*1 259 SOUTHWESTERN REPORTER placed position themselves no to set aside limiting 6. <§=>188 Constitutional law de- —Law They equity^ the sale. They taxes, not have offered to do fenses for action not inhibited (cid:127) any money troactive law. offered or tendered satisfy obligations. 7689a, by Rev. St. art. their admitted added Acts 3Sth Leg. (1923), limiting 13, 6, 2d Called Sess. c. assigned. § We find no reversible error recovery defenses in for actions assignments overruled, All and the taxes, applied pending to action at time the trial affirmed. enactment, is not a retroactive law within Const, 1, 16; affecting inhibition remedy only. art. § <§=>305 7. limiting Constitutional law —Law de- CITY OF RISING STAR v. DILL.* fenses in action for taxes not vio- (No. 10877.) process lative of due and due course of law ' clauses. (Court of Civil Fort of Texas. Worth. 7689a, by Rehearing Rev. St. art. Dec. 1923. Denied as added Acts 38th Leg. (1923), 1924.) limiting- 2d Called Sess. c. Jan. § delinquent taxes, defenses in for actions — Const, 1. Taxation ac- Held <®=>587 13, 19, violative of art. knowledgment for, justice of sued 14, 1, Const. U. S. § Amend. as to due course delinquency. and a waiver of notice of process of law and due of law. taxes, Defendant in for an action by Municipal corporations for, 8. part <§=>980(3)— tender of of the amount sued Sufficient pleaded jus- showing by him, acknowledges proved facie correctness of list by city being debt, action tice of the none for shown taxes. part by Sayles’ less valid than the admitted In view of Vernon’s Ann. Civ. St. give days’ 7685, held, and tice, the failure to no- by waives city art. an action a for Supp. delinquent taxes, Ann. Civ. St. Vernon’s that a sufficient delinquency 7687a, taxes, art. will be action of the correctness of the list made. vfas brought therefor.' (I) <§=>421 2. Taxation not com- Court, Appeal Eastland District —Owner plain insufficiency prop- County; Hill, Judge. E. A. erty by him. furnished Rising against by City of Action Star especially estopped, owner Judgment M. J. Dill. taxes, by in to him view of tender plaintiff appeals. and rendered. deny sufficiency meager descrip- Reversed property in tion of the current tax Smith, Burkett, McCullough, M. J. M. etc.; by being given th'e him to the same Eastland, McCarty, appel- On- & all of collector, rendering assessor and lant. , erty for taxes. Rising Star, Alford, J. and D. K. oi L. City, Municipal corporations appellee. Cisco, Scott, <3=5958— having method, special may collect taxes ac- cording adopting by without to statute ordi- BUCK, Eighty- This was filed in the J. nance. Eighth county, district court of Eastland Supp. In view of Ann. Civ. city Rising Dill, M. Sayles’ Ann. art. Vernon’s a taxes, $130.99, alleged to be collect penalty, city, spe- a art. unless it has costs, clerk’s collector’s adopted special cial collecting a charter or has method costs, city attorney’s provided advertising fee, other title not, costs, need Ann. under Vernon’s Civ. St. sheriff’s tracts- of land located two accept provi- 1922, art. ordinance .peti- Star. Plaintiff’s to avail thereof. sions tion was the that defendant owner tracts, being one two acres and Rehearing. On Motion lot, being particularly other each de- scribed, post <§=>197 that the taxes for were for 4. Constitutional law facto —Ex pertain proceedings. criminal year de- the murrer and numerous general denial, 1921. Defendant filed 7689a, Rev. as added St. art. Acts 38th exceptions, a Leg. ing is not (1923),,c. 13, 2d § Called Sess. limit- special answer attack- delinquent taxes, to actions defenses petition recover ed for the Const, post facto inhibited an ex reasons, following as- to wit: That the pertains only as such § art. law invalid; illegal of the tax was and allege sessment that proceedings. criminal plaintiff’s petition failed <®=>!66—Taxation < n =37 Constitutional days’ proper 90 notice was defend- served on —Obligation impaired of contracts petition suit, ant did said before nor limiting in action defenses for delin- that land with the notice contained quent taxes. taxes, required schedule of as added Rev. St. art. Acts 38th by law; (1923), 13, 6, limiting Leg. c. 2d Sess. Called suit; served before on defendant in actions for does defenses attempted that in excess of the limit allowed he collected were obligation impair contracts, within in-' Const, by law; 16.§ hibition of topic Key-Numbered Digests cgsxaFor cases see same KEY-NUMBERin all and Indexes granted *Writ *2 Tex.) DILL STAR v. OF RISING CITY (259 S.W.) delinquent separate pur- notice the amount petition show the failed to the past unpaid against or lands made; due all such and poses levies for which said tax by delinquent tax and lots as shown the record attempted and to levied taxes that said county the of the collector, file in on the office of amount al- were in excess collected lowed by duplicate a also have of which shall by collected and assessed to comptroller filed in of been public proved by the of office the plaintiff; of class towns of the and cities ap- and the state of Texas accounts bring right plaintiff not have-the that did shall officer. Such notice also such not, court, because it had the suit in district a contain brief of the lands and ’ ordinance, adopted by delinquent appearing of the Revised lots various sums and the against Texas; or each cording amounts lands lots for due they appear such and that a Statutes of year, delinquent to be ac- illegal sought void was and to be collected records, to such and shall also re- collected, applied, it was to be because owners, cite that the or owner of such payment wrongfully and of warrants toward pay lots or lands described shall to the therein the, illegally Construction Janes issued taxes, interest, pen- tax collector the amount of Company payment the extension of the alties and 90 in such within costs set notice forth system, taxation and the limit of that sewer days notice, then, from the date of and already and before with- had' reached event, county attorney the will or payment moneys out the amount levied suits the institute collection of such warrants; and for the tendered the constitutional foreclosure of that defendant had such existing against lands lien such and lots. And legally due full the taxes amount the duty shall also be the tax collector by owing tender- him. Plaintiff 'further and ed into every county mailing state, of this soon which he court practicable, notice such county to furnish to he owed. attorney duplicates or district exceptions to Plaintiff filed numerous de- taxpayers in notices to the accordance mailed answer, a denial to fendant’s act, also, provisions with the lists by said answer. new raised appear- matters county of lands and located lots up- formally delinquent shown that court acted on tax records in name owners’, by exceptions of ‘unknown’ or raised either ‘unknown or on persons place name whose correct address plaintiff defendant, have county out residence in or col- exceptions by plaintiff’s overruled virtue by unable, diligence, use lector by judgment in favor rendered the court discover, against ascertain, to are which taxes The cause tried with- judg- of the defendant. delinquent, past due, unpaid, and such jury, out (cid:127) lists or statements shall show the amount of nothing against plaintiff recover ment county delinquent, past due, state and plain- unpaid, against or lot of each such tract appealed. delinquent year they appear tiff has land each urges according assignment, appellant tax records of In the to the third county likewise de- contain a brief shall added Acts article 76S9a as scription of all such lots. And it lands and (1923), .Leg., e. 38th 2d Sess. Called duty shall be of the tax collector to further provides be no defense to a shall any person persons, furnish firm or demand taxes, ex- suit cept collection corporation like with refer- statements (1) the defendant was not own- any particular lot or of land for ence to tract er at the time suit purpose desired, shall be in. whatever filed, (2) for have been taxes sued by him seal of all instances certified his office with the paid, (3) any person sued' attached. Whenever corporation law, persons, pay shall firm or excess of the limit allowed taxes, interest, penal- excess, all of defense last shall costs rec- ties and shown and any defendant did not establish since the county unpaid to be due ords any tract, proof, and the defenses parcel lot, or for all the land land, did that he own shows taxes years shown to for which said taxes paid, have not been prior unpaid, institution of limit allowed for were excess of the thereof, suit duty son covering it shall be the collection been ren- per- the persons, collector to to such of or issue plaintiff corporation, receipt This contention below. dered firm payment the defendant owner has been as is sound brought now proper law.” properly serv- into court citation, or if such notice ice of notice and and citation has been waived. 1918 amended In Hunt Stats., Supp., Ann. as 1034, giving that the 1919, Thirty-Sixth Leg- Acts of notice, 90-day of such a brief (Vernon’s islature Ann. Civ. appearing lots lands 7687a) provides: the record owner at the time notice, prerequisite, must “During April May months each before be had. could year, practicable, or as thereafter as soon evidence shows the trial court county collector of taxes in shall of each this slate owner, the defendant not served found mail the address record of each county lands before fil- situated suit was lots a with such 259 SOUTHWESTERN REPORTER
Justice
not be
to
tion
lack of the
though
made
pleaded
amount due
thereon,
said:
everything
proportion of the taxes which the
certain warrants
Construction
sewer
pleading
troversy arising
tice
requisite
tax
es,
According
Hunt v.
appellant’s
day
such notice
the taxes was
the
have
X-Ray Publishing Company
linquent
substantially
lector of
year
three
and
bottom.
1921
the
ed.
stated
er which suits
court
“A tender
In Marti v.
“That card that
enable
the effect of
90-day
property
tax was
to
waived
just
was
No evidence
years
sum
that defendant
which he claimed
system),
the record owner
cause
made;
the tender is insufficient in
Dunklin,
tendered in
a case where
were to
refused,
no
year delinquent
On
stated
put
admitted
the taxes
—there
that would otherwise be
to
notice.
contention
90-day
required by
Smith,
Well,
tender,
was even
equal
not
lists
all
inwas
this notice to Mr.
Company
by appellee,
below must
proof
on that
and it
the 10th
Wooten,
supra,
ordinarily
action sued
appellant
is all that I
such tender
put
over the
be used
illegally
Star,
put in;
to recover
would be
was
to the sum
was
notice. Defendant
the tax
In
open
the notice at all. What
in there. The
was
due. That was for
can
sent
court, speaking
dispenses
that this
notice. The amount of
amount of
of
not be
spape left
mailed
received the
testified:
to
valid
day
introduced
217 W.
having
due.”
was a
payment
an admission
Cyc.
he tendered
was
on that card.”
arise,
issued
out,
filed
mailing
upon
turned over to
assessor
legal
affirmed,
remember, and is
upon
no
statute,
as a waiver of
sustained,
to recover.
to his
if X
October
*3
publication, aft-
page
tendered,
marked at
the amount of
necessary pre
virtue of his
which included
building
90-day notice
offered
Dill the
at the bottom
payment
tender can- justice
form,
decision
recall it
aof
tending
necessary
think,
(the
legal
proof
through
appellee
address.
and col-
having
obliga-
extent
Janes
proof
small
or is amounting
writ
then
even 7687a,
of a
con
year
tax
no
99-
de-
all,
as
If
to
I
ment was made of the defendant’s
lows:
ings
Pláintiff offered as an exhibit
waived.
ed with the
sued
ing
Therefore we conclude
defendant
of the value of the taxable
assess
were
Rev. Statutes 1922
having
part admitted? The tax assessed
than 1
the
of
defendant’s
erty
Ann. Cas.
edness
109, N. E.
amount
indebtedness to the extent
gardless
come of the action.”
rebuttable admission of
note.”
extent
was
made,
demand the
demand
position
Marti’s
clare the
The trial court
“''fahen
“The
In
The
“In
true,
In
$107.61/
the amount sued for less
only remaining
made
the construction of the sewer
instituted,
amounted to
for,
26 R.
illegal, yet
the case of Mann
view of the
validity
of the
½
legal
fact,
to
even
due,
legality
valid and
testimony quoted above,
now to
reasonable
of the
whole debt due
which,
population
per
pleaded
appellant being
C. D.
all
collect
to an
taxes
90-day
two
The
it
tender of a
effect of
though
tender, regardless
the court said:
sum tendered
debt,
is
legal,
cent,
of a
final
or at the
question
pieces
p. 650,
total valuation of this
he offered no
as to
$7,175.
found,
plea
no
legal,
attorney’s
Supp., provides
conclusive
notic'e
n question is,
acknowledgment
part
5 L. R. A.
result of the action.”
the want of notice was
is
defendant was not serv-
a<
of it. We think this
precluded
plea
he had
view of the
$7,175.
the warrants
it
up
5,000,
indebtedness to
as one of his
time
at the
required property
The
is
Sprout,
property.
thus
appellee’s
is
admission
not shown
valid
of the amount
tender is an ir-
the tender was
advanced,
$107.61
appellee,
proof
fees
Was
less than
1½
(N. S.) 561,
valid
the current
time the
author
the final out-
Article
coupled
from
established,
right
tender,
that cities
is as fol-
less,
property.
amounted
185 N. Y.
per
upon the
any part
is in no
thereof.
assess-
system
indebt-
is less
issued
While
deny-
find-
says:
cent,
hav-
or to
the
the
de-
plea
“In the defendant’s
of tender it
al-
leged that
the same was made ‘in settlement
plaintiff’s petition
demands in
men-
for’;
tioned and herein now trial Marti testified that the tender was made
‘principal, interest,
to cover
and taxes and some
attorney’s
answer,
fees.’ In his
alleged,
Marti
cent,
substance,
per
attorney’s
fees,
list,
published
by plaintiff
claimed
at the time the tender was
paper,
made,
contained the
first
same de
was an unreasonable amount for
scription
fee.
of defendant as
shown on the current
list
lot
ing
lector of the
ink Mrs.
pencil (the
would not
lage
himself
that he did
Defendant at first denied
tory
Legislature, page
had
porting
port
are of the
special,
as to
that
filed.
article
visions
thirds
ing
rent
title,
more
the trial court
the
ing
App.
thorities
the Governor
state
the
of
pellant
Tex.)
the council
amendments
and Grace
the conclusion
cited
collector,
deny
action
cially
copy
meeting thereof.”
(Tex.
Statutes of
corporate
“Any
[2]
the Acts
this title
those
provisions of
thereof,
opinion
recorded
acres
of whatever
of its
list,
containing
finding
reads
Appellant
manufacturing
The
Civ.
$63.74.
in the two decisions
show that
whether.
existing
vote
incorporated city,
cites
appellant’s
chapter
with
might
view
incorporated
sufficiency of such
journal
hut,
63
limits,
trial
App.)
title
opinion
contention.
of such
v.
relating
as follows:
of
any
signature
thereof shown on
thereto, may accept
sign
and'having
description given by
Irby,
S. W.
is
council
appellant
There-was
$54.62,
Oity
amended,
positive
charter, by
and
600 inhabitants
court
incorporated city,
be
he did
must
urges
11 of
pencil.
February
the defendant
population
38,’
and other
it
the tender.
tthe
case
Regular
should be
council,
cited,
city,
Rev.
elsewhere,
in her
establishments within the vided in
office
he did
contention.
shall
in the
act
he was
found
which and on the
under
have so
having
cities
that,
Bonham,
of McMahan
signed
town or
Ann. Civ.
the evidence
writ
Other
town
knoWn
penalty
such action
some evidence
Statutes, by
rolls;
giving
Mrs.
a two-thirds vote' of
Session
signing
25th,
at a
accepting the
assignments rais provided by
presence,
assessor
1921),
CITY
laws,
sign
addition
chapter
given
description.
findings
sign
requirements
mentioned,
sustained, espe
be
refused,
cross-examined
supporting au
found,
Irby
regular
writ
assessor
village,
towns, in
did
village
26
county
it,
approved by
estopped to
at a
town
over,
general
We are of
25x70
he said
in
OF
‘chapter
defendant
provisions
subject
published
traced
Tex. Civ.
14
and
the 34th
sustains
v.
plaintiff
testified
refused,
and
Revised
of
entered
meager
meager
regular
though
RISING STAR
includ-
one or
mayor
in this correct
inven 762 and 774
or vil-
clerk.
Supp. council
meet
exact
those by
tend
rolls.
State
two-
foot
sup
sign
sup
fact
pro
cur
lieu
and
any
col
Ap
the that
(259
we of this title
he
in in
s.W.)
,the
Ann. Civ. St.
with all the
ileges
incorporating
habitants or
cial method of
ing
any
bringing
ed
sions for
non’s
general
then in effect.
manner
signed by
that
or
When the
in
tion is held
construed to read and mean ‘cities
two-thirds vote
said
the
penalty,
may
any lots or blocks of land
chapter
city
same manner as is
and;
reference to a
habitants
er
article 762.
for the collection
der this article it became
the
returned
suit'in
invested
cessity
corporate
city
“Any
“In
It would
charter
is
article
appellant
under
title
application
rights
statutory provision
council
or town for
city
amended in
any city
it was
took
cities
purpose,
when such
mentioned
any incorporated city
Saylés’
incorporation
may
for the
brought
described
the words
y.
interest
or town
title of “Taxation”
or
evident
with
1041,
the collection
and
limits of said
the law
place in’
entry by
and
at least
district court of the
DILL,
conferred
and
powers,
town,
according
suits
or town
appear
relating
charter,
prepare
and
over
title
city
Moreover,
towns
over,
already
Ann. Oiv.
on said
Supp. 1918),
mayor
in
city
to become
had some different
and under
taxes other than that
in the
adoption
privileges
7687 of this
and
It is not shown that
direct
assessing
legislative
town, regardless
that,
and
lists
in
gaid
had been
‘towns
then in
provided
situated,
*4
rights,
or
originally
fifty electors,
from article 774 that aft-
chapter
described
lists
costs
and
or had
chapter 14,
rights
town of
there would
property, together
shall
same manner as is
adopted
cities and
city
county judge, provided
and further
reported
reading
county attorney.”
after an election
in this article
incorporated
city
incorporated
villages,
and
immunities
amended
taxes,
city attorney
of cities conferred
taxes and collect-
situated
effect. We are of
for the
for in article
reads
article
provisions
invested with
14
council.
delinquents
intent
adopted
title.”
incorporated
and
suit;
city
or town shall be
villages’
chapter,
in the
thereon,
passed
(Acts
county
six
town have been
six hundred
of this
town,
charter
certified to as
provision's
when an elec-
towns,
had
is made with
might
privileges
sold to said
residents of
except
hundred
and
of whether
under the
provisions
within the
provisions
(Vernon’s
town,
amended
and
in which
follows:
Articles
adopted
title
shall
provide
shall
for the
provid-
of such
towns.’
no ne-
in
provi-
in the
to file
1897).
which
adopt
those
such,
priv-
suits
Ver-
spe-
city
un-
be
be
SOUTHWESTERN REPORTER
n
on viously
in their
tain notes
preme
hibition,
the execution of the notes.
give
with the laws of the land. De Cordova v.
the inhibition of this article and
within the inhibition. Laws
hibition?.
or retroactive are
stroy
tive
Galveston,
Nor can the act be
facto
inal
City
1 Tex.
tember
law
19,
August
art.
troactive
tion of
called
was
ajad
ed in our
this
costs
tiff for the
the
ment
costs,
that such
comes immaterial.
erred
cil,
of article 762 had been
the
or
“Where
“No bill of
Laws like article
Trial was had and
Reversed and
state,
[4-6]
We
questions
August
remedy
Constitution,
obligation
to a
was effective.
opinion
took
approved
*5
ease,
xoroceedings.
laws,
and for
are of
in
possess,
adjourned
§
etc.
session of
Court
contracts,
operation, may
Appellee
Constitution
13th.
appellant
may pass
Houston,
party
16, provides:
impair rights
as we
law,
there
therefore the
On
thereafter.
rendering judgment
and defendant’s answer
effect
original opinion,
Ordinarily
sued on
®u»For same KEY-NUMBÍ.K jurisdiction *Writ dismissed for want of 259 S.W.—42