Willis v. Owen

• Decision Date: 01 January 1875
• Citation: 43 Tex. 41
• Parties: P. J. WILLIS & BROTHER v. JOSEPH A. OWEN, SHERIFF, AND OTHERS.
• Court: Texas Supreme Court

43 Tex. 41

P. J. WILLIS & BROTHER

v.JOSEPH A. OWEN, SHERIFF, AND OTHERS.

Supreme Court of Texas.

APPEAL from Galveston.

M. KENNEDY

v.JOHN MCCLANE, SHERIFF.

APPEAL from Nueces.

M. KENNEDY AND OTHERS

v.WM. SCANLAN, SHERIFF.

APPEAL from Cameron.

T. H. CLARK AND OTHERS

v.JOHN MCCLANE, SHERIFF.

APPEAL from Nueces.

A. W. & E. P. CLEGG

v.THE STATE OF TEXAS.

APPEAL from Galveston.

EDWARD T. AUSTIN

v.THE STATE OF TEXAS.

APPEAL from Galveston.

GALVESTON, HARRISBURG AND SAN ANTONIO RAILWAY CO.

v.THE STATE OF TEXAS.

APPEAL from Harris.

1875.

THESE cases involve the legality of the one per cent. school-tax levied throughout the State for the year 1871.

The case, as made in the first-named appeal, is given.

P. J. Willis and Richard S. Willis, as partners under the firm-name of P. J. Willis & Bro., filed their petition in the District Court, praying in their own behalf, and in behalf of others of like interests, for a writ of injunction, to restrain the sheriff of Galveston county, and the Board of Education, and the Board of School Directors of Galveston county from proceeding to collect from petitioners and others who might be permitted to become parties plaintiff, the school-tax of one per cent., the one-eighth of which was levied under the act entitled, “An Act to give effect to the several provisions of the Constitution, concerning taxes,” of April 22, 1871, and the other seven-eighths being claimed under the act entitled, “An Act to organize and maintain a system of public free schools in the State of Texas,” of April 24, 1871. The District Judge, in his fiat granting the writ, refused to grant the writ against the collection of the first-named tax of one-eighth of one per cent., and granted the writ against the collection of the latter-named tax of seven-eighths of one per cent., upon condition that petitioners pay the tax of one-eighth of one per cent.

The District Judge refused to grant the writ in favor of the petitioners and all others of like interest, and granted the writ in favor of the petitioners, P. J. Willis & Bro.

The petitioners paid to the sheriff of Galveston county, the tax of one-eighth of one per cent., amounting to the sum of four hundred and thirty-one dollars and twenty-five cents, in compliance with the fiat of the District Judge, and the writ issued.

The petition alleged, among other things, in substance, that the sheriff had levied upon and seized personal property of petitioners to the value of two thousand six hundred and twenty-five dollars, to pay said tax on their personal property, and had threatened to institute suit against them to recover the tax upon their real estate, as directed by the Board of Education, and that said tax, for which a lien was claimed on the real estate of petitioners, and the institution of such suit, constituted a cloud upon the title of said real estate. The sheriff of Galveston county had given no bond for the faithful collection of this tax, and was not able to respond in damages to petitioners and others of like interests, for the collection of this tax. That the tax of seven-eighths of one per cent. claimed under the school-law of April 24, 1871, had never been assessed. That the sheriff had no authority for the collection of said tax, other than instructions from the Board of Education.

That the Board of Education is organized in contravention of Section 1, Article 2, and Section 30, Article 3, and Section 14, Article 4, of the Constitution. That the orders, rules, and regulations of this board are legislative in their character, and are illegal, and furnish no authority to the sheriff for the collection of said tax. That the county of Galveston has not been sub-divided into school-districts, and that the Legislature could not delegate to these boards, as organized, the power to levy the tax sued for. That the Board of Education, and not the Board of School Directors of Galveston county, have levied this tax, if any tax has been levied. That the school-law of April 24, 1871, was unconstitutional, and was not a law of the land, because not read on three several days in the House of Representatives while on its passage through the Legislature, and the constitutional rule was not dispensed with by any vote of the house.

The defendants appeared, and moved to dissolve the injunction for want of equity in plaintiffs' petition. The court sustained the motion; dissolved the injunction, and dismissed the petition.

The allegations of appellants' petition, entitling them to relief, raise the following points, which are insisted on in their briefs:

First. That the sheriff of Galveston county has no authority to collect this tax.

And herein: 1st, because it is no part of his duty as the collector of State taxes.

2d. The Board of Education could not legislate to impose this duty on the sheriff.

3d. The Board of Education is organized in violation of Section 1, Article 2, Section 30, Article 3, Section 14, Article 4, Section 42, Article 12, of the Constitution.

Second. That the school-system as organized under the acts of April 24 and November 29, 1871, is not provided with local boards of directors, having the legislative powers enumerated in Section 3, Article 9, Constitution; but, on the contrary, the system as organized is a creation of the Legislature, intricate and cumbersome in its machinery, and so constructed as to withdraw from the district school-boards all discretionary and legislative power, and to make them, in regard to the levy, collection, and disbursement of this tax, simply the mouth-piece of the Board of Education.

Third. That the Legislature did not divide the State into districts, as directed by Section 3, Article 9, but intrusted that duty to the Supervisors, and that the Supervisors disobeyed the laws of April 24, and November 29, 1871, refused to sub-divide the counties into districts, and created the counties into districts. For these reasons the boards of school directors appointed to these districts by the Supervisors are held to be illegal.

Fourth. That Sections 3 and 7, Article 9, Constitution, do not authorize the Legislature to delegate to the district boards the taxing power.

Fifth. That the act of April 24th, 1871, under which this tax is claimed to be levied, is unconstitutional and void. 1st, because it was passed without the three readings required by the constitutional rule, Section 24, Article 3, and without suspension of said rule.

2d, because there was no great emergency, and the bill could not be thus irregularly passed even under a suspension of the rule.

Sixth. That this tax has never been assessed against the property of appellants.

Franklin & Trezevant, Ballinger, Mott & Jock, Robert M. Franklin, and C. S. West, for appellants.

Sheeks & Sneed, for appellees. This case involves the question of the constitutionality of the law under which the Board of School Directors levied the one per cent. school-tax, and the legality of their acts in relation to that tax in Galveston county.

The constitutionality of the law and the action of the board were sustained by the District Court.

We think that the following authorities show clearly that the ruling of the District Court was correct:

(Kinney v. Zimpleman, 36 Texas, 554; Hall v. H. & T. C. R. R. Co.; Scanlan v. Galvan; 7 Kan. R., 274; 14 Wis. R., 619; 21 Penn. R., 147; 9 Blackf., 266; 5 Blackf., 258;1 Blackf., 165; 6 Crouch, 87; Cooley's Constitutional Limitations, 168, 171, 182; 1 Kan. R., 18; 4 Kan. R., 124, 141; 7 Kan. R., 498; 5 Mich., 257;13 Mich., 162, 501;4 Peters, 514;11 Peters, 421;4 Wall., 210; Peaz v. Talbott and Peaz v. Dimmitt, 39 Texas, 335.)

On the point as to whether the law was read the proper number of times and other provisions of the Constitution as to the mode of passing laws were complied with, and the effect of such non-compliance, etc., etc., in support of the ruling of the court below, we refer to The State ex rel., etc., v. Young, 5 Am. Law Reg. (N. S.), 679; R. R. Co. v. Governor, 23 Mo., 353;Dancombe v. Prindle, 12 Iowa, 1;Eld v. Gorham, 20 Conn. 8; Touke v. Fleming, 13 Md., 392; People v. Supt. of Chenango, 4 Selden, 317; People v. Develin, 33 N. Y., 269;Evans v. Brown, 30 Ind., 514.

The English authorities are to the same effect.

So far this court has continually upheld the law and authorized the collection of the tax.

Nearly all the small property-holders of the State have paid the tax. Stare decisis in this instance imports justice to the many who have paid by compelling the few who have not paid, but are taking advantage of their wealth to keep the tax-gatherer at bay, to pay.

MOORE, J.

The proper determination of each of these cases depends upon the validity or invalidity of the “Act to organize and maintain a system of public schools,” approved April 24, 1872, and the authority conferred thereby to collect the taxes brought in question in them. The constitutionality of this law and the liability of the tax-payers for these taxes, has been sustained by this court in the cases of Kinney v. Zimpleman (36 Texas, 554;Bremond v. The State, 38 Texas, 116;Hall v. H. & T. C. R. W. Co., 39 Texas, 286;Ireland v. Gordon, 39 Texas, 253), and perhaps in others in which the opinion of the court has not been published. It may, therefore, be thought that the question should not be regarded by us as now open for discussion,--that whatever might be our views, in respect to it, upon the principal of stare decisis, we should hold it as definitely settled and concluded.

We cannot, however, regard the rule of stare decisis as having any just application to questions of the character involved in these cases. This doctrine grows out of the necessity for a uniform and settled rule of property, and definite basis for contracts and business transactions. If a decision is wrong, it is only when it has been so long the rule of action, as that time and its continued application as the rule of right between parties demands the sanction of its error. Because, when a decision...