Preston v. Anderson County Levee Improvement Dist. No. 2, 3 S.W.2d 888

Preston v. Anderson County Levee Improvement Dist. No. 2

3 S.W.2d 888 | Tex. App. | 1928

Lead Opinion

Article 8017, R.S., under which the present proceeding was brought, authorizes the inclusion of all tracts of land and the joinder of all interested as landowners and lienholders as parties in one action to foreclose tax liens by reason of taxes delinquent and due a levee improvement district. The action as declared, is in the nature of a special proceeding in rem, only specifically the foreclosure of the tax lien on the land. There is a community of interest in the subject-matter of the action, permitting a full joinder of parties interested. The Legislature having the power to prescribe the special proceedings and the rules of procedure, as was done by it, the appellants may not each claim the absolute privilege, as here claimed, to have a separate hearing in the action, by distinct suit or special trial, and therefore may not predicate error in violation of absolute privilege or right upon the refusal of the court to sustain their plea of misjoinder.

The tax rolls for the years 1922 and 1923 were not formally fixed of record, as alleged and proven, but it was done by the authority of the supervisors in 1924 for that year, as well as the omitted years of 1922 and 1923. The delinquency of payment of taxes for each of the years named was declared upon as occurring in 1925 for taxes of 1924, before the filing of the suit in June, 1925. The plea of limitation, as pleaded, was not available, under the circumstances, against taxes for 1922 and 1923, as limitation against enforcement did not commence to run until the rate of tax was actually fixed. A cause of action for delinquency of payment arose after the tax rate was formally fixed by the commissioners' court, the lands being omitted from taxation for the two years mentioned. Kuhlman v. Dickson (Tex.Civ.App.) 233 S.W. 338. The point is analogous to the exception applicable to fraud or mistake. Smith v. Fly, 24 Tex. 345,76 Am.Dec. 109; Oldham v. Medearis, 90 Tex. 506, 39 S.W. 919.

Section (e) of article 8017, R.S., undertakes to prescribe what will suffice as requisite to a right of action in this character of special proceedings. The prescribed method, however simple in form, contains all the essential elements of a demand or obligation legally enforceable in the courts. And the petition of the plaintiff sufficiently contained the statutory requirements as against the demurrer and exceptions urged by the appellants

The appellants claim that the original report of the commissioners of appraisement *891 and the tax rolls were inadmissible in evidence because they failed to sufficiently describe or identify the lands against which the taxes were assessed. The lands were listed on the tax rolls and enumerated in the report in the name of the owner, the abstract number, the number of acres, and the name of the original grantee, with the amount of the net benefits accruing to the particular tract of land. There was sufficient statutory compliance. Article 7164, and section (e), art. 8017, R.S.

The act in question was passed in authority and furtherance of section 59 of article 16 of the state Constitution. Providing, as the act does, for the creation of a levee district as a public utility as conducive to public health, and for notice and hearing of all landowners interested, it is not subject to the various constitutional objections as presented and urged by appellants, of due process of law and equal and uniform taxation. Neither is the act opposed to section 18 of article 5 of the Constitution upon the ground that it imposes duties upon the commissioners' court not constituting "county business" in the meaning of that term. The levee district is created as a public utility and within boundaries of the designated counties. It is made the duty of the commissioners' court to levy taxes, authorized through the initiation and referendum of landowners, to discharge the cost of construction and maintenance of levees. Taxation is the normal and ordinary source of income of counties.

The court sustained exceptions or demurrers to the appellants' pleading setting up as a defense to the proceeding to the effect that: (1) "The levee district was never legally created, organized or established" as provided by the Acts 4th Called Sess. 1918, p. 97; (2) the appointment, action, proceeding, and report of the commissioners of appraisement were all illegal and void. It is thought that the allegations are not to the extent merely of resisting the payment of the particular taxes of 1922, 1923, and 1924, as declared upon, but reach further in an attack, resting on proof by extraneous evidence, upon proceedings leading up to the creation and organization of the levee district and the assessment of benefits to the land as a basis of taxation for the payment of bonded indebtedness for the construction of the levee. In purpose and effect illegality in toto is claimed of both the organization of the district and the appointment and all proceedings and actions of the commissioners of appraisement. They were all matters that could have been defensibly acted upon at the time of the initial proceedings on proper proceedings. Sections 22, 28, Acts 1918; Wilmarth v. Reagan (Tex.Com.App.) 242 S.W. 726. The validity of the proceedings leading up to the creation and organization of the levee district are not subject to collateral attack 38 C.J. § 27, p. 1008. And the commissioners of appraisement are a quasi judicial tribunal, whose decision is not open to collateral attack. Acts 1918; Glenn v. Levee District, 114 Tex. 325, 268 S.W. 452. But viewed as a direct attack, the pleadings are not legally available as a defense in the absence of the bondholders or their representative as parties defendant. The Glenn Case, supra, intimates that it becomes a direct attack, and the bondholders are necessary parties when the taxpayers seek, as here, in a suit to enforce collection of delinquent taxes, to abate the whole assessment of benefits, made the basis of taxation in the first instance, and the organization of the district. Also Levee Improvement Dist. v. Ayers (Tex.Civ.App.) 246 S.W. 1112; State, for use of Delta County Levee Improvement Dist. v. Bank of Mineral Wells (Tex.Civ.App.) 251 S.W. 1107. Ordinarily the question of whether or not there has been failure simply in the ministerial act of extending or computing the taxes, or placing them on proper rolls, against the individual taxpayers, becomes an issue in the suit. In such matters simply the rights of bondholders are not injuriously affected, since there is a remedy by properly fixing the rate of tax. But questions seeking to make invalid or void any assessment for payment or any lien securing the bonds injuriously affects the bondholders, as without legal recourse in any event to have the bonds paid. There is no way to compel the landowners to re-establish the district, once it is determined invalid. The statute places the public duty upon the supervisors of the levee district to enforce collection of taxes. The funds so collected are simply held in trust for the purposes expressed in the statute, of paying the interest and the principal of the bonded indebtedness. Such officers are not and do not become representatives of the bondholders, but act as a public agency, and not one of a private nature, for the administration of the public trust confided to them.

We have considered every assignment of error, and conclude that they should be overruled.

The judgment is affirmed.

Addendum

On Rehearing. The members of this court are of the opinion that the motion should be overruled.

The correction, however, is made as to the statement "that the tax rate for the years 1922 and 1923 was not formally made of record by the commissioners' court," etc. This was inadvertent error. It should only appear that tax rolls were made by the secretary of the board of supervisors in 1924 for that year, as well as for the years of 1922 and 1923. *892