*1 266 SOUTHWESTERN REPORTER thereof, may Company, competitor that the who to use wa- Land who divisions ter or desire rates, light, stipulated ex- owners of the unsold lots in Lum Ter- and lots, required race in for that the sale will its tensions be made withdraw it, part, purpose. Company, its in such event credit be and it would Rand agreed advance forced out of term it would business. that for said Light Company money It is the town Park & shown that Place is Water the should be extending town, required growing appellee’s and that water same wires, plant, by mains, only poles, repairing installing meters, and the use of water little more than and for capacity, paying basis; other half of its and is on a appear might & thus it the Water is made to if it is uses as conducting prevented using operating capacity Light Company sup- its full Water, Light ply through increasing & Power residents withdrawal of town its business as such of said per- Company. fear to said contract Both of the credit parties Company, obligations may for the the Land thereunder it soon be their able formed pay years, Company contract had at its debt and said Land tlie term of 10 expired able, and same of this suit from its earnings, time of the longer in force effect. borrowed was no funds some one other extended earnings Company," enlarge the revenues or than the It is Land shown now, Light Company However, plant. and maintain & its do not we of Water have- operating time, pay appellee its think some sufficient to can event refuse necessary repairs supply appellants expenses of its water because notwithstanding extensions, Company. it now fear loss and using of credit Land capacity. speaking obligation half of its more than but little of a water corporation, has extended cred- that no one is shown Lumbard Light Company except Case, supra, Stearns it to the held that a water cor- Water & Light poration Company, may & the Water not furnish some Land Company houses others, supply to the Land Com- is now indebted lots and refuse and thus that, $37,000, give deny se-' pany a value to some lots and it oth- sum, payment proceeding, Com- of said Land ers. And then said: cure the property pany of the has a lien on plain be a “This would abuse of their fran- Light Company. &Water By accepting incorporation, chise. the act of By proposition ap [5-7] its fifth counter public do all the re- undertake to duties pellee following quired submits the contentions: it.” require company “To extend waterworks Having reached the conclusions that under beyond territory has service which it its undisputed professed serve, facts shown is en- when and contracted eventually require largely prayed for, will extensions titled the relief and that capital, credit, deprive facilities and will it creased pellee wrongfully refusing lief, give is- such re- source will render im- its sole duty judg- becomes it reverse possible performance prior obligation its users ment of judgment court and to here render present territory, ness, professed prospective its appellants, awarding them the go and will it to of busi- cause out prayed for, relief it is so ordered. impairment obligation be an Reversed rendered. of section of contract violation article States.” of the Constitution of United The contentions set forth in the counter proposition sustained, (1) cannot be because require prayed by ap- to pellant the connection (No. 7238.)* BITTER COUNTY. v. BEXAR compel Light would not the Water & (Court Appeals of Civil Company beyond of Texas. San An- to extend its service Rehearing tonio. Oct. 1924. Denied territory professed serve; (2) which it had 19, 1924.) Nov. Light Company the Water is under no con- to serve tract on those who residents reside <&wkey;121(7)— Subject-matter I. Statutes of stat property owned or sold the Land Com- requiring ute tax collector to account under (3) pany; shown that has an provisions of Fee Bill Maximum suffi held ample supply of water to furnish the water ciently embraced in its titfe. lessening demanded supply appellee July 28, (Laws Portion of Act 2d Call- present customers; (4) water its ed Sess. [Vernon’s c. Ann. § 7688a]) amending Supp. 1922, St. permitted Laws should not be to refuse to 1915, to 147, 3, require c. § as to tax collector supply water to those who reside in the ter- account for maximum fees under ritory which it undertook to serve (Rev. fee bill by c. title as amended anticipates supply that at some future time a Reg. Leg. 121, 142) Sess. 33d cc. Acts held water, beyond present capacity, may of be insufficiently unconstitutional because not braced in em- demanded, permitted nor can it * to vio- * * title: amend re- “An act to duty legal supply * * * late its such residents lating to duties of tax collectors ground with water it fears of the collector therefor.” Key-Numbered topic Digests other eases 'see same and KEY-NUMBER in all and Indexes
©nrsFor
granted January 28,
*Writ
error
*2
BITTER
BEXAR
COUNTY
¡.w.)
(266
— County’s
<&wkey;39(l)
not 9. Limitation
2. Statutes
of actions
<©=109—Provisions of
against
indirectly
directly
appropriated
unconstitutional
with-
claims
tax
if
collector for
accruing
subject
years
in
fees
embraced
title.
four
than
before
suit held barred.
Provisions of statute should
be held
not
county against
not
tax collector
unconstitutional as
embraced
title of act
Claims of
for
directly
indirectly
appropriated by him,
fees
where
subject,
relate
which matured more
to
years
county’s
connection,
than four
have mutual
suit
not
therefore,
foreign
expressed
held
barred
title.
limitations.
<@=57(5)
&wkey;>213
10. Limitation of actions
against county
3. Counties
—Limita-
—Claims
against county
tions do not run
on claims
be
must
disallowed
commis-
against
expiration
tax
collector
of time
brought
be
sioners’ court before
can
within which
could have
collector
made final
thereon.
settlement.
against county
presented to
Claims
must be
having
Tax collector
until end of fiscal
disap-
commissioners’ court for allowance
moneys
make
to
him,
county
final
settlement of
collected
proval, and,
under Rev. St. arts.
begin
against
limitations do not
run
pre-
brought
until so
cannot be
claim
suit
sented
on a
against
on
claims
collector until end
and disallowed.
year during
fiscal
such
which
claims arose.
<@=24
Set-off
4.
counterclaim
—Defense
<@=667—
11. Taxation
Tax collector’s claim
subsisting
be available in set-off must
against county
improperly
held
allowed as re-
independent suit
cause of action
coupment
county’s
appro-
action for fees
instituted.
could be
priated.
to be available
set-off must
Defense
county’s
against
action
tax
for
collector
subsisting legal
a
dependent
action on
cause of
against
appropriated,
fees
claim of collector
be instituted.
suit could
for commissions
it under mis-
improperly
take
law held
allowed as such.
County tax
counterclaim
5. Set-off
<©=24—
against
to set-off
collector
county’s
over to
not entitled
held
Rehearing.
On Motion for
improperly
turned
claims for fees
county.
Judgment
enlarge
—
<§=249
Court cannot
county’s
powers
pleading.
against
proper
equity
administer
without
action
tax collector
fees,
accounting
held not
enforce
for
defendant
against
entitled
fees
to offset claims
powers
enlarge
Trial
cannot
erroneously paid
it,
had
never been
equity
proper pleading,
if
administer
presented
required by
commissioners
board
can do so
all.
1366, 1481.
Rev. St. arts.
required,
<@=567 County may
13. Taxation
—
recog-
—
precedent
recovery,
<@=657(2) County
6. Taxation
condition
held
not
equitable rights, though
judg-
approved
nize
affirmative
tax
collector’s retention
feos,
counting.
right
estopped
ment
it could
had thereon.
not be
not
claim
ac-
county’s
Though
collector,
tax
defendant
appropriated, might
action to
recover
not
reports
recover fees
purporting
Tax collector who filed
against county
claim
collected,
to show all
but which did not
fees
proper
presented to
commissioners’ court
right
include certain fees which he claimed
might
pleading
equitable
retain,
that
relief
subsequently
held not
claim
entitled to
required county,
precedent
to re-
as condition
knowledge
approved
had
of and
equitable
covery.,
of
recognize
credits
favor
estopped
retention of such claims and was
requiring
accounting
defendant.
because at
reports county judge and auditor had individ-
knowledge
Appeal
Court,
al
of his retention
Bexar
of such
from District
Coun-
county.
report
did not
it to
ty ;
Terrell, Judge.
Robt. W. B.
by County
of Bexar
John
Action
<&wkey;95(l)
7. Limitation of actions
—Limitations
begin
Bitter,
filed cross-bill.
A.
wherein defendant
do
to run
unsatisfactory
par-
tax
collector for
fees before notice
From
both
appropriation.
assigning
ties,
appealed,
errors
defendant
begin
cross-assignments.
Re-
county and
Limitations
to run on claims of
against tax
appropriated,
collector for fees
if versed and rendered.
all,
report
from time collector’s
should have Denman,
McGown,
Franklin &
An-
San
finally
not
out,
report
and where such
tonio,
appellant.
appropriated
by hijn,
does
disclose items
Birkhead,
Beckmann,
Lang
Stevens,
F.
against county
no limitation will run
as to
McAskill,
Antonio,
items till
commissioners’ court
and D.
A.
San
or could
have had notice thereof.
appellee.
<&wkey;4l
8. Limitation of actions
—Tax collector’s
brought
COBBS,
This suit
J.
be-
against county
claim
erroneously
voluntary payments
county, appellee, against
half
Bexar
John
made held barred
limitations.
Bitter, appellant
A.
tax collector
Bexar
Tax
held
collector
not entitled to recover county,
aggregate
to recover
voluntary payments
made to
under mis-
fees
article
amount
filed,
take of
on cross-bill
in action
coun-
accounting,
years
Revised Civil
more than
7691 of the
Statutes
four
after
payments.
date of such
alleged
Texas,
being
state of
Digests
other eases see same topic and
Key-Numbered
<S=B’or
KEY-NUMBER in all
and Indexes
266 S.W.—15
SOUTHWESTERN REPORTER
.266
shall,
from “The
pellant, during
tax
collector
in addition to
tlie several
by law,
costs now allowed
1923, inclusive,
collected
bad
delinquent
up
rec-
tbe
paid them over to
and not
necessary
supplements thereto,
ord or
where
that under
a claim
them under
but retained
Act,
cents
[.05c]
the sum five
*3
account
law he
to
the
every
delinquencies
yearly
for each and
line of
paid
part
to be
excess fees
of the
same as
delinquent
supple-
on
or
entered
recórd
said
fee
maximum
the
to the
under
over
ment,
twenty-five
the same not
exceed
cents
to
paid
case,
general
compensation
bill.
to
such
ground
upon,
that
Appellant
out of
fund of
the
the
the
defended
sup-
completion
approval
or
of
record or
said
paid
over
the
he
plement. The tax collector shall
receive
also
en-
time,
he
various amounts which
cent,
per
of
amount
commission of 5
on the
compensation,
he was
which
and for
as
titled
delinquent
the
taxes collected in addition to
county under 'said
to the
not accountable
by law,
now
but all such
commissions
allowed
bill,
sums had
maximum
paid
fee
collector,
or
said tax
fees
of the
commissions
belief
erroneous
him in the
county attorney
attorney
under
or
district
max-
said
under
accountable therefor
he was
un-
fees of
shall be accounted
as
office
act
paid,
pro-
he
Bill,
provisions
as
Maximum Eee
fee
The amounts
der
of the
bill.
imum
58,
chapter 4,
credits,
Civil
of
Revised
recoupments,
offsets
title
the
or
vided
Statutes of
ters
pleaded as
by chap-
1911,
Texas
as amended
herein, amounted
against appellee’s demand
Regular
142,
Ses-
121
of the
Acts
al-
$3,727.41.
trial
sum of
to the
Thirty-Third Legislature.” Section
sion of the
those
of
lowed credit
Supp. 1922,
(Vernon’s
art.
Ann.
2
Civ.
of others.
allowance
refused
amounts and
7688a).
the court
tried
case was
findings of fact and
jury,
made
of
portion
Act
to the
of Ihe
[1] The
title
Thereupon
the
of law.
conclusions
collectors
fees
tax
1919
relates
of
1924,
judgment March
on
court rendered
appellant, as
must
overlooked
have been
appellant for
appellee against the
favor of
portion
only quotes
the
of
first
he
title
the
legal
the
from
of
act,
portion of
whereas the latter
varying
amounts
on
several
dates
quoted
caption not
is:
object-
parties
making up
Both
total.
chapter 147
“An
section
of
act to amend
1
judgment,
appellant has
and the
ed to the
filed
Thirty-
regular session of the
of the acts
of
assignments of error
relating
Legislature
of
duties
Fourth
filed-cross-assignments.
prepare
has
and mail notices
tax collectors to
important question
delinquent
of
and most
lands
The first
taxes
of
statements
thereof;
preparation and
record
the
tax records
3 the
owners
section
is that
delinquent
perfecting
vari-
of
the
of
(Haws 1915,
House
40 of
147
Bill
1915
c.
compensation
col-
ous
and the
counties
Supp.
Ann.
[Vernon’s
Civ. St.
(Italics ours.)
lector therefor.”
accounting
7688a]) required no
un-
fees
bill,
der
maximum fee
broadly points
caption
act
July 28, 1919,
amendment
went into effect
thereof of
compensation of-
provides
law that
October,
day
the 20th
are discuss-
tax laws we
collector. The
the
ing
(Laws 1919,
1919
2d
c.
[Ver-
called Sess.
64
mostly
“com-
fees and
relate
herein
7687a,
Supp.
non’s Ann.
arts.
Oiv. St.
one,
pensation
it seems
collector.” No
of the
7688a, 7688b]),
fees
of the of-
us,
as to conclude
misled so
fice of
un-
the collector to
accounted for
prescribed
silent on
amendment
provisions
bill,
der
maximum fee
pre-
and the
tax collectors
duties of
scribed
fees,
unconstitutional,
excess
as
as
far
compensation.
appellant’s rights,
it affects the
sep
necessary,
contended,
was not
It
appropriately
title of the act does not
em- arately
act
name fees
title
purpose.
part
such
brace
That
of section
sufficiently
when,
here,
mentions tax
(House
of the act of 1915
40)
Bill No.
in re-
enough
compensation,
broad
collectors’
to
and is
spect
fees,
provides
the collector’s
fol-
require
the tax collector to account
lows:
provisions
maxi
“fees of
under
office
shall,
tax
“The
collector
in addition to the
chapter 4,
provided in
mum fee bill as
58,
1911,
title
by law,
and costs now
of
of
Revised
Texas
Civil Statutes
making up
delinquent
entitled for
record
by chapters
121 and
amended
supplements
necessary
where
thereto
Thirty-
Regular
Session
Acts
every
act
sum of five cents for each and
Legislature.’’
In such cases
Con
Third
yearly delinquencies
line of
de-
entered
given
linquent
most
supplement,
liberal
compensa- stitution
record or
general
especially
construction,
to be
out
ob
tion
as the ultimate
fund of
completion
subject
of said
ject
respect
record
fees
supplement. The tax
shall also re-
collector
charged
costs
officers
duties
ceive a commission of 5
of all
on the amount
Giddings
Antonio,
v.
San
tax collector.
delinquent
taxes collected
addition to
Ry.
Rep. 321;
v.
26 Am.
I. & G. N.
Tex.
commissions
allowed him
now
law."
County,
City
1;
Austin v.
54 Tex.
Smith
portion
McCall,
Doeppen
That
the amendment of 1919
Tex.
S. W.
respect
Ry.,
fees,
is:
schmidt
I. & N.
collector’s
G.
ery,
sions
judges
ment of
information
peal.
no
ments
ficial
the statement thereof in
trial of
for thé method of
indirectly,
which such statement of facts
265;
that the courts
both
flict will be
Terrell
the
trials and of
ty courts.”
stenographers
pensation,
al
though
or not
eration of similar constitutional
pra,
void
S.
Civ.
90 S. W.
constitutional
stitutional
sions with which
courts of this
stated
erly
Stone v.
constitutional
*4
Co.,
R.
struction has been
ject
clearly
should be sustained
courts of this
of the
constitutional, saying:
on was as follows:
“In
“An act
“The different
The
connection and are not
sustaining legislative
good
properly
113 S. W.
S. W. 147.
Tax
proper persons
providing
as the
where
App. 615,
expressed
the statute
it should be held
than
stenographers
Texas
determining
Howth v.
It bas
Constitution,
be resolved
aid
thereof,
Supreme
some
otherwise.
in
Tex.
(Tex.
causes, providing
facts
reason
Brown,
Col.,
211;
fact in
case of
providing
statute under consideration embraces
one
and for
contravention of section
provisions
provision
it was contended that
regulation
of the
of the
liberally
Newnom v.
doubt
title, may
234;
Civ.
unless
questions
and other
frequently
subject,
where
103 S. W.
W.
P.
will not
Singleton
state that
why
included in
Greer,
stenographers
Red