Hendrick v. Culberson

• Decision Date: 14 April 1900
• Citation: 56 S.W. 616
• Parties: HENDRICK et al. v. CULBERSON, Co. Atty.
• Court: Texas Court of Appeals

56 S.W. 616

HENDRICK et al. v. CULBERSON, Co. Atty.

Court of Civil Appeals of Texas.

April 14, 1900.

Appeal from district court, Ector county; W. R. Smith, Judge.

Proceeding by T. G. Hendrick and others against Walter Culberson, county attorney of Ector county. From a judgment in favor of respondent, T. G. Hendrick and others appeal. Reversed.

Hawkins & Camp, for appellants. W. W. Martin, for appellee.

STEPHENS, J.

This proceeding was instituted by appellants to contest the validity of an election held in Ector county, October 17, 1899, as provided in Acts 1899, p. 258, to determine whether or not Ector county should issue bonds for the purpose of building a jail.

We are first asked by appellants to invalidate the act in pursuance of which the election was held upon the ground that it conflicts with the constitution in restricting the right of suffrage at such elections to the qualified voters who are "property taxpayers." But, if we should thus annul the act, the law would be left in force which authorized the issuance of such bonds without any election, which would render this contest superfluous. Rev. St. art 877. Possibly, however, the act might be invalid only in so far as it restricts the right of suffrage, and to that extent its invalidity be available to appellants; but, as we are loath to declare an act of the legislature unconstitutional in any respect, and do not find it necessary to do so in this case, we express no opinion upon the constitutional question so vigorously presented in appellants' brief.

In the third conclusion of law, to which error is assigned, the court held "that a property taxpayer is one who owns taxable property at the time he offers to vote, whether he is on the tax rolls or not; and whether or not he owned taxable property on January 1st is immaterial." The following is the language of the act so construed: "Section 1. Hereafter it shall be unlawful for the commissioners' court of any county * * * to issue the bonds of said county * * * for any purpose authorized by law, unless a proposition for the issuance of such bonds shall have been first submitted to a vote of the qualified voters, who are property taxpayers of said county, * * * and unless a majority of the said qualified property taxpayers, voting at said election, is in favor of the proposition for the issuance of bonds, then the said bonds shall not be issued." In enacting this law the legislature must have had in mind the provisions of our Revised Statutes on the subject of taxation, and particularly article 5066, reading: "All property shall be listed for taxation between January 1 and June 1 of each year, when required by the assessor, with reference to the quantity held or owned on the first day of January in the year for which the property is required to be listed or rendered. Any property purchased or acquired on the first day of January shall be listed by or for the person purchasing or acquiring it." In article 5102 persons liable to assessment of taxes on account of what they owned on the 1st day of January are referred to as "taxpayers." See, also, the five next succeeding articles. According to our tax laws, then, the state and county tax upon property is assessed against the subjects of taxation annually, and whether or not one is liable to such assessment in any given year and county depends alone upon whether or not he owned property on the 1st day of January of that year liable to assessment in that county. A "property taxpayer," within the meaning of the act in question, is one whose property rights were such on the 1st day of January of the year in which he offers to vote as to bring him within the class denominated "property taxpayers" of the county in which he offers to...