City of Dallas v. Wright

• Decision Date: 18 March 1931
• Docket Number: App. No. 17905.
• Citation: 36 S.W.2d 973
• Parties: CITY OF DALLAS v. WRIGHT et al.
• Court: Texas Supreme Court

Page 973

36 S.W.2d 973

CITY OF DALLAS v. WRIGHT et al.

App. No. 17905.

Supreme Court of Texas.

March 18, 1931.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by Mrs. Dela Wright and husband against the City of Dallas. A decree denying a temporary injunction was reversed by the Court of Civil Appeals, and defendant brings error.

Application for writ of error refused. See, also, 33 S.W.(2d) 223.

James J. Collins, City Atty., and A. A. Long, W. Hughes Knight, A. J. Thuss, and H. P. Kucera, Asst. City Attys., all of Dallas, for plaintiff in error.

John W. Pope, of Dallas, for defendants in error.

CURETON, C. J.

This case is before us on application for writ of error by the city of Dallas. The defendants in error owned certain property against which the plaintiff in error caused to be levied a special assessment for benefits accruing from certain improvements. The report of the commissioners appointed to determine the question of benefits was approved by the city authorities and an ordinance enacted assessing defendants in error and their property in the amount of $13,584.35. The ordinance also authorized the issuance of an assignable interest bearing tax certificate, payable in installments, declaring the personal liability of the defendants in error, and fixing a lien on the property for the payment of the benefit taxes so assessed. Within ten days thereafter the defendants in error filed a suit under R. S. art. 1219, asking that the proceedings be set aside for the errors alleged and for invalidity in the proceedings, claiming among other things that their property received no benefits from the improvements, and alleging certain other infirmities not apparent upon the record of the tax levy. They also alleged that the city was endeavoring to sell and assign the tax certificate, and in effect that the whole proceeding and the sale of the certificate was or would constitute a cloud upon the title to their real estate. Pending the determination of the issues in the case, the defendants in error sought the issuance of a temporary writ of injunction enjoining the city from selling or assigning the certificate during the pendency of the suit. The trial court set the application for temporary injunction down for hearing after having issued a restraining order. The city answered, alleging, among other things, that it had the legal right to assign the certificate pending the suit, that the defendants in error could not be prejudiced by such assignment of the certificate, as they had an adequate legal remedy in that they could avail themselves of any defense to an action by an assignee that could be urged if sued by the city, and hence that the temporary injunction should not issue. On the hearing the court dissolved the restraining order and denied the prayer for the issuance of the temporary writ of injunction. From this action an appeal was prosecuted to the Court of Civil Appeals. That court held the trial court should have granted the temporary injunction, and remanded the cause to the trial court with instructions to cause the necessary temporary writ of injunction to issue, upon the execution of a proper bond. Application for writ of error has been made to this court primarily upon the proposition that R. S. art. 1219 provides a complete adequate remedy at law, and that the defendants in error have no right to invoke the equitable powers of the court and to enjoin the plaintiff in error from selling or disposing of the assignable certificate. We have concluded that the Court of Civil Appeals correctly disposed of the case, and will now state our reasons for this conclusion.

It is quite true that where the statute provides an adequate and complete legal remedy in cases of this character, the statutory remedy is exclusive and must be followed, and the powers of a court of equity acting without and independent of the statute cannot be invoked. In other words, had the defendants in error not brought suit to set aside the action of the city as provided in the statute, then equity, independent of the statute, and as a method of reviewing the action of the City resulting in the assessment, at least as far as mere errors or irregularities are concerned, could not be invoked as a remedy. We recognize and adhere to that rule. Cooley on Taxation (4th Ed.) vol. 4, §§ 1646, 1648; Pomeroy's Equity Jurisprudence (2d Ed.) vol. 5, § 2060; High on Injunctions (4th Ed.) § 493; Kyle v. Richardson, 31 Tex. Civ. App. 101, 71 S. W. 399 (writ refused); Turner v. Patterson, 54 Tex. Civ. App. 581, 118 S. W. 565; Williams v. Watt (Tex. Civ. App.) 171 S. W. 266; Race v. Decker (Tex. Civ. App.) 214 S. W. 709; City of Corsicana v. Mills (Tex. Civ. App.) 235 S. W. 220; 44 Corpus Juris, p. 752, § 3301; Campbell v. City of Olney, 262 U. S. 352, 43 S. Ct. 559, 67 L. Ed. 1021; 25 Ruling Case Law, p. 190, § 103, p. 192, § 105; Page and Jones on Taxation by Assessment, vol. 2, §§ 1414, 1413. The rule to which we refer and to which we adhere is stated in Corpus Juris, cited above, as follows:

"In accordance with elementary principles it is a rule of almost universal application that a bill will not lie to vacate an assessment or to enjoin the collection thereof where an adequate remedy is provided by statute for redressing the grievances which form the basis for asking equitable relief, it being the duty of those objecting to the assessment to apply for the relief which the law has provided; and failure to avail themselves of the statutory remedy affords no ground for an application to a court of equity to relieve them from the consequences of their neglect. * * * Nevertheless, if the statutory remedy is inadequate to give the relief to which complainant is entitled, a bill to vacate or enjoin the assessment will lie."

However, as shown by the text quoted, the rule does not preclude the issuance of a temporary injunction in this case, since equitable relief, once suit is instituted within the statutory time, may be granted where the legal remedy is not adequate. This interpretation of the rule is one clearly consistent with our statutory and constitutional provisions.

R. S. art. 1219, under which this suit was brought, provides:

"Any property owner against whom or whose property an assessment or reassessment has been made, may, within ten days thereafter bring suit to set aside or correct the same, or any proceeding with reference thereto on account of any error or invalidity therein, but thereafter such owner, his heirs, assigns, or successors shall be barred from such action or any defense of invalidity in such proceedings or assessment or reassessment, in any action in which the same may be brought into question."

This article in no sense attempts to limit the jurisdiction of the district court to issue any appropriate writ or grant any necessary relief, once the powers of the court have been properly invoked, as in this case.

The Constitution, art, 5, § 8, confers upon district courts authority to issue writs of injunction, and all writs necessary to enforce their jurisdiction. R. S. art. 4642, provides for granting injunctions:

"1. Where the applicant is entitled to the relief demanded and such relief or any part thereof requires the restraint of some act prejudicial to him.

"2. Where a party does some act respecting the subject of pending litigation or threatens or is about to do some act or is procuring or suffering the same to be done in violation of the rights of the applicant when said act would tend to render judgment ineffectual.

"3. Where the applicant shows himself entitled thereto under the principles of equity, and the provisions of the statutes of this State relating to the granting of injunctions.

"4. Where a cloud would be put on the title of real estate being sold under an execution against a party having no interest in such real estate subject to the execution at the time of the sale, or irreparable injury to real estate or personal property is threatened, irrespective of any legal remedy at law."

Under these provisions district courts can issue writs of injunction in all cases in which a court of chancery would have power to issue them under established rules of equity. Anderson County v. Kennedy, 58 Tex. 616; Alexander v. Holt, 59 Tex. 205; Day Co. v. Chambers, 62 Tex. 190; Stein v. Frieberg, 64 Tex. 271.

It is elementary that the statute (article 1219) prescribing a statutory method of reviewing assessments of the character before us should be construed and interpreted in pari materia with the Constitution and the statutes conferring jurisdiction on the courts in which such suits for review must be filed. Ex parte Lipscomb, 111 Tex. 409, 417, 239 S. W. 1101; Hunter v. Whiteaker (Tex. Civ. App.) 230 S. W. 1096; Millhollon v. Stanton Ind. School Dist. (Tex. Civ. App.) 221 S.W. 1109; Hanrick v. Hanrick, 54 Tex. 101, 109; Cannon's Adm'r v. Vaughan, 12 Tex. 399. So, construing and interpreting the statutes before us, we are of the opinion that in a case where an action is brought under the terms of article 1219, and the power of the district court thereby invoked, then the full power of the court, including its equity powers under the general principles of equity, may be resorted to to administer justice between the parties. In fact, once an action is authorized within the jurisdiction of the district court, that court, under its constitutional power to issue injunctions and grant equitable relief generally, can grant such relief when necessary under the general principles of equity jurisprudence, without reference to statutory authority. That power is derived from the Constitution. Anderson County v. Kennedy, 58 Tex. 616, and other authorities supra.

The statute under review provides an exclusive remedy under ordinary conditions to the extent that the statutory remedy of suit within the ten-day period must be followed, but when once the suit is filed within time, all the powers...