State v. Glenn

• Decision Date: 06 February 1929
• Docket Number: (No. 1162-5136.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 13 S.W.2d 337
• Parties: STATE for DALLAS COUNTY BOIS D'ARC ISLAND LEVEE DIST. v. GLENN.
• Court: Texas Supreme Court

13 S.W.2d 337

STATE for DALLAS COUNTY BOIS D'ARC ISLAND LEVEE DIST. v. GLENN.

(No. 1162-5136.)^*

Commission of Appeals of Texas, Section A.

February 6, 1929.

Certified Questions from Court of Civil Appeals of Fifth Supreme Judicial District.

Action by the State, for Dallas County Bois D'Arc Island Levee District, against Martin C. Glenn. Judgment was entered for defendant, and plaintiff appealed to the Court of Civil Appeals. On question certified from the Court of Civil Appeals. Question answered.

For opinion of Court of Civil Appeals, see 8 S.W.(2d) 1101.

Claude D. Bell, of Dallas, and Goree, Odell & Allen, of Fort Worth, for appellant.

McCormick, Broomberg, Leftwich & Carrington and Lee R. Stroud, all of Dallas, for appellee.

Statement of the Case.

CRITZ, J.

The Dallas County Bois D'Arc Island levee district was created under the provisions of chapter 44 of the General Laws of the Fourth Called Session of the Thirty-Fifth Legislature, commonly known as the Laney Act. There was duly assessed against the land belonging to Martin C. Glenn within the bounds of said district, for the benefit of said district, taxes for the years 1921 and 1922. These taxes respectively became due and payable on January 1, 1922, and January 1, 1923, and respectively became delinquent on February 1, 1922, and February 1, 1923, and are still unpaid. As shown by the certificate of the Court of Civil Appeals, there is no question as to a due compliance with the provisions of law governing the making of delinquent tax lists covering taxes due in and for said district remaining unpaid for said years, of the filing and approving of said lists, and the giving of due notice thereof.

On December 31, 1925, the state of Texas, for the use and benefit of said levee improvement district, and said district in its own behalf, instituted this suit in a district court of Dallas county, Tex., against Martin C. Glenn, to recover said taxes. The only defense urged by Glenn was the statute of two years' limitation, which statute was properly pleaded, and the fact that more than two years had elapsed since the taxes for each year had become delinquent was indisputably shown. The trial court sustained the plea of limitation and denied a recovery solely on such ground. An appeal was perfected by the levee district to the Court of Civil Appeals for the Fifth District at Dallas, with the result that that court reversed the trial court as to its holding on the statute of limitation, and rendered judgment on behalf of the levee district for the sum of $1,946.09, the amount of the taxes due for the two years, with interest at the rate of 6 per cent. per annum from date of the judgment in the lower court; no penalty being prayed for. 8 S.W.(2d) 1101.

On motion for rehearing, the Court of Civil Appeals withdrew the above opinion, and has certified to this court the following question:

"Does Article 8016, Rev. St. 1925, supra, and especially that provision of same, which declares that, "the collection of such delinquent levee improvement district taxes and sales of property therefor shall be governed by the laws applying to the collection of delinquent State and county taxes,' adopt by reference said Article 7298, supra, as well as the subsequent legislative enactment of said Article 7329, supra, and thereby deny to appellee the right to plead the statute of limitation as a defense in the instant suit?"

Opinion.

The only matter presented for our decision under the question certified is whether or not the appellant, the levee district, was exempt from the operation of the general statutes of limitation. If the levee district is exempt from such statutes, the question should be answered "Yes"; if not, it should be answered "No."

It is shown by the certificate that the levee district was organized under the provisions of chapter 44 of the General Laws of the Fourth Called Session of the Thirty-Fifth Legislature, commonly known as the Laney Act. One of the provisions of said act is section 42 thereof (article 8016, R. C. S. 1925), which reads as follows:

"Tax collectors of levee improvement districts shall perform all duties and exercise all powers in respect to delinquent taxes due levee improvement districts as may be provided by law for the collection of delinquent State and county taxes, and the collection of such delinquent levee improvement district taxes and sales of property therefor shall be governed by the laws applying to the collection of delinquent State and county taxes and foreclosure decree therefor shall include writ of possession. The supervisors are also given the power and authority to collect such delinquent taxes, and to institute and prosecute suits in the name of the district for their collection; and such districts are also authorized to do and perform all other things that may be necessary for the collection of such taxes. Taxes levied under this law shall be a first and prior lien upon all property against which they are assessed, and shall be payable and shall mature and become delinquent as provided by law for State and county taxes."

Now, if article 8016, by its terms, by reference, adopts and makes a part of said Laney Act, article 7298, or article 7329, R. C. S. 1925, or both, then the defense of limitation is not available; on the other hand, if neither of such articles are adopted, the defense of limitation is available. In our opinion, article 7329 is certainly not adopted if article 7298 is not, and we will discuss the case principally from the standpoint as to whether article 7298 is adopted, though what we say also applies to article 7329.

Article 7298 is as follows:

"No delinquent tax payer shall have the right to plead in any court or in any manner rely upon any statute of limitation by way of defense against the payment of any taxes due from him or her either to the State, or any county, city or town."

Article 7329 is as follows:

"There shall be no defense to a suit for collection of delinquent taxes, as provided for in this chapter 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."

The Court of Civil Appeals at Dallas, in Dallas County Levee Imp. Dist. No. 6 v. Curtis, 287 S. W. 301, decided June 19, 1926, and Dallas County Levee Imp. District No. 6 v. Unknown Heirs of Harris, 295 S. W. 293, decided April 30, 1927, held that, under said article 8016, supra, the defense of limitation was not available in suits for taxes under the Laney Act; and the Court of Civil Appeals at Texarkana, in Thomas v. Dallas County Levee Imp. District No. 6, 7 S.W.(2d) 639, decided May 3, 1928, held to the same effect. On the other hand, the Court of Civil Appeals at El Paso, in Prudential Ins. Co. v. Dallas County Levee District No. 3, 296 S. W. 974, decided May 26, 1927, held to the contrary; that is, in the last-mentioned case, it was held that said Laney Act did not by virtue of said article 8016 exempt such district taxes from the general statutes of limitation, citing the opinion of this Commission in the Rutledge Case mentioned later herein. The Supreme Court, on May 23, 1928 refused writ of error in the Prudential Case, though the application was based on the above conflicts; the reason for such refusal being shown later.

Without going into any extended discussion of the reasons, we are of the opinion that the question here certified is foreclosed and settled by the Supreme Court itself, in an opinion by Chief Justice Cureton, on motion for rehearing in Rutledge et al. (Lemond et al.) v. State, etc., 7 S.W.(2d) 1071. The original opinion in the Supreme Court in the Rutledge (Lemond) Case was written by Judge Bishop of this Section of the Commission, and the judgment therein recommended adopted March 9, 1927, before the writ was refused in the Prudential Case, and is found at 292 S. W. 164, and the opinion of the Court of Civil Appeals at 287 S. W. 302.

It is true the Rutledge Case is brought under the provisions of chapter 146, General Laws of the Thirty-Fourth...