City of Breckenridge v. Pierce

• Decision Date: 17 February 1923
• Docket Number: (No. 10488.)
• Citation: 251 S.W. 316
• Parties: CITY OF BRECKENRIDGE v. PIERCE et al.
• Court: Texas Court of Appeals

251 S.W. 316

CITY OF BRECKENRIDGE v. PIERCE et al.

(No. 10488.)

Court of Civil Appeals of Texas. Fort Worth.

February 17, 1923.

Rehearing Denied April 7, 1923.

Appeal from District Court, Stephens County; W. R. Ely. Judge.

Action by J. S. Pierce and others against the City of Breckenridge. From an order granting a temporary writ of injunction, the defendant appeals. Affirmed.

J. L. Goggans and T. Edgar Johnson, both of Breckenridge, for appellant.

T. B. Ridgell, of Breckenridge, for appellees.

CONNER, C. J.

This appeal is from an order of the district court of the Forty-Second judicial district, granting a temporary writ of injunction against the city of Breckenridge, its mayor, commissioners, tax assessor, and collector of taxes, restraining those officers from the collection or attempting to collect certain taxes for the year 1922, and from making levies therefor or assessing penalties for refusing payment of such taxes, etc. The petition for the injunction was presented by, and the writ granted in behalf of, J. S. Pierce, N. Winkler, and A. M. Bender. It was based upon allegations to the effect that their property had been assessed by the officers of the city and the board of equalization at double its reasonable cash value, contrary to its general custom of assessing the values of like property in said city at 50 per cent. of its reasonable cash value; that such assessment was illegally, fraudulently, and arbitrarily fixed and done pursuant to a definite system and design of imposing an unequal burden of taxation upon each of the plaintiffs, and operated as an unfair discrimination against them, and each of them, and deprived them, and each of them, of that equality and uniformity in the assessment of their property, to which they were entitled under the terms of the Constitution.

The disposition of this appeal is dependent upon the sufficiency of the petition for the temporary writ; the writ having been issued and this appeal taken without a hearing.

Appellant insists that the petition fails to show that the district court had jurisdiction to issue the writ in that it is not made to appear that the amount of the excessive levy complained of exceeds $500. The plaintiff Bender alleged the value of the property owned by him, a description of which is set out in the petition, to be $31,500, and that it had been raised to $50,000. The plaintiff Winkler alleged the value of his property to be $60,000, which had been raised to $81,000. The plaintiff Pierce alleged the value of his property to be $12,500 and that it had been raised to $18,500. It was further alleged that other property of like character in the city of Breckenridge had been assessed for the purpose of taxation at about 50 per cent. of the value thereof, and that it will require, in order to meet the expenses of the city government, to fix the rate of taxation at about $2.50 per $100 of the valuation of property, if not to the full extent of the constitutional limitation. In view of these allegations, a simple mathematical calculation will show with sufficient certainty an excessive tax within the jurisdiction of the district court. Moreover, by reference to article 958, Rev. Statutes, it will be seen that all taxes constitute a lien upon property upon which they are assessed, and, among the properties enumerated by the plaintiffs, each describes real estate, and it needs no citation of authority for the statement that the county court, under the jurisdiction given it, would have no power to declare a lien thereon.

By several assignments it is insisted that the bond required and given in this case was insufficient to authorize the court's order. The issuance of the writ, conditioned upon the execution of a bond in the sum of $1,000, in terms required by law, to be approved by the clerk of the court. Such bond was given, and we are of the opinion that we should not set aside the court's order merely on the ground of the insufficiency of the bond.

Article 4654, Rev. Statutes, provides that:

"Upon the filing of the petition and order of the judge hereinbefore provided for, in the proper court, and before the issuance of the writ of injunction, the complainant shall execute and file with the clerk a bond to the adverse party, with two or more good and sufficient sureties, to be approved by such clerk, in such sum as may be affixed in the order of the judge granting the writ."

Ordinarily it is true that, where it is sought to enjoin a judgment for a specific amount, or the sale of property of an ascertained value, the bond should be double the amount of the judgment or value of the property, but it is apparent from the allegations of the petition that, until a final hearing, and the temporary writ is made to operate only until then, the exact amount in controversy cannot be determined. It may be on final hearing that values other than those alleged by the plaintiffs will be proven and that the excess in valuation may not be as large as is perhaps justified under the allegations of the petition. In view, therefore, of the nature of this case and of the article of the statutes to which we have referred, we do not feel that the judge ordering the writ so abused his discretion in fixing the amount of the bond as to require a setting aside of the writ.

The petition is further attacked on the ground that the plaintiff failed to allege that they had appeared before the city equalization board and there made an effort to correct the illegal assessment complained of, and hence have failed to show that they had exhausted their legal remedies as required by law, in order to show a right to the writ. It is true there is no specific allegation that plaintiffs, or either of them, made any effort before the city board of equalization to correct the alleged illegal assessments. The petition, however, among other things, alleges:

That "the acts of the defendants and board of equalization, in raising plaintiff Pierce's said lot and building to $25,000 for taxation was unfair and unjust. ...