Morris v. City of Conroe

• Decision Date: 10 March 1932
• Docket Number: No. 2198.,2198.
• Citation: 47 S.W.2d 690
• Parties: MORRIS v. CITY OF CONROE.
• Court: Texas Court of Appeals

47 S.W.2d 690

MORRIS v. CITY OF CONROE.

No. 2198.

Court of Civil Appeals of Texas. Beaumont.

March 10, 1932.

Rehearing Denied March 30, 1932.

Appeal from District Court, Montgomery County; Thos. B. Coe, Judge.

Action by the City of Conroe against A. W. Morris. From a judgment in favor of plaintiff, defendant appeals.

Judgment affirmed.

A. W. Morris, of Conroe, for appellant.

Geo. B. Darden, of Anahuac, and Poage & Neff, of Waco, for appellee.

WALKER, J.

This was an action by appellee against appellant for the recovery of delinquent taxes. It is conceded by all parties that the tax levy upon which rests appellee's claim for the taxes sued for was void because made by appellee by resolution and not by ordinance, as provided by law. Articles 1012, 1026, and art. 1027, R. S. 1925; City of Liberty v. Llewellyn (Tex. Civ. App.) 15 S.W.(2d) 713; Corpus Juris, vol. 43, p. 526, § 812; Earle v. City of Henrietta, 91 Tex. 301, 43 S. W. 15; Peoples' National Bank v. City of Ennis (Tex. Civ. App.) 50 S. W. 632; Town of Pleasanton v. Vance (Tex. Com. App.) 277 S. W. 89; Vance v. Town of Pleasanton (Tex. Civ. App.) 261 S. W. 457; Wood v. City of Galveston, 76 Tex. 126, 13 S. W. 227. But after the levy was made the Forty-Second Legislature, by House Bill No. 787 (chapter 322), validated tax levies made by cities and towns "where made and adopted by resolution, motion or other informal action instead of having been made by ordinance." Under this act the lower court rendered judgment against appellant in appellee's favor for the taxes sued for.

The question presented by the appeal is the constitutionality of this validating act. We think the act should be sustained as constitutional. In Cromwell v. MacLean, 123 N. Y. 474, 25 N. E. 932, 935, the Court of Appeals of New York said: "In cases where the proceedings have been such that the citizen has had his chance to be heard before the tax was finally imposed but nevertheless defects have been discovered in such proceedings, if the thing omitted and which constitutes the defect be of such a nature that the legislature might by prior statute have dispensed with it, or if something had been done, or done in a particular way, which the legislature might have made immaterial, the omission or irregular act may be cured by a subsequent statute. This was so stated, and in substantially identical language, in Ensign v. Barse, 107 N. Y. 329, 14 N. E. 400, and 15 N. E. 401. Such act might take away from the tax-payer a defense to the further proceedings against him to collect the tax, which he otherwise would have had. Tifft v. City of Buffalo, 82 N. Y. 204."

Discussing the constitutionality of such legislation in Terrel v. Wheeler, 123 N. Y. 76, 25 N. E. 329, the same court said: "After our decision in the case of Brevoort v. City of Brooklyn, 89 N. Y. 128, holding that certain tax impositions were void on account of defective verifications of the assessment rolls by the assessors, the legislature passed the act, chapter 363, of the Laws of 1882, confirming the taxes theretofore imposed, and thereafter no tax in Kings county assessed before the passage of that act could be assailed on account of any irregularity. The taxes were not invalid for want of jurisdiction to impose them, nor because any constitutional right of the tax-payer had been disregarded or violated, but they were invalid because the law had not been strictly pursued in their imposition, and hence there was legislative competency to cure the defects and to confirm them. Clementi v. Jackson, 92 N. Y. 591; Ensign v. Barse, 107 N. Y. 329, 14 N. E. 400, and 15 N. E. 401; Williams v. County of Albany, 122 U. S. 154, 7 S. Ct. 1244 ."

A similar act was sustained as constitutional on authority of the cases just cited in Smith v. City of Buffalo, 90 Hun, 118, 35 N. Y. S. 635, 640. In that case the resolution authorizing the assessment of the taxes was adopted in 1890. The validating act was passed by the Legislature of the State of New York in 1892. The court said: "After the passage of the act, no taxpayer could successfully resist the payment of his tax on the ground of irregularities existing at the time of its passage." The Court of Appeals of New York took jurisdiction of that case and, in disposing of the constitutional question, said: "As there was no want of jurisdiction to impose the tax, and no constitutional right of the taxpayer was invaded, the plaintiffs are not entitled to have the assessments upon their property set aside on account of irregularities existing on the 27th of April, 1892, when a curative act of the legislature took effect, which expressly ratified and confirmed all...