Conklin v. City of El Paso

• Citation: 44 S.W. 879
• Parties: CONKLIN v. CITY OF EL PASO.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 01 December 1897
• Court: Texas Court of Appeals

44 S.W. 879

CONKLIN v. CITY OF EL PASO.¹

Court of Civil Appeals of Texas.

December 1, 1897.

Appeal from district court, El Paso county; C. N. Buckler, Judge.

Action by the city of El Paso against T. H. Conklin to recover taxes and interest thereon. Judgment for plaintiff. Defendant appeals. Modified.

W. M. Coldwell and M. W. Stanton, for appellant. Millard Patterson and Wyndham Kemp, for appellee.

JAMES, C. J.

The original petition of the city, as stated by appellant, was to recover of appellant $536.64 and interest, as taxes for the years 1893 and 1894, upon certain realty. By the amended pleading, upon which the case went to trial, plaintiff set up, in the nature of trespass to try title, that the city had acquired title to the lands in question by virtue of sales for taxes for certain years due the city, and asking for judgment, and further stating that it was claimed by defendant that the several tax sales were void; and, in view of this, it was pleaded that, if it should so appear, then the defendant was indebted to the city for the taxes for the years 1887, 1892, 1893, 1894, and 1895, and the lands subject to a lien therefor; and prayer was made accordingly.

Certain special demurrers to the petition were overruled (assignments 27, 28, 29). The first of these is that it appears from the petition that the real estate was assessed in bulk, which we find not to be the case. Next, that the petition shows that the property had been sold to the city for taxes, and did not show wherein the sales were void, and also showed that the taxes had been discharged by sales of the property for plaintiff. It is obvious that petitioner brought its suit in this form to enable it, if defendant made no appearance, to obtain judgment for the land. Upon appearance and answer it would have been necessary for plaintiff to show the facts necessary to the validity of its tax deeds. The pleading, properly considered, merely anticipated what defense was likely to be interposed, and was drawn in the alternative, with a view to the case taking such course. Plaintiff did not allege that the sales were void; hence the petition need not state wherein they were void; nor was the petition, as drawn, an admission that the taxes had been discharged.

The thirtieth and thirty-first assignments will be disposed of by considering the assignment that goes to the existence of power in the city of El Paso as an independent school district, viz. the first assignment. It is too lengthy to be incorporated in this opinion, but its substance is that the power of the city to tax for school purposes did not exist, because it appears, by undisputed evidence, that the election held in April, 1882, by reason of which the city council assumed control, and has since exercised control, of the public schools within its limits, was ordered by the city council, and not by its mayor; and was ordered upon the petition of 20 taxpayers, and not upon that of 50 qualified electors; and the vote was, by the resolution of the council ordering the election, a vote by the property taxpayers, and exclusive of the qualified electors not taxpayers; and the question submitted at such election was simply whether or not the city should assume control of the public free schools within its limits, and not whether it should assume such control and whether the said schools should be under the control of a board of trustees or of the city council. The facts relative to such election appear to be as stated in the assignment. It will be observed that the city council proceeded in the matter in accordance with articles 3781, 3782, Rev. St. 1879, which appellee contends were in force at the time of this election. On April 3, 1879, the legislature enacted a law providing for the acquisition by cities and towns of exclusive control of the public schools within their limits, dealing with the same subject that had previously been provided for in said articles 3781 and 3782, which represented the then existing law on the subject. This act of 1879 provides that the mayor of the town or city shall order the election upon the written application of not less than 50 qualified electors of such city or town, the election to be by the qualified electors, upon the question whether such city or town shall acquire the exclusive control of any or all of the public free schools and institutions of learning within its limits, and whether the same shall be under the control of a board of trustees or of the council or board of aldermen. It will be seen that this act is a comprehensive one, covers the entire subject of the mode and manner of acquisition by the city of control of the schools within its limits, and provides a radically different method of procedure, whereby the city or town may acquire such control, from that theretofore prescribed. The two methods of procedure are wholly in conflict with each other, and irreconcilable. One cannot be observed without doing violence to the other. In view of this, and section 20 of the final title of the Revised Statutes of 1879, which reads: "That no laws, general or special, enacted at the present session of the legislature, shall be in any way affected by the repealing clause of this title: provided, that any law passed by the sixteenth legislature, in conflict with any provision of this act, shall be the law of the state, this act to the contrary notwithstanding,"—we think there can be no doubt that the act of 1879 superseded the two articles mentioned, under which appellee undertook the control of free schools within its limits, so far as affects the manner in which such control may be acquired. The election called by the council, instead of the mayor, and upon the application of 20 taxpayers, instead of 50 qualified voters, the election by taxpayers instead of by popular vote, and the submission of a different proposition than the one directed in the act of 1879, ignored every essential prerequisite and condition necessary to the acquirement by the city of the right to administer its public schools.

Appellee presents the view that, since the said act of 1879, there have been two different and distinct kinds of independent school districts in this state, and undertakes to show by later enactments that the legislature has recognized this fact. It cites the act of 1883 (article 3783a, Sayles' Rev. Civ. St.), which, it will be seen, authorizes the city council of towns or cities having a population over 1,000 to create a board of trustees when the control of public schools had or may become vested in the council. Under the act of 1879, the vote therein provided for might vest such control in the council, and the law of 1883 provides that, in any case where such control had been or might thereafter be acquired, the council, if it saw fit, might delegate it to trustees. We see nothing in this to indicate that the legislature understood there was more than one procedure or method by which a town or city might assume control in the first instance. We are of opinion that the power can be conferred upon a city only by, at least, substantial observance of the steps prescribed for that purpose, and where the essentials have not been observed, as in this instance, the power is not obtained, and the power to levy taxes for that purpose would likewise not exist. It appears that the charter of the city of El Paso did not confer authority to levy the tax recovered in this case for public school purposes, and authority therefor must have existed, if at all, by its having complied with the general law empowering cities to assume control of such schools and to levy taxes for their support. It seems clear to us that the enactment of 1879 controlled elections of this character in 1882, and as the proceeding was not had in conformity with its provisions, but contrary thereto, the assumption by the city of control of the schools was without any authority.

The next question is whether or not the taxpayer, in a suit against him for such school tax, may show this want of power to impose the tax. It is argued by appellee that it has exercised this power since 1883, and its power now to do so cannot be thus collaterally attacked. We are of opinion that the mere assumption and assertion by a city of a power not granted to it gains nothing by time. When a tax is asserted, the taxpayer is entitled to show the want of authority to impose the tax, and, if the existence of the power depends on certain facts, he may show that such facts never existed. We do not regard this as a collateral attack upon the tax, but the assertion of defensive matter, that the defendant may properly present. Mr. Cooley says: "It will be a good defense to the suit that the tax for any reason is illegal." Cooley, Tax'n (2d Ed.) p. 435. If he cannot raise the question in a suit against him for the tax, it is difficult to conceive how the question could be raised, or by whom. These views dispose of the tax for school and school bond purposes.

The ninth, tenth, eleventh, and twelfth assignments bring into question the tax levied to provide for the interest and sinking fund for an issue of $20,000 of bonds, in 1886, for sewers. We think it is not necessary to discuss appellant's propositions that the question of the issuance of these bonds was submitted to a vote of the taxpayers, as provided in the constitution of 1876, instead of the qualified voters, as provided in the charter, which was granted prior to the constitution, and that the purposes for which the bonds were to be issued should have been stated in connection with the matter submitted to a vote, because we are of opinion that the levy for this tax in every instance was greater than that allowed for the purpose by the city charter. We observe that for the year 1892 no levy was made for the purpose of interest and sinking fund for the sewer bonds, and in each of the other years embraced in the recovery in this case the amount levied was more...