Hengy v. Dallas County Levee Improvement Dist. No. 6

• Decision Date: 19 December 1946
• Docket Number: No. 2693.,2693.
• Citation: 199 S.W.2d 230
• Parties: HENGY v. DALLAS COUNTY LEVEE IMPROVEMENT DIST. NO. 6.
• Court: Texas Court of Appeals

199 S.W.2d 230

HENGY v. DALLAS COUNTY LEVEE IMPROVEMENT DIST. NO. 6.

No. 2693.

Court of Civil Appeals of Texas. Waco.

December 19, 1946.

Rehearing Denied January 23, 1947.

Appeal from District Court, Dallas County; John A. Rawlins, Judge.

Suit by Dallas County Levee Improvement District No. 6 against Louis Hengy, Jr., to collect delinquent taxes. From an adverse judgment, defendant appeals.

Judgment reversed, and cause remanded.

Leo R. Tresp, of Dallas, for appellant.

Storey, Sanders, Sherrill & Armstrong, of Dallas, for appellee.

LESTER, Chief Justice.

This suit was brought by the Dallas County Levee Improvement District No. 6 for the purpose of collecting delinquent taxes alleged to be due by appellant to said district.

Said district was organized under the Laney Act (as provided in Title 83, Chapter 2a of the Complete Texas Statutes of 1920, Acts 1918, 4th called Sess., c. 44, § 1 et seq.), in 1919, by certain land owners for the purpose of conserving and reclaiming the land situated therein. A reclamation plan was adopted, commissioners of appraisement were appointed in compliance with Article 5584½fff of said 1920 Statutes, Laws 1918, 4th called Sess., c. 44, § 19, and they did, in pursuance to said Act, meet and assess the amount of benefits and all damages that would accrue to each tract of land situated in such district. Soon thereafter, in order to construct the improvements previously agreed upon and approved, a majority of the land owners of the district voted a bond issue of $220,000.00, and the commissioners court of Dallas county, in order to pay the interest on said bonds and to create a sinking fund to redeem them at maturity, levied and assessed a tax of $4.50 on each $100.00 of the benefits assessed against the real property within said levee improvement district for the year 1920, and ordered that same was subject to further assessments in such amount as might be found necessary, as authorized by said orders of said court.

After proceeding with the construction of the improvements as originally proposed and adopted in the plan of reclamation, it was found that said original plans previously adopted were not sufficient to give all the land in the district proper protection and necessary relief and that the funds of $220,000.00, representing the first bond issue, were inadequate to complete the improvements previously agreed upon and those additional improvements they desired to have constructed. The engineer of said district prepared and filed a supplemental report or plan, which included the improvements previously adopted, and in addition thereto included many other and newly contemplated improvements; and in order to complete the improvements originally agreed upon and the additional ones that were necessary to properly protect and conserve the land situated in said district, a majority of the land owners in said district petitioned the supervisor to request the commissioners court to order an election for the purpose of voting bonds in the sum of $70,000.00, which the engineer had represented in his report would be necessary to carry out the original and also the supplemental plan of reclamation. Said election was ordered and a majority of the land owners voting at said election voted in favor of the issuance of said bonds, but in the process of adopting the additional improvements in the supplemental plan and in petitioning for the election and the issuance of the bonds, no appraisers were appointed to assess the benefits and no assessment made of the benefits and damages that would result to each tract of land in the district in carrying out the supplemental plan of reclamation. The $70,000.00 of bonds were ordered issued by the commissioners court of Dallas county, and for the purpose of paying the interest and creating a sinking fund for their redemption at maturity said commissioners court ordered an assessment made and levied a tax of $2.00 on each $100.00 of the benefits assessed against the real property within said district. This amount, plus the $4.50 assessed and levied in connection with the $220,000.00 bond issue, made a total of $6.50 on each $100.00 of the assessed benefits that the court assessed and levied for the year 1921, and it has during the succeeding years levied and assessed a tax against the property of the appellant to pay the interest on the $70,000.00 of bonds and to create a sinking fund for their payment at maturity, using as a basis for such rate (or levy) the assessment of benefits made by the appraisers in their findings of benefits in respect to the original plan of improvement before the $220,000.00 bond issue was voted, there being no appraisement made of the benefits and damages that would result in putting through the supplemental plan of reclamation and the issuance of the $70,000.00 of bonds.

Article 5584½fff, Complete Texas Statutes 1920, provides that as soon after the approval and adoption of the plan of reclamation as practicable the board of district supervisors shall appoint three disinterested commissioners who shall be known as "commissioners of appraisement", etc. Article 5584½gg, Laws 1918, 4th called Sess., c. 44, § 21, defines their duties in part as follows: "Said commissioners shall proceed to view the lands within such district, or that will be affected by the plan of reclamation for such district, if carried out, and all public roads, railroads, rights of way and other property or improvements located upon such lands, and all such lands without the district as may be acquired under the provision of this Act for any purpose connected with or incident to the fully carrying out of the plan of reclamation; they shall assess the amounts of benefits and all damages, if any, that will accrue to any tract of land within such district, etc." It further provides: "The board shall prepare a report of their findings, which shall show the owner of each piece of property examined, and on or concerning which any assessment is made, together with such description of said property as may identify the same, with the amount of damages and all benefits assessed for and on account of or against the same, etc." Article 5584½ggg, Laws 1918, 4th called Sess., c. 44, § 22, provides for notice to be given each land owner of the assessment and affording him an opportunity to appear and be heard in order that he may make such objection as he is legally entitled to make.

At the conclusion of the testimony the court withdrew the case from the jury and rendered judgment for appellee for the taxes alleged to be due for the years 1930 to 1943, inclusive. In rendering judgment the court allowed appellee to recover for the taxes that were levied in connection with both bond issues.

Appellant appeals on several propositions, in one of which he contends that the court erred in holding that the provisions of Article 8007a of Vernon's Ann.Civ. Statutes validated taxes levied on the land of defendant, when as a matter of law same would deprive this defendant of his constitutional rights and of his day in court.

Under the act under which this district was created the only method of levying taxes to pay the interest on bonds and to create a sinking fund for their payment at maturity is to be based upon the assessed benefits that will accrue to each tract of land in such district, the amount of assessed benefits to be determined by a board of commissioners appointed for that purpose, and such assessment to be made before the bonds are voted and issued and with notice to the land owner. It is conceded that only one assessment of the benefits and damages that would result to the land in the district was the one made in connection with and incident to the original plan of reclamation, which was prior to the voting and issuance of the $220,000.00 of bonds.

In connection with constructing new and additional improvements or securing additional funds with which to complete the original plan of reclamation and any supplemental plan, it is provided in Article 5584½rrr, Laws 1918, 4th called Sess., c. 44, § 55, as follows: "If it should develop that the works and improvements set out in any plan of reclamation adopted by or on behalf of a levee improvement district are found insufficient to reclaim in whole or in part any or all of the lands and other property within the district, or if extensive repairs or additions to such works are deemed necessary, then in respect thereto the board of supervisors of the district, upon petition of the owners of a majority of the acreage of the district, may proceed in all respects to provide additional funds for such additional works, in accordance with the provisions of this Act, in respect to the original plan of reclamation, and may, under like limitations, create additional indebtedness or issue additional bonds, but always subject to every limitation in respect to such original proceedings, as well as the approval of the new or amended plan of reclamation by the State Reclamation Engineer."

In reading said article we find that the intent of the legislature is very plain and clear that in adopting a supplemental plan of reclamation or securing additional funds to carry out such plan, that the provisions of this act should be complied with, especially in view of the wording of the article in this: "May proceed in all respects to provide additional funds for such additional works, in accordance with the provisions of this Act, in respect to the original plan of reclamation, and may, under like limitations, create additional indebtedness or issue additional bonds, but always subject to every limitation in respect to such original proceedings, as well as the approval of the new or amended plan of reclamation by the State Reclamation Engineer." In view of this article when taken in connection with Article 5584½fff, which provides that the commissioners of appraisement shall assess the amount of benefits and damages that will...