City of Sherman v. Langham

• Decision Date: 29 March 1897
• Citation: 40 S.W. 140
• Parties: CITY OF SHERMAN v. LANGHAM et al.
• Court: Texas Supreme Court

Page 140

40 S.W. 140

CITY OF SHERMAN v. LANGHAM et al.

Supreme Court of Texas.

March 29, 1897.

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

Action by R. Langham and others against the city of Sherman to revive a judgment, and for a mandamus compelling defendant to levy a special tax for its payment. Judgment for plaintiffs was affirmed by the court of civil appeals, and defendant brings error. Affirmed.

The following is the opinion of the court of civil appeals on rehearing (Rainey, J.):

"Appellant, in the motion for rehearing, cites us to the case of Bomar v. West, 87 Tex. 299, 28 S. W. 519. This case was not called to our attention on the former hearing, and it was overlooked by us. We think it supports the contention of appellant that the agreed statement of facts incorporated in the record should be considered, and the same is here adopted as our conclusions of fact. Having considered the facts, our conclusion as to the result of the suit remains the same. We are of opinion that when a municipal corporation is indebted, and refuses to make the necessary provisions for its payment, when its resources are sufficient for that purpose, upon sufficient showing, a court of proper jurisdiction will issue a writ of mandamus requiring such municipality to make such provisions. Merrill, Mand. § 130, and authorities cited; Corpus Christi v. Woessner, 58 Tex. 642; Caldwell Co. v. Harbert, 68 Tex. 321, 4 S. W. 607; City of Houston v. Voorhies, 70 Tex. 356, 8 S. W. 109; Clay Co. v. McAleer, 115 U. S. 616, 6 Sup. Ct. 199; Coy v. City of Lyons, 17 Iowa, 1.

"The facts in this case are that appellee had an unpaid judgment against the city. The city was authorized to levy a tax equal to $1.50 on the $100 worth of property. The city had only levied $1.25, which was sufficient to pay all current expenses. The contention of appellant, however, is that the city will probably want to improve her system of waterworks, and an additional levy will be necessary for that purpose; but the amount of expenditure expected to be made is not given, and, to defeat the mandamus herein, the city relies on the doctrine in the case of East St. Louis v. Sebley, 110 U. S. 321, 4 Sup. Ct. 21. In that case the city had levied the full special tax authorized by law to pay certain bonds, which levy was insufficient for that purpose, and the bondholders were seeking to compel payment out of the ordinary revenue fund. The proof showed that the current expenses of the city exhausted the general revenue. In passing upon that state of case, the court said: `And admitting that any surplus of such fund, in any year, remaining after payment of such expenses, ought to be applied to the payment of the interest and principal of the bonds, that could only be required when such surplus should have been ascertained to exist. In the present judgment the court has undertaken to foresee it, and, by mandamus, compel the city by limiting its expenditures for its general purposes to create the surplus which it appropriates. But the question what expenditures are proper and necessary for the municipal administration is not judicial. It is confided by law to the discretion of the municipal authorities. No court has the right to control that discretion, much less to usurp and supersede it. To do so in a single year would require a revision of the details of every estimate and expenditure, based upon inquiry into all branches of the municipal service. To do it for a series of years, and in advance, it attempts to foresee every exigency, and to provide against every contingency that may arise to affect the public necessities.' The doctrine there enunciated we think sound; but this is an entirely different case, and said doctrine has no application. In this case the city's power to levy additional taxes had not been exhausted, nor was it shown that the city would levy an additional tax, and that it would be necessary for current expenses. Under the circumstances of this case, it was incumbent upon the city to show that the additional tax would be levied, and that it would be necessary for current expenses, in order to defeat the prayer for mandamus. That there was a possibility that such taxes might be necessary, and might be levied, is not sufficient. When appellee established his debt, and showed that the city had not exhausted its taxing power, and showed the tax levied had been up to that time sufficient to pay current expenses, he had made out his case, and, in order to defeat it, the burden was on the city. In Coy v. City of Lyons, supra, `the municipal authorities had levied a tax of five mills only, when, by the charter, they could have levied ten mills. In this way, they showed that the full tax was not needed for current purposes, and the court was therefore free to require them to proceed with the execution of the power which had been conferred by law, until the judgment creditor was paid.' We think the facts of this case show that appellee is entitled to a mandamus requiring the council of appellant to at once levy a tax, not to exceed 25 cents on the $100 worth of property, to pay appellee's claim. The judgment of the court below required the levy to be made for 1895. As that time is passed, we will affirm the judgment with that exception, and require the levy to be made at once. Judgment affirmed."

G. P. Webb, City Atty., and Sidney Wilson, for plaintiff in error. R. R. Hazlewood and Wilkins & Vinson, for defendants in error.

DENMAN, J.

Langham et al., being the owners of a judgment for $1,164, rendered against the city of Sherman in the district court of Grayson county, on the 29th day of March, 1889, in an action to recover damages for an injury inflicted in 1888, instituted this proceeding September 6, 1894, to revive said judgment, and seeking an order of court compelling the city to pay same, "and, if necessary, to levy a special tax in an amount sufficient to pay said judgment, interest, and costs, and apply the proceeds of such levy to the payment of said judgment," and for general relief. From the pleadings and agreed statement, it appears that Sherman was incorporated as a city of 1,000 inhabitants or more, under the general law, but the date of its incorporation is not given; that in 1894 acting under the assumption that it contained less than 10,000 inhabitants, its officers levied, for various purposes, taxes aggregating $1.25 on the $100 valuation; that at the date of the trial of this cause in the court below, on the 29th day of April, 1895, it contained more than 10,000 inhabitants, and no tax for any purpose had been levied for the year 1895; that the revenues derived from said tax of 1894 and other sources were sufficient to meet the current expenses of the city for that year, as it was then maintained, said city then acting under the general law for cities of less than 10,000 inhabitants; that the value of the property within the corporate limits is $4,600,000. There is no evidence in the...