Zane-Cetti v. City of Fort Worth

• Decision Date: 23 March 1929
• Docket Number: (No. 12098.)
• Citation: 21 S.W.2d 355
• Parties: ZANE-CETTI et al. v. CITY OF FORT WORTH et al.
• Court: Texas Court of Appeals

21 S.W.2d 355

ZANE-CETTI et al. v. CITY OF FORT WORTH et al.

(No. 12098.)

Court of Civil Appeals of Texas. Fort Worth.

March 23, 1929.

Rehearing Denied in Part and Granted in Part April 27, 1929.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Suit by Carl Zane-Cetti and others against the City of Fort Worth and others. From the judgment, plaintiffs appeal. Affirmed in part, and in part reversed and remanded.

C. C. Gumm and A. J. Clendenen, both of Fort Worth, for appellants.

R. E. Rouer, Geo. C. Kemble, and R. M. Rowland, all of Fort Worth, for appellees.

BUCK, J.

Plaintiffs, Carl Zane-Cetti, A. J. Long, James Harrison, W. H. Smith, Thomas B. Van Tuyl, C. A. Boaz, T. B. Petty, G. H. Colvin, J. E. Burton and George W. Birchfield, filed suit against the city of Fort Worth, its mayor and commissioners, and the city tax assessor and collector Albert Tankersley, to enjoin them from assessing and collecting for school purposes 36 cents on the $100 valuation of property in said city. Plaintiffs alleged that each of them was, on January 1, 1922, and ever since that date the owner of both real and personal property situated within the city of Fort Worth, and subject to taxation "for all the purposes which by law the property located in said city is so subject to taxes." The defendant, city of Fort Worth, is a municipal corporation, existing under a special charter granted to it by the Legislature of the state of Texas, in the year 1909, and defendant E. R. Cockrell is mayor of said city, duly elected, qualified, and acting as such, and defendants John Alderman, W. B. Townsend, Paul Gilvin, J. C. Lord, and R. A. Hunter, are each and all members of the board of commissioners, and that defendant Albert Tankersley is the assessor and collector of taxes of said city, and that each and all of said defendants held the positions above named at the several dates of the happening of the several matters hereinafter alleged.

The first amended original petition, in substitution of and in lieu of the original petition filed November 22, 1922, was filed June 25, 1923, and alleged:

That on, to wit, July 11, 1922, the said city of Fort Worth being a city of more than 5,000 inhabitants, and the defendants being desirous of having the charter of said city amended in several respects, in pursuance of section 5, art. 11, of the Constitution of the state of Texas, and in accordance with an amendment to the Constitution adopted at an election held on November 5, 1912, the said mayor and city commissioners did on said July 11th, at a regular meeting thereof, make and publish the following proclamation and notice of an election to be held in the city of Fort Worth, to wit:

"The qualified voters of the City of Fort Worth are hereby notified that on July 22, 1922, between the hours of 8 o'clock a. m. and 7 o'clock p. m., there will be held in said City of Fort Worth an election, at which 5 proposed amendments to the existing charter of said City will be voted upon by the qualified voters of said City. Copies of said proposed amendments have been substantially set out in notices and ordinance duly published in the official newspaper of said City of Fort Worth, in connection with the ordering of such election; also copies of said proposed amendments have been, or will be mailed in accordance with law by the city secretary's office to all qualified voters of said City according to the official poll tax list."

That one of the propositions to be voted on at said election was as follows:

"Shall sections 14 and 15 of Chapter XV of the existing charter of the City of Fort Worth be amended so as to hereafter read as follows:

"Section 14. School Taxes, Rate of; Levy and Collection; Expenditure by Trustees. The Board of Commissioners of the City of Fort Worth shall have no discretion in fixing the rate at which taxes shall be assessed and levied each year for the benefit of public free schools, provided such rate does not exceed 86 cents on each $100.00 of value of the property subject to taxation, but shall assess and levy the rate fixed annually by the Board of Trustees of the Independent School District of the City of Fort Worth up to and including the rate of 86 cents on each $100.00 of the value of the property, subject to taxation as aforesaid, and it shall become the duty of the Board of Commissioners, to annually levy and collect said taxes as other taxes are levied and collected, and said tax when collected shall be placed at the disposal of said Board of Trustees by paying over monthly to the Treasurer of said Board of Trustees the amount collected for the support of the public free schools of Fort Worth, to be used for the maintenance, support and use thereof. Said authorized rate of 86 cents on the $100.00 shall be in addition to and independent of all other taxes provided for in this charter.

"Section 15: School Taxes; School Board to Determine Rate. It shall be the duty of the Board of Trustees of the Independent School District of the City of Fort Worth to determine what amount of taxes, not exceeding 86 cents on each $100.00 of the value of the property subject to taxation, shall be necessary for the support, maintenance and use of the public free schools of the city of Fort Worth for each current year, and the repair, erection and purchase of buildings, and on or before the date upon which the Board of Commissioners is required by this charter to levy general taxes, said Board of Trustees shall certify to the said Board of Commissioners the rate of taxes to be levied for the school purposes, and it shall be the duty of said Board of Commissioners to levy said taxes."

That an election was held on July 22, 1922, at which said election all persons whose names were shown on the official poll tax list for the city of Fort Worth were invited to vote, and at which said election all persons who had paid their poll taxes for the year 1921, and all persons who were by law exempt from the payment of poll tax, were permitted to vote, and no other or further qualification was required of the voters by the officers of the election at said election.

That on July 25, 1922, the defendants, the city commissioners of the city of Fort Worth, met in regular session, and canvassed the votes cast, and found that the charter amendment increasing the tax to be levied for school purpose had passed and had been duly and legally adopted. That on August 31, 1922, the defendants, the city commissioners of the city of Fort Worth, in pursuance of the authority vested in them by law to levy taxes for all taxable purposes for said city, made and entered an order levying taxes, and levied and assessed 86 cents on every $100 property valuation for school purposes, 76.72 cents apportioned for the maintenance of schools, and 9.28 apportioned for the use and benefit of the several series of the city of Fort Worth school bonds.

Plaintiffs alleged that said election and result thereof was and is illegal and void, because others than property taxpayers who were qualified voters and residents in said city of Fort Worth were invited and permitted to vote at said election, in violation of article 2876 of the Revised Statutes of the state of Texas [Rev. St. 1911, as amended by Acts 35th Leg. 1917, c. 169, § 1].

This petition was duly verified. Upon presentation of the petition, the trial court held that it was subject to general demurrer. Upon appeal, the Court of Civil Appeals, at Austin, held that the trial court incorrectly sustained the demurrer to plaintiffs' petition and reversed and remanded the cause for new trial, 269 S. W. 130. The defendants made application for writ of error, which was granted, and the Commission of Appeals, approved by the Supreme Court, affirmed the holding of the Court of Civil Appeals in City of Fort Worth v. Zane-Cetti et al., 278 S. W. 183. It was agreed that the suit was tried in the district court on January 25, 1923; the cause was appealed to the Court of Civil Appeals, and on December 17, 1924, the judgment of the trial court was reversed and the cause remanded. Motion for rehearing was denied on January 28, 1925; and a second motion for rehearing was overruled on February 20, 1925. Defendants applied to the Supreme Court for a writ of error, which was granted, and the judgment of the Court of Civil Appeals affirmed December 10, 1925; a motion for rehearing was overruled by the Supreme Court on April 20, 1926. The mandate from the Supreme Court in this cause was received and filed by the clerk of the trial court on May 22, 1926.

On March 23, 1928, within two years from the final adjudication of the question as to whether the plaintiffs stated a cause of action in their suit to enjoin the assessing and levying of increased city taxes for school purposes, the plaintiffs filed their second amended original petition, in which they alleged that they had been required by the city assessor and collector to pay the increased tax for school purposes for the years 1922, 1923, and 1924.

Plaintiffs alleged that they and each of them offered and tendered to the assessor and collector of taxes payment of all taxes due by them to the city of Fort Worth for all purposes less the claimed illegal and void taxes for school purposes, but said assessor and collector refused to permit plaintiffs, or any of them, to pay their taxes so due the city without including therein the said illegal and void taxes; that during the pendency of the appeal from the judgment of the trial court they were required to pay said illegal and void taxes, in order to prevent a cloud to be cast upon the title of their real estate, and in order to avoid a penalty of one per cent. a month for their entire amount of taxes.

In the amended petition, ten or eleven others joined as plaintiffs, to wit, Mrs. M. B. Boaz, The Southern Land Company, a corporation, E. O. Boaz, Wallace P. Boaz, Mrs. C. C. Gumm, Mrs. L. B. Comer, Sam D. Boaz, Boaz & Field, O....