The opinion
On Rehearing.
Appellant concedes, in argument on rehearing — a proposition strenuously combatted on submission of the cause — that the validating acts of the Legislature under consideration are unobjectionable in so far as they validate the creation of the road districts, the issuance of the bonds, and other proceedings, including current and prospective assessments, but vigorously contends that the assessment for 1925 in suit was and is void and .unconstitutional in that it was not within the power of the Legislature in 1926 to retroactively validate the same, and its attempt *468 to do so violated section 16 of the Bill of Rights.
The statutes under which the road districts in question were created (found in chapter 3, title 22, Acts 1925 [Rev. St. 1925]) provide that, after certain essential preliminary steps have been taken and before any road bonds are put on the market for sale, the commissioners’ court of the county in which such election was held shall levy a tax on the taxable property of the district sufficient to pay the interest on the bonds and to produce a sinking fund to pay the same at maturity.
This statute also provides that it shall he the duty of the tax collector and assessor of the county to assess and collect the tax for th© districts in the same manner and at the same time as other taxes.
These statutory provisions were followed in the creation of the road districts, the issuance and sale of the bonds, the levy of the tax prescribed, and in the annual assessments and collection of taxes.
The remedial acts under review validated these districts, as selected by the petitioners and defined by the commissioners’ court, the elections at which bonds were voted, the tax levies and assessments, and all other orders of court and proceedings pertaining thereto.
The levy, the act that determined the tax that should be laid on all taxable property in the district, was one and an indivisible act, and was taken before the bonds were ever put upon the market for sale, and comprehended all taxes to be collected each year during the life of the bonds.
The annual assessment of property required by the statute is simply the procedure by which the taxpayers’ taxable property is officially listed, the value thereof fixed in order to determine the amount of taxes, previously levied, to be paid by the individual taxpayer.
The period of time covered by the life of the bond, for the payment of which at maturity a sufficient tax was levied, is one unit and is not divisible into as many units as there may be years involved, hence an assessment for any particular year of this period is not different in its nature, nor can it be differentiated from any other assessment, whether it be prior, current, or prospective. It is our opinion, therefore, that the validation relates back to the first step taken in the creation of the road districts and includes within its scope all subsequent steps and proceedings taken, including the assessment for 1925.
Learned counsel for the appellant criticizes the court for failing to comment on certain cases cited in its brief. We copy the following excerpts from the written argument on file:
“Now we have at least three well-considered cases by the Supreme Court of Texas holding again and again and again that under section 16 of our Bill of Rights an assessment cannot be retroactively validated or imposed. These cases are, respectively, State v. Railway Co., 100 Tex. 175 , 97 S. W. 71 ; Hutchinson v. Patching, 103 Tex. 497 , 129 S. W. 603 , 131 S. W. 400 ; Castleberry v. Coffee (Tex. Com. App.) 272 S. W. 767 .
“This court in its opinion did not mention these cases. Why? Why has this uniform construction of section 16 of our Bill of Rights been thus repudiated without mention of it? Why has the word ‘retroactive’ in that section so suddenly lost the virtue it was declared to have by our Supreme Court in these three cases? Why have not we lawyers the right to demand some explanation of this? Have we not such right even as citizens? When our fundamental law, or the construction of our fundamental law, is thus suddenly changed, should not the court changing it point out the errors in the opinion of the Supreme Court thus overruled? For 50 years our highest court has told us with unanimous voice that a void assessment cannot be validated retroactively. But now we are suddenly told that not’ only can such void assessment be thus retroactively validated, but also that a citizen who resists invasion of his constitutional immunities in the premises can be penalized for such resistence. And we are not told why.”
At another point in the argument the following occurs:
“Thus the only question properly before this court in this case on the record made is whether the Texas Legislature could in 1926 validate the admittedly void assessments for 1925. At least three several times our Supreme Court has declared that section 16 of our Bill of Rights inhibited such retroactive validation. Respectfully we ask this court either to follow these precedents, or to point out to us wherein they are not in point.”
In regard to the matter contained in these excerpts, we will say that this court is only required to file “a conclusion of fact and law,” and we believe we have complied with this statutory requirement in this case. Article 1873, Acts 1925 (Rev.. St. 1925). Besides it would ordinarily lengthen the opinion and burden the reports uselessly, if the court should comment upon and distinguish cases cited in order to show that they are not in point.
However, with due respect for the opinion of counsel who presented the argument, we cannot agree that either of the cases cited is in point.
In only one of the cases — that of Hutchinson v. Patching, 103 Tex. 497 , 129 S. W. 603 , 131 S. W. 400—was the question of validation involved, and on this point Judge Brown, for the Supreme Court, says:
“The levies of taxes made by the trustees of the Tulia independent school district of 25 cents and another of 50 cents on the $100 valuation of property in that district were each void, because each amount so levied was in excess of the limitation placed upon the power of such districts by section 3, art. 7, of the Constitution of the state, as it then was. Neither of the two amendments to the Constitution, copied above, *469 purport to make valid the levies of taxes in such districts where they were by the provisions of the Constitution invalid. Therefore the levies made by the trustees in the Tulia school district are still void and cannot be enforced.”
It is obvious from this language that, in the amendment to the Constitution mentioned, no attempt was made to validate the invalid levies, and hence no question arose under section 16 of the Bill of Rights. It is equally obvious that the void tax levies could have been validated by constitutional amendment, but were not simply because no attempt was made to do so.
The principle underlying the doctrine of validation is this — where an agent, without precedent authority, has, in the name of a principal, exercised a power which the principal had the capacity to bestow, such unauthorized act may be ratified and validated, and thus retroactively given validity; and this doctrine as to matters within the scope of their authority applies as well to Congress, state Legislatures, and municipal corporations.
An examination of the other two cases mentioned will show that no validating act was involved, and, therefore the question did not enter the discussion. The case of the State v. G. H. & S. A. R. Co., 100 Tex. 153, 175 , 97 S. W. 71 , was brought under an act of the Twenty-Ninth Legislature (chapter 141), known as the “Gross Receipts Tax Law,” that imposed a'tax on those owning, operating, or controlling railway lines in the state. The act became effective July 15, 1905. In the suit the state contended that judgment should have been rendered in its favor for the whole of the annual tax for the year 1905, notwithstanding the statute did not become effective until July 15th of that year. In disposing of this contention, the Supreme Court said:
“The state claims that the trial court erred, (1) in not entering judgment in its favor for the whole of the annual tax for the year 1905.
“Section 16, art. 1, of our Constitution, is in these words: ‘No bill of attainder, ex post facto laws, retroactive laws, or any law impairing . the obligations of contracts shall he made.’ If the act in question be construed to embrace the whole of the year 1905 and entitles the state to collect the full annual tax for that year, it would confer upon the state a right against the railroads which did not exist before the law took effect, and it would impose upon each railroad a burden to which it was not liable before the law became effective. It is quite plain that the act comes within the provision of the section of the Constitution above quoted and .is retroactive in its effect.” Sutherland v. De Leon, 1 Tex. 250 , 46 Am. Dec. 100 .
Thus it is apparent that the doctrine of ratification did not enter the case; the question was whether the state could impose and collect a tax for the fraction of the year prior to the effectiveness of the statute; that is, before there existed a law creating an obligation. We readily agree that the Supreme Court rendered a correct decision.
The other casa cited by appellant (Castleberry v. Coffee, 272 S. W. 767 , decided by the Commission of Appeals) involved the identical principle discussed by the Supreme Court in State v. Railway, supra. In the Castle-berry-Cofifee Case there was under review certain purported ordinances of the city of Perryton that attempted to levy taxes on the taxable property of the city for the year 1921. These attempted ordinances were held void for the reason that they did not comply with the statute in regard to the enacting clause — in other words, they were not ordinances, hence no tax was levied thereby.
On March 14, 1922, the board of aider-men of Perryton adopted an ordinance, correct in form, in which attempt was made to levy a tax on all taxable property of the city “as the same existed on the 1st day of January, 1921, * * * for the purpose of raising revenue for general purposes for the year 1921.” The contention was made that this ordinance violated section 16, art. 1, of the Constitution, against the making of retroactive laws.
In disposing of this contention, Judge Randolph, for the Court of Civil Appeals, used this language ( 258 S. W. 889, 892 ):
“The levy by the ordinance No. 3, being for the year 1921, which had fully expired, was -an attempt to retroactively declare a liability in conflict with section 16, art. 1 of the state Constitution, and as to such expired time is void” (citing State v. G. H. & S. A. R. Co., 100 Tex. 175 , 97 S. W. 71 ).
The Commission of Appeals simply affirmed this holding of the Court of Civil Appeals, 272 S. W. 767 .
We readily assent to the correctness of the decisions of the courts in these cases, but fail to find that either is in point or supports the contention of appellant.
On the other hand, the following Texas eases announce with clearness the doctrine that remedial statutes of the nature of those under consideration are not retroactive laws, within the meaning of section 16 of article 1 of the Constitution, and in our opinion fully sustain the holding of this court, The cases are: Morris & Cummings v. State, 62 Tex. 728, 740, 741 ; Cox v. H. & Texas Central, etc., 68 Tex. 226, 230, 231 , 4 S. W. 458 ; Blum v. Looney, 69 Tex. 1, 3 , 4 S. W. 857 ; Nolan County v. State, 83 Tex. 182, 199, 200 , 17 S. W. 823 ; Wright v. Jones, 14 Tex. Civ. App. 423 , 38 S. W. 249, 251 , writ of error denied; Haynes v. State, 44 Tex. Civ. App. 492 , 99 S. W. 405, 409 , writ of error denied.
Appellant makes the further contention that, at all events, the court erred in affirming the judgment below as to the penalty that was'assessed for its failure to pay the assessment involved in the suit.
This contention would be sustained but for the fact that we hold, for the reasons set *470 out in tlie original opinion, that at the time, and prior to the accrual of the penalty imposed, appellant and its predecessors in title had waived the right to object to the payment of the tax, and was and is now estopped to raise constitutional objections to the creation of the road districts or to any related proceedings, including the assessments for 1925.
Having given appellant’s motion for rehearing careful consideration, and finding no reason to disturb in any way om; original decision, the motion is overruled.
Overruled.