City of San Antonio v. Berry

• Decision Date: 12 December 1898
• Citation: 48 S.W. 496
• Parties: CITY OF SAN ANTONIO v. BERRY.
• Court: Texas Supreme Court

Page 496

48 S.W. 496

CITY OF SAN ANTONIO v. BERRY.

Supreme Court of Texas.

December 12, 1898.

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

Action by the city of San Antonio against W. W. Berry. From a judgment of the court of civil appeals (46 S. W. 273, 275) modifying a judgment for plaintiff, both parties bring error. Modified.

R. B. Minor and Houston Bros., for plaintiff. Geo. C. Altgelt, for defendant.

GAINES, C. J.

This action was brought by the city of San Antonio to recover of W. W. Berry delinquent taxes upon certain real and personal property of the defendant for the year 1894 and for several years prior thereto, and to foreclose a lien upon the property. The transcript does not disclose the date of the institution of the suit, but it shows that an amended petition was filed May 18, 1896, and that the case was tried upon a second amended petition filed June 17, 1897. The plaintiff secured a judgment, with a decree foreclosing the lien directing that an order should issue to the sheriff to sell the property as upon execution for the payment of the judgment, and to put the purchaser in possession of the property so sold. Upon appeal to the court of civil appeals the judgment was, in the first instance, affirmed (46 S. W. 273), but upon a motion for a rehearing (Id. 275) the decree was so reformed as not to require the purchaser to be placed in possession, and, in effect, to allow the defendant to redeem at any time within two years after the sale. Both parties have applied to this court for writs of error, and both applications have been granted.

In reference to the levy of taxes made by the city council for the period ending May 31, 1892, it is alleged in the petition: "That by the provisions of plaintiff's charter, as amended March 4, 1885, the fiscal year of said city was made to commence on the 1st day of March and terminate on the last day of February following, but by the provisions of said charter, as amended April 29, 1891, the fiscal year of said city was made to commence on the 1st day of June and terminate on the last day of May following. That by reason of this change in the time for the beginning of the fiscal year of said city a period of three months between March 1, 1891, and June 1, 1891, was left unincluded in any fiscal year of the prescribed duration of twelve months, which three-months period, unless omitted altogether in the assessing and collecting of taxes, had necessarily either to be made a separate fiscal period, or else added to and included in the next succeeding fiscal period; which latter course was adopted by the city council of said city, and said city council accordingly, by an ordinance passed and approved February 25, 1892, made its levy of city taxes to cover the period of fifteen months ending May 31, 1892, and including the period of three months before mentioned, which facts appear from said ordinance, taken in connection with the record of the proceedings of the said city council had at the time of the adoption of said ordinance, the said ordinance designating the period for which said levy was made as `the fiscal year ending May 31, 1892,' `the municipal year ending May 31, 1892,' `the municipal or fiscal year ending May 31, 1892,' and `the municipal year 1891-92,' but the said record of the contemporaneous proceedings of said city council showing that by said terms as used in said ordinance the said city council meant and intended the said fiscal period of fifteen months ending May 31, 1892. * * * That, acting under and by virtue of the powers so vested in it, the plaintiff city, by ordinances of its city council, passed and approved, respectively, at the dates hereinafter stated, did levy the following taxes, to wit: * * * For the fiscal year (meaning a period of fifteen months) ending May 31, 1892, by ordinance of February 25, 1892, * * * ad valorem taxes of ($1.005) one dollar and five mills for general purposes." To these allegations the defendant excepted, and the exception was overruled. This ruling of the court is the first ground of error specified by the applicant Berry in his application for the writ of error. We think the court erred in not sustaining the exception as to the five mills. Section 172 of the charter of the city requires that taxes for general purposes shall be levied by ordinance. In passing an ordinance, certain formalities are required under the city charter. City of San Antonio v. Micklejohn, 89 Tex. 79, 33 S. W. 735. As is pointed out in the case cited, there is an essential difference between an ordinance and a resolution. If a mere order of the council had been sufficient under the charter to make the tax levy, and if the proceedings which led to the order had made it manifest that the purpose to levy for the 15 months beginning March 1st, and not merely for the 12 months beginning June 1st, it may be that we should so construe it, and give it effect accordingly. But, even if the council had unequivocally made the levy for the 15 months, a serious question would still exist as to its power, under the charter, to levy for more than 1 year. But, as we view the case, that question is not before us. The validity of the levy under consideration must be determined from the face of the ordinance itself. If the language of the ordinance were doubtful or ambiguous, it may be that it would be proper to look at the proceedings which led to its passage, in order to resolve the doubt or explain the ambiguity. But the ordinance is not of that character. In itself it is neither doubtful nor ambiguous. The phrases, "the fiscal year ending May 31, 1892," "the municipal year ending May 31, 1892," "the municipal or fiscal year ending May 31, 1892," and "the municipal year 1891-92," all mean the same thing. They signify a year, and not a year and three months. It is only when we look to the proceedings of the council that any doubt can arise as to what it was their purpose to do; and, while these proceedings may show that they intended to levy a tax for 15 months, in order to bridge over the chasm caused by the amendment to the charter which changed the fiscal year, yet the ordinance itself shows that they did not do what it is claimed they intended to do. The ordinances of a city council are the legislative acts of a subordinate lawmaking power, and we apprehend the proceedings of a legislative body cannot be resorted to in order to add to a statute some provision that has been plainly omitted. If two parties agree upon a contract by which their reciprocal rights and liabilities are to continue for fifteen months, and if in drawing it "twelve" is inserted by mutual mistake instead of "fifteen," either may enforce it as agreed upon by alleging and proving the mistake and reforming the instrument. In such a case it is a question of reformation, and not of construction. So the essential element of the attempt in this case with reference to the ordinance in question is not to construe it, but to add to or vary its expressed terms. A legislative act cannot be reformed by judicial action. In State v. Paris Ry. Co., 55 Tex. 79, it is held, in effect, that where there is no ambiguity in the language of a city ordinance, extrinsic evidence is not admissible to show an intention on part of the council different from that which is expressed.

The levy in question is 5 mills upon the $100 in excess of the limit prescribed by the charter of the city, and cannot, in its entirety, be upheld. The question, then, arises, is it void as a whole or is it void only as to the excess? Upon the question there is a conflict of authority. But in the case of Nalle v. City of Austin, 91 Tex. 424, 44 S. W. 66, this court held "that, when suit is instituted by a city or county for the recovery of a tax due to it, and it is found that such tax is in part lawful and in part illegal, if the legal and illegal parts are capable of definite ascertainment and apportionment, a court will apportion the taxes, and give judgment for that part which might lawfully have been levied." The proposition is supported by numerous cases, which are cited in the opinion. In that case there was a levy by the city council to pay the interest and sinking fund upon certain bonds of the city, some of which were sold and some not sold. It was decided that so much of the levy as was intended to pay interest and sinking funds upon the bonds still in the hands of the city was unauthorized and void, but that as to the remainder the levy was valid. We think the principle applied in that case should be applied in this. The cases are not precisely the same, for in the former case the purpose for which a portion of the levy was made was illegal, while in this the purpose of the levy was lawful, but the amount was in excess of the authorized limit. Here the council could have levied 1 per cent. upon the assessed value of all property subject to taxation by the city, and under the circumstances of the case we see no reason why the tax to that extent may not be lawful. It may be that circumstances may exist which would require a different holding. When the legislature confides to a special body the power to determine within a limit the amount of a tax necessary to be raised for public purposes, it would seem that the taxpayer is entitled to the fair exercise of their judgment as to the amount of the levy. Therefore it may be that, if the levy be so grossly excessive as to evince that it was made in utter disregard of the law, and from improper motives, it should be held of no effect. Such, however, is not this case. Here no improper motive is disclosed. Most likely the mistake was made in the language of the ordinance, and the purpose was evidently to levy a sufficient tax to meet the expenses of the city government for fifteen months, and not merely for the current fiscal year as...