City of Sherman v. Langham

• Decision Date: 22 November 1897
• Citation: 42 S.W. 961
• Parties: CITY OF SHERMAN v. LANGHAM et al.
• Court: Texas Supreme Court

42 S.W. 961

CITY OF SHERMAN v. LANGHAM et al.

Supreme Court of Texas.

November 22, 1897.

On rehearing. Reversed.

For former opinion, see 40 S. W. 140.

DENMAN, J.

We only deem it necessary to notice two of the grounds for rehearing. The first seeks to question the validity of the original cause of action. This was settled adversely to the city by the rendition of the original judgment, and the question cannot be raised collaterally in this proceeding to enforce such judgment by mandamus. U. S. v. New Orleans, 98 U. S. 381. The second raises the question—not heretofore presented —that pending this appeal the legislature, by special act, of which, by its terms, the courts are required to take judicial notice (Sp. Laws 1897, p. 41), granted to the city of Sherman a special charter, which declares that it shall levy no tax in excess of 1½ per cent. of the taxable property, and distributes such total taxing power among various objects, allowing not to exceed 30 cents on the $100 assessed taxable values "for general purposes and current expense" (sections 97-102), and that since this act removes the city from the operation of the provision of the Revised Statutes under which we held in the original opinion that the city was authorized to levy a special tax of 25 cents to pay off indebtedness contracted prior to the 1st day of January, 1889, therefore we were in error in affirming the judgment of the court of civil appeals, ordering the levy of a sufficient tax to pay the judgment. To this it is objected (1) that the judgment is a contract, and that the special charter reducing the power of the city to levy taxes to pay the same impairs its obligation, and is therefore prohibited by the constitution of the United States; and (2) that such charter deprives the owner of the judgment of his property therein, without due process of law. It has been settled by the supreme court of the United States that a judgment founded upon a tort is not a contract, within the meaning of the constitutional provision invoked. Louisiana v. City of New Orleans, 109 U. S. 285, 3 Sup. Ct. 211, cited in Louisiana v. Police Jury, 111 U. S. 716, 4 Sup. Ct. 648. And hence the first objection is not well taken, even if it should be held that a person contracting a debt with a city of less than 10,000 acquires a contract right in the increased taxing power conferred by the charter when such city reaches a population of 10,000. We also understand the decision of that learned court in the case cited to be adverse to the second objection urged above, for it was there said: "The clause of the fourteenth amendment cited is equally inoperative to restrain the action of the state. Conceding that the judgments, though founded upon claims to indemnity for unlawful acts of mobs or riotous assemblages, are property, in the sense that they are capable of ownership, and may have a pecuniary value, the relators cannot be said to be deprived of them, so long as they continue an existing liability against the city. Although the present limitation of the taxing power of the city may prevent the receipt of sufficient funds to pay the judgments, the legislature of the state may, upon proper appeal, make other provision for their satisfaction. The judgments may also, perhaps, be used by the relators or their assignees as offsets to demands of the city. At least, it is possible that they may be...