Miller v. El Paso County

• Decision Date: 19 December 1940
• Docket Number: No. 4078.,4078.
• Citation: 146 S.W.2d 1027
• Parties: MILLER et al. v. EL PASO COUNTY et al.
• Court: Texas Court of Appeals

Page 1027

146 S.W.2d 1027

MILLER et al. v. EL PASO COUNTY et al.

No. 4078.

Court of Civil Appeals of Texas. El Paso.

December 19, 1940.

Rehearing Denied January 9, 1941.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Action by J. R. Miller and other taxpayers against the County of El Paso, and individuals composing the commissioners' court and other functionaries of the County of El Paso to enjoin the continued levy and collection of a tax under an act attempting to authorize the levy of a 5-cent tax for use in advertising and promotional purposes in counties having a population of not less than 125,000 inhabitants and not more than 175,000 inhabitants and containing a city having a population of not less than 90,000 inhabitants, wherein the State of Texas intervened on the side of the plaintiffs. From a judgment in favor of the defendants holding the act in question constitutional, the plaintiffs and intervener appeal.

Judgment affirmed.

Gerald C. Mann, Atty. Gen., R. W. Fairchild and Glenn R. Lewis, Asst. Attys. Gen., and Fred C. Knollenberg, of El Paso, for appellant.

Ernest Guinn, Co. Atty., Frank B. Clayton, City Atty., Thornton Hardie, Eugene Smith, Louis A. Scott, and Potash & Cameron, all of El Paso, for appellees.

PRICE, Chief Justice.

This is an appeal from a judgment of the District Court of El Paso County by the plaintiffs and the intervener, State of Texas, in an action wherein the County of El Paso and the individuals composing the Commissioners' Court and other functionaries of the county were parties defendant. The injunction sought by plaintiffs and the intervener was denied by the court. Intervener and plaintiffs perfected this appeal.

The statement of the nature and result of the suit made by the appealing intervener is admirable in clarity and brevity, and we literally adopt same.

This suit involves the constitutionality of Senate Bill No. 18, Ch. 370, p. 1541, First Called Session of the 44th Legislature, Vernon's Ann.Civ.St. art. 2352b, an act attempting to authorize the levy of a five-cent tax for use in advertising and promotional purposes in "counties * * * having a population of not less than 125,000 inhabitants and not more than 175,000 inhabitants, and containing a city having a population of not less than 90,000 inhabitants, as shown by the last preceding Federal Census."

J. R. Miller and other taxpayers filed the suit, the State intervening on their side, seeking an injunction against the continued levy and collection of the tax and to prevent the further expenditure of the sums for the purposes which the statute attempted to authorize. It was also sought to enjoin the Tax Collector from demanding and requiring payment of the advertisement tax as a condition to the acceptance of State ad valorem taxes and other county ad valorem taxes. Various provisions of the Constitution were alleged to be violated. After a trial, the court declined to hold the Act unconstitutional and entered judgment for defendants, the plaintiffs and intervener excepting and giving notice of appeal. Findings of fact and conclusions of law were filed. The State excepted to the conclusions.

The case involving the constitutionality of Senate Bill 18, First Called Session, 44th Legislature, Vernon's Ann.Civ.St. art. 2352b, we deem it appropriate to copy same in full, except the caption and emergency clause. With these exceptions, the Act is as follows:

"Section 1. In all counties in this State having a population of not less than 125,000 inhabitants and not more than 175,000 inhabitants, and containing a city having a population of not less than 90,000 inhabitants, as shown by the last preceding Federal Census, a direct tax of not over Five (5) Cents on the valuation of One Hundred ($100.00) Dollars may be authorized and levied by the Commissioners' Court of such county, for the purpose of advertising and promoting the growth and development of said county and its county seat; provided that before the Commissioners' Court of any such counties shall be authorized to levy any tax for such purpose, the qualified tax paying voters of the county shall by a majority vote authorize the Commissioners' Court to thereafter levy annually a tax not to exceed Five (5) Cents on the One Hundred ($100.00) Dollars assessed valuation.

"Sec. 2. The amount of money collected from such levy of taxes by the Commissioners' Court of any such county shall be paid to the Board of County Development in twelve (12) monthly installments as collected. All moneys received by the Board of County Development from such tax shall be expended only for the purposes authorized by this Act, and such Board shall annually render an itemized account to the County Auditor of all receipts and disbursements.

"Sec. 3. There is hereby created in such counties as may vote in favor of this tax a Board of County Development, which shall devote its time and efforts to the growth, advertisement and development of any such county. The Board of County Development shall consist of five (5) members; two (2) to be appointed by the Commissioners' Court of such counties, representative of the agricultural interest of such counties, who shall reside outside the county seat of any such county; and three (3) of whom shall be appointed by the Board of Directors of the Chamber of Commerce of the county seat of such county, one of such three members to be a member, in good standing, of organized labor. Said members shall serve for a period of two (2) years from their appointment, without compensation, and until their successors are appointed and accept such appointment. Vacancies on such Board shall be filled in the same manner as the original appointments, and by the same agencies.

"All members of such Board of County Development shall be qualified tax paying voters of the county in which they are appointed to serve."

The assignments and propositions of each appellant, although in slightly different phraseology, are practically the same, and hence will be here treated as though identical throughout.

The State of Texas presents the following as propositions and assignments of error:

"Said S.B. 18 violates Art. 3, Sec. 56, of the State Constitution, in that same is a local or special law applicable to El Paso County only, attempts to regulate the affairs of said county, to create offices therein and to prescribe their powers and duties, and the trial court erred in holding to the contrary."

Second proposition: "In attempting to confer upon the Board of Directors of the Chamber of Commerce of El Paso, a civic and private organization, the power and authority to appoint three of the five members of the Board of County Development — the body charged with the responsibility of expending the funds raised by taxation under the Act — said S.B. 18 confers upon the persons composing the Board of Directors of the Chamber of Commerce exclusive privileges and violates Article 1, Section 3, of the State Constitution, and the trial court erred in holding otherwise."

Third proposition: "Said S.B. 18 violates Article 1, Section 18, of the State Constitution, in that the exaction of taxes to be expended by a Board, the majority of whom are not responsible directly or indirectly to the people taxed, is a taking of property beyond and outside of the due course of the law of the land."

Fourth proposition: "In providing for the appointment of three members of the Board of County Development by the Board of Directors of the El Paso Chamber of Commerce, said S.B. 18 attempts to make a delegation and surrender of governmental authority, contrary to Article 2 of the State Constitution, and the trial court erred in holding to the contrary."

Fifth proposition: "In providing that one member of the Board of County Development shall be a member, in good standing, of organized labor, said S.B. 18 violates Article 2, and Article 3, Section 1, of the State Constitution, and the trial court erred in holding to the contrary."

By three separate Acts the Legislature has sought to confer the power on certain classes of counties to levy a tax for advertising purposes. The first Act was passed by the 41st Legislature, Fifth Called Session, p. 182, Ch. 42, Sec. 1. It now appears as Article 2352a, Vernon's Civil Statutes, and provides, in substance, counties having a population of at least 202,000 and less than 210,000 inhabitants, as shown by the census of 1920, were authorized to levy a direct tax for advertising purposes. The Act we have here in question was passed in 1935, 44th Legislature, First Called Session, p. 1541, Ch. 370, in Vernon's Civil Statutes, Article 2352b. The 46th Legislature, Special, p. 966, passed an Act authorizing counties having a population of not less than 40,000 inhabitants and not more than 50,000, and containing a city having a population of not less than 30,000 inhabitants nor more than 40,000 inhabitants, as shown by the last preceding Federal Census, to levy a direct tax for advertising purposes. Article 2352c, Vernon's Ann.Civil Statutes.

None of these Acts appears to have been called in question before the institution of this case.

In the case of Davis v. City of Taylor, 123 Tex. 39, 67 S.W.2d 1033, the question of the validity of an advertising tax levied by the City of Taylor came before the Supreme Court. The City of Taylor, being a Home Rule City, by amendments to its Charter, authorized the levy of a tax on the property within the city for advertising purposes. In the charter amendment a Board of City Development was provided for substantially along the same lines as the Board for county development provided for in the Act here under consideration. It was held that the City had the power to levy such a tax, and that on so doing Article 8, Section 3, of the Constitution, Vernon's Ann.St., was not violated, which provides "taxes shall be levied and collected by general laws and for public purposes only."

Most stressed here...