Town of Pleasanton v. Vance

• Decision Date: 08 March 1928
• Docket Number: (No. 2121.)
• Citation: 4 S.W.2d 247
• Parties: TOWN OF PLEASANTON v. VANCE.
• Court: Texas Court of Appeals

4 S.W.2d 247

TOWN OF PLEASANTON v. VANCE.

(No. 2121.)

Court of Civil Appeals of Texas. El Paso.

March 8, 1928.

Error from District Court, Atascosa County; John M. Green, Judge.

Tax suit by the Town of Pleasanton against P. A. Vance. Judgment for defendant, dismissing the suit, and plaintiff brings error. Affirmed.

See, also, 277 S. W. 89.

W. M. Abernethy, of Pleasanton, and Dibrell & Mosheim, of Seguin, for plaintiff in error.

Powell & Green, of San Antonio, for defendant in error.

PELPHREY, C. J.

Plaintiff in error brought this suit in the district court of Atascosa county to recover delinquent taxes alleged to be due the town of Pleasanton by defendant in error for the years of 1918 to 1924, inclusive, amounting to $830.66. A general demurrer was sustained to the amended petition of plaintiff in error as to the years of 1918 to 1923, inclusive, but not as to 1924.

A special exception was urged by the defendant in error to the petition, and particularly as to the tax schedules, because the petition and schedules failed to show the amount of taxes claimed to be due on each separate tract or lot.

This exception was also sustained by the court, and, upon plaintiff in error refusing to amend, the suit was by the court dismissed.

From the action of the trial court in sustaining the general demurrer and special exception and the order of dismissal, the town of Pleasanton has brought the case to this court by a writ of error.

Opinion.

Plaintiff in error based its right to recover the taxes sued for on two theories: (1) That the taxes accrued by virtue of an ordinance of the city council of the town of Pleasanton, Tex., passed at the regular meeting held on the 7th day of December, 1925; or (2) that it was entitled to recover from defendant in error by virtue of a special act of the Fortieth Legislature (c. 233) of the state of Texas, known as House Bill No. 644.

The ordinance which plaintiff in error depends on reads as follows:

"Whereas, this city council having been brought to a knowledge that its levy of taxes for the years 1917, 1918, 1919, and 1920 have been declared invalid by a decision of the proper courts of this state by reason of a failure on the part of the council to comply strictly with the requirements of the laws in such cases made and provided, and said levies are therefore not of such binding effect as to create the statutory lien upon lots and lands situated within the corporate limits of the town of Pleasanton, and it further appearing to the council that, in levying taxes for the years 1921, 1922, 1923, the laws relating to the levy of taxes by cities and towns have not been strictly complied with, and that, therefore, the taxes so levied for said years are also invalid:

"Therefore, be it ordained by the city council of the town of Pleasanton, That the levies of taxes on real estate by the city council of the town of Pleasanton for the years 1917, 1918, 1919, 1920, 1921, 1922, and 1923, upon lots and lands situated within the corporate limits of said town, be and they are hereby canceled as to all taxes now remaining unpaid; and,

"Be it further ordained that all city taxes heretofore fully paid in accordance with the levies, for said years 1917, 1918, 1919, 1920, 1921, 1922, and 1923, be and are hereby accepted by the city council in full payment and settlement of all claims for city taxes against the property for which said taxes were paid for said years or any of them; and

"Be it further ordained by the council that W. M. Abernathy be and he is hereby authorized, empowered, and directed to make a list in triplicate showing a complete description of all real estate situated within the corporate limits of the town of Pleasanton, subject to taxation, upon which the taxes for the years 1917, 1918, 1919, 1920, 1921, 1922, and 1923 remain unpaid, and present such list to this city council for its inspection and approval."

As we view the above ordinance, it neither makes nor attempts to make any levy upon the property involved in this suit. It merely attempts to cancel the invalid levies theretofore made, and does not even attempt to fix any rate of taxation on the property upon which taxes at that time remained unpaid. There being no levy made, the petition, in so far as it alleges a cause of action by virtue of such ordinance, is subject to a general demurrer, and the court's action in sustaining the demurrer to that part of the petition was correct.

Plaintiff in error sets out in its petition the special act of the Fortieth Legislature, but nowhere in its petition alleges the amount or amounts due it under the invalid assessments which the Legislature by the act referred to attempts to validate.

If plaintiff in error expects to recover upon the invalid levies previously made and subsequently validated by the Legislature, the amounts due under such invalid levies would necessarily need to be alleged and proved.

The schedules incorporated...