Hale County v. Lubbock County

DUNKLIN, J. Lubbock county instituted this suit against Hale county to fix the boundary line between those two counties. Hale county is situated immediately north of Lubbock county, and hence the line in dispute was the south boundary of the former county and the north boundary of the latter county. It was the contention of Lubbock county that the line heretofore supposed to be the true boundary was not such, but that the true boundary was north of that line. Upon the trial of the case before a jury this contention was sustained, and from a judgment in accordance therewith, Halo county has appealed. The two counties were created by an act of the Legislature "passed August 21, 1876 (Acts 15th Leg. c. 144). Hale county was organized in August, 1S8S, and Lubbock county was organized in February, 1891. The lines of the two counties as created run due east and west and north and south, each line being 30 miles in length, and the field notes of Lubbock county fix the beginning corner of that county to be the northwest corner of Hockley county; and the field notes of 1-Iale county fix the beginning corner of that county as the northwest corner of Floyd county. In the field notes of the two counties no natural or artificial objects are called for, thus leaving the true location upon the ground of the lines of the [679] two counties to be established by surveys according to course and distance from the beginning corners given wherever such beginning corners might be. The evidence shows without contradiction that during the summer of 1891, shortly after the organization of Lubbock county, the county judges of Hale and Lubbock counties agreed to request the state land commissioner to appoint a surveyor to run and mark the boundary line between the two counties, and that each county would pay its pro rata part of the expense of that work. Prior to said agreement, the commissioners’ court of Hale county passed an order authorizing Judge Burch “to make a contract with some competent surveyor to establish the boundary lines of Hale county at as early a date as .possible, and upon the best possible terms, and that he notify the proper authorities in adjoining counties when said lines were to be established.” Also on June 8, 1891, before the survey was made, the commissioners’ court of Lubbock county agreed to pay its pro rata of the expense for establishing the boundary line between it and Hale county to be surveyed by the state surveyor. The request so agreed upon was presented by the county judge of Hale county, and in obedience thereto the state land commissioner appointed Ira Millington, one of the state surveyors, to do the work. The county judge of Hale county notified the county judge of Lubbock county of such appointment, and also of the time and place appointed for making the survey. At the appointed time and place, Judge Burch, the county judge of Hale county, and also L. A. White, the county surveyor of Hale county, met Millington, who then proceeded to survey and mark the boundary between the two counties. In running that line they began at its east end and ran west, fixing the east end as the southeast corner of Hale county and the northeast corner of Lubbock county, fixing the west end of the line- as the southwest corner of Piale county and the northwest corner of Lubbock county. Each of the two corners was plainly marked with a stone 20 by 30 inches in diameter and a charred cedar stake set in the ground. The ter- , minus of each mile of the line so run was marked by digging a hole in the ground, ifiaeing therein charcoal and covering the same with a mound 2 or more feet in height, and digging two pits, one on the east and one on the west of the mound, each pit being 2 feet square and 12 inches deep. Judge Shannon, the county judge of Lubbock county, who is now dead, was not present during the survey of that line, but one of the county commissioners of Lubbock county, at the request of Judge Shannon, was present a part of the time the work was being done, but it seems took no part in it. The field notes of the survey were reported to and filed in the general land office of the state on November 16, 1891. The land commissioner examined and approved the same, and ever since that time the boundary line between the two counties as so surveyed by Ira Millington, state surveyor, and L. A. White, county surveyor, of Hale county, has been recognized in the office of the land commissioner as the true boundary line between Hale and Lubbock counties. On November 14, 1891; after the survey had been finished, the commissioners’ court of Lubbock county passed an order accepting and approving the line so run as the true boundary line between the two counties, and allowed an account of $70 against the county as its pro rata part of the expense of said survey. Likewise, on November 27, 1891, the commissioners’ court of Hale county also approved the survey so made and adopted the line as the true south boundary line of that county. On April 18, 1892, the commissioners’ court of Lubbock minty, by an order duly entered in its minutes, ordered J. B. Jones, the county surveyor of Lubbock county, to survey and establish the east, south, and west boundaries of Lubbock county, beginning at the northeast corner of the county as established by the state surveyor, Ira Millington, as indicated by the field notes of said survey, and specifically recognizing the east and west termini of said line as the northeast and northwest corners of Lubbock county, respectively. In obedience to that order, Jones, the county surveyor of Lubbock county, did survey the east, south, and west boundaries of Lubbock county, and made a report thereof to the commissioners’ court, showing a plat of the boundary lines so established by him, including the north boundary line, which he certified as being a correct copy of the plat and field notes made by Ira Millington as the correct boundary line between Lubbock and Hale counties. That report and map by Jones was filed for record in the office of the county clerk of Lubbock county on June 30, 1892, and was duly recorded July 12, 1892. J. B. Jones was elected county surveyor of Lubbock county in the spring of 1891 as soon as the county was organized, and he filled the office until the fall of 1896. The following is article 1400, Vernon’s Sayles’ Texas Civil Statutes, which is found in the Revised Statutes of 1895 (article 822): “The county boundaries of the counties in this state as now recognized and established are adopted as the true boundaries of such counties, and the acts creating such counties and defining the boundaries are continued in force.” Appellant invokes that statute in connection with its contention that the evidence conclusively shows that ever since the survey of the boundary line between the two counties was made by Ira Millington and his work approved by the commissioner of the land office -and by the commissioners’ courts of the two counties,' the line so established by Millington has been recognized and adopted [680] as the true boundary between those two counties. We are of the opinion that such contention is correct. P. F. Brown, the county judge of Lubbock county from 1894 .to 1898, and J. B. Jones, who was county surveyor for the same county from 1891 to 1896, both testified, in effect, that they, in their official capacities, recognized the Millington line as the true boundary line between the two counties, and neither of those officials ever exercised any jurisdiction north of that line. The evidence further shows without contradiction that the line was recognized by the officers of the county in the selection of jurors, laying out of roads, and in establishing voting precincts. All of the county officers of Hale county likewise recognized the Millington line as the true boundary line at all times after it was established, and no controversy between the officers of the two counties with respect thereto ever arose until within about 3 years prior to the institution of this suit, which was filed March 9, 1915, more than 20 years after the Millington line was established. In support of its contention that the Millington line was not so recognized by the officers of the two counties, appellee has cited the testimony of Judge Burch that he did not remember that any one lived in Hale county within a half mile of the Millington line, and the further testimony of Judge P. F. Brown, to the effect that during his incumbency in the office of county judge he did not remember any person eligible to jury service who resided in Lubbock county within a half mile of the Millington line, and his further testimony as follows: “As to whether or not while I was county judge of Lubbock county there frequently arose before the commissioners’ court questions as to what county was entitled to taxes on lands lying near the purported Millington line between Lubbock and Hale counties, such questions arose several times. I think that such questions arose every time that the tax rolls came up; that we had this controversy every year. As to whether or not it is a fact that no question came up before me during my whole tenure as county judge and presiding officer of the commissioners’ court of Lubbock county, other than questions as to taxes that in any way involved the location of the north boundary line of Lubbock county ’; that is all the question that came up.” . R. E. Burch, who was deputy sheriff of Hale county from January, 1892, to November, 1894, and sheriff from the latter date to November, 1906, and a part of whose duties was to collect the taxes, testified without contradiction that some of the land situated in Lubbock county was abstracted as being in Hale county, and some of the land situated in Hale county was abstracted in Lubbock county; and in such cases under a ruling of the state land office, the Hale county officers collected on the lands in Lubbock county, and the Lubbock county officers collected taxes on lands that were in Hale county, but that .there was never any confusion between the officers of the two counties with respect to such taxes, and that there was never any dispute between the officers of the two counties as to the location of the true boundary line between the two counties. It is quite clear that the testimony of Judge P. F. Brown quoted above, that questions with respect to taxes on lands lying near the Millington line arose several times while he was the presiding officer of the qommission-ers’ court of Lubbock county, had reference to questions only arising from mistakes in the abstracts of the lands of the two counties referred to in the testimony of Sheriff Burch. For Judge Brown testified specifically that he was with the surveyor, Jones, when he surveyed the east, south, and west lines of Lubbock county; that he saw the corners established by Millington; that he found the pipe driven in the ground that was called for in the Millington survey as the northeast corner of Lubbock county; that he was familiar with the history of the survey made by Millington; that he knew several other counties who helped to pay for the work run by Millington; and further testified as follows: ■ “I did not exercise any jurisdiction over any territory north of said line while I was county judge of Lubbock county; I thought the county line between Hale and Lubbock counties was settled, and I, in my official capacity, did recognize this line as the settled boundary line between Hale and Lubbock counties, prior to 1896, while I held said office, in the selection of jurors for my court, in the laying out of roads, voting precincts, etc. As to when I first heard there was any dispute as to the proper location of the boundary line between Lubbock and Hale counties, it has been within the last two or three years. ⅜ * ⅜ While county judge -I did recognize the Millington line as the boundary line between Hale and Lubbock counties.” Both L. A. White, who, as county surveyor of Hale county, assisted Millington in running the line, and R. E. Burch, the sheriff, testified without contradiction that they recently went over the line and found not only the corners, but several of the monuments placed at the end of each mile by Milling-ton ; White testifying that such identification was made by him in the year 1914, and Burch testifying that .he went over the line and found those monuments in 1915. In the case of Stephens County v. Palo Pinto County, 155 S. W. 1006, this court reversed the judgment of the trial court and rendered judgment in favor of the appellant, under and by virtue of the provisions of article 1400, because tbe evidence conclusively established the fact that prior to, and up to, the year 1895, the boundary contended for by the appellant was recognized and established as the true boundary between those two counties. And we are of the opinion that that article of the statute and the decision noted are applicable in the present suit, and, under the undisputed facts above stated, are conclusive against the claim of Lubbock county, with respect to the proper location of the boundary line in controversy. [681] In tlie present suit the jury found that the true boundary line between the two counties was north of the line established by Milling-ton, and there was evidence tending to support that finding, if plaintiff’s theory as to how that boundary should be located be accepted as correct; but the correctness of which was controverted by competent evidence, as hereinafter noted. And appellee insists that article 1400 of the present Revised Statutes was, by the codifiers, inserted in the revision of the statutes adopted in 1896, contrary to the provisions of article 8, § 43, of the Constitution, and the powers delegated by the act of the Legislature passed in 1891 appointing them; and, never having been passed by an independent act of the Legislature, could not operate to establish county, boundaries materially different from the boundaries theretofore existing, without violating article 9, § 1, of the Constitution of Texas, which prohibits the taking of territory from one county and including it in the boundaries of another. In the codification of the Revised Statutes of 1895, there is no marginal notation or other specific showing that that article was added by the codifiers who had been theretofore appointed to do such work in the year 1891, or that it was passed at any former session of the Legislature, or by any independent act during the session of 1895. In other words, the codification is silent as to whether or not that article had previously been enacted by the Legislature or was enacted by some separate and independent act of the Legislature of 1895, or whether the same was added as an article of the Revised Statutes by the codifiers. In support of its contention that article 1400 was added by the codifiers in the revision of 1895, appel-lee says that the statute is not to be found in any of the published acts of any of the prior Legislatures. Article 1400 was a validating or curative act merely making definite the boundary lines of counties which had not theretofore been fixed upon the ground when the counties were organized, and it cannot be seriously questioned that the Legislature had constitutional authority to pass such an act so long as the same did not operate to take territory from. one county and include it within the boundaries of another, and the proof in the present case would not justify a conclusion that that constitutional restriction was violated when the statute is applied to the line run by State Surveyor Millington. It is .a familiar rule that with respect to mere matters of procedure or methods of enacting a statute, every reasonable presumption will be indulged in favor of the validity of such statute. 36 Cyc. 971, 974. In Langston v. Canterbury, 173 Mo. 122, 73 S. W. 151, one of the questions raised was stated as follows: “The learned counsel for respondents challenge the authenticity of the statute' as it now appears in the revision of 1899, and as it appears in that of 1889, and say.that an examination of the Session Acts from 1879 to 1889, inclusive, shows no act of the Legislature amending- section 230, Revised Statutes 1879.” Thh court overruled that contention upon the ground that the volumes of the Revised Statutes were as authoritative as were the volumes containing the Session Acts, and that the verity of either one could not be questioned except in the face of the original documents on file in .the office of the secretary of state. To the same effect is Selders v. Kansas, etc., Ry. Co., 19 Mo. App. 334. See, also, 36 Cyc. 1243 to 1251, inclusive. And in Sutherland Stat. Const. § 155, the following is said: “The fact of a revision raises a presumption of a complete Code or a complete treatment of the subjects embraced in it.” And in passing it may be noted that in the present suit no proof was offered of any legislative journals, or of any other documents on file in the office of the secretary of state to establish appellee’s contention. In 36 Cyc. 971, the following is said: “The incorporation of an act into a Code and its subsequent re-enactment cures defects which may have existed in the original act by reason of failure to comply with formal requisites.” The case of Daniel v. State, 114 Ga. 533, 40 S. E. 805, supports the text quoted. See, also, Central Ry. of Ga. v. State, 104 Ga. 831, 31 S. E. 531, 42 L. R. A. 518; McFarland v. Donaldson, 115 Ga. 567, 41 S. E. 1000. “The Legislature by repeatedly recognizing a law invalid for failure to comply with certain constitutional requirements as to form and procedure may effectually ratify it and make it valid.” 86 Cyc. 975, and decisions cited in note which support the text. Article 1400, which appears in the Revised Statutes of 1895, has been brought forward and continued as a part of our statute laws up to the present date. It was included in the Revised Statutes of 1911. And section 7 of the final title of the Revised Statutes of 1879 has been brought forward and included in the revisions of 1895 and 1911. That section is as follows: “That no general or special law heretofore .enacted validating or legalizing the acts or omissions of any officer, or any act or proceeding whatever, shall be affected by the repealing clause of this title; but all such validating or legalizing statutes whatsoever now in force in this state are hereby continued in force, and the same shall be as effectual for all purposes after as before the Revised' Statutes go info effect.” The validity of article 1400 was'recognized by this court in Stephens County v. Palo Pinto County, cited above, which was decided April 12, 1913, and the jurisdiction of Courts of Civil Appeals in such suits is final. Notwithstanding that decisS,on, the Legislature which 'met in 1915 has not seen fit to modify or repeal the statute. It is to be noted further that article 1400 in no manner purports to change, modify, or [682] amend any law existing prior to 1895, but was merely a validating act. All of the facts recited above with respect to the history of article 1400 greatly strengthen the presumption otherwise obtaining of its validity as against the objection thereto by appellee, and which presumption we must enforce, without regard to the question whether or not if it was improperly included in the revision of 1895 it was after-wards validated by its inclusion in the revision of 1911; which question we find it unnecessary to decide. And, as said in Stephens County v. Palo Pinto County, supra, article 1400 “is a wholesome statute, and should be liberally construed and enforced.” In the present suit, it was agreed that no proceedings were had in the county courts of either of the counties relative to the establishment of the boundary between the two counties, and appellee insists that the commissioners’ courts of the two counties had no statutory authority to fix the boundary line, but that the authority so to do was vested exclusively in such county courts, and in the district court, under and by virtue of the provisions of chapter 4, title 28, Vernon’s Sayles’ Texas Civil Statutes, which embraces articles 1375 to 1386, inclusive. It is insisted that by article 1400 it was intended that boundary lines theretofore “recognized and established” were those only which had been established in accordance with the provisions of that chapter. We do not concur in that view. We do not think it could be reasonably supposed that the Legislature intended to validate boundary lines that had already been legally established and fixed upon the ground. Evidently the act was intended to preclude controversies which might arise in the future over lines which were then recognized as the true boundaries, and which were approximately correct, and the recognition of which did no violence to any constitutional provision. In the present suit, the proof shows that in order to determine the boundary in dispute, it was necessary to take as a starting point the northwest corner of Baylor county some 120 miles distant from the northeast corner of Lubbock county. The proof further shows that the correct location of that corner was in dispute prior to the year 1895; A. D. Kerr, the surveyor, testifying that in 18S8 and 1889 he located what he deemed to be the true northwest corner, of Baylor county, which was different from the .corner theretofore established by a surveyor named Wes-senrood. Kerr further testified that there was then a dispute about which was the true northwest comer, and that was one of the disputed issues upon the trial of the present suit. In view of the foregoing conclusions, it becomes unnecessary to discuss the numerous assignments of error presented in appellant’s brief, or to refer further to the voluminous record before us, since it follows from what we have said that the trial court should have instructed a verdict in favor of the defendant, Hale county, and for the error in refusing so to do the judgment is reversed and judgment is here rendered that ap-pellee, Lubbock county, take nothing by its suit, and that the line surveyed by Ira Mil-lington be, and the same is hereby, adjudged to be the true boundary line between appellant and appellee. Reversed and rendered.