Sam Bassett Lumber Co. v. City of Houston, A-926.

• Decision Date: 15 January 1947
• Docket Number: No. A-926.,A-926.
• Citation: 198 S.W.2d 879
• Parties: SAM BASSETT LUMBER CO. v. CITY OF HOUSTON.
• Court: Texas Supreme Court

Page 879

198 S.W.2d 879

SAM BASSETT LUMBER CO. v. CITY OF HOUSTON.

No. A-926.

Supreme Court of Texas.

January 15, 1947.

Rehearing Denied February 12, 1947.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by the City of Houston against Sam Bassett Lumber Company to recover a personal judgment for city and school taxes. To review a judgment of the Court of Civil Appeals, 194 S.W.2d 114, affirming a judgment on an instructed verdict for the plaintiff, the defendant brings error.

Reversed and remanded with directions.

Bracewell & Tunks and J. S. Bracewell, both of Houston, for petitioner.

Lewis W. Cutrer, City Atty., and Abe Levy, Asst. City Atty., both of Houston, for respondent.

FOLLEY, Justice.

This is a suit for taxes by the City of Houston against the petitioner, Sam Bassett Lumber Company, for city and school taxes for the years 1933 and 1934, and 1936 to 1944 inclusive. The city sued for itself and in behalf of the Houston Independent School District, as it is authorized by law to do. Upon a directed verdict the city recovered judgment for the full amount of the taxes, which judgment was affirmed by the court of civil appeals. Tex.Civ.App., 194 S.W.2d 114.

The petitioner presented three defenses against the collection of the taxes, namely: (1) That the tax assessments by the city upon the goods, wares and merchandise of the lumber company were discriminatory and invalid because certain other personal properties of the citizens of Houston, such as household furniture, bank deposits, stocks, bonds and notes, were omitted generally from the assessment rolls; (2) that because of its charter provision authorizing delinquent taxpayers to plead the four-year statute of limitations the city was without authority to sue for taxes which were delinquent more than four years before the suit was instituted; and (3) that the school taxes for 1933 were barred by limitation under article 7298, Vernon's Ann.Civ.St., which was amended in 1931 so as to allow the 10-year statute to be pleaded against a suit for the collection of taxes due a school district. Each of these contentions was overruled by the trial court and the court of civil appeals.

The court of civil appeals held that the right of a property owner to relief against an assessment made in violation of the constitutional guaranty of equality of taxation is limited to the excess over and above the amount properly assessable on an equality basis, which is the limit expressly fixed in subdivision 3 of article 7329, Vernon's Ann.Civ.St. We agree with this conclusion. It is settled that "the government does not lose its right to taxes justly owing on one parcel of property, by reason of the failure of its officers, either negligently or designedly, to assess other property that is likewise taxable." City of Wichita Falls v. J. J. & M. Taxman Refining Co., Tex.Civ.App., 74 S. W.2d 524, 530, writ refused; Howth v. City of Beaumont, Tex.Civ.App., 118 S.W. 2d 350; Lubbock Hotel Co. v. Lubbock Independent School District, Tex.Civ.App., 85 S.W.2d 776. Thus, the fact that other property in the city was not assessed for taxation presents no defense to the suit against the petitioner for taxes not shown to be within themselves excessive.

The court of civil appeals also held that petitioner was not entitled to plead the four-year statute of limitations against the collection of a portion of the taxes although the city charter provides "that any delinquent taxpayer shall have the right to plead in any court and to rely as a defense upon the statute of limitation of four years in any suit brought for taxes alleged to be due the City of Houston." The court was of the opinion that such charter provision was invalid because it is in conflict with the general law of this state. In this holding the court of civil appeals was also correct. A like provision of the charter of the City of Beaumont was declared invalid by this court in City of Beaumont v. Fall, 116 Tex. 314, 291 S.W. 202, because it was in contravention of articles 7298 and 7329, which specifically deny a delinquent taxpayer the right to plead any statute of limitations by way of defense against the payment of any taxes due the state, or any county, city or town.

However, we are not in accord with the conclusion of the court of civil appeals that the ten-year statute of limitations was not available as a defense against the collection of the school taxes for the year 1933. The holding was predicated upon the theory that the 1931 amendment to article 7298, allowing the ten-year statute of limitations to be pleaded against the collection of school taxes, was invalid because in violation of the provisions of section 55 of article 3 of the Constitution of Texas, Vernon's Ann.St., as it existed in 1931 and before the same was amended in 1932.

Before the 1932 amendment the section of the Constitution in question read as follows: "The Legislature shall have no power to release or extinguish, or to authorize the releasing or extinguishing, in whole or in part, the indebtedness, liability or obligation of any incorporation or individual, to this State or to any county * * * or other municipal corporation therein."

By the amendment adopted November 8, 1932, there was added to such section the following: "except delinquent taxes which have been due for a period of at least ten years."

Prior to 1929 what is now article 7298 provided only that no delinquent taxpayer should have the right to plead limitation against the payment of taxes due from him to "the state or any county, city or town." Gen.Laws Sp.Sess.1879, p. 15; Acts 1895, 1st C.S. p. 6; G.L.Vol. 10, p. 1052. It was amended in 1929 to also include various other taxing units which are mentioned in the present law, and provided a limitation period of six years for suits for the collection of taxes of a school district or a road district. Acts 1929, 41st Leg., 2nd C. S. p. 161, ch. 81, section 1. It was again amended in 1931 which amendment merely changed the limitation period from six to 10 years in suits for delinquent taxes due school districts and road districts. Acts 1931, 42nd Leg. p. 419, ch. 252, Sec. 1.

The court of civil appeals said that by reason of the opinion of this court in Ollivier v. City of Houston, 93 Tex. 201, 54 S.W. 943, it was constrained to hold that the aforesaid section of the constitution, as it existed in 1931, prohibited the Legislature from authorizing a plea of limitation in suits by a school district, and, further, that the subsequent grant of such power by the 1932 amendment of the Constitution would not validate the amendment to article 7298 theretofore enacted by the Legislature. The latter question we need not determine since we are of the opinion the limitation provision in article 7298 was valid prior to the 1932 amendment of the Constitution. We also do not agree with the court of civil appeals in its interpretation of the holding of this court in Ollivier v. City of Houston, supra.

Article 7329 was enacted in 1923. Acts 2nd C.S.1923, p. 36. It is a general statute which provides that there shall be no defense to a suit for the collection of delinquent taxes except (1) that the defendant was not the owner of the land at the time the suit was filed; (2) that the taxes sued for have been paid; or (3) that the taxes sued for are in excess of the limit allowed by law, "but this defense shall apply only to such excess." On its face it appears to be in conflict with article 7298 relative to defenses permitted in tax suits. But since the provision of article 7298 making the defense of limitation available in tax suits by school and road districts is a specific enactment it must prevail over article 7329 dealing with the subject of defenses to tax suits generally. The general rule is that when the law makes a general provision,...