Glenn v. Dallas County Bois D'Arc Island Levee Dist. , 275 S.W. 137 ( 1923 )

Appellee instituted this suit for the purpose of recovering an annual assessment levied against appellant's land in the form of a levee district tax imposed in behalf of appellee, which is a levee district incorporated under the statutory provisions of chapter 44, General Laws of Texas, enacted at the Fourth Called Session of the Thirty-Fifth Legislature (Vernon's Ann.Civ.St. Supp. 1922, arts. 5584 1/2-5584 1/2tt), an enactment generally designated as the "Laney Act."

The pleadings upon which appellant based his resistance to the suit were a general demurrer, a general denial, and certain special pleadings, comprehended among which were allegations to the effect that to enforce the payment of the tax would confiscate appellant's land included in the district, and particularly certain hill land upon which a heavy levy was imposed, and which, under the allegations, would receive no benefits whatever; also an allegation that the assessments which appelleee sought to enforce were levied in contemplation of the construction of hill drainage, which was beyond the scope of appellee's authority to consider and impose. It was further alleged that the assessment was laid upon the theory that appellant's land would be benefited by the digging of a canal for appellant's hill drainage of land which did not overflow, and to which the construction of levies to prevent overflows would afford no protection whatever; and that all the money derived from the sale of the bonds issued by the levee district had been applied to and exhausted upon the erection of levies to protect overflow lands, so that none remained with which to construct canals for hill drainage; and that, accordingly, the assessment could not justly and legally be enforced against appellant's land included in the district, consisting of hill land, which could not be benefited by the construction of levies to prevent overflows, and which could be benefited only by the construction of canals for hill drainage.

In response to an allegation made by appellee that appellant did not appear at the time and place appointed by the commissioners of appraisement for hearing objections to their assessments, appellant alleged that he did appear in person at such time and place for the purpose of making objections and exceptions to the assessments made against his land, and did state his objections and exceptions, but that the commissioners of appraisement and the supervisors of the district represented to him that the proposed assessment against his land was made in contemplation of the construction of canals and ditches to provide hill drainage for it; that they represented to him that such canals would be constructed with the proceeds of the bonds, and that, in reliance upon these representations, he was induced to desist from urging his objections, and, because of the representations made by these officials and representatives of appellee, he abandoned the pursuit of his protest in compliance with the procedure prescribed by the terms of the statute; that he was misled and deceived by these representations, which were false, although made in good faith by the board of appraisers. It was alleged that the appraisers were misled by the supervisors, who did know that no hill drainage would be constructed; that none was contemplated by them, and that they never intended it should be afforded; and that, while the appraisers, relying upon the false representations of the supervisors, acted in good faith in persuading appellant that the benefits to his land would be commensurate with the assessments made against it for hill drainage, nevertheless such improvements were never contemplated or attempted; and that the false representations, made in good faith to appellant by the appraisers, induced him to desist from protesting the assessment under and in compliance with the terms of the statute under which the levee district was created and the assessment against his land was levied.

A general demurrer to all the various defenses specially interposed by appellant was sustained, and judgment was rendered against appellant for the entire amount in suit, and the court decreed a foreclosure of the tax lien against the land provided by the statute.

The case is presented to us upon various propositions, none of which can be sustained unless it be one among them which suggests that the general demurrer ought not to have been sustained because the petition comprehended an allegation of fraud against the supervisors of the district and board of appraisers, officials upon whom, under the statute, specific duties and responsibilities of conducting the affairs of the levee district are imposed.

While the petition is not characterized by allegations either emphatic or challengingly specific as to fraud or imposition, we are nevertheless constrained to hold that that portion of it which recites that the supervisors knowingly made statements to appellant which were untrue with reference to hill drainage and consequent benefits to him therefrom, and that the board of appraisers through mistake made similar representations to him at variance with the plans and purposes, all of which representations allured him into inaction and abandonment of protestation against the levy in conformity with the course prescribed under the statute, sufficiently alleged fraudulent conduct against which he might be entitled to relief. The statute enacted in conformity with and under the direction of article 16, § 59, of the Constitution, manifestly expresses the legislative purpose to render the assessments made by the board of appraisers conclusive if free from positive fraud and unattended by such reckless mistake as will amount to constructive fraud. The evident legislative purpose was to free such districts from the delays and difficulties of prolific litigation in building the levees and collecting the assessments. This policy is revealed in the tedious and specific provisions for procedure prescribed by the law. Articles 5584 1/2 to 5584 1/2tt, V. S. T. C. S. (1922 Supp.). But, when an owner of property in a district is deceived and thus deprived of the opportunity by the officers of the district to protest against the imposition of a tax upon land which the plans of reclamation are not intended to benefit, and when his land can receive benefits only from certain particular kinds of improvements which those managing the district do not intend to make, and which such officers as well as the board of appraisers represent to the owner will be made, thereby lulling him into acquiescence and depriving him of his opportunity to pursue statutory methods of remedy, he will not be denied access to the courts for redress. The statute does not express such denial of judicial remedy. This is the effect of the Supreme Court's decision in the case of Wilmarth v. Reagan, 242 S.W. 726. The purpose of that suit was, first, to annul the order of the commissioners' court creating the levee improvement district, or, in the alternative, to rearrange its boundaries so as to exclude from the district certain lands belonging to those who instituted the suit on the grounds that proper hearings were not allowed, that the boundaries were insufficiently described, and that lands belonging to those who sued were wrongfully included in the district; secondly, to annul the report of the commissioners of appraisement of the district assessing the damages and benefits to lands therein, and to annul the order of the supervisors of the district approving the report, or, in the alternative, to compel a reassessment of damages and benefits on the ground that the assessments were discriminatory in favor of one of the supervisors and of others; thirdly, to prevent the sale of the bonds voted to provide funds for the proposed improvements in the district, and to prevent the levy of taxes to pay the bonds, for the alleged reason that the election was held by an election manager instead of by such election manager and two clerks appointed for the purpose.

Actual fraud, consisting of acts depicted as being corruptly and designedly wrongful, was alleged as permeating the conduct of the supervisors and board of commissioners, inducing the steps undertaken by them against which complaint was made and relief was sought. The Commission of Appeals, speaking through Judge Powell, held in that case that the trial court erred in sustaining a general demurrer because the allegations of fraud set forth in the petition raised an issue for the determination of that court, notwithstanding the provisions of the statute prescribing special procedure for relief by aggrieved parties against assessments.

Here the allegation is made, in effect, that the supervisors intentionally and knowingly made false statements to appellant as to what was intended, and that appellant relied at least in part upon these representations by the supervisors, which they knew to be false. The allegations sufficiently convey the idea that these statements made by the supervisors, coupled with the innocent false representations of the commissioners of appraisement, lulled appellant into a sense of security, and, without any fault of his, deprived him of his opportunity to avail himself of the statutory remedy against the concealed wrong thus imposed upon him. The allegations attribute to the supervisors the practice of deliberate deceit upon appellant, and therefore present in this respect a charge of actual fraud.

If no improvement was to be conferred upon appellant's hill land, it was the legal duty of the commissioners of appraisement to ascertain and know this fact. It was also their duty to act upon it and shape their assessment in accordance with it. Assuming the allegations to be true, they acted upon an assumption or belief contrary to this fact they were charged with knowledge of, and, upon appellant's seeking relief at their hands, they diverted him away from the only course the law directed him to follow for his protection. This constitutes an allegation of constructive fraud, which, in the respective relations of the parties here, need not encompass more than an honest mistake by the officials. The effect of the injury alleged in this manner to have been done is the same as if it had resulted from actual fraud.

Accepting appellant's allegations as true, then, by fair promises and misrepresentations, the supervisors and the board of commissioners stripped appellant of the only defense against the wrongful assessment which the statute affords. Their action and not his inaction in the premises under the allegations deprived him of his right and inflicted the injury which he alleges. Hence, according to the petition, through their erroneous and wrongful reassurance, upon which he had a right to rely in good faith, he must lose a valuable right and suffer an injury without a remedy, unless the courts are open to him for the hearing of which the officials fraudulently deprived him. Fraud, either actual or legal, vitiates whatever it enters into — contracts, judgments and all other transactions — and, in whatever form it appears, the general rule is that courts will accord relief against it. 12 R.C.L. 230 et seq.; 26 C.J. 1062; 27 C.J. 30.

It is true that in the case of Wilmarth v. Reagan, supra, the fraud was alleged to have been committed by the officials for their own profit, and the suit was instituted against them at a time immediately following the levee district's incipiency; whereas, there is no charge in this case that those whose alleged misrepresentations are complained against acted for their own personal advantage. Neither did appellant immediately seek relief.

However, the profit acquired by the wrongdoer is not the test of the right to relief against fraud. That right depends upon the fact that he against whom the fraud is committed has suffered. It is his loss rather than his adversary's gain which justifies judicial interposition against fraud. Neither can the charge of fraud, considered merely as a pleading in the light of a general demurrer, be regarded as less compelling because the relief was not invoked without delay, or because the taint of fraud appears at a belated stage of the proceedings. Whenever and wherever fraud enters, it renders voidable whatever steps it induces. Acts done and acts omitted because of it are devoid of binding legal consequences. It vitiates whatever it produces, and, in such cases as this, courts will regard the results which body forth from it as happenings which never occurred. By this rule it must be held that appellants made allegations of conduct against appellee's officials, the legal effect of which is that they neither granted appellant a hearing nor made a levy against his hill land, which are necessary prerequisites to the imposition of the tax resisted.

There are no allegations in the petition which are sufficient, in our opinion, to make any issue as to 100 acres of land, a part of the O. H. Lindsey tract, which the owner admits to be land the levee district was designed to protect from the overflow waters of the Trinity river. As to this portion of appellant's land, there is no allegation sufficient to deprive the board of appraisers' assessment of its conclusiveness, and, as to it, the general demurrer was properly sustained.

For the reasons above mentioned, the judgment of the trial court is reversed and the cause remanded.