Girardin v. Dean

• Decision Date: 01 January 1878
• Parties: VICTOR GIRARDIN ET AL. v. FRANK DEAN.
• Court: Texas Supreme Court

49 Tex. 243

VICTOR GIRARDIN ET AL.

v.FRANK DEAN.

Supreme Court of Texas.

1878.

APPEAL from Galveston. Tried below the Hon. William H. Stewart.

Under the act to authorize the several counties of the State to raise means to pay their indebtedness, approved May 1, 1874, (Paschal's Dig., 6026 m,) the County Court of Galveston county levied, for the year 1875, upon the property, real and personal, in Galveston county, a tax of one-eighth of one per cent. The County Court did not levy this tax upon the occupations and professions taxed by the State in said county.

The law authorizing said tax is as follows: * * * “The County Courts shall proceed to levy a special tax on the assessed valuation of real and personal property of such county; and upon occupations and professions taxed by the State; and upon polls in said county, for the purpose of paying such claims. The ad-valorem tax here authorized shall in no one year exceed one-fourth of one per cent. The income and occupation tax for no one year shall exceed one-tenth of the tax levied by the State, and the poll tax not more than fifty cents for each poll in the county.” (Paschal's Dig., 6026 m.)

To restrain this tax, with several other special taxes, Joseph Labadie and twenty-three other tax-payers brought suit against Frank Dean, collector, &c.; which suit was tried on its merits, and judgment therein rendered against the plaintiffs. The case was also affirmed on appeal. (Labadie v. Dean, 47 Tex., 90.)

January 11, 1878, appellants sued out an injunction restraining Dean, the appellee, from advertising and selling their property for the collection of this tax, which he was proceeding to do.

Dean demurred to the petition, and pleaded the former judgment, rendered in the suit of Labadie v. Dean.

To the plea of res adjudicata, the plaintiffs excepted.

The plaintiffs Victor Girardin, Bernard McDonnell, John Hibbert, John C. Trube, L. E. Edmonson, T. C. Armstrong, E. H. Seiting, J. W. Rice, A. C. Crawford, Victor Baulard, and H. J. Lausen were not parties to the former suit.

Of the plaintiffs, the following were parties: Joseph Labadie, A. T. Lufkin, Barney Tiernan, J. C. Gorham, the firms of A. C. Crawford & Sons, Reyband & Simmons, and Rice & Baulard. The members of these firms were individually in this suit.

The exceptions so urged were--

1. It appears from the plea that the parties plaintiffs in the former suit are not the same parties as those in this suit.

2. It does not appear from said plea that the issues in controversy in the former suit pleaded are the same as those in controversy in this suit, and that the issues in controversy in the former suit pleaded have been adjudicated on the merits, and have been finally determined.

The court sustained the exceptions to the plea as to those not parties to the former suit, (Labadie v. Dean,) but overruled them as to those who were parties to the former suit.

Deducting the amount of taxes sought to be enjoined belonging to those in the former suit, there remained an amount in controversy (the sum of the taxes of the new parties) less than five hundred dollars. The petition set out the amount of tax claimed of each plaintiff.

The court below dissolved the injunction, dismissed the bill, and rendered judgment against the plaintiff for costs and for eighty dollars damages, being ten per cent. on the amount sought to be enjoined in the petition. The plaintiffs appealed.

L. E. Trezevant, for appellants, cited Cooley on Taxation, 32, 34, 250, 251, 253, 209; Cooley's Const. Lim., 191, 488, 518, 520; Dillon on Mun. Corp., sec. 55; Sedg. on Stat. and Const. Law, 466; Mack v. Jones, 1 Foster, 395;Dillingham v. Snow, 5 Mass., 547; Weeks v. Milwaukee, 10 Wis., 186; Blackw. on Tax Titles, 106, 164, 447; McSpedon v. Mayor of New York, 20 How., (Pr. R.,) 395; City of Leavenworth v. Norton, 1 Kan., 432.

Frank M. Spencer, (District Attorney,) for appellee, cited Danl. Ch. Prac., 4th ed., 301; Story's Eq. Pl., secs. 509, 544; High on Inj., 41-43; Makepeace v. Haythorne, 4 Russ., (Eng. Ch. R.,) 246; King of Spain v. Machado, 4 Russ., 225; Endictt v. Mathis, 1 Stock., 110; Bank of U. S. v. Schultz, 3 O., 61; Weeks v. Milwaukee, 10 Wis., 186, 205; Muscatine v. Railway Co., 1 Dill., 536;High v. Shumaker, 22 Cal., 369; Cooley on Taxation, 154; Fall v. Ratliff, 10 Tex., 291;Hammonds v. Belcher, 10 Tex., 273;R. G. R. R. Co. v. Scanlan, 44 Tex., 650.

MOORE, ASSOCIATE JUSTICE.

The court did not err in overruling the plaintiffs' exceptions to defendant's plea of res adjudicata, as to such of the plaintiffs as were parties to the former suit. It is plainly apparent from the answer, and exhibits attached to and made a part of it, that the subject-matter of this suit is identical with one of the issues in the former action. In this case, just as in the former suit, the plaintiffs allege that the tax of one-eighth of one per cent. on the assessed value of the taxable property situated and owned in Galveston county, for the year 1875, which the defendant was about collecting, had not been legally levied by the County Court, and that the defendant had no legal authority to collect and enforce payment of said pretended tax. The relief sought in both cases is precisely the same. It is of no consequence, if the reasons urged to sustain the issue presented in this suit may not be precisely those relied upon, or in the mind of the pleader, when framing the petition in the first case. The applicability of the plea depends upon the identity of the cause of action or matter of defense in issue, and not the identity or similarity of the points or grounds urged to support or maintain the action or matter of defense; otherwise litigation would only end when the ingenuity of counsel could not suggest additional grounds in support of the issue, though the gist of the issue may have been more than once considered and decided by the court. Cases cannot be thus presented and determined by...