Forwood v. City of Taylor

• Decision Date: 11 February 1948
• Docket Number: No. 9690.,9690.
• Citation: 208 S.W.2d 670
• Parties: FORWOOD et al. v. CITY OF TAYLOR et al.
• Court: Texas Court of Appeals

Page 670

208 S.W.2d 670

FORWOOD et al. v. CITY OF TAYLOR et al.

No. 9690.

Court of Civil Appeals of Texas. Austin.

February 11, 1948.

Rehearing Denied February 25, 1948.

Appeal from District Court, 26th District, Williamson County; D. W. Wilcox, Judge.

Action by D. F. Forwood and others against City of Taylor and others to enjoin collection of taxes alleged due on real property. From the judgment plaintiffs appeal.

Affirmed.

Peters & Peters, of Taylor, and Dan Moody, of Austin, for appellants.

Wood & Wilcox, of Georgetown, and Grimes & Owen, of Taylor, by E. M. Grimes, of Taylor, for appellees.

GRAY, Justice.

Appellants, Taylor Bedding Manufacturing Company, The Forwood Realty Company, both private corporations; D. F. Forwood, individually; and Virginia Lawrence, A. P. Barton and H. C. Booth, as trustees of "The D. F. Forwood-Virginia Lawrence Trust," sued the City of Taylor, Texas, its Board of Commissioners and City Manager, in their official capacities, seeking to enjoin the collection of the amount of taxes claimed by the City of Taylor to be due as taxes on the properties of appellants located within the corporate limits of said City, and being the difference in the amount of taxes due according to the rendition of the properties as made by appellants for the year 1946 and the amount due as the result of the increased valuation made by the Board of nine members appointed by the City Commissioners to serve as a Board of Equalization. Appellants assert the said Board was not a legal board of equalization and its action in the valuation of appellants' properties for purpose of taxation is void.

A trial was to the court and a judgment denying appellants the relief prayed for was rendered.

This appeal by appellants is predicated on two points:

"(1) The purported ordinance of the City of Taylor naming nine persons to act as a board of equalization and the attempt of said nine persons to increase the values at which appellants had rendered their properties for taxation by the City of Taylor for the year 1946 were void.

"(2) Appellants having timely tendered payment of taxes on the basis of the city tax rate applied to the values at which they had rendered their properties, the judgment of the trial court should have been in favor of appellants and judgment in their favor should be rendered here."

The City of Taylor is incorporated under the Home Rule Amendment to the Constitution of Texas, Art. 11, Sec. 5, Vernon's Ann.St. The city charter contains the following provisions:

"Article II. Powers

"Section 1. By the legal adoption of this charter, the City of Taylor shall be made and constituted a body politic and corporate, and shall possess all powers not inconsistent with this charter and the Constitution and laws of Texas.

"For the greater certainty, the following are hereby specially enumerated and referred to as being among the other powers which are hereby conferred upon, and which may be exercised by the City of Taylor, to-wit:

"Section 2. All the powers conferred upon Cities and Towns by TITLE 22 of Revised Civil Statutes of 1911, except as may hereinafter be denied or limited, are hereby conferred upon the City of Taylor as fully and completely as if such powers were herein separately enumerated.

"Section 3. All powers mentioned in and under Section 4 of the Act of the Thirty-third Legislature, page 310 to 316 [Vernon's Ann.Civ.St. art. 1175], entitled `An Act Authorizing Cities, having more than five thousand inhabitants, by a majority vote of the qualified voters of said city, at an election held for that purpose to adopt and amend their charters, etc.' are hereby conferred upon the City of Taylor as fully and completely as if each of said mentioned powers were herein separately enumerated.

"If in any instance there should arise or be a conflict as to powers mentioned, and conferred by sections Nos. 2 and 3 hereof then in such instance the power or powers mentioned under and conferred by section No. 3 hereof shall take precedence.

"Section. 4. It is contemplated and intended by the adoption of this charter to confer, and is hereby conferred, upon the City of Taylor, the full power of local self government and the enumeration of and reference to the powers hereinabove made, or that hereinafter may be made, shall never be construed to preclude, by implication or otherwise, the said City of Taylor from exercising any and all powers incident to the full enjoyment of local self government, provided that such powers shall not be inhibited by the Constitution of the State of Texas."

"Article V. Appointive Officers

"Section 1. The Board of Commissioners shall appoint by a majority vote of all the elected members thereof, a city manager, a city attorney, recorder of the Corporation Court, an auditor and a Board of Equalization any of whom except the Board of Equalization may be removed by a like majority vote of said commission at the pleasure of said Board of Commissioners."

"Article XII. Taxation

"Sec. 5. The Board of Commissioners shall create and appoint a Board of Equalization whose duties shall be to equalize the values of all property rendered for taxation in the City of Taylor; prescribe the qualifications, compensation and number necessary to constitute said board, and enact all ordinances necessary to regulate and control the equalization of values by such board."

Title 22, Revised Civil Statutes 1911, included the then Art. 945, which by the recodification of 1925 became the present Art. 1048, Revised Civil Statutes, and as amended in 1937, Vernon's Ann.Civ.St. art. 1048, this Article reads:

"The councils of cities and towns incorporated under the General Laws shall within their discretion act as a Board of Equalization. Said councils of such cities and towns shall annually at their first meeting or as soon thereafter as practical exercise such discretion, and if they so determine they shall have the authority to appoint three (3) commissioners, each a qualified voter, a resident, and property owner of the city or town for which he is appointed who shall be styled the Board of Equalization. At the same meeting said council shall by ordinance fix the time for the meeting of such Board. Before said Board enters upon its duties, it shall be sworn to faithfully and impartially discharge all duties incumbent upon it by law as such Board. Acts 1887, p. 152; G.L. vol. 9, p. 950; Acts 1937, 45th Leg., 2nd C.S., p. 1946, ch. 46, § 1."

On the 17th day of June, 1946, the City enacted an ordinance, as follows:

"Be it ordained by the City of Taylor, Texas,

"Sec. 1. That O. H. Schram, K. L. McConchie, H. G. Rose, Ed. Kubala, A. D. Evans, J. Frank Smith, Geo. Prewitt, J. W. Armstrong, and Ray P. Lewis, being legal voters and property owners within the City of Taylor, Texas, be and they are hereby appointed by the Board of City Commissioners of the City of Taylor, as the `Board of Equalization' of the City of Taylor, Texas, for the year 1946.

"Sec. 2. That said Board of Equalization shall meet at the City Hall of Taylor, Texas, at 9 o'clock a. m. on the 25th day of June, A. D. 1946, for the purpose of receiving from the City Tax Assessor of Taylor, Texas, all tax assessments, lists, rolls and books of said Assessor for examination, correction, equalization, appraisement and approval.

"Sec. 3. The fact that the assessment rolls and lists of the Tax Assessor of Taylor, Texas, are now ready and it is very important that such rolls, lists, and books of said Assessor be examined, corrected, the assessed value of the property equalized and appraised and approved at as early a date as possible creates an emergency and public necessity, that the rule requiring ordinances to be read on three separate meetings be and the same is hereby suspended and this ordinance passed as an emergency...