Walker v. Meyers

• Decision Date: 26 November 1924
• Docket Number: (No. 4208.)
• Parties: WALKER et al. v. MEYERS et al.
• Court: Texas Supreme Court

Page 499

266 S.W. 499

WALKER et al. v. MEYERS et al.

(No. 4208.)

Supreme Court of Texas.

November 26, 1924.

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

Suit by R. L. Meyers and others against Jesse Walker and others. Judgment of dismissal was reversed by the Court of Civil Appeals (264 S. W. 314), and defendants bring error. Judgment of Court of Civil Appeals affirmed.

W. P. Dumas, of Dallas, for plaintiffs in error.

Bean & Klett, of Lubbock, for defendants in error.

CURETON, C. J.

This is an injunction suit brought by R. L. Meyers and others against the mayor and commissioners of the city of Lamesa. The purpose of the suit was to restrain the latter from declaring the result of a bond election for street improvements, from selling or offering to sell the bonds, from levying or collecting the 30-cent tax provided therefor, and further restraining the city officers from contracting for the contemplated street improvements.

A temporary injunction was granted on the sworn petition of defendants in error on January 24, 1924, restraining the plaintiffs in error as prayed for. On January 31, 1924, the plaintiffs in error presented to the district judge, in vacation, an answer to the petition, the effect of which, if sustained, was to dissolve the temporary injunction. No previous notice of the filing of the answer was given, and defendants in error protested and objected to the hearing on that ground. The bill of exception recites that the defendants in error "protested against and objected to any hearing before entering into any proceeding, on the ground that the motion aforesaid had not been filed with the clerk, and on the further ground that neither the plaintiffs nor attorney for plaintiffs had been served with 10 days' notice, as required by article 4664 of the Revised Statutes of Texas, and on the further ground that the plaintiffs were not prepared to resist the defendants' said motion, and were not acquainted with the grounds thereof." When the motion was presented, according to the bill of exception, it consisted of about 23 typewritten pages, and had been finished but a few minutes before its presentation; that it had not been filed with the clerk, and no notice thereof had been served on the defendants in error or their attorneys, and "they had had no opportunity for knowing the grounds of the motion, other than that afforded during the hearing." The trial judge, however, heard the answer or motion, dissolved the temporary injunction, and dismissed the petition. To this action defendants in error excepted and appealed. The case was reversed by the Court of Civil Appeals for various reasons, and the temporary injunction reinstated and continued until the further order of the trial court. 264 S. W. 314.

The case is before this court by writ of error. The Court of Civil Appeals held that the trial court erred in dissolving the temporary injunction without the statutory notice, over the protest of the defendants in error. This was manifestly correct. Revised Statutes, art. 4664.

The case not having been tried by consent of the parties in vacation, under the terms of article 1714, the action of the court in dismissing the petition was likewise erroneous. It is well settled in this state, as well as in other jurisdictions, that a judge during vacation cannot dismiss a bill in equity. Price v. Bland, 44 Tex. 145; Aiken v. Carroll, 37 Tex. 73; Coleman v. Goyne, 37 Tex. 552; Grant v. Chambers, 34 Tex. 574-588; Ann. Cas. 1916A, 1230, notes.

The opinion of the Court of Civil Appeals on the other questions discussed is correct, except as to one, which, since the case must go back for retrial, we will discuss.

The city of Lamesa is a municipal corporation, incorporated under the commission form of government, in accordance with chapter 21 of the General Laws of the Thirty-Third Legislature (Vernon's Sayles' Ann. Civ. St. 1914, arts. 1070-1076a), and has accepted the provisions and assumed the duties set forth in chapters 1 to 13 of title 22 of the Revised Statutes of the state.

The bond issue here involved was $40,000, and the tax for liquidation of the bonds was 30 cents on the $100 of taxable property valuation. The Court of Civil Appeals concluded that the power of the city to tax for street improvement purposes was limited by section 9 of article 8 of the Constitution to an amount not to exceed 25 cents on the $100 valuation, although section 4 of article 11 of the Constitution provides that cities and towns of 5,000 and less inhabitants may assess and collect such taxes as may be authorized by law, in an amount not to exceed 1½ per cent. of the taxable property of the city.

Article 8 of the Constitution relates to taxation and revenue, and section 9 has reference generally to state, county, and municipal taxation. Article 11 refers to municipal corporations, and sections 4 and 5 have reference to the classification of such corporations according to population, the methods of incorporation applicable, and the powers which each may respectively exercise in regard to levying and collecting taxes. Section 4 of article 11, as it originally existed in the Constitution of 1876, related to cities and towns having a population of 10,000 inhabitants or less. It provided that this class of cities might be chartered alone by general law, and that they could collect taxes "to defray the current expenses of their local government," not in excess of 1/4 of 1 per cent. (Italics ours.)

Section 5 of article 11 of the Constitution of 1876 provided that cities having more than 10,000 inhabitants might have their charters granted or amended by special act of the Legislature, and that they might levy and collect "such taxes as may be authorized by law," not to exceed 2½ per cent. of the taxable property of the city.

These two sections of article 11 of the Constitution, as they originally stood, thus divided the cities and towns into two classes, with different taxing powers both in amount and purpose. A city of the first-named class, having a population of 10,000 inhabitants or less, was not authorized to levy and collect taxes except for "current expenses," and could not have done so but for the existence of section 9, art. 8, of the Constitution. As to the other class, the cities therein were not limited to the collection of taxes merely for "current expenses," but could collect taxes for any purpose "authorized by law."

Section 9 of article 8 of the Constitution of 1876 provided that the state tax rate should not exceed 50 cents on the $100, and that no county, city or town should levy more than one-half of the state tax, except for debts already incurred, and for the erection of public buildings, not to exceed 50 cents on the $100, "and except as in this Constitution is otherwise provided." By an amendment to this section in 1883, a limit of 25 cents was fixed for county, city, and town purposes, and 25 cents for the erection of public buildings, street, sewer, and other permanent improvements. These specified limits were to govern, "except as in this Constitution is otherwise provided."

These several sections of the Constitution stood substantially as we have described them, when the case of Lufkin v. City of Galveston, 63 Tex. 437, arose. That suit questioned the right of the city of Galveston to levy a tax of 99 cents on the $100 valuation of taxable property for general purposes, and 7 cents as an emergency fund. The city claimed the right to levy this tax by virtue of its charter, and under the terms of section 5 of article 11 of the Constitution. This original section of the Constitution we have just explained, and the effect of it was to permit cities having more than 10,000 inhabitants to levy, assess, and collect such taxes "as may be authorized by law." Insistence was made that section 9 of article 8, as amended in 1883, controlled and limited the general grant of power contained in section 5 of article 11 of the Constitution. In that section, as we have seen, it was provided that no city or town could levy more than 25 cents for city purposes, and not exceeding 25 cents for buildings, street, and sewer purposes. The matter came before this court, and, in an opinion by Chief Justice Willie, it was held that the provisions of section 5 of article 11 were not limited by the terms of section 9 of article 8. This court said that section 5 of article 11 related specially to cities of the class designated by the section, and could not be controlled by the general section, which was section 9 of article 8. Discussing these provisions, Chief Justice Willie in part said:

"Construing these two sections together, in view of the exception provided for in the former, the conclusion is irresistible that cities of 10,000 inhabitants are to be excepted from the maximum limit prescribed for municipal governments as a class, and may levy ad valorem taxes to the extent of 2½ per cent., if so authorized by the Legislature."

Section 9 of article 8 was again amended in 1890 and in 1906, but that portion of the section here under examination remained substantially the same as it was at the time of the decision in the Lufkin Case. As the section stands to-day, it fixes a limit of 25 cents for city and town purposes, and 25 cents for the erection of public buildings, streets, sewers, waterworks, and other permanent improvements, "except as is in this...