                                                                           104



               OFFICE    OF THE    ATTORNEY     &NERAL      OF TEXAS
                                       AUSTIN
  GROVERS6LLERS
  ATroRH~I
         OrnERAl.

Honorable    R. 5. Peden,    Jr.
County    Attorney
natagorda    county
Bay city,    Texas
Dear Slrr                            Opinion lo.   o-6823
                                     Rex   Summmy male of    real emtate
                                           for delinquent taxem without
                                           foreclosure  or li
            We have received and considered
24,  1945, in which you have given urn the b
on the captioned subject.    Your letter
clualon reached in our Oplnlon Ho. O-68
7328~ ir ‘void and without any
contravention   of the mandate of
Sec. 13 of Art. 8, and that the
to onact any lav vhich vould ca
the Constitution   itself .”


                                                     at thla time
         is that the r                                tax colleotor
         to selm and                                 payment of de-
                                                     under the Con-
                                                     ken away br an act
Honorable    R. S. Peden, Jr.,       page 2


            *Provision shall be made by the first Leglsla-
      ture for the speedy sale, without the necessity   of
      a suit in Court, of a sufficient  portion of all
      landrnand other property for the taxes due thereon,
      . . .
           We have given very careful consideration    to the authorl-
ties presented by you, and to many others In the effort       to arrive
at the just, proper and reasonable constructlon     of Aztlcle   73288.
An act of the Legislature  Is not to be declared unconstitutional
lightly.
             The rules      of statutory   construction   have been stated
v.sPioualy   (LB follovsr

            “Every r&aonable  doubt 8s to the validity   of
      the act must be resolved ln favor of eustalnlng It,
      ahd . . . the enaotment vi11 net be held to be ln-
      valid unless the court finds lt absolutely   neaesssry
      ao to held.”   9 Tex. Jur. 476 1 58.
              “It will nit be presumed that the Legislature
       intended to pass an act ln violation    of the Constl-
       tution, and the act will not be so construe! when it
       Is auscsptlble   of a different construction.     White
      .v, Fahring, 212 S.W. 193.
            One important oorollaxy     sf the general doctrlno that It
la the duty of the courts,     If posalble,   to censtrue a statute 80
as to permit Its provisions      being upheld Is recognized    ln interpret-
ing statutes which ln their terms are broad enough to cover matters
vlthout 8s well as within the jurisdiction       of the legislative    body.
Tkls general doctrine    Is th8t within certain limits the courts,        ln
order to uphold a statute,     may restrict   Its application   to the leglt-
imate field of legislation.       A statute should net be given a broad
construction   if Its validity    can be saved by a namower one. This
rule has been followed    by the United States Supreme Court ln a number
of cases--Sproles    v. Blnford,    286 U.S. 374, 76 L. Ed. 1167, 52 S. Ct.
581, inter alla--and    adopted by the Supreme Court of Texas ln Maud
v. Terrtll,   200 S.W. 375, in theee terms:
            “where the term used ln a statute are general,
      reasonably admittlng of a conetructlon  whloh does not
      :%I%      ~~‘a~h~01~~~~e~i~~eb~tane~~~;8tf&9      ii?el%n”p-
      stitutlon   though, literally,  it be susceptible      of a
      broader metaning whloh vould conflict    with the COnsti-
      tution.”
Honorable    R. 5. Peden, Jr.,    page 3


            The sequence of events loading    up to the Act of 1929
throw   oonsld4rable   light on the intention    of the Leglslatur4   In
passing it.    Long prior to 1929 the Leglslnture     had parsed a mm-
ber OS statutes specifying     the procedure to be followed ln the
suma~y sale of reel property for delinquent        taxes in compliance
vlth the directions    of Section 13 of Article    8 of the Constltu-
tlon.   And in 18% were passed the first      of the statutes defining
the procedure to be folloved     In judlclsl  ssles of real property
for taxes, as was within the inherent paver of the Legislature,
and also within the purview of the mandatea of Section 15 of
Article  8 of the Constitution.     It cannot, be questioned that
vlthout a statutory   procedure to guide them, tax collectors       would
bo unable to make summary sales ‘vlthout      the neoesslty   of a suit
In oourt.”
           It Is not necessary SOP ua to recite here the history
of rummary aalea under the rules of procedure thus given br the
Logisle turo . Each legal xwqulrsment pertaining    to the aale of
t$e land had to be complied with strictly   and rorupulousl~,   and
the courts unlformlp exacted of one asserting    title under 8 sum-
mary sale strict  proof of such compliance.    The r44ult vaa lnevi-
table that buyers vere reluctant  to purchase at suah summary sales,
and the land seldom sold for anything like a fair price.
           With all of this before  it, the 4lst Legislature         in 1 29
passed House Bill Ho. 195 (design&ted by Vernon as Article          73280 s
vhlch provided as Sollovst
               "SoCtlM 1. That all ralee of real estate made
        SOP the oollecti.on    OS dellnqwnt   taxes due th4p4on
        rball be made only sfter      the Sorealosure ef tax lien
        securing same has been had In a court of aompetent
        jurisdiction    In accordance with existing   lsvs gov-
        4rnl.n.g the foreclosure   of tax lions in dollnqu4nt
        tax suits.
               “Section 2. All lavs nnd parts     of laws in
        conflict    vlth the provisions of this   Act be and
        the same are hereby r4pealsd.
             “Section   3.   . . ."
           Ye cannot, and will not, now preswm that at the time of
the passage of this Act the Leglsiature    YES unavnre of the prescribed
mode of amending the Constitution,    or that It thought It could amend
or negntlve the Constitution   by one of Its statutes.    Nor will we
presume that the Legislature   lntsnded to violate   the Constitution  by
Honorable   R. 9. Peden, Jr.,    pagc 4


this act.   The only reasomble    construatlon   vhlch can be plsaed on
this statute la that the Legislature     vae thsreby repealing   the
statutes previously  passed presoriblng     the procedure to be followed
In tiummaryaales of real estate.      This It did, and no more, as vns
hold ln our Opinion No. O-683.     Viewed in this light,    there can
be no question of the constltutlonallty      of Article  7328a.
          To sttempt to give the terms of the statute sny broader
meaning, to vhlch perhaps ln lItmU    term8 thoy may be susceptible,
Is to make Its constltutlonallty subject to grsve question.    This
ve will not do.
            Since  the ado tlon of the aaondmont of Section 13 of
Artlalu 8 In 1932, the L glslature         has not seen Sit to enact the
leglrletlon   necessary    to effectuate    raid section insofar as It
regard4 4umamry sales 0s p481 ertate.           Ye therefore rsarrim our
Opinion Ho. o-683; and reiterate         that until the Legislature    enacts
suah rtatutos and either 4xp~4saly,         or by necssrary  lmplloatlon,
repeslr Article    73288, that article      must oontlnue to prevail as
the latest effective     leglrlatlve     lxpresslon on the subject.
                                                V4Py   tNlJ     yOlW4

                                                ATTOFUtHY
                                                        QHHEHAL
                                                              OF TEXAS


                                                              Arthur L. Uoll4r
                                                                     Assistant
ALM/JCP
