Brown v. Graham

• Decision Date: 09 January 1883
• Docket Number: Case No. 1493.
• Citation: 58 Tex. 254
• Parties: THOMPSON BROWN ET AL. v. WM. H. GRAHAM.
• Court: Texas Supreme Court

58 Tex. 254

THOMPSON BROWN ET AL.

v.WM. H. GRAHAM.

Case No. 1493.

Supreme Court of Texas.

Jan. 9, 1883.

APPEAL from De Witt. Tried below before the Hon. H. Clay Pleasants.

On the 9th of August, 1881, the commissioners' court of the county of De Witt levied a special tax of one-fifth of one per cent. on all property subject to taxation in that county on the 1st day of January, 1881; the levy being for building an addition to and repairs on the court house.

Appellants, on the 28th of February, 1882, applied to the Hon. H. Clay Pleasants, judge of the judicial district, alleging that the levy of the special tax was illegal, unconstitutional and void, and that the collection thereof would result in great and irreparable loss, damage and injustice to appellants. A preliminary writ of injunction was granted, restraining the collector from further procedure in the collection of the tax. The collector of taxes, as well as the county of De Witt, being made parties defendant, on the 9th of June, 1882, filed general and special exceptions to the sufficiency of the petition, as well as answer on the merits. On the 16th of June, 1882, the court sustained the general exceptions and overruled the special exceptions of the defendants, dissolved the preliminary injunction and dismissed the cause, from which ruling the plaintiffs below appealed.

W. R. Friend, for appellants.

I. Art. 1515, R. S., authorizes the levy of a special tax for “the erection and repair of public buildings, not an addition to and repairs” thereon. The statute confers all the power the court possessed, and this power cannot be exercised unless plainly and unmistakably conferred. Grace v. The State, 9 Tex. Ct. App., 38; 1 Dillon on Mun. Corp., secs. 16, 25, 89; 2 Id., sec. 763; Cooley on Taxation, pp. 202-208, 209 and 257; Cooley on Const. Lim., pp. 192, 195.

II. Sec. 1, ch. 31, Acts of 1879, though containing no express words to that effect, revised the subject matter of art. 1515, R. S., was intended as a substitute for same, and operated as a repeal thereof. Stirman v. The State, 21 Tex., 734;Tunstall v. Wormley, 54 Tex., 476.

III. The levy of the special tax complained of was unauthorized by sec. 1, ch. 31, Acts of 1879, which authorized a special tax “to erect or complete” court houses and jails, and conferred no power on the commissioners' court to levy such a tax “for building an addition to and repairs on the court house.” Authorities same as on first proposition.

IV. The words “an addition to and repairs on the court house,” used in the levy, are indefinite and obscure. If the words “addition to” should be held of the same import as “erection of,” and the words “repairs on” should be held unauthorized, the whole levy would be infected by the unauthorized part of same, and was thereby illegal and void. Dean v. Lufkins, 54 Tex., 265.

V. Power to repair public buildings does not confer power to erect same. 1 Dillon on Mun. Corp., sec. 140.

Stockdale & Proctor and Rud Kleberg, for appellee.

WILLIE, CHIEF JUSTICE.

The county commissioners' court of De Witt county levied a special tax for the year 1881 of one-fifth of one per cent. for the purpose of building an addition to and repairing the court house. A large number of the tax-payers of the county united in suing out an injunction, restraining the collection of the tax, on the alleged ground that the county had no power, under our constitution and laws, to impose a special tax for building an addition to a court house. A general demurrer to the bill of injunction was sustained below and the suit dismissed, and this judgment is brought here for revision.

Art. VIII, sec. 9, of the constitution, provides that no county shall levy more than the one-half of the state tax, except for the payment of debts already incurred, and for the erection of public buildings not to...