Garey v. City of Galveston , 42 Tex. 627 ( 1874 )

Moore, J.

It is unnecessary to give any special consideration to the action of the court-on the exceptions to the petition. Our views on the questions presented by it will be sufficiently manifest in the consideration given to other points, in the disposition of the case.

Ho valid objection has, we think, been shown to the levy of such taxes by the city as are authorized by its charter, nor was the objection to the authority of the officer by whom the assessment was made well taken. The repeal of the former charter by the present Act incorporating the city of Galveston, did not operate as an 'immediate and absolute repeal and obliteration of all ordinances adopted by the city, under and while its former charter was in full force and effect. Only such of these ordinances as were in conflict with or i-epugnant to the new charter were superseded by it. The mere change of the officer upon whom duties provided for and regulated in an ordinance were devolved, in no way affected the validity of such ordinance, or annulled its provisions. Its requirements and the purposes it was ordained to effect, in all essential particulars, were as necessary for the interest and well-being of the corporation after the new charter was granted as before.

Hor has anything been shown to induce us to question the validity of what are termed the “ bridge bonds.” The creation of" the debt, and issuance of the bonds, if not expressly authorized in the charter of the city, then in force, was nevertheless expressly sanctioned and approved by an Act of the Legislature. The Legislature was not restrained from authorizing the levy of taxes to pay the interest and principal of such bonds by the constitutional inhibition against the passage of reti’oactive laws. It cannot be maintained that the debt was not in furtherance of a corporation purpose. It was not, therefore, ultrra vires, and such a one as could not be created by the corporation with the sanction of the Legislature.

We are, however, of opinion, the taxes levied under the ordinance exceeded the limit of authority conferred by its charter on the city. Section 1, Article 1, of Title 5, of the present charter, reads : “ The City Council shall have power within, the “ city by ordinance, to annually levy and collect taxes, not “ exceeding one per cent, on the assessed value of all real and “ personal estate and property in the city, not exempt from “ taxation bv the Constitution of the State.”

While the repeal of the former charter, under which the bridge or any other debt, due by the city, was created, and its incorporation under a new Act, in no way affected the liability of the city for the payment of such debts, even though its subsequent liability for them had not been expressly declared, as it is in the new charter; still it cannot be held that a mere authorization to raise a specific tax, to pay such debt, remains in force after the new charter takes effect. If it had been made to appear that the levy of a tax of one-fourth of one percent. until the payment in full of “ the bridge debt,” had entered into and formed a part of the contract with holders of the bonds, there might arise a.different question: But if such is the fact, it iá not shown in this case. But even if this had been shown, still, in view of the direct limitation in the charter of the amount of taxes which may be levied by the city, the practical effect would be the same. If a specific tax, one-fourth of one per cent, to discharge this particular debt, should be levied, if so stipulated, a proportional deduction would have to be made in the general levy, so as to keep the annual levy within the limit fixed by the charter.

That the charter must be held to limit the amount of taxes which may be annually levied by the city, on the facts as presented in this case, we think quite obvious. (Joyner v. Egremont, 3 Cush., 567; Cooley, Const. Limit., 519; Black, on Tax Titles.)

The judgement is reversed and the cause remanded.

Beversed and remanded.