Zane-Cetti v. City of Fort Worth , 269 S.W. 130 ( 1924 )

Appellants, who were plaintiffs below, alleging that they were resident taxpaying citizens of Fort Worth, Tarrant county, Tex., and owners of real estate therein, sued to restrain the city of Fort Worth, its mayor and commissioners, and its tax assessor and collector, from levying and collecting for the year 1923 and subsequent years a tax of 86 cents on the $100 valuation of plaintiffs' property, on the ground that said tax was illegal and void. Plaintiffs' petition alleged, amongst other things, that on July 11, A.D. 1922, the city of Fort Worth, being then a city of more than 5,000 inhabitants, governed under a special charter granted to it by the Legislature in 1909, and desirous of amending its said charter as provided for under section 5, art. 11, of the Constitution of Texas, adopted on November 5, 1912, and commonly known as the "Home Rule Amendment," caused to be issued by proclamation of its mayor and commissioners, a notice of election, addressed to the qualified voters of the city of Fort Worth, advising them that on July 22d, such election would be held at which five proposed amendments to the Fort Worth charter would be submitted.

The proposed fifth amendment to its charter involved in this suit was alleged by plaintiffs to have been as follows:

"Fifth Proposition. Shall sections 14 and 15 of chapter XV of the existing charter of the city of Fort Worth be amended so as to hereafter read as follows:

"Sec. 14. School Taxes, Rate of; Levy and Collection; Expenditures by Trustees. — The board of commissioners of the city of Fort Worth shall have no discretion in fixing the rate at which taxes shall be assessed and levied each year for the benefit of public free schools, provided such rate does not exceed 86 cents on each $100.00 of value of the property subject to taxation, but shall assess and levy the rate fixed annually by the board of trustees of the independent school district of the city of Fort Worth up to and including the rate of 86 cents on $100.00 of the value of the property, subject to taxation, as aforesaid, and it shall become the duty of the board of commissioners, to annually levy and collect said taxes as other taxes are levied and collected, and said tax when collected shall be placed at the disposal of said board of trustees by paying over monthly to the treasurer of said board of trustees the amount collected for the purpose of the public free schools of Fort Worth, to be used for the maintenance, support and use thereof. Said authorized rate of 86 cents on the $100.00 shall be in addition to and independent of all other taxes provided for in this charter.

"Sec. 15. School Taxes; School Board to Determine Rate. — It shall be the duty of the board of trustees of the independent school district of the city of Fort Worth, to determine what amount of taxes, not exceeding 86 cents on each $100.00 of the value of the property subject to taxation, shall be necessary for the purpose, maintenance and use of the public free schools of the city of Fort Worth for each current year, and the repair, erection and purchase of buildings, and on or before the date upon which the board of commissioners is required by this charter to levy general taxes, said board of trustees shall certify to the said board of commissioners the rate of taxes to be levied for the school purposes, and it shall be the duty of said board of commissioners to levy said taxes."

Plaintiffs then alleged that said election was held; that said fifth proposition was adopted by a vote of 7,322 to 3,283; that the city commission declared same carried; and that they thereafter upon requisition of the board of school trustees of the independent school district of the city of Fort Worth, on August 31, 1922, levied said tax of 86 cents on the $100 valuation of property situated within said district. Plaintiffs then alleged that said levy was illegal and void because said election was submitted to others than taxpaying voters in violation of article 2876, R.S. 1911, as amended on March 30, 1917 (Acts 35th Leg. c. 169, § 1; Vernon's Ann.Civ.St. Supp. 1918, art. 2876), which reads as follows:

"The city or town council or board of aldermen of any city or commission of any city, town or village, whether incorporated under any act of the Congress of the republic or the Legislature of the state of Texas, or under any act of incorporation whatever, shall have power by ordinance to annually levy and collect such ad valorem taxes for the support and maintenance of public free schools and for the erection and equipment of public free school buildings in the city or town where such city or town is a separate and independent school district; provided that no such tax shall be levied until an election shall have been held, at which none but property tax payers, as shown by the last assessment rolls, who are qualified voters of such independent school districts shall vote and a majority of those voting shall vote in favor thereof. The proposition submitted may be for such a rate of ad valorem tax not exceeding such per cent, as may be voted by a majority vote of all votes cast at any such election. * * *"

Plaintiffs further alleged that said proposed amendment to said charter was void because adopted in violation of section 5, art. 11, of the Constitution, which reads as follows:

"Sec. 5. Cities [and towns] having more than five thousand (5,000) inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters, subject to such limitations as may be prescribed by the Legislature, and providing that no charter or any ordinance passed under such charter shall contain any provision inconsistent with the Constitution of the state, or of the general laws enacted by the Legislature of this state."

Plaintiffs further alleged:

"That the said proposed amendment so voted as proposition No. 5 at said special election held on July 22, 1922, did provide a special tax of 86 cents on $100, thereby greatly increasing the special tax which the said city of Fort Worth was authorized to levy under its then existing charter, and that the same was attempted to be done without submitting the said proposed special tax to the people at an election, at which only property tax payers resident in said city were permitted to vote, and said amendment so adopted, as hereinbefore set forth, was and is illegal and void."

Then followed allegations as to the levy of and threat by the tax assessor and collector of the city of Fort Worth to collect this increased tax of 86 cents on the $100 valuation of plaintiffs' property for the year 1923, and for future years, and a prayer that said tax be declared null and void, that its levy and collection be enjoined, and for general relief.

To this petition defendants lodged a general demurrer and amongst others a fourth special exception as follows:

"Fourth Special Exception. Further specially excepting to said petition, defendants say the same is insufficient in law, because the only point made against the validity of the election and of the charter amendment adopted at such election is that qualified voters in the city who were not property tax payers were permitted to vote in such election, and said point is wholly without merit for the reason that under the Constitution and laws of this state all qualified voters in Fort Worth, regardless of whether they were taxpayers or not, were clearly entitled to participate in said election and vote for or against said charter amendment."

The trial court upon a hearing on January 25, 1923, sustained the general demurrer and said fourth special exception, the plaintiffs declined to amend, and judgment was thereupon rendered against them. From this judgment plaintiffs appeal.

The issue before us on this appeal is that stated in defendants' fourth special exception; that is, were all the qualified voters of the city of Fort Worth entitled to participate in said election, so far as same related to what was designated as the fifth amendment to the Fort Worth charter?

Sections 14 and 15 of chapter 15 of the charter, as they appeared before the proposed amendment, are not shown in the record. Nor does it appear just how much said proposed amendment increased the tax rate for school purposes. However, we think it reasonably appears from the pleadings that the only change in the charter attempted to be made by the proposed amendment thereto was an increase in the tax rate.

Prior to the adoption of the Home Rule Amendment, the Legislature had the power to amend the charter of a city of more than 5,000 inhabitants by special act and to regulate the levy and collection of such taxes as were authorized by law. The Home Rule Amendment, however, with the Enabling Act passed thereunder (see Gen. Laws of Texas, Reg. Session 33d Leg., chap. 147, p. 307; Vernon's Sayles' Civil Statutes 1914, arts. 1096a-1096i) vested in cities of more than 5,000 inhabitants the power to adopt or amend their charter by majority of the qualified voters of such cities, subject to the limitations therein prescribed. It follows then, necessarily, we think, that such powers as were not granted to the "qualified voters" of such cities by the Home Rule Amendment were and are reserved to the Legislature, and that matters of regulation or control not so vested in the qualified voters of such cities by said section 5, art. 11, of the Constitution, are proper subjects of legislative action and control. Cohen v. City of Houston (Tex.Civ.App.) 205 S.W. 761; Eastham v. Steinhagen, 111 Tex. 597, 243 S.W. 458.

This brings us to the question of whether or not the fifth proposition submitted to the qualified voters of the city of Fort Worth, designated as an amendment to its charter, and the purpose of which was evidently to raise the school tax rate, was in fact an "amendment" to the charter within the legal meaning of that term as used in the Home Rule Amendment to the Constitution. If it was not, then such proposed amendment was undoubtedly subject to the provisions of article 2876, Revised Statutes 1911, as amended by section 1, chap. 169, Act of March 30, 1917 (see 1918 Supplement to Vernon's Sayles' Revised Civil Statutes), which required such election to be submitted, so far as the tax increase was concerned, to none but property tax payers, as shown by the last assessment rolls, who were qualified voters of such independent school district.

Actions of cities under the Home Rule Amendment to the Constitution have been frequently before the courts for review. The action of the city of Waco in extending its limits under its charter which was adopted pursuant to the Home Rule Amendment was attacked on the ground that such action was an amendment to its charter, and because it was had within two years after the charter was adopted it was alleged to be in violation of the express provisions of the Home Rule Amendment. City of Waco v. Higginson (Tex.Com.App.) 243 S.W. 1078. In that case the Commission of Appeals expressly held that such extension of the city boundaries, though accomplished by an election held for that purpose, was not an amendment to its charter, but that —

"The city of Waco merely exercised one of its charter powers in extending its limits on the occasion in question. It did not amend its charter. After the limits were extended, the charter provisions remained the same."

And this was true, even though the original charter may have prescribed the exact boundaries of the city.

A similar attack was made upon the action of the city of Beaumont both in extending its boundaries and in increasing its school tax rate. Eastham et al. v. Steinhagen et al., 111 Tex. 597, 243 S.W. 457. In that case, in addition to extending its boundaries, the city had, by two elections held for that purpose, increased its school tax rate in June, 1918, and again in September, 1919. At an election held on December 30, 1919, it adopted a new charter under the Home Rule Amendment. The elections of 1918 and September, 1919, were held under the old charter granted the city in 1909. The attack was made on the ground that in adopting the new charter which included the increased school tax rate, the city was in effect amending the old charter within two years after the school tax elections, in violation of the express provisions of the Home Rule Amendment. In overruling this contention, the Supreme Court, speaking through Justice Greenwood, used the following language:

"With these provisions of the charter contemplating change in the school taxes and requiring the collection and disbursement of the taxes, at whatever rate authorized, the increases in the rate of taxation, for school purposes, accomplished by the elections of June, 1918, and September, 1919, did not alter, amend, or repeal the charter."

It is true that in that case said elections were specifically for the purpose of increasing the tax rate, and not designated as charter amendments; but we think the principle involved is the same as in the case before us. If the city of Fort Worth had held an election not submitted as an amendment to its charter, but for the express purpose of increasing its tax rate to not exceeding 86 cents on the $100 valuation of property, and under the provisions of said article 2876, as amended, there can be no doubt but that such increased tax could and would have been levied, collected, and used by the board of commissioners and the trustees, under the charter as it then existed, without any amendment thereto. The charter provisions as to the levy, collection, and use of the school tax in that school district, as stated by Justice Greenwood in case of the Beaumont charter, doubtless contemplated changes in the rate of the tax from year to year, and such provisions of its charter were intended to apply regardless of what that rate might be. If that be true, it was not necessary to amend the charter in order to change the rate, and an election whereby only the rate of tax was increased is not necessarily nor essentially a charter amendment within the meaning of article 11, § 5, of the Constitution, even though same be so submitted to the electorate and be voted upon as such. Our conclusion is, therefore, that said fifth proposition, though submitted as an amendment to Fort Worth's charter, was in fact and in effect not a "charter amendment" within the meaning of that term as used in the Home Rule Amendment to the Constitution, but only an election to increase the school tax rate, should have been governed by said article 2876, Vernon's Sayles' Civil Statutes as amended in 1917, and should have been confined to, and submitted to, the property tax payers of said district who were qualified voters, instead of to all qualified voters therein.

We do not think that the rule stated in the case of Garitty et al. v. Halbert et al. (Tex.Civ.App.) 235 S.W. 231, applies here. In that case the amendment to the charter was attacked as violative of section 10, art. 11, of the Constitution, and the statute we have discussed seems not to have been considered at all. We do not wish to be understood as either approving or disapproving the holding of the court in that case, but have rested our conclusion in the case before us on the grounds above discussed.

From the conclusions reached we are of the opinion that the trial court erred in sustaining the demurrers to plaintiffs' petition, and the case is therefore reversed and remanded for trial.

Reversed and remanded.