Oakley v. Kent

• Decision Date: 09 June 1944
• Docket Number: No. 2454.,2454.
• Citation: 181 S.W.2d 919
• Parties: OAKLEY et al. v. KENT et al.
• Court: Texas Court of Appeals

Page 919

181 S.W.2d 919

OAKLEY et al. v. KENT et al.

No. 2454.

Court of Civil Appeals of Texas. Eastland.

June 9, 1944.

Appeal from District Court, Jefferson County; W. S. Nichols, Judge.

Suit by M. W. Oakley and others against W. W. Pat Kent and others for a permanent injunction to restrain defendants from carrying on the affairs of Jefferson County under Senate Bill No. 262 and for declaratory judgment construing such bill to be unconstitutional. From an adverse judgment plaintiffs appeal.

Reversed and judgment rendered for plaintiffs.

Barnes & Barnes and C. A. Lord, all of Beaumont, for appellants.

Shelby K. Long, Earl Black and Lamar Cecil, all of Beaumont, and Quentin Keith, of Port Arthur, for appellees.

LESLIE, Chief Justice.

M. W. Oakley, D. A. Daigle and B. E. Quinn, resident taxpaying citizens of Jefferson County, instituted this suit against W. W. Pat Kent, County Judge of said County, R. Clyde Black, H. O. Mills, Louis Welch, and Frank Helmke, County Commissioners, and also against Jefferson County, Dwight Morrison, County Treasurer, E. S. Foreman, County Auditor, and Glen Gute and Roy L. Michael, claiming to be deputy assessor-collector of taxes and purchasing agent, respectively, of Jefferson County since about June 1, 1943, and who were asserting they were officers of said county.

The plaintiffs sought a permanent injunction to restrain said county and officers from carrying on the affairs of the county under the provisions of Senate Bill No. 262, passed at the 48th Legislature (1943 Vernon's Texas Session Law Service, p. 382, Vernon's Ann.Civ.St. arts. 1580 note, 2350(8), 3902h), and also sought to have the District Court of that county enter a declaratory judgment construing said bill, which the plaintiffs allege is unconstitutional and void.

The defendants, except one, answered by general and special denials, special exceptions, etc., and contended for the constitutionality of the law. One of the commissioners, H. O. Mills, answered for himself and alleged that the matters of fact set forth in the plaintiffs' petition were true and correct and he adopted the same and joined in the contention that the bill is unconstitutional and void. His position in the suit was recognized as making common cause with the plaintiffs.

At the conclusion of the plaintiffs' testimony the court instructed a verdict in favor of the defendants and against the plaintiffs. From such order and judgment this appeal is prosecuted.

In the trial court the defendants in due order filed pleas in abatement and special exceptions to the same effect which at the outset challenged the authority of the appellants to bring and maintain this suit. Abatement was sought on the ground that from the plaintiffs' petition it was apparent they had failed to assert or allege any justiciable interest in the matters in controversy, and that they stood as mere individual citizens of Jefferson County without independent right to maintain the action. Defendants further excepted to the petition on the ground that the plaintiffs had not alleged that they had suffered any injury or damage by reason of the acts and things charged to the defendants and complained of in the petition.

Defendants further excepted to the plaintiffs' petition on the ground that the allegations that they would suffer irreparable injury and loss and had no adequate remedy at law was a mere conclusion of the pleader. When the evidence was all in defendants also called the court's attention to their motion to abate, since, as they contended, it became apparent therefrom that other counties were affected by the statute, namely, Bexar, Dallas, Harris and Tarrant, which were not made parties to the suit and the population of each such county exceeded 140,000 inhabitants.

Defendants' pleas in abatement and special exceptions were by the court overruled and exceptions taken by the defendant. However, the trial court instructed verdict in their favor and the specific reasons for such action is not reflected by the record.

The ruling and judgment of the trial court is attacked by several points of law, and points 1, 2, and 3 are briefed together and will be so considered here.

By point 1 the contention is made that the pleadings and the evidence conclusively show that Jefferson County and the commissioners court have recognized Senate Bill 262 and have adopted its provisions as being constitutional, and by their official acts said county and its commissioners court on June 1, 1943, proceeded under the provisions of said bill to carry on the affairs of the county in accordance therewith. That they then adopted provisions of Sec. 1 of said bill and raised the salary of each commissioner to the sum of $4,800 per annum. That they proceeded under the provisions of Sec. 3 of the bill and employed one "Deputy Assessor-Collector of Taxes" and fixed his salary at $3,600 per annum. That they also adopted the provisions of Sec. 4 of the bill and pursuant to its terms employed a "Purchasing Agent", whose salary they fixed at $3,600 per annum.

That it conclusively appears that all of said salaries have been and will continue to be paid out of the public funds of Jefferson County raised by taxation so that such funds have been and will continue to be expended without authority of law and in violation of the Constitution and laws of this state. That by reason of such acts the plaintiffs (shown to be resident taxpaying citizens of said county, as well as all others similarly situated therein) have sustained and will continue to sustain injuries as a result of the enactment and adoption of said Bill 262, which is unconstitutional and void. That by reason of the above facts and circumstances the plaintiffs are entitled to relief by permanent injunction as prayed for, and that the trial court erred in giving a peremptory instruction in favor of the defendants and entered judgment denying them any relief whatever.

Point 2 challenges said ruling of the trial court on the ground that the bill is wholly unconstitutional in that Sec. 3 thereof, having reference to the employment and payment of a deputy assessor-collector of taxes, applies only to counties having a population of 140,000 to 220,000 inhabitants, according to the 1940 Federal census, so that all other counties are excluded and Jefferson County only comes within such provision, and so the provision excludes counties of lesser or greater population from employment and paying a deputy assessor-collector of taxes, and for such reasons Sec. 3 is arbitrary and discriminatory and is but a local or special law passed under the guise of a general statute and violates Art. 3, Sec. 56 of the State Constitution, Vernon's Ann.St., forbidding the Legislature to pass any law regulating the affairs of any such county, creating offices or prescribing the power or duties of officers in counties.

Point 3 challenges the court's action in giving the peremptory instruction and refusing to enjoin the county treasurer and county auditor of Jefferson County from issuing, registering and paying the salary of the purchasing agent for said county according to the provisions of Sec. 4(a) of said bill, because the bill is unconstitutional in that Sec. 4(a), having reference to the creation and payment of a county purchasing agent, applies to the 1940 Federal census so that all other counties are excluded and Jefferson County only comes within such provisions and so counties of lesser or greater population are not permitted to exercise the power of appointing a purchasing agent. That by reason of such situation Sec. 4(a) is arbitrary and discriminatory and but a local or special law passed under the guise of the general statute and violative of Art. III, Sec. 56, forbidding the legislature passing any such law regulating the affairs of any such county, creating offices or prescribing the powers or duties of the officers in counties.

Plaintiffs Oakley, Daigle and Quinn, being resident property tax-paying citizens of Jefferson County and owners of real and personal property therein, brought this suit for themselves and other citizens similarly situated. Under the pleading and the testimony we think they had a right to do so and to challenge thereby the legality of the actions of said county and its officials with reference to their adoption and procedure under said senate bill. In support of our conclusion that these plaintiffs have such justiciable interest in the subject matter of the suit, we cite, among other authorities, Terrell v. Middleton, Tex.Civ.App., 187 S.W. 367, 369 writ refused 108 Tex. 14, 191 S.W. 1138, which held, in part, as follows:

"Appellee was seeking to prevent the diversion of taxes collected by the state, a portion, no matter how small, of which had been paid by appellee. Citizens are allowed to prevent, by injunction, the collection of illegal taxes, and the reasons for allowing them this power are no stronger than to allow restraint of an officer who seeks to expend the taxes when collected for an illegal or unconstitutional purpose. The diversion of the taxes after collection from legal purposes would be equally as injurious to the taxpayer as the collection of illegal taxes. In either event, the burdens of the taxpayer are increased. As said by the Supreme Court of the United States in Crampton v. Zabriskie, 101 U.S. [601], 609, 25 L.Ed. 1070, and quoted and approved by the Supreme Court of Texas in City of Austin v. McCall, 95 Tex. 565, 68 S.W. 791:

"`Of the right of resident taxpayers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county, or the illegal creation of a debt which they in common with other property holders of the county may otherwise be compelled to pay, there is at this day no serious question. * * * Certainly in the absence of legislation restricting the right to interfere in such cases to public officers of the state or county, there would...