City of Dallas v. Dallas Consol. Electric St. Ry. Co.

• Decision Date: 06 March 1902
• Citation: 66 S.W. 835
• Parties: CITY OF DALLAS et al. v. DALLAS CONSOL. ELECTRIC ST. RY. CO.
• Court: Texas Supreme Court

66 S.W. 835

CITY OF DALLAS et al. v. DALLAS CONSOL. ELECTRIC ST. RY. CO.

Supreme Court of Texas.

March 6, 1902.

Error to court of civil appeals of Fourth supreme judicial district.

Suit by the Dallas Consolidated Electric Street Railway Company against the city of Dallas and others. From a decree of the court of civil appeals (65 S. W. 201) reversing a decree in favor of the city, defendants bring error. Reversed.

W. T. Henry and J. J. Collins, for plaintiffs in error. Wood & Hudson and Finley, Etheridge & Knight, for defendant in error.

GAINES, C. J.

This case was brought to the court of civil appeals of the Fifth supreme judicial district by a writ of error, and was transferred to the court of civil appeals for the Fourth district. The opinion of the latter court gives a clear and succinct statement of the case, which we adopt, and which is as follows: "Plaintiff in error, the Dallas Consolidated Electric Street Railway Company, instituted this suit to enjoin the city of Dallas and Ford House, its tax collector, from collecting a certain tax imposed by said city on its franchise as a street railway. The cause was tried by the court, and resulted in a judgment dissolving the temporary injunction theretofore granted, and in favor of the city on its plea in reconvention for the sum of $2,865.50. There being no statement of facts in the record, the findings of fact made by the trial judge must necessarily be adopted by this court as the facts proven on the trial. Plaintiff in error is a private corporation chartered by the laws of Texas, and permitted by the ordinances of the city of Dallas to operate its line of railway on certain streets. In the ordinances granting that right the street railway company was required to pay annually to the city certain fixed sums, designated in some of the ordinances as a `franchise tax' and in others as a `bonus,' and in others it is not given any specific name. The aggregate of the sums fixed in the ordinances amount to $2,600 or $2,700 annually. These sums were fixed regardless of the value of the property. It was also provided in the ordinances that all policemen and firemen of the city, while on duty, should be carried free of charge; and plaintiff in error has also been compelled by the city to pave and repair the pavement on the streets on which its cars are operated, the expense for such work to plaintiff in error during the years 1898 and 1899 amounting to $8,000. An ad valorem tax was levied on the property of every description of plaintiffs in error for the years 1898 and 1899, and it rendered for taxation all of its property except the franchise, and the franchise was added to the list of property by the city assessor. The property rendered by plaintiff in error consisted of its real estate and all its tangible personal property. The contest in this case is over the sum of $2,865 imposed by the city on what is denominated the `franchise to operate and maintain lines of street railway' over certain streets." The trial court held that the plaintiff (the Dallas Consolidated Electric Street Railway Company) was liable for the tax, and dissolved the injunction. The court of civil appeals reversed this judgment, and rendered judgment for the plaintiff, making the injunction perpetual.

The leading question in the case is: Did the charter of the city of Dallas authorize the assessment of the franchise of a street railway company as a separate item in the rendition of its property for taxation? Construing our general laws in reference to the method of rendering the property of railroad companies for taxation for state purposes, we held in the case of State v. Austin & N. W. R. Co., 62 S. W. 1050, 94 Tex. ___, that the franchise of a railroad was not assessable as a separate distinct entity from its physical property. But we neither held that such franchise was nonassessable, nor that under the statutes then in question its value was not to be estimated in determining the valuation of the property of the company for the purposes of taxation. Here we have a different question. The city of Dallas is incorporated by special law, and the question is whether the charter of the city authorizes the tax upon the company's franchise and its assessment as a separate item of property. The provisions of the charter which, as we think, bear upon the question, are as follows:

"Sec. 118. The city council shall have power to levy and collect the ordinary municipal taxes upon the roadbed, rights, franchises, and all other property of street railroads of every kind, whether their motive power be steam, horse, mule, electricity, or otherwise."

"Sec. 134. The city council shall have power to assess the property and shares of corporations, companies, banks, and such other institutions as the same are now or may be assessed by the state law in such cases made and provided, and shall have full power to enforce the collection of such taxes in such manner as by said council may be deemed necessary.

"Sec. 135. The city council shall have power by ordinance to regulate the manner and mode of making out tax lists, inventories and appraisements of property therein, and to prescribe the oath that shall be administered to each person on rendition of his property, and prescribe how, when and where property shall be rendered, and prescribe the number and form of assessment rolls, and fix the duties and define the powers of city assessor, and adopt such measures as the council may deem advisable to secure the assessment of all property within the city limits, and collect the tax thereupon, and may provide a fine and imprisonment, or either, for all persons neglecting, failing or refusing to render their property for taxation."

It is clear that the part of section 118 just quoted authorizes a tax upon the franchise of a street railway company. If section 135 be detached from its context, it is equally clear, as we think, that its only proper construction should be that the city council were empowered to require the assessment of such franchise to be made either as a part of the tangible property of the corporation, and to be estimated in assessing the value of the whole, or to be separately assessed, and valued as a distinct article of property. The language, "to regulate the manner and mode of making out tax lists, inventories and appraisements of property therein, * * * and prescribe how, when and where property shall be rendered," of itself hardly admits of any other construction. But it is contended on behalf of the defendant in error that section 134 shows that such was not the meaning; that it makes manifest that the...