Cave v. Mayor of Houston

65 Tex. 619, 1886 Tex. LEXIS 718

• Court: Texas Supreme Court
• Decided: March 5, 1886
• Docket: Case No. 2232
• Status: Published

Opinion

Willie, Chief Justice.

The city of Houston is authorized by its charter, in force at the time this action was begun, to collect its taxes and enforce liens therefor by suits in the proper court. Act March. 3,1883.

Sec. 3, art. 8, of the Constitution is not applicable to such municipal corporations as may have their charters granted and amended by special laws. Art. 11, sec. 5, of the Constitution, shows that such cities are to be excepted from the operation of this general provision. They may levy, assess, and collect such taxes as may be authorized by law. This authority may extend to allowing such cities to levy and collect a larger amount of taxes than cities incorporated only by general law; and one of these cities may be authorized to levy a heavier tax than another of the same kind. The whole object of this section, in allowing these cities to have their charters amended to suit their condition and the emergencies to which they may be subject, not in common with smaller places, would be defeated, if they are not to be allowed to levy and collect taxes, except to the same extent and in the same manner as towns having less that ten thousand inhabitants.

Besides, the great weight of authority seems to be that, when a statute does not provide a remedy for the collection of taxes, which is made exclusive, they may be enforced by suit. 2 Desty on Tax. 706, et seq., and authorities cited.

Whilst our statute provides that a defendant shall be cited to ap pear at the need regular term of the district court, to which the process is returnable, it does not require that these words shall be contained in the citation. What it does require, is, that the time and place of holding the next regular term of the court shall be stated. These were stated in the present citation, the place being the court house in the city of Houston, and the time, the last Monday in October, 1884. As the next regular term of the court was required to be held at that place, and at that time, the defendant was cited to appear at such regular term, and the requirement of the statute was fulfilled. R. S., art. 1215.

The citation stated a demand in favor of the plaintiff and against the defendant. If it varied in the slight respect claimed by the appellant from that set forth in the petition, this did not render the process void, so that.it could not support a judgment by default. With the means in his power of ascertaining the correctness of the statement made in the citation, the defendant could not wait till a judgment by default was taken, and then, upon appeal to this court, for the first time, set up so slight a defect as ground for revising the judgment.

If "the process is void, the defendant is not required to obey it; but if merely defective, it brings the defendant into court. If he does not then take his exceptions, at the proper time, he cannot afterwards be heard to urge it as error in this court. Crain v. Griffis, 14 Tex. 358. But the judgment and order of sale should have been in accordance with the averments of the petition, and these showed that the taxes were assessed against three-quarters only of block four hundred and sixty-three, whilst the judgment forecloses a lien upon the entire block, and directs its sale. In this there was error, which it is our duty to correct.

The amount of the judgment is correctly stated in figures, and the recitals in the judgment itself show this to be the true amount of the recovery. Under such circumstances, it would seem that the mistake made in writing out the sum for which the recovery was had, is not such error as should cause a reversal of the judgment. In view, however, of the final disposition of the case on this appeal, the mistake becomes unimportant.

The court did not foreclose a lien for the $19.20 taxes due upon miscellaneous property. That portion of the claim was treated as cancelled by the payments made, and was not included in the judgment. It was almost, if not quite, impossible for the court to tax the costs, pro rata, against the various pieces of property upon which the lien was foreclosed. To charge the whole amount against all the property, and thus make each bear an equal share of the burden, seems equitable, and a proper exercise of the discretion allowed to the court in such cases.

There was error, however, in rendering judgment for interest accruing prior to March 9, 1881. Previous to the passage of the amended charter of that date, there seems to have been no law authorizing interest on taxes levied by the city of Houston. This court has frequently held that interest is not recoverable on taxes, unless the statute so expressly provides. W. U. Tel. Co. v. State, 55 Tex. 319; City of Galveston v. Heard, 52 Tex. 447; Edmondson v. Galveston, 53 Tex. 157.

For this error, and that of foreclosing the lien upon all, instead of three-quarters, of block four hundred and sixty-three, the judgment must be reversed and rendered here for appellee for a recovery of the principal sum sued for, together with interest from March 9, 1881, for each year’s taxes accruing before that date; and at the same rate upon taxes accruing since, calculating the interest upon the latter from the day they became due and payable. The judgment will further foreclose the lien upon three-fourths of block four hundred and sixty-three for the taxes due upon it, and upon the other parcels of ground mentioned in the judgment below for the taxes due against them, respectively. The costs of the district court will be assessed against all of said property, and the defendant in error will be charged with the costs of this court. Ordered accordingly.

Reversed and Rendered.

[Opinion delivered March 5, 1886.]