Wright v. City of San Antonio
| Decision Date | 01 February 1899 |
| Citation | 50 S.W. 406 |
| Parties | WRIGHT v. CITY OF SAN ANTONIO.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from district court, Bexar county; Robert B. Green, Judge.
Action by the city of San Antonio against Pink Gates Wright, executrix. From a judgment for plaintiff, defendant appeals. Reformed.
Franklin & Cobbs, for appellant. R. B. Minor and Houston Bros., for appellee.
Appellee instituted this suit to recover of appellant taxes due upon personal and real property alleged to be due the city, and the foreclosure of a lien upon the real property for taxes due upon it. The cause was tried by the court, and judgment was rendered in favor of appellee for the sum of $2,611.09 principal, and interest amounting to $649.12, and a lien was foreclosed on the respective lots of land for the taxes thereon.
We find that the taxes claimed by the appellee were legally levied by the city of San Antonio for the years alleged, with the exception of five mills ad valorem tax levied for three months, included in the fifteen months ending on May 31, 1892, and with the exception of taxes for year ending May 31, 1894, on lot 6, fronting on west side of Acequia street, between West Houston and West Commerce streets, now known as lot 6, city block 110; and that said taxes are due and unpaid. The court did not err in overruling the general demurrer.
The second and third assignments of error attack the action of the court in overruling the exceptions to the petition on the ground that the petition did not set out the existence of the bonded indebtedness of the city. The petition in this case is almost in the same language as that in the case of Berry v. City of San Antonio, which was held to be sufficient by this court and the supreme court. 46 S. W. 273, and 48 S. W. 496.
The fourth assignment of error cannot be sustained. It is provided in section 52, Revised Charter of the City of San Antonio, that the city council shall have power by ordinance "to erect and establish market houses and market places, and to regulate and govern the same; and to provide for the erection of all other useful and necessary buildings for the use of the city." This is sufficient authority for erecting a city hall, and, the act creating the charter being declared a public act of which judicial notice must be taken, it was not necessary to set out the authority in the petition.
We are of the opinion that the allegations in regard to assessments and description of the property were sufficient. It was clearly alleged that W. B. Wright rendered for taxation the property described for a portion of the time for which the taxes were due, and failed to render it at other times, and that in both instances the property was duly assessed for taxation by the assessor. The allegations are ample to admit proof of the assessment of the property. It is not required, as claimed by appellant, that the separate value of each piece of personal property should be given in the assessment, either by statute or the charter of the city of San Antonio. City Charter, § 193; Rev. St. art. 5118.
The statute gives authority to all cities that have assumed control of their schools to submit the question of an additional tax to supplement the school fund received from the state, and it was not incumbent upon the city to show its authority for holding the election. It was in proof that the city had assumed control of its public schools under the laws of the state, and articles 4025-4028, Rev. St., gave all the authority required for holding the election.
It has been decided by the supreme court of Texas that this court was in error in holding, as it did in Hernandez v. City of San Antonio (Tex. Civ. App.) 39 S. W. 1022, and Berry v. Same (Tex. Civ. App.) 46 S. W. 273, that the tax for 15 months ending May 31, 1892, was legal, under the circumstances shown by the report of a committee appointed by the city council; and, in deference to that opinion, it will be held that the tax for the extra 3 months above the year was invalid, and it would follow that it was not proper to admit the report of the committee in evidence. We fail to see how appellant was injured by the evidence, however, as the court disregarded the testimony, and refused to render a judgment for any part of the 15 months.
The burden of proving that no provision was made by the city council for the payment of the interest and to create a sinking...
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