Ripley v. Trinity River Canal and Conservancy Dist.

• Decision Date: 02 November 1935
• Docket Number: No. 12154.,12154.
• Citation: 88 S.W.2d 752
• Parties: RIPLEY et al. v. TRINITY RIVER CANAL AND CONSERVANCY DIST. et al.
• Court: Texas Court of Appeals

88 S.W.2d 752

RIPLEY et al. v. TRINITY RIVER CANAL AND CONSERVANCY DIST. et al.

No. 12154.

Court of Civil Appeals of Texas. Dallas.

November 2, 1935.

Rehearing Denied December 7, 1935.

Appeal from District Court, Dallas County; Towne Young, Judge.

Injunction suit by George A. Ripley and others against Trinity River Canal and Conservancy District and others, wherein other property owners of the district intervened. From a judgment denying temporary injunctive relief, plaintiffs appeal.

Reversed and rendered.

John W. Pope, Sr., of Dallas, for appellants.

Renfro & McCombs, of Dallas, and Ireland Hampton, S. J. Callaway, and Rob't C. Pepper, all of Fort Worth, for appellees.

LOONEY, Justice.

George A. Ripley and R. C. Hickey, resident electors of the city of Dallas and of the Trinity River Canal and Conservancy District, Dallas County, and owners of taxable property embraced within the boundaries of said district, brought this as a class suit for themselves and others similarly situated, against the district, its directors and the tax collectors of the counties of Dallas and Tarrant, also serving the district in that capacity, seeking injunctive relief, temporary and permanent, to restrain the collection of a tax of one cent on each $100 assessed valuation of property in said district. Other qualified property taxpaying electors of the district, residents of both Tarrant and Dallas counties, intervened by leave of the court, adopted as their own the allegations of plaintiff's petition, and sought the same relief. On hearing, the court denied the temporary relief sought, from which plaintiffs appealed.

Plaintiffs contended below, and contend here, that the tax levied by the directors of said district, and being collected, was and is void. This contention is based on a number of grounds that we do not deem necessary to discuss, but as it is revealed that the tax was levied July 16, 1935, by the pre-election directors of the district, to raise funds with which to pay certain debts and obligations, ostensibly against the district; previously incurred by said directors, thus presenting for decision this question: Were these pre-election directors authorized to create debts or contract obligations against the district, and/or levy a tax on all taxable property within the district for their payment? If yea, the court below correctly refused the temporary writ; if nay, the court erred in refusing the temporary relief sought, and in such event it would be our duty to grant such relief.

At the outset this question is presented: Defendants urged in a plea filed in the court below, and insist upon the proposition here, that plaintiffs do not possess legal capacity or the right to bring or maintain this action, because in effect it is a collateral attack upon the integrity of the district, and that such an action can only be brought and maintained by the state, or under its authority. This position is untenable. The suit is not an attack upon the pre-election status or existence of the district, nor does it call in question the right of the district to act as such, but simply challenges the validity of the act of the pre-election directors levying the tax, for want of power to create debts and/or levy taxes on property embraced within the district. Our courts have repeatedly held that an injunction will issue to restrain the collection of taxes levied and assessed without authority of law. Davis v. Burnett, 77 Tex. 3, 13 S.W. 613; Court v. O'Connor, 65 Tex. 334; Kerr v. City of Corsicana (Tex.Civ.App.) 35 S.W. 694, 697, affirmed by the Supreme Court, 89 Tex. 461, 35 S.W. 794; Whitham & Co. v. Hendrick (Tex.Civ.App.) 1 S.W.(2d) 907.

The Trinity River Canal and Conservancy District was created by the 42d Legislature at its Regular Session in 1931 (see chapter 161, Special Laws, pp. 313-318), embracing within its boundaries the areas of the cities of Dallas, Dallas county, and Fort Worth, Tarrant county, and a strip of land embracing the Trinity River connecting these cities. The act is quite lengthy, but its pertinent provisions are easily segregated and readily understood.

The district was not created full panopliedly by the Legislature, but it did establish instantly its pre-election status, and named the directors to serve for that period. The emergence, whether or not of the district from its pre-election or initial status, into a "preliminary" or secondary status, and from that into a permanent or final status, was made to depend upon the approving votes of the qualified electors of the district at elections authorized by the act. As originally provided, it was the duty of the pre-election directors, within 180 days next after the effective date of the act, to order such an election; but by an amendment, effective September 29, 1931, they were authorized to order the election at any time prior to December 31, 1935, submitting to vote of qualified electors "the following issue, viz.: Approving creation of the district and the levy of a preliminary tax of not to exceed two cents (2c) on each One Hundred Dollars ($100) of assessed values, and contrarily, `For dissolution of the district,'" and also at said election nine directors were to be selected to serve as "preliminary" directors, if the voters, by a majority vote, approved the creation of the district and, in such event, i. e., the approval of the district, and only in such event, would the district be entitled to exercise the powers conferred by the act; contrarily, the act provides that, "If at such election a majority of the electors voting therein vote `For dissolution of the district,' it shall be so" (see subdivision (b), § 3, as amended at the Second Called Session of the 42d Legislature, chapter 6, pp. 12-14, printed Session Acts). Pursuing the matter further, the act provides that, if the electors approve the creation of the district, the preliminary directors elected at the same time could enter upon promotion work, such as having surveys and expert investigations made and data gathered, with the end in view of selling the proposition to the federal government. The transition of the district from the preliminary to a permanent or final status, or contrarily to a final dissolution, is described in subdivision (c) of section 6, as follows: "The time during which the herein provided preliminary directors or their appointed successors shall serve, shall be until such time as the Federal Government shall have approved the construction of said Canal, under a proposed contract with the district, and said contract shall have been approved or rejected by a vote of the electors of said district. It is provided, however, that all Directors shall serve until such time as their successors shall have been duly chosen and qualified. At such time as the Federal Government may have proposed a contract with said District, and at the same time, when the same is submitted to the electors of the District for approval or rejection, it shall be the duty of the preliminary board hereby provided to include in the election the choice of Directors to control said District, if any such contract shall have been approved by the electors of the District. After any...