Case No. 1437 | Tex. | Feb 13, 1883
This suit was pending in the district court when the cases of the City of Galveston v. Heard, 54 Tex., 420" court="Tex." date_filed="1881-03-18" href="https://app.midpage.ai/document/city-of-galveston-v-heard-4893522?utm_source=webapp" opinion_id="4893522">54 Tex., 420, and City of Galveston v. Loonie, 54 Tex., 517" court="Tex." date_filed="1881-03-18" href="https://app.midpage.ai/document/city-of-galveston-v-loonie-4893536?utm_source=webapp" opinion_id="4893536">54 Tex., 517, were decided by this court. These two cases, together with the case of Roundtree v. City of Galveston, 42 Tex., 612" court="Tex." date_filed="1874-07-01" href="https://app.midpage.ai/document/roundtree-v-city-of-galveston-4892408?utm_source=webapp" opinion_id="4892408">42 Tex., 612, and that of Allen v. City of Galveston, 51 Tex., 302" court="Tex." date_filed="1879-07-01" href="https://app.midpage.ai/document/allen-v-city-of-galveston-4893234?utm_source=webapp" opinion_id="4893234">51 Tex., 302, and perhaps some other cases, virtually decided nearly all the questions that were expressly raised by the pleadings of the parties, or that were then much pressed below.
• These cases were evidently before the counsel when this cause was tried in the district court. The questions as to the statute of limitations, as to interest, as to the issuance of bonds by appellee and the cost of the improvements, and as to the power of appellee, under the charter of 1871 and its ordinances, to improve its streets and sidewalks, and to levy assessments on the property to pay the costs of such improvements, are all in effect determined in the cases referred to.
The important question as to the power of the legislature to levy or to authorize the levy of a local assessment, without prescribing some just and equitable rule of apportionment, is not before us in this case in such form as to require or even justify its decision.
The original pleadings do not seem to have been framed with a view to raising it directly; and while the question, though in one sense involved in both the case of Heard and Eoundtree against the city of Galveston, cannot be said to have been passed on by the court in these cases, yet we do not regard it as now fairly before us for determination in this case.
In view of the fact that many of the questions originally raised have been fairly disposed of on the trial below, an agreement was made with the purpose of confining the issues in this case to a few practical questions which were then regarded as the most important. To simplify matters, it was agreed that the work was done by the city through its contractors. It was also conceded that the assessments made by the authority of the city on the lots in question were regular. It was agreed that the entire controversy in the case should be narrowed down to the main issues raised by the pleadings, viz., “-homestead, bad work and shell pavement” put down by appellant, and in accordance with the ordinances in force at the time that the-pavement was placed there by appellant.
Under this state of facts, the appellee having conceded that the assessments against his property were regularly made, the appellee was not bound to prove more in that direction. Other and further proof as to- the details of the assessment were unnecessary. It may be that but for this agreement the appellee would have introducéd evidence as to the process and manner in which this assessment was made. At least we are not authorized, under the facts of this case, to assume that the sum demanded of each person did not have a fixed relation to the whole tax, as well as to that demanded of each other lot owner, or laid upon every piece of property situated within the- limits or taxing district, prescribed by the second section of the ordinance under consideration.
As to the shell pavement originally laid down by appellant, evidence was introduced on this point that was too conflicting in its character as to the existence of the facts to justify us in holding that the court committed any material error in disposing of the matter. The question raised, that those assessments when regularly made do not constitute a lien on the property supposed to be directly benefited, has already been disposed of.
The question as to whether a homestead can be subjected to sale for the purpose of satisfying the fieri created by these taxes or assessments for local improvements was raised but not decided in the case of Galveston v. Heard, 54 Tex., 420. In that case the court held that it was the purpose of the city charter and ordinances on the subject to make the cost of the local improvement a lien or charge on the lot, the collection of which could be enforced by a sale of the property.
The constitution of the state3 (art. XVI, sec. 50) makes no difference between the homestead and any other real property as to its liability to be sold for taxes that may be due on it. Hor does it draw any distinction between general and special taxes to which it may be subject. The plain import of its terms is, that it is not protected from forced sale for lawful taxes that may be due on it. This instrument throws the most ample protection around the' homestead. In return it clearly intends that it shall bear its just proportionate share in the burdens, imposed by the government. It was intended to be alike liable as other real property to all taxes, state, county or municipal, that could under its restrictions be justly and lawfully laid upon the real estate of a citizen.
Under the pleadings and facts of the case, the judgment of the court below should be affirmed, and it is so ordered.
Affirmed. .