Free v. Scarborough , 70 Tex. 672 ( 1888 )

Walker, Associate Justice.

The only question in this case that can be considered is the power of the county commissioners to levy a tax at a called session of the court.

Citing from a standard author, “taxes are burdens or charges imposed by the Legislature upon persons or property to raise money for public purposes or to accomplish some governmental end. The power to impose taxes is vested in the representatives of the people—in the legislative branch of government.” (Burroughs on Taxation, sec. 4, and cases cited.)

The Constitution, article 5, section 18, provides: “The county commissioners * * * with the county judge as presiding officer, shall compose the county commissioners court, which shall exercise such powers and jurisdiction over all county business as is conferred by this Constitution and the laws of the State, or as may be hereafter provided.”

Article 11, section 1: “The several counties of this State are hereby recognized as legal subdivisions of the State.”

Section 2: “The construction of jails, court houses and bridges, and the establishment of county poor houses and farms, and the laying out, construction and repairing of county roads shall be provided for by general laws.”

Under this power the Legislature (Rev Stats., art. 1514), conferred certain powers and duties upon the county courts. Article 1515 gave the power to levy taxes for county purposes, and in article 1517 imposed limitations as to the mode of imposing taxes, as follows: “Ho county tax shall be levied except at a regular term of the court, and when all the members of said court are present.”

U nquestionably the Legislature had the power to make this rule. The limitation admits of no construction; the meaning is clear; courts can not alter it or dispense with it. A tax levied at a called session of the court, or without the presence of the full membership, is not levied according to law, and can not authorize the tax collector to seize and sell property to enforce its collection.

Opinion delivered May 8, 1888.

As to the tax of sixty-two and a half cents per hundred dollars so levied, the injunction in favor of the appellants should have been granted and perpetuated. (65 Texas, 339 and cases cited.)

The judgment below is reversed, and will be here rendered in accordance with this opinion.

Reversed and rendered.