is to be acquired,
       tmleas such ordirrance is 8et Uide -XV dIma




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