Moerschell v. City of Eagle Lake

• Decision Date: 11 November 1921
• Docket Number: (No. 8081.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 236 S.W. 996
• Parties: MOERSCHELL v. CITY OF EAGLE LAKE et al.
• Court: Texas Court of Appeals

236 S.W. 996

MOERSCHELL v. CITY OF EAGLE LAKE et al.

(No. 8081.)^*

Court of Civil Appeals of Texas. Galveston.

November 11, 1921.

Rehearing Denied January 19, 1922.

Appeal from District Court, Colorado County; M. Kennon, Judge.

Suit by the City of Eagle Lake against C. B. Barbe, receiver of the Lakeside Sugar Refining Company, who was later dismissed and Jacob W. Moerschell substituted as party defendant, wherein the Eagle Lake Independent School District intervened. Judgment for plaintiff and intervener, and defendant appeals. Affirmed.

Grobe & Miller, of Columbus, for appellant.

Emanuel Roos, of Eagle Lake, and Wurzbach, Wirtz & Weinert, of Seguin, for appellees.

GRAVES, J.

"This suit was brought by appellee, city of Eagle Lake, as plaintiff below, originally against C. B. Barbe, receiver of Lakeside Sugar Refining Company, who was later dismissed, and the appellant, Jacob W. Moerschell, substituted as a party defendant.

"Plaintiff sought the foreclosure of a tax lien on 50 acres of land and improvements described in the petition, alleging that it (plaintiff) was a municipal corporation, duly incorporated under and by virtue of the general laws of Texas relating to cities and towns of 1,000 inhabitants or over, and as such corporation had taken charge of the public schools within its limits prior to the year 1907, and continually had charge thereof from such date until the municipal school district was abolished by the act (Loc. & Sp. Laws 1913, c. 138), creating the Eagle Lake independent school district on July 21, 1913; that on September 3, 1907, plaintiff by ordinance duly passed, extended its limits for school purposes only; that the property on which the lien was sought to be foreclosed was outside the municipal limits, but within the limits of the district as extended; that the municipal district, including the extended territory, voted schoolhouse bonds, which were issued by the city and sold by it, and which are still outstanding, and levied a tax of 15 cents on the $100 valuation of all taxable property in the district to pay interest on such bonds and to create a sinking fund to retire them at maturity, which tax was levied and assessed against the property on which the lien was sought to be foreclosed during each of the years 1910, 1911, 1912, and 1913, during which years the Lakeside Sugar Refining Company was the owner of the property; that on May 4, 1912, this municipal district voted on itself a tax of not exceeding 50 cents on the $100 valuation of all taxable property of the district for the maintenance of its public schools, and that by virtue of the authority conferred by such vote an ad valorem tax of 30 cents on the $100 valuation was levied and assessed by the city of Eagle Lake for the year 1912, and 40 cents for the year 1913, on all taxable property of the district, including the property described in the petition. Plaintiff set forth in detail the different steps by which the territory was extended for school purposes, the bonds and maintenance tax voted, taxes levied and assessed, publication of the delinquent roll, amount assessed against the property, amount of taxes, interest, penalty, and costs due, and the statutory steps taken for the fixing and preservation of the tax lien. Defendant, Moerschell, was the owner of the property at the time he was made a party defendant to the suit. No personal judgment was sought against him, but only a foreclosure of the tax lien. The Eagle Lake independent school district intervened, alleging that it had succeeded to all the property and rights of the city of Eagle Lake district, and praying that the city of Eagle Lake be permitted to prosecute this suit for the benefit of the independent school district, or, in the alternative, that intervener be allowed to further prosecute the suit in its own name. By trial amendment, plaintiff alleged that the suit was brought for the benefit of intervener as to such part of the fund as it was entitled to receive, and asked that recovery thereof be for the benefit of intervener.

"The defendant, appellant herein, answered, by plea in abatement, that plaintiff could not maintain the suit but that it could only be maintained by intervener. Eagle Lake independent school district, by general and special demurrers, general denial, and special pleas, by which pleas he set forth the following defenses viz.: (1) That no proper election had been held subsequent to the extension of the corporate limits for school purposes which would authorize the levy and assessment of a maintenance tax; (2) that the intervener, Eagle Lake independent school district, had become legally established on April 21, 1913, so as to include all the territory of the old city district and had succeeded to all its rights and property, and that the old district had no authority to levy a tax for the year 1913, and that the taxes levied for the year 1913 exceeded the constitutional limits of 50 cents, and that by virtue of the establishment of such independent school district plaintiff had no further interest in the subject-matter of the suit; (3) that the extension of its boundaries for school purposes only by the city of Eagle Lake was void; and (4) that after such extension the city had no control over the schools and no authority to levy and assess taxes for school purposes.

"The cause was submitted to the court without a jury on an agreed statement of facts, and the court rendered judgment for plaintiff for a foreclosure of its tax lien on the property described for the payment of bond and sinking fund taxes for the years 1910, 1911, 1912, and 1913, and maintenance taxes for the year 1912, with penalty, interest, and costs thereon accruing, providing that such recovery as to maintenance taxes for the year 1912 should be for the benefit of intervener."

The statement thus given has been taken from the brief for the appellees filed in this court. The total amount for which the tax lien was so established and foreclosed was $2,049, with 6 per cent. per annum interest thereon from the date of the decree, $538.20 of which was adjudged to be for the benefit of the intervener, the Eagle Lake independent school district. Findings of fact in substantial accord with the preceding statement and conclusions of law were filed by the trial judge at the request of appellant, to the former of which no exceptions have been presented.

In this court, however, the judgment so rendered against him below is assailed by appellant as having been erroneous upon the law of the case for a number of reasons; the main ones being:

(1) That the power to maintain this suit lay in the trustees of the Eagle Lake independent school district, the intervener, and not in the plaintiff, city of Eagle Lake, for the reason that the city was without authority either to levy or collect any of the taxes recovered for after the abolishment of the old municipal school district and the creation of the intervener as its successor.

(2) That the city ordinance of September 3, 1907, whereby the city of Eagle Lake extended its corporate limits for school purposes only, in which extension appellant's property lay, and article 2883 of the Revised Statutes of Texas, by virtue of which this ordinance was passed, are in contravention of article 11, § 10, of the state Constitution.

(3) That this extension ordinance of September 3, 1907, was shown on its face to have been passed in obedience to a petition signed by a majority of the qualified voters of the entire district as extended, when it should have been upon the petition of a majority of the qualified voters of the added territory only.

(4) That the property involved had passed to appellant free of the tax lien so foreclosed against it by virtue of a receiver's sale of it to his predecessor in title.

(5) That the amount of the school taxes levied and assessed against the property for the years 1912 and 1913 exceeded the rate permitted by law.

(6) That no sufficient election to authorize the levy and assessment of the maintenance tax, interest, penalty, and costs, for the year 1912, recovered for had been held in the entire municipal school district in that the only election for that purpose ever held, the one of May 4, 1912, merely submitted to the voters the question of whether the ad valorem maintenance tax of, and not exceeding, 50 cents on the $100 valuation, which had theretofore, and prior to the extension of the limits of the district for school purposes in 1907, been voted, should be continued or discontinued, whereas the proposal should have been for or against the levy of such a tax.

(7) That the city was without authority to recover the penalties and interest awarded.

(8) That the ordinance under which the boundaries of the city were extended for school purposes only was not sufficiently pleaded.

These several contentions will be disposed of in the order given.

1. In so far as concerns the maintenance tax, the special act of the Legislature creating the Eagle Lake independent school district, which did not become effective as establishing the successor of the old municipal district until it had been ratified by vote of the inhabitants of the territory affected, expressly provided for its collection by the tax collector of the city; section 7 thereof being as follows:

"Section 7. That any tax levied for the year 1913, and any prior year, by the city council of the city of Eagle Lake for the maintenance of the schools of the independent school district of Eagle Lake, now uncollected, shall...