Norris v. City of Waco

• Citation: 57 Tex. 635
• Decision Date: 10 November 1882
• Docket Number: Case No. 1209.
• Parties: S. E. NORRIS v. THE CITY OF WACO.
• Court: Supreme Court of Texas

57 Tex. 635

S. E. NORRIS

v.THE CITY OF WACO.

Case No. 1209.

Supreme Court of Texas.

Nov. 10, 1882.

APPEAL from McLennan. Tried below before the Hon. B. W. Rimes.

Suit by injunction to restrain the collection of taxes. The bill charged:

1. Formal allegations.

2. That the city of Waco was incorporated on the 26th of April, 1871.

3. That prior to said last named date, the city had been incorporated, and at the said time had legal existence as a corporation.

4. At the time (26th of April, 1871) the city had a population of about five or six thousand inhabitants, and included within its corporate limits about one thousand acres of land, of which less than ten acres were used for business purposes, and less than half the remainder was used for dwelling-houses. A large part of the lands was not laid off into streets, lots and blocks, and a large part thereof, believed to be one-fourth, had not yet been so laid off, nor used for city purposes.

5. For some time prior to the passage of the said act of incorporation there was another charter corporation, styled The Waco & Northwestern Railroad Company, then and before engaged in constructing its road from the town of Bremond, in Robertson county, to Waco city, and in order to facilitate it in the construction of its said road, its officers and agents had insisted that the citizens in and about Waco should subscribe for stock in said corporation, and, among others, James M. Norris, now deceased, then the husband of complainant, was importuned to so subscribe, he then living outside the corporate limits of said city, and owned about three hundred and sixty acres of land outside said limits, but near thereto. He and others living near said city declined all said solicitations.

6. The said railroad company was, about the date of the act reincorporating said city, exhausted of means, and the construction of said road was about to cease for want of funds.

7. For the purpose of raising funds, the officers and agents of said railroad company, with the countenance of other citizens of the city, conceived the idea of obtaining for the city a new charter from the legislature, largely extending in area the corporation limits, and introducing into the charter a provision, under which, on certain terms, the corporation so established should have the right to subscribe for stock in said railroad corporation, and pay the same with bonds of the city, to be issued for that purpose, for the redemption of which bonds, and the interest to accrue thereon, all the property within the city limits, as thus extended, was to be taxed.

8. The object thus conceived was carried out, so far as to procure the passage of the act mentioned, of date 26th of April, 1871, whereby the land of complainant was embraced in the corporate limits, which she alleged was for the sole purpose of subjecting it to taxation under forms of law to aid in raising money for the benefit of said railroad company, and for raising money to defray the ordinary expenses of the city government.

9. The extension of the limits of the city corporation more than trebled the acreage, including complainant's three hundred and sixty acres, in city limits, and that, too, when not one-half of the original area was being used for business, residences of the citizens, or city purposes.

10. At the date of said act, the Norris land consisted of three hundred and sixty acres, all enclosed, of which two hundred acres were in cultivation, planted in corn and cotton, and the remainder used as a pasture, and densely covered with large forest trees, such as grow in the valley of the Brazos river, which land has ever since remained under fence, and been used solely for the purposes aforesaid. It was the homestead of the said James M. Norris, and is now the homestead of complainant. There was no street or highway running through the land. No demand had ever been made by the city to open up streets through said land, or to lay it off in subdivisions.

11. There was between said three hundred and sixty acres and the business portion of said city a tract of about fifty acres, on which there are no business or dwelling houses, streets running through, nor subdivisions.

12. There is no use for said three hundred and sixty acres of land for city purposes; it can only be utilized as it now is, viz., for farming purposes.

13. The said J. M. Norris, in his life-time, was, and complainant since has been, willing to open said lands for city purposes whenever the necessities of the city should demand, but that to now lay off said lands into subdivisions, streets, etc., or to have done so heretofore, would have been and would now be only destructive of farming interests, with no benefit to the city….

15. Including said three hundred and sixty acres, there are now, inside the corporate limits of Waco, between seven hundred and one thousand acres of land actually cultivated in cotton, corn and other grain, and as much more unoccupied, and used for no purpose whatever….

19. By virtue of the said charter, 26th of April, 1871, soon after the passage thereof, said city subscribed for $100,000 of stock in said railroad company, and issued its bonds in payment therefor, payable in twenty years, interest at twelve per cent., payable semi-annually, and by ordinance provided for the payment of said interest and the redemption of the bonds by taxing all the property in the city limits as extended.

20. Said city has also, since and under said charter, provided for lighting the city by gas, protecting it against fire, and made other provisions for controlling and managing the city, in which complainant has no more interest than if she lived five miles in the country.

21. If complainant is forced to pay said taxes required of her by the ordinances of said city, it would be on her most grievous and oppressive, for which she will not receive the slightest advantages in return; on the contrary, the land would be depreciated in market value by the tax burden placed on it, with no corresponding advantages or benefit.

22. That so to enforce the payment of money by her in the shape of taxes, no compensation being returned, would be violative of her rights under the constitution of the state of Texas and of the United States.

23. Said charter was procured solely for the purpose of increasing the revenues of the city and aiding in the construction of said railroad, without regard to the rights of those whose lands were included in the extended limits, and when there were no city necessities for such inclusion….

25. Said property has been assessed by the assessor of said city for city taxes for the years 1874 and 1875, and the enforcement of said assessments is threatened. Said taxes so assessed amount to over $300; the collection of said taxes, as also said judgment, will be enforced unless such collection shall be restrained….

27. Since the land was embraced within the city limits, there has never been a city official on it on any business for the city, and no ordinance of the city is enforced on said premises, except that for the collection of taxes.

28. Prayer for injunction to restrain the city of Waco from the collection of taxes, both on the value of said land or any personal property owned by complainant, and for relief, general and special.

Temporary injunction was granted.

General demurrer filed by defendant November, 1876.

The demurrer was sustained and bill dismissed at cost of plaintiff, May 6, 1881.Jones & Kendall and Walton, Green & Hill, for appellant.--The assignments of error constitute, when combined, one proposition, which is: The court erred in sustaining defendant's general demurrer, and dismissing plaintiff's bill at her cost. Cheeney v. Hooser, 9 B. Mon., 330;Sharp v. Dunovan, 17 B. Mon., 223;Southgate v. Covington, 15 B. Mon., 491;Maltus v. Shields, 2 Met. (Ky.), 553; 2 Dillon on Corp., 794, 795; Courtney v. Louisville, 12 Bush (Ky.), 419;8 Bush (Ky.), 607;Langworthy v. Dubuque, 13 Iowa, 86;Fulton v. Davenport, 17 Iowa, 404;Durant v. Kaufman, 34 Iowa, 194; Bradstreet v. City of Omaha, 1 Neb., 16; Dissenting opinion of Agnew, Chief Justice, in Kelley v. City of Pittsburg, 5 Rep., 374; Cooley on Taxation, 104. Contra, see Martin v. Dix, 52 Miss., 53 (24 Am. Rep., 661); 1 High on Inj., 2d ed., § 547; Cypress Draining Co. v. Hooper, 2 Met., 350; Argebuist v. Louisville, 2 Bush, 37; Morford v. Urger, 8 Iowa, 85;Deeds v. Sanborn, 26 Iowa, 419;Dieman v. Ft. Madison, 30 Iowa, 542; Newark v. New Jersey, 13 Am. Law Reg., 441; Weisman v. Douglas, 64 N. Y., 90; Kelley v. City of Pittsburg, 5 Rep., 374.

Alexander & Wenter, for appellee.--The petition shows an exercise of legislative power in the extension of the territorial limits of a corporation, and the authorization of a uniform tax for a public use, that said power was exercised within constitutional bounds, and the judgment of the legislature is not subject to revision by the judicial power. San Antonio v. James, 28 Tex., 30;Martin v. Dix, 52 Miss., 53; Shunway v. Bennett, 19 Mich., 464; Kirby v. Shaw, 19 Pa. St., 258-61; Kelley v. Pittsburg, 85 Pa. St., 170; Cooley's Const. Lim., 118, 119, 167, 168, note 2, 170-73, 500, note 1, 192, 193; Durant v. Kaufman, 34 Iowa, 194; Dillon on Mun. Corp., 23-30; Id., 3d ed., 795-6; Turner v. Althaus, 6 Neb., 54; Cooley on Taxation, 119, 120; Potter's Dwarris, 415, 416.

STAYTON, ASSOCIATE JUSTICE.

This action was brought by Mrs. Norris to enjoin the collection of taxes for the years 1874 and 1875, and to enjoin the collection of a judgment which the city of Waco had obtained against her for the taxes of 1873.

Pending the suit some taxes were paid by her under protest, and that fact was set up by amendment with a prayer for the recovery thereof.

It does not clearly appear whether all the taxes due at the time of filing the amendment were paid or not, but in considering the case we will regard such to be the...