City of Lubbock v. South Plains Hardware Co.

• Decision Date: 06 December 1937
• Docket Number: No. 4825.,4825.
• Citation: 111 S.W.2d 343
• Parties: CITY OF LUBBOCK v. SOUTH PLAINS HARDWARE CO. et al.
• Court: Texas Court of Appeals

111 S.W.2d 343

CITY OF LUBBOCK v. SOUTH PLAINS HARDWARE CO. et al.

No. 4825.

Court of Civil Appeals of Texas. Amarillo.

December 6, 1937.

Appeal from District Court, Lubbock County; E. L. Pitts, Judge.

Action by the City of Lubbock against the South Plains Hardware Company and others. From an order of the district court approving a report of the master in chancery, plaintiff appeals.

Judgment affirmed.

A. V. Weaver, Jr., of Lubbock, for appellant.

Anderson & Girand, of Lubbock, for appellees.

STOKES, Justice.

This is an appeal from an order of the district court approving a report of the master in chancery in a pending receivership in cause No. 6835, entitled G. L. Blank-enbeckler v. South Plains Hardware Company, a Corporation. Appellant filed with the receiver its claim for taxes for the years 1934, 1935, and 1936, claiming a first and superior lien on all of the property of the defunct corporation for all of the taxes due and unpaid. The master in chancery allowed the city's claim and recognized a lien upon the furniture and fixtures, but denied the lien claimed by the city as to the merchandise on the ground that there was no showing made by the city that such merchandise was owned by the South Plains Hardware Company on the 1st of January of the respective years for which the taxes were levied. He recognized the taxes assessed against the stock of merchandise as a preferred claim of the lowest class and this adjustment was approved by the district court. Appellant, being dissatisfied with the ruling, excepted thereto and has perfected its appeal to this court.

The claim of appellant is based upon an ordinance duly passed by the governing authorities of the city which provides that a lien is created on all property, both real and personal, for all ad valorem and other taxes. It further provides that the lien shall exist from the 1st of January each year until all the taxes are paid, and that such lien shall be prior and superior to all other claims. Section 2 of the ordinance is as follows: "(2) Said lien for taxes shall attach to all property of the tax payer owned January 1st and that subsequently acquired, whether assessed or not."

Appellant is a city, operating under what is commonly called the Home Rule Amendment, having adopted a special charter under the provisions of article 11, § 5, of the Constitution and article 1165, Revised Civil Statutes 1925. Article 7, § 5, of the charter provides that "said city shall have power to regulate the manner and mode of making out tax lists, inventories and appraisements of property therein * * * and to do any and all other things necessary or proper to render effectual the collection of monies for taxation."

It is contended by appellant that this section of the city charter gives to the city commission the power to create a lien such as is provided by the ordinance, and especially section 2 of the ordinance above quoted, and it assigns as error the action of the trial court in approving the report of the master in chancery and denying to it a lien upon all of the property in the hands of the receiver belonging to the defunct corporation for all of the taxes due regardless of whether they were assessed against the specific property or not.

Article 1060 of the Revised Civil Statutes of 1925 is a general law relating to the subject of taxation and provides for tax liens to which all cities in the state are entitled. It provides that "all taxes shall be a lien upon the property upon which they are assessed."

The contention of the city is that the effect of the ordinance is to extend the statutory provisions in respect to the lien and provide for an advantage not given to it or other cities by the general law. The ordinance provides that the lien for taxes shall attach to all property of the taxpayer owned January 1st and that which is subsequently acquired, whether assessed or not, thus purporting, under appellant's interpretation, to extend the tax lien to property of the taxpayer not included in the assessment. If that is the effect of the ordinance, we think the governing body of the city was without authority to enact it. It is true that cities operating under the Home Rule Amendment of the Constitution and statutes enacted pursuant thereto are clothed with the power of local self-government and the governing authorities of such cities have authority to enact ordinances that are not inconsistent with the Constitution and general laws of the state. But the Constitution and statutes contain provisions which inhibit the adoption of any charter provision or ordinance which is inconsistent with the Constitution or the general laws. Appellant contends that, since there is no specific legal inhibition against its adopting such an ordinance, its power to enact an ordinance such as the one in question is permitted by both the Constitution and statutes. The law in regard to such matters is well established in this state to the effect that, not only are cities prohibited from enacting local laws which are directly...