Labadie v. Dean

• Decision Date: 01 January 1877
• Citation: 47 Tex. 90
• Parties: JOSEPH LABADIE ET AL. v. FRANK DEAN, COLLECTOR, &C.
• Court: Texas Supreme Court

47 Tex. 90

JOSEPH LABADIE ET AL.

v.FRANK DEAN, COLLECTOR, &C.

Supreme Court of Texas.

1877.

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

November 27, 1876, Joseph Labadie and twenty-three other tax-payers of the county of Galveston filed their petition in the District Court against Frank Dean, the collector of taxes for said county, to enjoin the collection of the following taxes:

1. An ad valorem tax of one fourth of one per cent., levied for general county purposes for the year 1875.

2. A tax of one tenth of one per cent., levied to pay the interest, and to provide a sinking fund to liquidate certain bonds issued by the county of Galveston, under a special act of the Legislature, authorizing their issue, passed November 29, 1871.

3. A tax of one eighth of one per cent., levied under an act of the Legislature, to pay the interest on registered county scrip. And,

4. A county poll-tax of fifty cents.

As grounds for relief, it was alleged that the poll-tax was not levied or ordered to be assessed and collected by the County Court for the year 1875; that the other taxes were assessed under a certain entry, made January 28, 1875, on the record of the proceedings of the County Court of Galveston county, a copy of which is as follows:

“In the matter of Levying Taxes for the year 1875.

Be it ordered by the County Court, That there shall be an annual ad valorem tax levied for the year 1875, of one fourth of one per cent., the same as last year, (one fourth of one per cent.;) also a special tax, to pay county indebtedness, of one tenth of one per cent.; also a road and bridge tax of one twentieth of one per cent.; also a funding county scrip tax of one eighth of one per cent.; (and the tax ordered on page 44, of one twentieth of one per cent., to create a sinking fund to pay interest on Ballinger & Jack bonds.)”

This order, it was insisted, was a nullity, because the County Court met on 25th January, its regular term, and adjourned over until 27th, when there was not a quorum present, and an entry was made; adjourning over until 28th, when said order was made; it being insisted that the failure of a quorum on 27th effected an adjournment of the term, so that the action on 28th was not made in term time of said court.

That the tax of one eighth of one per cent. was not apportioned by said pretended levy according to law, and was not levied or ordered to be assessed upon property, and to be collected as an ad valorem tax; wherefore its collection was unauthorized.

That the special tax of one tenth of one per cent. was assessed for interest and sinking fund on county bonds, issued in funding the county indebtedness, under special act of the Legislature, approved November 27, 1871, as follows:

“ Be it enacted by the Legislature of the State of Texas, That the County Court of Galveston county is authorized to issue, from time to time, interest-bearing and coupon bonds, for such sums and in such amounts, payable at such time, as such court may deem proper: Provided, That the bonds hereby authorized shall be issued only for the purpose of funding the present outstanding indebtedness of said county of every character whatsoever due and to be due when such bonds are issued. Said court shall, at the time of ordering such issue, also provide for the payment of the interest on said bonds, and a sinking fund to meet the principal under the laws now in force.”

It was alleged that this act did not confer the right to levy a tax, as was done on the issuance of said bonds.

That the defendant was threatening to enforce the collection of said taxes, by seizure and sale of property, &c.

It was also alleged, that the consolidated tax-roll, upon which the taxes were claimed, was defective in that, under the headings of values and taxes, throughout, there was no indication of what the figures expressed, whether dollars, cents, or other denomination of money.

The defendant demurred, and pleaded the legality of his right to collect the taxes.

Judgment was rendered, refusing an injunction, and plaintiffs appealed. The appeal bond was signed by three of the appellants as sureties.

On the trial, in addition to the proceedings set out above, of the County Court, the order of the said court providing for the issuance of the funding bonds was read, in which is the following: “It is further ordered, that to provide for the interest on said bonds, and a sinking fund for the principal thereof, a special ad valorem tax of one tenth of one per cent. is hereby levied on all the property, real and personal, subject to taxation by this court, within Galveston county, to be assessed and collected, as and when other county taxes are assessed and collected”--the order bearing date December 29, 1871.

The consolidated tax-roll was given in evidence, and in connection therewith the original inventories and assessments of the property from which the consolidated roll was compiled. J. M. O. Menard testified that he was employed by the County Court, and compiled the tax-rolls for 1875, and testified that the figures in said consolidated tax-roll, under the head of values and taxes, &c., represented the value of the property and the amount of each person's taxes, and were intended to mean, and do mean, money in dollars and cents. The approval by the County Court of the consolidated tax-roll was also shown.

L. E. Trezevant, for appellants.--The County Court of Galveston county held a regular term on the 25th of January, 1875; present, the presiding justice and two associate justices; transacted some business, and adjourned to the 27th inst.

The court did not convene on the 27th instant, the presiding justice and one associate only being present. On the 28th instant, the court convened; present, a quorum; and levied the taxes in question, to wit, an ad valorem tax of one fourth of one per cent. for general county purposes; a special tax of one tenth of one per cent. to pay county indebtedness; a tax of one eighth of one per cent. for funding county scrip.

The tax of one fourth of one per cent. was levied under the tax-act of June 3, 1873.

The tax of one tenth was levied under the special act set out in plaintiffs' petition. (See Special Laws, 12th Leg., 2d sess., 118.)

The tax of one eighth was levied under the act to authorize counties to raise means to pay their indebtedness. Approved May 1, 1874. (Gen. Laws, 14th Leg., 189.)

The County Court did not levy a poll tax.

Plaintiffs allege that the value of their property in money and the amount of their taxes in money is not set forth upon any assessment roll of taxes, or assessed against them.

Appellants submit the following propositions:

1st. The January Term, 1875, of the County Court expired on the 27th January, 1875, and the levy of the taxes on the 28th of January, 1875, was a nullity.

2d. The special act did not authorize the levy of a tax.

3d. The tax of one eighth, or funding tax, was not apportioned as directed by the statute, and was not levied or ordered by the County Court to be assessed and collected as a tax upon property.

4th. The figures on the pretended assessment roll of taxes do not indicate money.

First, as to the validity of the levy by the County Court, on the 28th of January, 1875. The statute declares that no county tax shall be levied by the County Court, unless at some one of the regular terms. (Gen. Laws, 2d session, 1871, page 56.) This statute prescribes that a regular term of the County Court shall commence and be held on the last Monday in January, March, May, July, September, and November in every year; and that such terms shall be held by the presiding justice, with the assistance of any two or more of the other justices.

The Constitution of 1869, article 5, section 20, declares that the justices of the peace in each county, or any three of them, shall constitute a court, having such jurisdiction, etc., and when sitting as such court, the justice who resides at the county seat shall be the presiding justice.

It will thus be seen that the County Court is constituted of not less than three of the justices; that regular stated terms of the court are designated; that such terms shall be held by the presiding justice with the assistance of any two of the other justices; that no county tax shall be levied unless at some one of the regular terms.

The taxes in question were either levied at the January Term, 1875, by a court having jurisdiction, or the proceedings were coram non judice, and void.

The question, then, is, was the levy of the taxes in question, on the 28th day of January, 1875, made at a regular term of the County Court?

It is important to bear in mind that the authority conferred upon the counties to impose burdens of any character upon persons or property is merely statutory, and that as its exercise may result in a divestiture and transfer of private property, this authority must be clearly given and strictly pursued. (Dillon on Mun. Corp., sec. 605.)

Possessing, as these public corporations do, a delegated power of assessment and sale of private property, often wielded by the indiscreet and the selfish, the grossest abuses would inevitably follow, if they were not held strictly within the powers granted and the means prescribed for the execution of these powers. (Per Stuart, J., in Kyle v. Malin, 8 Ind., 34.)

The County Court being regularly in session on the 25th day of January, 1875, adjourned regularly to meet on the 27th day of January, 1875. The court did not meet on the 27th January, 1875; no court was then in session; R. D. Johnson and Hugo Brosig, the only two members of the court present on the 27th January, did not constitute the court; had no power to perform the functions of a court; had no power to transact any business or to do anything ou the 27th day of January, which a court might do, as, for instance, to make an order that the court do adjourn to some certain day; as well might the clerk or sheriff assume to...