*1 201 City 1900.] v. of Houston. Ollivier Under company. the insurance most strongly against construed rule, subject, would, presume if were doubt upon the court there laws the State with reference the contract made would be Missouri, insured protected. which by rights harsh, are recovery invoked to terms which are policy prevent which flesh,” “the of mispresentations because demanding pound obedience caused and are not entitled enforcement injury except Missouri, to the mandate of the law. Under the statute of the State the representation Seiders, false, P. W. did not have made hyr although the effect to avoid the did misrepresented because matter policy, not contribute to his death, and the District Court not enter erred for ing judgment plaintiff.
This court to enter such proceeding judgment upon findings fact filed of the trial court as judge have should rendered, it is ordered that Seiders recover of Mary the Merchants Life Association of $3000, the United States the sum with 6 cent per interest from 1898; June also the $300, sum of reasonable attorney's with fees, 6 per date, cent interest from this and all costs.
Reversed and rendered plaintiff error. for P. M. City et Ollivier al. v. of Houston. January 11,
No. 845. Decided (cid:127) Releasing City Constitutional Debt Law — —Taxes—Limitation. prohibits Section 55 of article 3 of the Legis- Constitution of the which extinguishing any obligation lature from municipality, to the State or a renders empowering plead void a law defendants limitation in suits began. for taxes (P. 211.) due more than four before suit Court of Civil Appeals the First certified Question District, in an Harris County. Sam,
Bullitt & Louis and Joe M. section 17 of appellants. By the Bill of all Rights privileges by the granted Legislature or created under its remain authority control, collect taxes by is a municipal corporation privilege granted Legislature, time, and it may at and in sees way
fit, exercise this control over this 17; Bill sec. privilege. Rights, Charter of City 1899; sec. Denson, Laws of Alley v. Texas, 297;Bass. v. Texas, 350; 11 Fauntleroy, Walker v. Tarrant 8 30 County, Texas, 16; Galveston, v. Texas, 641; Blessing Weekes v. Galveston, 51 S. 544; W. Rep., Covington decided Kentucky, 30, 1899,
Feb. S.; Court Supreme U. Demoval v. Davidson County, S. W. 353; Rep., v. Garrett, Otto, 472; Meriwether City of Augusta v. North, 2 Am. 55; Lim., 192, 379, Cool. 380, 383; Const. Rep., 15 Am. and Law, Eng. Enc. pp. [iJanuary, 93 Texas *2 is that and vested impairs rights, law one takes away retroactive A laws, in or considera to transactions under existing respect acquired cause, far it be in this may determining In so as concerned
tions past. a the on the where is granted Legislature expressed and privilege control, it shall under the always special powers condition that them not vested rights being wholly political conferred are upon — —as of State, exists the will the only during Legis as this against power Galveston, 42 Texas, 612; v. 20 v. Blessing lature. Hamilton Avery, 65; St. Texas, 657; Greenville, Texas, 67 City Graham v. Louis v. Texas, 47; Houston, 67 Shields, Mo., 351; 52 v. Mellinger City Law, 1 6 Enc. of Tax., 56, 265, 266; on sec. Am. Desty Eng. pp. 938, 2 42 961. ed., 939; v. S. W. Langham, Rep., Sherman City to The to exercise corporations power privilege granted municipal The taxation is under the control Legislature. absolutely has no to is, to this only exception Legislature pass contracts, law and a charter a impairing municipal corpo- granted 582, Law, *3 have no in for that of St. v. standing City Louis purpose. 351; Shields, Mo., 52 Black, v. 2 Gilman of 510. City Sheboygan, law, Stewart, attainder, John S. bill of ex facto appellee. post No retroactive or law of shall the contracts impairing obligation , be The made. Constitution of the State of Texas is made more com than of the United States and most of the of prehensive States Union, the in that it not only inhibits laws obligations impairing contracts, laws, vested and ex and in rights, distinctly, express post terms, from retroactive prohibits Legislature passing any law. Texas, 1, Texas, Const. 16; art. City sec. v. 68 Mellinger 37; Galveston, Texas, De Cordova v. City 4 480.
The shall have no or Legislature to release or au- extinguish, thorize the or in in whole or the indebt- releasing extinguishing, part, edness, or to this individual incorporation Const., or to county or other therein. corporation municipal 3, art. sec. v. 55; Eustis, Texas, Henrietta v. 1 14; 87 Mayor, Dugan J.,&Gill 499; Cal., of Oakland v. 39 112. City Whipple, The Legislature State of Texas has no any local pass law special Const., 3 from taxation. art. sec. 56. exempting property
"Taxation shall be and uniform.” If certain of the equal taxpayers are taxes and are compelled pay by others allowed retroactive law them, limitation to defeat the collection of the same tax due from then this is not evidence showed certainly equality taxation. The that 90 cent of the tax for the on so that per sued had been year paid, effect the amendment 10 was to release cent of the taxes after per Cool, 90 Const., Tax., cent had been 140- per 1; art. sec. paid. Ark., 180; Cal., Oliver, Fletcher v. 289; 25 v. 47 Wilson Supervisors, 375; 91; v. Ind., State 69 v. Davidson Indianapolis, County, Demoval 10 S. 353; W. Ill., Hunsaker v. 30 Rep., 146. Wright,
Section 17 of the Bill of all Rights merely stipulates privileges granted franchises author- or created under its Legislature, shall ity, thereof, the control but does not say Legislature shall exceed the and limitations recited the Con- powers
204 93 Texas [January, it of a if can withhold the charter The Legislature stitution. to, it can about death bring corporation by repeal wishes charter, being but when it has once chartered still ing thereto, in concern, it in reference accordance only can legislate a going New violation thereof. Wolff v. with Orleans, S., 103 358. U. a Statute duly
After tax has been levied from such taxation unconstitutional. exempting property Iowa, 56. v. Dubuque Railway, laws must allow reason retroactively
Limitation when made act Laws, time in suit. on Retroactive able which Wade bring Randsall, 292; v. 227; v. Metc. Pereles Water (Ky.), Berry town, 305; v. Biss., 79; Cal., Ander Terry Scarbrough Dugan, son, S., 95 U. others, class,
The
excludes
there-
mention
one
particular
thing,
fore,
8 of
said that the
when section 10 of article
the State Constitution
levied
had the
to release from the
of taxes
payment
case
excluded
calamity,
for State or
great public
purposes
of taxes levied for city
release
payment
purposes,
Con.,
even
case of
Suth. Stat.
sec.
great
calamity.
public
Dndcr the law
that could
only
of Houston
collect taxes levied
said
its bonded indebtedness.
pay
tax, if
it to
bondholders could mandamus the
force
collect
*4
the
so;
city
it failed or
to
a
the
for
refused
do
but
judgment against
all
tax released the
and the
from demands
property
delinquent taxpayer
made
of the
to
tax.
bondholder could have
bondholder as
that
The
suit,
a
the
as it
owed the bonded
himself
this
city,
legally
party
debt,
all
had full
and
its own
make
the
protection
made.
the
which the bondholder could have
defenses
existing
A law
a
and to
the
to have
retroactive
affect
seeking
v.
of
and
is invalid. Morris
city
bondholders
creditors
rights
State,
Laws,
109, 111;
UY. here of the Court Civil Appeals upon question The opinions as follows: judges certified on dissent
MAJORITY OPINION. instituted February Justice. This cause ivas “Gill, Associate 13, 1899, in the Court of Harris County, by appellee, District Houston, M. P. Ollivier and his codefendants (appellants to recover for taxes levied said for the years here) certain lands situated said foreclose lien therefor upon answered denial of lim- The defendants citj'. by general by plea four At itation of the date of the institution the suit the years.
taxes sued for had been due for more than four but from date years, until cities were May, opera- prior exempt tion statute limitation. under the the amendment plea interposed
section 40 of the charter which took effect May, such as to suits permitted instituted plea urged to such date and at the date it" effect. prior when" went into pending is a with a appellee exceeding population 10,000 and under a charter. In this suit operating special the con- of the law was stitutionality assailed in so far as affected suits, and the trial court held the law unconstitutional and rendered judgment appellee. have “Appellants perfected assignments of error
. the one present validity of the law. “It was admitted taxes sued for were ‘laid, duly legally levied, and assessed’ and became due 1892 and It was shown that they became lien sought subjected and were at the date of the unpaid It was further judgment. *5 that, collected, made to of the tax appear sought half was to go into the fund for the support government and the city remainder was to a become of the fund created part for the pajunent the prin- and cipal interest of the city’s bonded debt. This latter was to shown have amounted at the date of the and assessinent to more than levy $1,600,000,and the amount had not been materially reduced at the date of this judgment. About nine-tenths of the property owners the had city their taxes due for paid named, the years and appellants the among remaining one-tenth which was delinquent. part the section of the charter in question provides 'any delinquent shall have the taxpayer to the statute of plead
limitations of four years any suit for taxes alleged to be due city the \January, 93 Texas such has heretofore or he Houston, whether suit hereafter in no case wherein such limitation is and the taxes plead
brought, thereof are shown to have been due and for or part payable sued or more the suit was be for four before instituted shall years judgment * * taxes. rendered for such charter that no shall be “Other the provisions provide for taxes which have due for four or more seized sold been seizure, at time the of such thus the col- city taking lect means the thus for years, tax shown be due four tax. liability effect such relinquishing delinquent trial in a “The learned law invalid judge strong holding opinion other reasons for so among holding: assigned, 1, That law in “First. is contravention of section article of retroactive laws. State Constitution prohibiting passage “Second. That it' is in contravention of section Constitution, shall State have declaring Legislature indebtedness, whole or extinguish obliga- part tion of or individual to this or to any county, corporation other therein/ “This court is con- Legislative that the opinion unanimous!}' a
trol over is su'ch that it can its charter change municipal corporation at will control or abolish the conferred and the municipality powers will not be heard to complain. a city
“That the and collect taxes when conferred upon is a a in which it no vested right, delegated'power, privilege, acquires such is control. always legislative debt, a
“That tax to a is not a nor technically due citizen it, contract, weight is his to the though pay ac- effect is a one and an that the authority liability personal of Henrietta tion of debt can be maintained its collection. Eustis, Texas, 14, cited. and authorities there uncollected tax an of appellant, “The conténtion at will withdraw from can of a of the property does not it, the law in and that to collect retro- inhibition against passage within constitutional come sound, and thus far the propositions laws, is also believed active thát as to some We are aware are conceded. urged appellants contrary, to the authority is respectable there these propositions Many them. tends authority support the vast weight we think counsel, one way bearing briefs in the able cases are cited stated, have received and they the various propositions other upon business It is at hands. regretted our consideration careful interesting- discussion of an extended will not permit with refer- will be disposed But the thus presented. questions our- we content 3 of the of article to section ence law in question. bearing of its discussion with a brief selves *6 is extinguish to consideration the law under effect “The inevitable Oizlivier Houston. 1900.] them, be due by for the taxes to and alleged liability appellants within its its as to suits for taxes was coming provision pending is to the fact that no 'other
manifest Attention called purpose! n is to like provision. State a of the such laws of limitation as Legislature may pass power is be deemed not be nor it doubted that may questioned, expedient of a a tax levied may collect power corporation already municipal withdrawn,' be otherwise retain permitted corporation functions, powers or its existence be terminated. But such may case the collect to the and such abolition with- passes drawal of the of the power does operate extinguish for taxes collect liability thus due. State proceed other through properly agencies, appointed appropriate pro- ceeds to the for which Meri- they designed. purposes originally Garrett, Otto, wether v.
“In the before us ease no of the was in this sense with- power drawn. Heither void nor the of the was declared levy levy purpose or in hand, it in the On the other is respect provided changed.
same section if council fail cause the shall in any year the taxes theretofore levied for the levy purpose liqui- dating debts of the and for certain other named city, purposes, year shall be enforced. previous “The act some directly instead destroying withdrawing power theretofore clothes the granted city, simply delinquent taxpayer with the to defeat under legal proceedings rightfully brought law and then him. existing rightfully contended, however, “It is remit taxes municipal remains in the reason Legislature unimpaired of section of that instrument provisions permitting to release The inhabitants of or county, property or town from of taxes for State or in cases payment countypurposes great calamity such public making town/ as provision taxes. It is that absolute municipal argued the remission of taxes was left in the failure municipal Legislature by to mention them. That a instead of mere conferring power, limitation inherent in that as upon body, to municipal remained. corporations
“It is further that, contended as this is the only utterance Constitution taxes, remission' of section 55 of article must be held not to include within its inhibitions liabilities in the nature of taxes. The rule of construction invoked by appellant sound, conceded to be here, to be thought inapplicable majority this court are taxes, opinion levied but uncollected, are a liability on' the delinquent, clearly such a as liability comes within the last cited the Consti- tution. Indeed the charter itself in this instance declares the owner liable for the personally taxes thereon. *7 [January, 93 Texas is forbidden the Legislature of the Constitution that provision “By indebtedness, or any liability, 'extinguish which would law to pass power or city/ thereby or any to the State obligation fur- itself denied. The Constitution taxes was liability extinguish its to render earnest framers purpose evidences many nishes favoritism, granting form of governmental every impossible —the of favors. The lightening public the bestowal special privileges, both to contrary of others is at the expense as to one citizen burdens shall be equal it is declared taxation its letter. So spirit if the would be defeated force of this uniform; but the provision fairly thus liability justly at will the remained to relinquish was inserted. of these evils this provision, fixed. For prevention conceivable every to cover broad enough Its terms are revenue diminish the of which would public the remission liability, tax a heavier or indirectly impose either thereby directly effect In the light sweeping not by those affected exemption. calamity of great it seen that case public of this was rest should or subdivisions sections .State particular end, relief. To this sec- some department government grant ex- inserted, being the exercise of tion 10 of article was call into action. which should to the circumstances pressly limited may surely accomplish which tax laws difficulty formulating to have seems of the burdens government distribution equal our embodying of the instrument been realized framers by fully law, the citizen is about with hedged provisions and therefore organic For these of the taxing him the abuse power. safeguarding in the rests Legis- reasons the contention appellant of a citizen of liability ature extinguish of his majority in a case where the vast for taxes levied and assessed levied, seems in- of the taxes thus citizens have their part fellow paid utterly institutions and untenable consistent with the our spirit of view. any point ex- may law in while operate
“But it is urged is, a law all, after thé liability fixing of the citizen tinguish. actions, such cases limitations of and that its incidental effect upon can not us not effect its That validity. as the one before does directly which could not be exercised indirection incidentally exercised, liability. The effect of the act is elementary. relinquish end is manifest. The effect ordinary The purpose accomplish is, in the law of limitation not to extinguish changes The time within which it be enforced. but to limit the delay or the liability negligence, be lost right may extinguished instance, if the but such result to the law. So chargeable time, the valid- to sue hereafter within required prescribed as the matter is beyond the act would be But ity question. pre- undertaken, sented, within a time city had'already permitted these then to enforce the collection of taxes. The Iiabil- existing Ollivier of Houston. WOO.]
ity was existent and the thereunder rights when the act unimpaired took effect. Ho to the given opportunity with its proceed The remedy. result-was effectual exemption from taxation for appellants named. character *8 fixed, amount of from taxation is property exempt by the Constitution and can not be increased extended Const., act. by legislative 1, 2, art. 8. “Of course this court understands existed on the purpose of the lawmaking body bestow favors or to make distinctions.
The general purpose act was doubtless to hasten rather than retard the revenue, 'collection of public and its effect will doubtless be to clear the dockets of tax suits tax collectors to spur prompt and. action. The act has been discussed from the of its effect standpoint this alone, class of cases and in far as so it would have the effect actions at the time defeating effective, it became it is held to be unconstitutional.
“The power of the to raise is legislative power questioned by appellants law should though be held to be properly in contravention of the Constitution.
"To this we deem it sufficient to if in say, that we are our correct construction of the 55, scope 8, section article then meaning to a deny city or right to raise the when a tax- question, payer seeks behind an protection invalid would be to render the constitutional provision nugatory. is not for the ben- efit of creditors of such not rest in the and if the to invoke it corporations, does right it can not be invoked all.
corporation, at “The judgment is affirmed.”
DISSENTING OPINION. Justice. I dissent from the respectfully “Pleasants, Associate in this opinion court, rendered which holds case-by majority to the charter act of amendment 1899, in which conflict with May, took effect sec- Legislature, tion of the State which prohibits Legis- indebtedness, lature from whole or liabil- extinguishing, part, individual to or to ity, any obligation corporation The act in any count;-, ques- or other therein. municipal corporation act individual or any an relief of tion does purport incurred debt due to or liability from enforcing act prohibits lo the but said city, simply tax and which has city, due.the or otherwise the collection suit but a ex- for four and in it is my judgment rightful been due years; should An act the Legislature ercise of Legislature. poiver so. unmistakably Every not be declared A'oid Avhen plainly except indulged every legis- must be support reasonable presumption Supreme Vol. LXXXXIII. —14 93 Texas [January, come within the literal of the lan- meaning taxes act. Whether
lative is immaterial. If of article Constitution of section guage demanded that taxes should believed that public policy the Legislature due, after became it was they within four years be collected by after the of that their enforced collection duty expiration to prohibit do, this it nine-tenths citizens time; might although and- like them for the had taxes assessed voluntarily Houston paid enforced collection of which was pro- as were the taxes the same citizens, nor of its nor the creditors hibited. Heither the city, taxes. The vested uncollected had-any taxes carries with it the necessarily and collect and the time within the mode and manner of collecting, prescribe should not be made; shall be and such power which the collections con- construction. The Constitution must be judicial frittered away by done, think- that section strued in its and when this entirety, *9 restrictions Leg- can not be as imposing article interpreted islature in the exercise of its undoubted power prescribe period For forced. in which the of taxes assessed and levied payment indicated, affirming I think the decision of court reasons here of the lower court is erroneous. judgment 1, 1899.” “Filed JSTovember of for
WILLIAMS, Court Civ-ilAppeals Associate Justice. stated has for our decision question District submitted the First dissent, as follows: in a certificate of of the District Court Harris an from a of judgment
“This is due bjr in for taxes city rendered favor of the against appellants County, for the 1898 and years them when the suit was for more than four years had due
“The taxes been May, of was and undisposed and the suit pending instituted of the of city empowering parties 40 of the charter Section of limitation of four bar years taxes to for plead liable to said city taxes, and was took effect May, for suits said city pending trial of this action. The court held in bar pleaded appellants suits, to be in contravention far as affected in so pending provision, majority 3 of the State 55 of article section dissenting Pleasants this court has affirmed-the Justice judgment, constitutionality the law. The constitutionality of the question on the appeal. -of the law is the only question presented and, for before us on motion rehearing, now cause is “The certified is respectfully the following question on motion of appellants, for decision: your as it affects actions in so far in question, “Is the provision effect, in contravention time the law took at the
for taxes pending Constitution? the State for the years due by for rightfully appellants sued
“The taxes Ry. S. A. & A. P. 1900.] Co. v. Holden. Eme-tep.ths
named. taxes due and 1893 had been btr the other paid owners of the city.
“The bonded debt at the date of the judgment, was more than $1,600,000, and half the taxes sued for were to be appropri- ated for the support government generally the remainder aof liquidation bonded city’s debt.”
The charter of the Houston is made a public law' of which the courts are required notice, take judicial and the amendment of 1899, not certificate, stated in the made expressly applicable pend suits ing effect, and has the if'valid, to extinguish the to exact payment taxes which had due to it been for more than four when such suits were instituted,' there having been no previously 3rears limitation applicable such actions. The majority the Court of amendment, held that Appeals Civil so far as it applied pend suits, was in ing conflict with Constitutioii, section 3 of which is as follows: shall have no power to release - extinguish.or authorize the releasing extinguishing, whole or in the indebtedness, part, any incorporation or individual to this State or to other municipal corpo ration therein.” We agree with the majority this opin ion, and therefore answer the stated in the affirmative. The majority sufficiently discusses opinion and this makes question, for ns to do unnecessary more than our announce conclusion.
Affirmed. *10 Railway Company & San Antonio Aransas Pass v. C. W. Holden. January 11,
No. 847. Decided Filing 1. Briefs —Time for. Construed. —Statute requires Statutes, days Revised briefs to be filed not less than five Article actually transcript appellate court, though filed before (P. 213) required to be filed till later date. Filing. Delay in 2. Same —Effect every however, appeal not, does authorize dismissal The statute only given slight departure rule, but the case as from the that such direction be (P. appellee 213.) benefits act. to secure substantial .of . Appeals. of Civil for Courts 3. Same —Buie 39 (Buie rule court on the same Courts Civil Neither does the every pro- appeal slight departure Appeals) require from its a dismissal injury (Pp. 213, 214.) visions, infraction. could result where for Failure. 4. Same —Excuse required 28th; transcript perfected 7th; August Appeal brief filed June August 30th, actually September 5th, next appellate filed filed in the appellee prejudiced Held, the fail- beginning was not 2d. term October days filing transcript filing postpone until five after ure (Pp. 212, 214.) brief, be dismissed. should not ration is not Notes and Con. a contract. to Stat. Sedgwick, 8, 10, article of the Constitution is as follows: “The Legis- Section in no to the inhabitants of or lature shall have release town, of taxes for State or or any county, city payment unless,” 55, 3, etc. as follows: “The Leg- Section article is purposes, to or to authorize islature shall have release extinguish, indebtedness, in whole or in releasing extinguishing, part, to this town individual obligation incorporated toor or other therein.” any county, municipal a reference to par- Where Constitution speaks plain language a matter, meaning ticular have no different courts place on the words because the literal happen employed interpretation with in relation to other be inconsistent other instrument parts cer- 10, 8, taxation, section and only as article refers subjects, tain are those are left within things not prohibited, things prohibited the control referred in section Legislature; things 55, 3, article over do not refer to the priv- taxes, collect ilege granted corporations municipal the control article that has over these under privileges the.Legislature Blanks, 17, Shuman, Texas, 442; Bill of v. 5 Erwin v. Warren Rights. Rambolt, 60 Texas, v. 583; Galveston, Texas, 437; Lufkin 63 Railway v. Texas, 67 65, 130. 654; Lim., Cool. Const. is subject, pre- Where constitutional is made upon section subject, sumed to be a as' complete expression upon 10 of article 8 of the is releasing Constitution upon taxation, all the restrictions contain conclusively presumed im- the most exist this Legislature upon true, as this and for a reason is portant legislation; stronger 8 of contains all the restrictions are Constitution taxation, found those provisions the direct upon except v. Ollivier of Houston. 1900-1 around found 'corporations, restrictions throwing special 11; Const., arts. McFadden v. article 11 of the Constitution. Long ham, Texas, 579. As section 10 of article is the last the Constitution expression taxation, it taxation, and is found in the article devoted to only upon ais and controls the more subject, general specific expression has 55 of article if indeed this section found section expression Texas, 654; Rambolt, reference to taxation. Railway Sedg. Laws, contract, and if a law charter Houston contracts, affected impairs injuriously persons are the it aside. Third thereby set proper parties apply parties