Duncan v. Gabler
| Decision Date | 17 November 1948 |
| Docket Number | No. A-1864.,A-1864. |
| Citation | 215 S.W.2d 155 |
| Parties | DUNCAN, Tax Collector, et al. v. GABLER et al. |
| Court | Texas Supreme Court |
Appeal from District Court, Harris County.
Suit by Harvey E. Gabler and another against J. A. Duncan, tax collector and assessor, and others, to restrain the tax collector and assessor and others from advertising for sale plaintiffs' realty against which there were taxes legally assessed and delinquent. From a judgment granting a temporary injunction, the defendants appeal.
Judgment affirmed.
Rowland & Bouldin and Homer T. Bouldin, all of Houston, Shirley W. Peters, Dallas, and T. Jay Foster, of Pasadena, for appellants.
Sam G. Croom and John A. Croom, both of Houston, and C. R. Winn, of Dallas, for appellees.
This case is before us on direct appeal from an order of the district court granting a temporary injunction restraining appellant Duncan, tax assessor and collector of Pasadena Independent School District, and the other appellants, from advertising for sale, selling or offering for sale at a "summary sale" real property owned by appellees against which there are taxes legally assessed and delinquent. The order of the district court granted the injunction on the ground of the constitutionality of Chapter 48, Acts Regular Session, 41st Legislature, 1929, Article 7328a, Vernon's Annotated Civil Statutes, which provides that sales of real estate for the collection of delinquent taxes due thereon shall be made only after foreclosure of tax lien securing the same has been had in a court of competent jurisdiction. See Sec. 3-b, Article V, Texas Constitution, adopted November 5, 1940, Vernon's Ann. St.; Acts Regular Session 48th Legislature, Chapter 14, Article 1738a, Vernon's Annotated Civil Statutes; Rule 499-a, Texas Rules of Civil Procedure.
As their briefs show, the parties are in agreement that the controlling question in the case is that as to the constitutionality of the Act of 1929 above mentioned. We make a brief statement of the relevant provisions of the Constitution and the statutes.
Sections 13 and 15 of Article VIII of the Constitution of 1876 are as follows:
By an Act approved August 21, 1876, the legislature made it the duty of the county tax collector to levy upon and sell real estate for the collection of unpaid taxes, after advertising the land to be sold in a newspaper for three successive weeks, or posting notice of the sale for thirty days days if there should be no newspaper published in the county, the sale to be made at auction and a deed to be executed and delivered by the tax collector to the purchaser. The Act provided that the owner should have two years from the date of sale within which to redeem the land. Sections 16 to 21, Chapter 152, Acts Regular Session, 15th Legislature. This Act, with changes unimportant here, became Articles 4751 to 4758 of the Revised Civil Statutes of 1879, and Articles 7272 to 7283 of the Revised Civil Statutes of 1925. By Articles 1058 to 1065 of the Revised Civil Statutes of 1925, the same procedure, or substantially the same, was prescribed for the sale of real estate in cities for the collection of taxes. By Article 2791 of the Revised Civil Statutes of 1925, amended by Chapter 176, Acts Regular Session, 49th Legislature, Vernon's Ann.Civ.St. art. 2791, the assessors and collectors of taxes for independent school districts were authorized to excerise the same power and perform the same duties with reference to the assessment and collecting of school taxes as those that were conferred by law upon the assessors and collectors of taxes in cities.
After the adoption of the Constitution of 1876 there was no statute providing for the collection of delinquent taxes against land by suit and foreclosure sale, until the enactment in 1895 of Chapter 42, Acts Regular Session of the 24th Legislature, amended in 1897 by Chapter 103, Acts Regular Session of the 25th Legislature. The Act as amended became Articles 7326 to 7344 of the Revised Civil Statutes of 1925. This Act makes it the duty of the county officers to file or cause to be filed suits for the collection of delinquent taxes on real estate promptly after the giving of notice of delinquency, and it prescribes the procedure in the suits, including the petition, citation and service, the judgment of foreclosure, and the sale by the sheriff. Among other provisions of the Act is one that the delinquent tax suits shall take precedence over all other suits pending in the district court. Article 7326.
It is to be observed that there have been other later enactments for the purpose of simplifying and making more effective the procedure for the collection of delinquent taxes by suit and foreclosure sale. Some are amendatory and some are cumulative of the Act of 1925. See Chapter 506, Acts Regular Session, 45th Legislature, 1937; Chapters 18 and 19, Taxes and Taxation, Acts Regular Session 46th Legislature, pages 661-667, 1939; Chapter 534, Acts Regular Session 47th Legislature, 1941; Chapter 454, Acts Regular Session 50th Legislature, 1947, Articles 7328.1, 7345b, Vernon's Annotated Civil Statutes.
In 1929 when both Articles 7272 to 7283, authorizing the collection of delinquent taxes by tax collector's sale without suit, and Articles 7326 to 7344, authorizing collection by suit and foreclosure sale, were in effect, Chapter 48 of the Acts of the Regular Session of the 41st Legislature, Article 7328a, Vernon's Annotated Civil Statutes, was enacted. The Act is as follows:
Appellants construe Section 13 of Article VIII of the Constitution as a mandate to the legislature requiring the enactment of a law for the "summary sale" of land in the collection of taxes, that is, a sale made without the foreclosure of tax lien by the judgment of a court. Applying that section of the Constitution thus construed to the Act of 1929, they say that the Act is unconstitutional because "it is diametrically opposed to Article VIII, Section 13 of the Constitution". They say further that since the Act is unconstitutional it is wholly void and, being void, did not work a repeal of Articles 7272 to 7283 and other like statutes authorizing summary sales.
The soundness of the contention that the Act of 1929 contradicts the Constitution is to be tested in the light of settled rules for the construction of constitutional provisions and statutes. It is necessary to look both to the meaning of the Act and to the meaning of the provisions of the Constitution. Brown v. City of Galveston, 97 Tex. 1, 75 S.W. 488.
When a law duly enacted is attacked as unconstitutional, the law is presumed to be valid and doubts as to its constitutionality should always be resolved in favor of constitutionality. Brown v. City of Galveston, 97 Tex. 1, 9, 75 S.W. 488; Greene v. Robison, 117 Tex. 516, 524, 8 S. W.2d 655; Cooley's Constitutional Limitations, 8th Ed., Vol. 1, pp. 354, 355, 375. This rule has peculiar importance in testing the validity of a state law, for "the legislative department is not made a special agency for the exercise of specifically defined legislative powers, but is intrusted with the general authority to make laws at discretion". Cooley's Constitutional Limitations, 8th Ed., Vol. 1, p. 175. This court has said that "except in the particulars wherein it is restrained by the Constitution of the United States, the legislative department may exercise all legislative power which is not forbidden expressly or by implication by the provisions of the Constitution of the state of Texas." Brown v. City of Galveston, 97 Tex. 1, 9, 75 S.W. 488, 492. It has been said that it can make no difference whether the doubt, which it is the duty of the court to resolve in favor of the validity of the law, springs from an endeavor to arrive at the true interpretation of the Constitution or from a consideration of the law after the meaning of the Constitution has been judicially determined. Cooley's Constitutional Limitations, 8th Ed., Vol. 1, p. 375.
What is in substance the same rule has several times been thus stated: "This Court has repeatedly held that no act of the Legislature will be declared unconstitutional unless some provision of the Constitution can be cited which clearly shows the invalidity of such act." Texas National Guard Armory Board v. McCraw, 132 Tex. 613, 624, 126 S.W.2d 627, 634; Lytle v. Halff & Bro., 75 Tex. 128, 131, 132, 12 S.W. 610. And it has frequently been said in our...
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