Mellinger v. City of Houston

• Decision Date: 18 January 1887
• Citation: 3 S.W. 249
• Parties: MELLINGER and Wife v. CITY OF HOUSTON.
• Court: Texas Supreme Court

3 S.W. 249

MELLINGER and Wife v. CITY OF HOUSTON.

Supreme Court of Texas.

January 18, 1887.

Appeal from Harris county.

Action to recover tax due. Judgment for City of Houston, plaintiff. Defendants appeal.

E. P. Turner, for plaintiffs in error. S. Taliaferro, for defendant in error.

STAYTON, J.

This action was brought to recover taxes due to the city of Houston on lots owned by the plaintiffs in error. The petition was filed on October 20, 1884, and sought a recovery of taxes levied for the years 1875, 1876, 1877, 1878, 1879, and 1880. The defendants purchased the property taxed in the year 1881. Under the charter of the city of Houston the recovery of taxes on real property is authorized by suit, and the taxes constitute a lien on the property taxed. In defense of the action the defendants pleaded the statutes of limitation of two and four years. The cause was tried without a jury, and the court below held that limitation did not run against the city. An assignment of error questions the correctness of that ruling.

In Galveston v. Menard, 23 Tex. 408, it was held that the statute of limitations could run against a municipal corporation, and that by adverse possession a claimant might acquire title to land which constituted a part of a public street. In Houston & T. C. Ry. Co. v. Travis Co., 4 Tex. Law Rev. 22, it was held that limitation would run against a county. The same ruling has been made in many cases in reference to rights and property held by municipal corporations for public use, or in trust for public purposes. City of Wheeling v. Campbell, 12 W. Va. 44; Evans v. Erie Co., 66 Pa. St. 228; School Directors v. Goerges, 50 Mo. 195; Lessee of Cincinnati v. First Presbyterian Church, 8 Ohio, 310; City of Cincinnati v. Evans, 5 Ohio St. 594; Knight v. Heaton, 22 Vt. 482; Varick v. Mayor, etc., of New York, 4 Johns. Ch. 54; Town of Litchfield v. Wilmot, 2 Root, 288; Armstrong v. Dalton, 4 Dev. 570; Rowan's Ex'rs v. Portland, 8 B. Mon. 259; Dudley v. Trustees of Frankfort, 12 B. Mon. 617; Clements v. Anderson, 46 Miss. 597; Peoria v. Johnston, 56 Ill. 51; City of Pella v. Scholte, 24 Iowa, 293.

In the case of City of Burlington v. Burlington & M. R. Co., 41 Iowa, 140, it was held that the statute of limitations would operate to bar a recovery of taxes levied by a municipal corporation. In disposing of the case it was said: "The right of the city to maintain this action can only be supported on the ground that the taxes are debts,—property held by it in its proprietary character. It appears in this action in that character, claiming to recover on the ground that the defendant is its debtor upon an obligation created by the assessment and levy of the taxes. In the debt thus created it has a right of property in its proprietary character."

In City of St. Louis v. Newman, 45 Mo. 138, it was held that the city was the substantial plaintiff, and that an action to recover a special tax levied for street improvement was barred by the statute of limitations, there being in force in that state no statute exempting municipal corporations from the operation of such statutes.

In the case of City of Jefferson v. Whipple, 71 Mo. 521, an action was brought by the city to recover taxes due, and to enforce a lien against the taxed property, and it was held that as to the city the action was barred by the statute of limitations. It appears from the opinion in that case that the city held, under the statute, no lien for taxes; but a lien for municipal taxes was given to the state, and that under the terms of the statute it might by suit enforce the lien. In an action by the state to enforce the lien it was held that limitation would not run; but this difference between an action by the state and one by the municipality to which the tax was due, was not based on the fact that in the action by the state a lien might be enforced, while this could not be done by the city; but was based on the fact that, as against a state, limitation does not run unless permitted by statute, while, as against a municipal corporation, it will run unless restrained by statute. This is evident from the opinion, which declares that "the statute cannot be pleaded to an action brought by the state for taxes, whether state and county, or to enforce a lien for delinquent city taxes. In an ordinary suit between the city and the individual against whom the taxes are assessed, the plea of the statute is a good defense. This presents an anomaly. The statute can be pleaded against the city, while in an action by the state to enforce the lien for the same taxes the statute is not a bar to the action. This seems to be the condition in which the legislature has left the subject, and it is not the province of this court to bring order and harmony out of this confusion and discord."

We see no real ground of distinction on which the operation of the statutes of limitation may be denied when the collection of municipal taxes is sought, and still recognized in other cases in which the subject-matter of litigation, held as a public trust or for public use, as directly and materially may affect the public welfare as does the collection of taxes. The general statutes of limitation do not exempt municipal corporations from their operation, and the courts have no power to do so upon mere grounds of expediency, or to avoid a seeming hardship.

The only inquiry remaining is as to the effect to be given to the sixteenth section of the act of July 4, 1879, (Gen. Laws Sp. Sess. 1879, p. 15.) That section provides that "no delinquent tax-payer shall have the right to plead in any court, or in any manner rely upon, any statute of limitation by way of defense against the payment of any taxes due from him or her, either to the state, or any county, city, or town." The manifest purpose of this statute was to deny to every person the right to defeat the collection of taxes through a plea of the statute of limitation, and it shows that such a statute was deemed necessary by the legislature to withdraw this right from the person indebted for taxes even to the state. It would seem that one who has purchased property incumbered with a lien for taxes should be deemed, as to such taxes, a delinquent tax-payer. Such a purchaser takes the property charged with the lien, and he cannot interpose any defense which his vendor might not had he continued to be the owner. It appears from the record that the taxes sued for were due at the end of the year for which they were levied; and the fourth subdivision of article 3203, Rev. St., is applicable to an action such as this, and fixes the period of limitation at two years. Under this the taxes due for the years 1875 and 1876 were barred at the time the act of July 4, 1879, was passed, but the other taxes claimed were not.

In the absence of constitutional restrictions upon the subject, it is almost universally accepted as a sound rule of construction that a statute shall have only a prospective operation, unless its terms show clearly a legislative intention that it shall have a retroactive effect. There is nothing in the statute before us to evidence the intention of the legislature to give a strictly retroactive effect to the statute under consideration, and it must be held to be a valid law, governing in all actions brought to recover taxes after its passage, against which some valid defense did not exist at the time it took effect. It is true that the statute does not in terms restrict its operation to such actions as might be founded on causes of action not barred by laws in force at the time of its passage, and that its broad and general language might make it applicable to all actions thereafter brought, even upon causes of action then barred; but, if the statute was in terms such as to require such a construction, we are of the opinion that the constitution of this state forbids such legislation.

There has been much controversy as to whether a statute giving a remedy for a debt barred by the statutes of limitation was not in violation of that part of the fourteenth amendment to the constitution of the United States which declares that no state shall "deprive any person of life, liberty, or property without due process of law," or in violation of equivalent constitutional provisions found in the constitutions of most of the states of this Union. That question was considered by the supreme court of the United States in the recent case of Campbell v. Holt, 6 Sup. Ct. Rep. 209, which arose under the forty-third section of article 12 of the constitution of this state, framed in 1868, which declared that the statutes of limitation should be considered as suspended from the twenty-eighth of January, 1861, until the acceptance of that constitution by the United States congress. In that case it was "held that in an action to recover real or personal property, when the question is as to the removal of the bar of the statute of limitations by a legislative act passed after the bar has become perfect, that such act deprives the party of his property without due process of law. The reason is that, by the law in existence before the repealing act, the property has become the defendant's. Both the legal title and the real ownership had become vested in him, and to give the act the effect of transferring this title to plaintiff would be to deprive him of his property without due process of law." The court, however, declared "that to remove the bar which the statute of limitations enables a debtor to interpose to prevent the payment of his debt stands on a very different ground," and held that the constitutional provision then under consideration, in so far as it removed the bar of the statute as to matters of debt, was valid.

It may be conceded under that decision — and we do not wish to be understood as questioning its correctness — that the statute under consideration, if required to be construed as a retroactive law, would not...