Holt v. State , 1915 Tex. App. LEXIS 554 ( 1915 )

On Motion for Rehearing.

[9] In our main opinion, filed in this cause on April 9, 1915, appellant’s twelfth assignment of error was overruled without discussion. On motion for rehearing counsel for appellant very earnestly insist that this assignment, which assails the judgment of the trial court in favor of plaintiff for the taxes assessed against appellant for the year 1910, on the ground that plaintiff’s suit for said taxes was barred by the statute of limitation of two years, should be sustained. Plaintiff’s petition was filed on April 17, 1913. The taxes assessed against appellant for the year 1910 were due or payable on January 1, 1911, and the collection of said taxes might have been enforced by the tax collector under the provisions of articles 7624 and 7632, Vernon’s Sayles’ Civil Statutes, at any time after said date, but no suit for the collection of delinquent taxes upon real estate is authorized until after the delinquent list has been made out and approved by the commissioners’ court, as provided in article 7692 of .the statutes above mentioned, and the lands upon which the taxes are due advertised, as provided in article 7687 of the said statutes. These articles of the statutes provide that the delinquent lists shall be made up by the tax collector on March 31st, after the taxes become due, and that after such lists have been corrected and approved by the commissioners’ court they shall be published for three consecutive weeks in some newspaper published in the county, “and after such advertisement suits shall be instituted,” etc. It is manifest, under the provisions of these articles, that no suit for delinquent taxes due upon real estate can be brought earlier than the 21st day of April of the year succeeding the year for which the taxes were assessed. Plaintiff,' therefore, could not have instituted this suit before April 21, 1911, which was less than two years before the date upon which the suit was filed, and if the statute of limitation applies to suits brought by or in the name of the state to recover taxes due a drainage district, the record shows that this suit was brought within two years after the cause of action and right to sue accrued, and therefore was not barred by the statute of limitation.

[10] We are further of the opinion that the statute of limitation cannot be invoked as a defense to a suit of this kind. Article 5212b of the Revised Statutes of 1895 provides that:

“No delinquent taxpayer shall have the right to plead in any court or in any manner rely upon any statute of limitation by way of defense against the payment of any taxes due from him or her either to the state or any county, city or state.”

While the taxes involved in this suit were levied only upon property of the drainage district and for the benefit of said district, they were levied by the commissioners’ court, and it is made the duty of that court to collect said taxes by suit brought therefor in the name of the state. We think it would do violence to the evident purpose and intent of the Legislature in the passage of this act to construe its language so literally as to restrict its application to taxes levied for state, county, city, or town purposes. The intention of the Legislature in the passage of this statute was manifestly to deny to all delinquent taxpayers the benefit of the general statutes of limitation, and it would defeat that purpose to exclude from the operation of the act taxes due a drainage district by placing a literal construction upon the words “taxes due either to the state or any county, city or town.” Such words should, we think, be construed to include any and all taxes levied and assessed under the Constitution and laws of this state, whether they are levied and assessed for state, county, city, or town purposes, or for the benefit of a drainage district or other quasi municipal corporation.

[11 ] Mr. Sutherland, in his work on Statutory Construction, § 218, says:

“It is indispensable to a correct understanding of a statute to inquire, first, what is the subject of it — what object is intended to be accomplished by it? When the subject-matter is once clearly ascertained, and its general intent, a key is found to all its intricacies; general words may be restrained to it, and those of narrower import may be expanded to embrace and effectuate that intent. When the intention can be collected from the statute, words may be modified, altered, or supplied so as to obviate any repug-nancy or inconsistency with such intention.”

In the case of Russell v. Farquhar, 55 Tex. 855, the Supreme Court, speaking through Chief Justice Moore, announced the general doctrine in the following forcible language:

“If courts were in all cases to be controlled in their construction of statutes by the mere literal meaning of the words in which they are couched, it might well be admitted that appellants’ objection to the evidence was well taken. But such is not the case. To be thus controlled, as has often been held, would be for the courts, in a blind effort to refrain from an interference with legislative authority by their failure to ttpply well-established rules of construction, to, in fact, abrogate their awn power and usurp that of the Legislature, and cause the law to be held directly the contrary of that which the Legislature had in fact intended to enact. While it is for the Legislature to make the law, it is the duty of the courts to ‘try out the right intendment’ of statutes upon which they are called to pass, and by their proper, construction to ascertain and enforce them according to their true intent. Eor it is this intent which constitutes and is in fact the law, and not the mere verbiage used by inadvertence or otherwise by the Legislature to express its intent, and to follow which would pervert that intent.”

Our courts have uniformly approved and followed this rule of statutory construction. Forshey v. Railway Co., 16 Tex. 528; Womack v. Womack, 17 Tex. 1; Runnells v. Belden, 51 Tex. 48; Ins. Co. v. State, 86 Tex. 268, 24 S. W. 397, 22 L. R. A. 483; Storrie v. Street Ry. Co., 92 Tex. 129, 46 S. W. 796, 44 L. R. A. 716; City of Houston v. Dooley, 40 Tex. Civ. App. 371, 89 S. W. 777; Railway Co. v. Hornberger, 141 S. W. 311.

[12] In disposing of the questions presented by the thirteenth assignment of error, we say in our main opinion:

“We do not think there is any merit in the contention that the bonds are void because the district for which they were issued includes Bay City, an incorporated town of less than 10,000 inhabitants, and said city has levied taxes for other purposes up to the limit fixed by the Constitution. If the provision of the Constitution before referred to should be construed as preventing the levy of taxes for drainage bonds upon property in the city which was already taxed for city purposes the full amount authorized by the Constitution, a property owner in the city might defeat the collection of the drainage bond tax levied upon his property therein, but this would not affect the validity of the drainage district and the bonds issued therefor.”

Appellant in Ms motion for rehearing has directed our attention to evidence in the record which shows that a portion of his land upon which the taxes sued for were assessed is situated in the corporate limits of the city of Bay City, and under the assignment the question of the validity of the tax upon this land is properly raised. Section 52, art 3, of the Constitution of this state is in the following language:

“The Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of the state, to lend its credit or to grant public money or thing of value in aid of, or to, any individual, association or corporation whatsoever, or to become a stockholder in such corporation, association or company; provided, however, that under legislative provision any county, any political subdivision of a county, any number of adjoining counties, or any political subdivision of the state, or any defined district now or hereafter to be described and defined, within the state of Texas, and which may or may not include towns, villages or municipal corporations, upon a vote of two-thirds majority of the resident property taxpayers voting thereon who are qualified electors of such district or territory to be affected thereby, in addition to all other debts, may issue bonds or otherwise lend its credit in any amount not to exceed one-fourth of the assessed valuation of the real property of such district or territory, except that the total bonded indebtedness of any city or town shall never exceed the limits imposed by other provisions of this Constitution, and levy and collect such taxes to pay the interest thereon and provide a sinking fund for the redemption thereof, as the Legislature may authorize, and in such manner as it may authorize the same, for the following purposes, to wit.”

One of the purposes for which the debt authorized to be incurred under this provision of the Constitution is “drainage, or in aid thereof.” Under the rule of construction which we have above stated, we do not think this constitutional provision can be construed as prohibiting the levy and collection of taxes upon property in a city or town to pay the interest and sinking fund requirements of bonds issued by a drainage district of which the city or town forms a part, on the ground that such city or town has theretofore issued bonds in the full amount permitted by other provisions of the Constitution. These bonds do not add to the bonded indebtedness of the town. The provision of the Constitution above quoted expressly provides that the debt created by the issuance of drainage bonds shall be “in addition to all other debts,” except that a city or town shall not increase its bonded indebtedness for drainage purposes beyond the limit authorized .by other provisions of the Constitution. Under this section of the Constitution a city or town would be authorized to issue bonds for drainage purposes or in aid thereof, and we think the exception stated in said provision was only intended to limit the amount of bonds which can be issued by a city or town for such purpose, and the fact that a city or town has issued bonds to the full amount allowed by the Constitution does not relieve the property in said city or town from taxes levied to provide for bonds issued by a drainage district of which such city or town is a part. We think the assignment was properly overruled.

We have carefully considered appellant’s able motion for rehearing, and have concluded to adhere to our former opinion. It follows that the motion should be overruled; and it has been so ordered.

Overruled.