DocketNumber: No. A-1670.
Judges: Brewster
Filed Date: 10/6/1948
Status: Precedential
Modified Date: 10/19/2024
This is an injunction suit filed by D.F. Forwood et al, petitioners, against City of Taylor et al, respondents, in which a trial court judgment refusing an injunction was affirmed by the court of civil appeals.
For a number of years the City of Taylor has been a home-rule city under Art. XI, Sec. 5, of the Constitution of Texas. Its charter authorizes its board of commissioners to "create and appoint a Board of Equalization whose duties shall be to equalize the values of all property rendered for taxation in the City of *Page 164 Taylor" and to "prescribe the qualifications * * * and number necessary to constitute said board." By ordinance of June 17, 1946, nine property-owning voters in the city were named as the "Board of Equalization of the City of Taylor" for 1946.
At a proper time each petitioner rendered to the city a list of all properties owned or controlled by him on January 1, 1946, and subject to taxation for that year, rendering it at what he believed to be its "fair tax value."
After notice from the board of equalization, petitioners appeared before that body and protested its right either to act as a board of equalization or to increase the value over what petitioners had fixed in their renditions. The board overruled this protest and increased the valuations.
Petitioners refused to pay the taxes on basis of the board's valuations but tendered what they were due on basis of their own valuations. These tenders were refused, whereupon petitioners filed this suit, renewing the tenders and seeking to enjoin the city from attempting to collect any taxes based on the increased valuations or to enforce any lien to secure their payment.
They alleged that under Art. 1048, R.S., 1925, the board of equalization of a city or town can consist of only three members and that any different charter provision or ordinance is void; that, therefore, this nine-member board had no legal existence and its attempted increase of the valuations of petitioners' properties is void.
The Court of Civil Appeals held that the city was subject to the provisions of Art. 1048, supra, in setting up a board of equalization and to the limitation prescribed in Art. 15, Sec. 5, of the Constitution that no charter or ordinance of a home-rule city shall be inconsistent with the general laws of this state, but concluded nevertheless that the nine-member body was a de facto board of equalization whose action in raising petitioners' valuations must be upheld. Both sides filed application for a writ of error. That of Forwood et al was granted on their point complaining of the holding that the nine-member body was a de facto board of equalization. That of City of Taylor et al insisting that the City of Taylor, as it home-rule city, is not amendable to the terms of Art. 1048 was granted because of the granting of the other. *Page 165
We have concluded that this cause turns on the point urged by City of Taylor et al.
1 Under its own terms, Art. 1048 applies only to cities and townsincorporated under the general laws. It reads: "The councils of cities and towns incorporated under the General Laws shall within their discretion act as a Board of Equalization. Said councils of such cities and towns shall annually at their first meeting or as soon thereafter as practical exercise such discretion, and if they so determine they shall have the authority to appoint three (3) commissioners, each a qualified voter, a resident, and property owner of the city or town for which he is appointed, who shall be styled the Board of Equalization." So if the City of Taylor was not "incorporated under the general laws" of this state, its charter and ordinance provision for a nine-member board of equalization does not violate the requirement of Art. XI, Sec. 5, of the Constitution that neither its charter nor any ordinance passed thereunder shall be inconsistent with the provisions of the general laws, that is, with the provisions of Art. 1048.
2 That the cities of Texas are divided into three classes by the mode of their incorporation and that a statute expressly applicable to one does not apply to the others has been repeatedly recognized by this court.
In City of Sherman v. Municipal Gas Co.,
Conversely, it was decided in City of Munday v. First State Bank (Civ. App.),
Leach v. Coleman et al (Civ. App.),
In City of Sherman v. Municipal Gas Co., supra, we pointed out numerous statutes in which the legislature recognized the three classes of Texas cities and towns in making the enactment applicable to some one or more or all of them, as it deemed proper.
So we hold that Art. 1048, R.S., 1925, does not apply to the City of Taylor because it is a home-rule city and not a city "incorporated under the general laws."
3 But petitioners insist that Art. 1048 applies to the City of Taylor under the terms of Sec. 2, Art. II, of its charter, as follows: "All the powers conferred upon cities and towns by Title 22 of the Revised Statutes of 1911, except as may hereinafter be denied or limited, are hereby conferred upon the City of Taylor as fully and completely as if such powers were herein separately enumerated." At that time Art. 1048 was a part of Title 22 as Art. 945. The language quoted might have the effect claimed but for the phrase "except as may hereinafter be denied or limited," which is a clear expression of purpose to limit the general applicability of Title 22. And that Art. 1048 was not adopted or meant to be adopted is patent from the language of Sec. 5, Art. XII, of the charter, which is: "The Board of Commissioners shall create and appoint a Board of Equalization whose duties shall be to equalize the values of all property rendered for taxation in the City of Taylor; prescribe the qualification and number necessary to constitute said board." (Italics ours.) This language can reasonably be given no other effect *Page 167 than to deny an intent to adopt Art. 1048, which explicitly prescribes the qualifications of board members and limits their number to three but says nothing about their compensation. A fundamental and universally accepted rule of construction is that a general provision must yield to a succeeding specific provision dealing with the same subject matter; and the rule particularly applies here, where the general provision expressly warns that its terms are to be "denied" and "limited" by subsequent specific provisions. See 50 Am. Jur., p. 244, Sec. 249.
In Beatty v. Panhandle Construction Co. (Civ. App.),
4 Petitioners insist, further, that Art. 1048 is applicable to home-rule cities because it is the duty of the legislature, under Art. VIII, Sec. 18, of the Constitution of Texas, to provide for the equalization of taxes by setting up boards for that purpose. In support they cite Board of Equalization v. McDonald,
It was the purpose of the Home-Rule Amendment, Art. XI, Sec. 5, and the enabling statutes, supra, to bestow upon accepting cities and towns of more than 5,000 population full power of self-government, that is, full authority to do anything the legislature could theretofore have authorized them to do. The result is that now it is necessary to look to the acts of the legislature not for grants of power to such cities but only for limitations on their powers. Yellow Cab Transit Co. v. Tuck (Civ. App.),
Since there is nothing in the Enabling Act, supra, limiting the power of the City of Taylor, as a home-rule city, to prescribe the number of members to constitute its board of equalization, and since Art. 1048, supra, does not apply to such a city, neither the charter provision nor the ordinance passed thereunder offends against the direction of Art. XI, Sec. 5, of the Constitution, that they shall not be inconsistent with the general laws. Therefore, the City of Taylor, as a home-rule city, in the exercise of its full power of local self-government, was authorized to create a board of equalization of nine members. And it follows that the board in question was lawfully created and was a de jure board.
Both judgments below are affirmed.
Opinion delivered October 6, 1948.
Motion for rehearing overruled November 10, 1948. *Page 169
Huff v. City of Wichita Falls ( 1932 )
City of Sherman v. Municipal Gas Co. ( 1939 )
Beatty v. Panhandle Const. Co. ( 1925 )
Board of Equalization v. McDonald ( 1939 )
Scollard v. City of Dallas ( 1897 )
Yellow Cab Transit Co. v. Tuck ( 1938 )
Dos Republicas Coal Partnership v. David Saucedo, as ... ( 2015 )
American Casualty Co. of Reading, Penn. v. Denise Bushman ... ( 2015 )
Twin City Fire Insurance Co. v. Cortez ( 1978 )
City of Pasadena v. Houston Endowment, Inc. ( 1969 )
Campbell v. City of Houston ( 1971 )
Affiliated Capital Corp. v. City of Houston ( 1981 )
Burch v. City of San Antonio ( 1975 )
State v. the City of Galveston ( 2004 )
william-eugene-springer-md-lubbock-heart-hospital-cardiologists-of ( 2008 )
william-eugene-springer-md-lubbock-heart-hospital-cardiologists-of ( 2008 )
southwestern-bell-telephone-lp-dba-at-t-texas-v-ed-emmett-el ( 2013 )
brazoria-county-texas-v-texas-commission-on-environmental-quality-fka ( 2004 )
the-city-of-frisco-texas-v-the-commission-on-state-emergency ( 2009 )
Town of Lakewood Village v. Harry Bizios ( 2016 )
Harry Bizios v. Town of Lakewood Village, Texas ( 2015 )
william-eugene-springer-md-lubbock-heart-hospital-cardiologists-of ( 2008 )