Grisham v. Tate

• Decision Date: 15 January 1931
• Docket Number: No. 1032.,1032.
• Citation: 35 S.W.2d 264
• Parties: GRISHAM v. TATE et al.
• Court: Texas Court of Appeals

Page 264

35 S.W.2d 264

GRISHAM v. TATE et al.

No. 1032.

Court of Civil Appeals of Texas. Waco.

January 15, 1931.

Rehearing Denied February 12, 1931.

Appeal from District Court, Falls County; E. M. Dodson, Judge.

Suit by J. W. Grisham against C. L. Tate and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

Bartlett & Peterson, of Marlin, and J. W. Spivey, of Waco, for appellant.

Terry Dickens, of Marlin, and C. D. Jessup, of Houston, for appellees.

ALEXANDER, J.

This was a suit instituted in the district court of Falls county by the appellant J. W. Grisham, as a taxpayer, against C. L. Tate, as tax collector of Falls county, and J. B. Landrum, county judge, and Frank Peacock, F. A. Tate, W. H. King, and B. H. Brunner as commissioners of said county, seeking to enjoin the collection of taxes levied in new road district No. 4 of Falls county for the purpose of paying off certain bonded indebtedness in said district. The plaintiff alleges that on or about the 9th day of September, 1929, the commissioners' court of Falls county created and established new road district No. 4 in said county, and that thereafter on petition properly presented the commissioners' court ordered an election in said district to determine whether or not it should issue road bonds on the faith and credit of said district in the sum of $446,000. The plaintiff further alleges that at the election for the issuance of said bonds said issue carried and the commissioners' court passed an order authorizing the issuance of said bonds; that the court has levied a tax on all property located in said proposed district for the purpose of liquidating said bonds and is now seeking to collect such taxes. The plaintiff alleges that he is a taxpayer owning property in said proposed district and that such taxes will be collected unless the injunction is granted. The plaintiff further alleges that said district is not properly defined and there is not sufficient description of the metes and bounds of said district to determine the area of the district attempted to be created by the order aforesaid; that said field notes and calls as described in the order creating said district are inaccurate, unintelligible, and it is impossible for a surveyor or other person to go according to said field notes and survey said lands embraced in that part of Falls county which is now said to be road district No. 4, and especially are the field notes incorrect in that there is a line missing from said field notes from the southwest corner of the Rice Adkins tract to the southwest corner of the T. F. Turner tract, and by reason of said line being missing in the survey of said area said district is indefinite and the field notes thereof do not close, and that by reason thereof said bonds are void and the commissioners' court has no right to collect such taxes.

The trial was had before the court without a jury, and at the conclusion of the evidence judgment was entered for the defendants, and the plaintiff appeals.

At the threshold of the case the appellees, by general demurrer, challenge the right of the appellant as a taxpayer to maintain the suit. It is the contention of the appellees that the road district in question is a quasi municipal corporation acting under color of law; that the suit in question is a contest on the legal existence of such district, and that its legality can only be determined by a suit brought for that purpose in the name of the state or by some one under the authority of the state, and that the plaintiff, whose only interest is that of a taxpayer, cannot maintain the suit for the purpose of annulling the district; and further that if the suit is not for the purpose of testing the legal existence of the district that this is a collateral attack thereon, and that the plaintiff has no right to collaterally attack the existence of the district in this suit.

Chapter 16, 39th Legislature, First Called Session (Acts 1926, page 23 [Vernon's Ann. Civ. St. arts. 752a to 752w, 752a note]), provides for the establishment of road districts in a county by the commissioners' court of the county entering an order declaring such road district established and defining the boundaries thereof. Section 20 of the same act (Vernon's Ann. Civ. St. art. 752r) provides as follows:

"Any road district, or any political subdivision accepting the provisions of this Act, shall be a body corporate and may sue and be sued in like manner as counties."

It has been held that a road district when so created is a quasi public corporation. Tyree v. Road District No. 5, Navarro County (Tex. Civ. App.) 199 S. W. 644; Maroney v. Feagin (Tex. Civ. App.) 264 S. W. 105. It is a well-established rule that when the creation of a public corporation or quasi public corporation is authorized by statute and a corporation has been organized under color of such authority, its corporate existence cannot be inquired into by the courts in a collateral attack. It is also the rule that the validity of such incorporation can only be determined in a suit brought for that purpose in the name of the state or by some individual under authority of the state who has a special interest which is affected by the existence of the corporation. City of El Paso v. Ruckman, 92 Tex. 86, 46 S. W. 25; Graham v. Greenville, 67 Tex. 62, 2 S. W. 742; Kuhn v. City of Yoakum (Tex. Com. App.) 6 S.W.(2d) 91; Crabb v. Celeste Ind. School District, 105 Tex. 197, 146 S. W. 528, 39 L. R. A. (N. S.) 601, Ann. Cas. 1915B, 1146; Brennan v. City of Weatherford, 53 Tex. 330, 37 Am. Rep. 758; Snyder v. Baird Independent School District (Tex. Civ. App.) 109 S. W. 472; Troutman v. McClesky, 7 Tex. Civ. App. 561, 27 S. W. 173. The reason for such rule is apparent, for if each taxpayer or interested party should be permitted to maintain a separate suit for the purpose of contesting the legality of the corporation, one complainant might prosecute his suit to effect and have the corporation declared illegal as to him, while another complainant might not be so successful and in consequence the corporation would have a legal existence as to one taxpayer, while it would be illegal as to another.

The rule, however, is not without its exception. Where there is no law authorizing the creation of such a corporation, or where the law under which it purports to exist is unconstitutional, or where the attempt to comply with the provisions of the law authorizing such creation is so utterly lacking or defective as to render the attempt to create such a corporation void, the right of such corporation to exist may be challenged by any party whose interest is directly affected thereby, especially where the purported corporation has not existed for a sufficient length of time to become a de facto corporation.

In the case of Parks v. West, 102 Tex. 11, 111 S. W. 726, 729, the Supreme Court said:

"It is said that it is essential to the doctrine that there be in existence a law in virtue of which such a corporation as that the party to the litigation claims to be might legally exist and `that the rule is the same where there is only an unconstitutional law.' Even this qualification of the rule seems to be subject to exceptions applicable in cases where the attacking party sustains certain relations to the alleged corporation or has no right of his own to be protected by allowing the inquiry."

The court in the same case, however, said:

"But be that as it may, the attack of the plaintiffs is not merely upon the corporate existence of the district, but is directed against the power of the defendants to lay burdens on their property and subject them to the payment of taxes. Surely they have the right to do that although the reason they assign for the lack of power may also go to the right of the district to exist under the Constitution. Certainly a property holder has the right to say to the court that he is protected by the Constitution from the imposition of a tax by persons to whom the Constitution, in effect, denies such power. If the rule relied on by defendants should preclude plaintiffs from making the contention now, when and in what way could they make it? So far as we can see, the rule would equally apply to an effort to resist the collection of the tax by suit or otherwise. The consequence to which the contention leads is that, while the Constitution does not permit such a school district to exist and levy taxes, it may yet do both and force property owners to pay until the officers of the state see fit to intervene. Useful and convenient as is the doctrine invoked, we cannot give our assent to an application of it, which would deny to the plaintiffs the protection sought of their property rights."

It will be noted,...