Dallas County Fresh Water Supply Dist. No. 7 v. Mercantile Securities Corp.

110 S.W.2d 187
CourtCourt of Appeals of Texas
DecidedOctober 22, 1937
DocketNo. 13433
StatusPublished
Cited by7 cases

This text of 110 S.W.2d 187 (Dallas County Fresh Water Supply Dist. No. 7 v. Mercantile Securities Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dallas County Fresh Water Supply Dist. No. 7 v. Mercantile Securities Corp., 110 S.W.2d 187 (Tex. Ct. App. 1937).

Opinion

SPEER, Justice.

This appeal was before us late in the last term of this court and an opinion was rendered by us on September 3, 1937, in which we affirmed the judgment of the trial court. A motion for rehearing has been presented by appellants, and a reply thereto was made by appellee; all the parties presenting written and oral arguments along with authorities in support of their respective contentions. We have carefully studied each, along with our own former conclusions, and have again searched the voluminous record, which consists of 445 pages in the transcript, about 200 pages in the statement of facts, and lengthy printed briefs heretofore filed, and have reached the conclusion that, we were in error in our former opinion, and that the motion for rehearing should be granted. We therefore withdraw our former opinion and substitute these conclusions in lieu thereof, disposing of the appeal in this opinion.

Dallas County Fresh Water Supply District No. 7 was the original plaintiff in the case and is one of the appellants here, and for convenience to distinguish it from other appellants we shall refer to it as the district. The Mercantile Securities Corporation was the defendant below and is appellee here.

This suit was instituted in a district court of Dallas county, apparently on May 28, 1930, by the District against appellee to recover certain taxes alleged to have been levied and assessed against appellee for the years 1926 to 1929, both inclusive, and by amendments covering the years from 1930 to 1934, both inclusive, and to foreclose a tax lien against its property claimed by the [189]*189District to be included in the area. The case was tried in February, 1935.

Allegations were made that in July, 1925, a petition was filed, by the proper number of applicants, with the commissioners’ court of Dallas county, Tex., containing all the requisites of law in such matters, and that all the provisions of article 7881 et seq., Rev.Civ.Statutes, had been fully complied with, asking that a fresh water supply district be created as therein prayed for; that notice was given as provided by law; that the petition was duly acted upon by the commissioners’ court; that an election was ordered and held, the result of which was declared to be in favor of the creation of the District; that an order was entered by the commissioners’ court in September, 1925, creating the Dallas County Fresh Water Supply District No. 7; that thereafter the District issued and sold its bonds in the aggregate sum of $85,000 to various purchasers and levied a tax against the property situated within the District for the purpose of paying interest and creating a sinking fund in accordance with law to meet its outstanding obligations.

Additional allegations were made by the District that thereafter, by Acts of the First Called Session of the 39th Legislature, page 177 (Sp.Acts), being chapter 57 thereof (effective October 14, 1926), orders of the commissioners’ court of Dallas county, Tex., creating the District, were especially and specifically ratified, validated, and confirmed, and each and all of said orders and decrees were thus made valid. For convenience, we shall hereinafter refer to this act as the Special Validating Act.

It was further alleged that in 1927 at the First Called Session of the 40th Legislature, page 165, chapter 58, § 3 (now article 7887a, Vernon’s Ann.Civ.St), a general act was passed validating all similar districts theretofore created where the provisions therein set out had been complied with. This act we shall refer to as the General Validating Act.

The petition also shows that the application to the commissioners’ court, that court’s subsequent orders, and the Special Legislative Act, above referred to, each and all described the District with “boundaries” as follows:

“All situated within the Crawford Grigs-by and the Miles Bennett Surveys in Dallas County, Texas, including within -the boundaries of the proposed district certain tracts o'f land and parts of tracts generally described as follows:
“That tract of land owned and occupied by Stickle Lumber Corporation; that tract of land containing approximately two acres, owned by L. S. Harper; all of Blocks ‘A,’ ‘B,’ ‘C’ and ‘D’ of Maple Lawn Terrace Addition to the City of Dallas; that tract of land owned by Paul H. Gunther et al., of dimensions approximately 166 feet by 1051 feet; that tract of land owned by F. B. Paine of dimensions approximately 220 feet by 1053 feet, which said district, including the above described tracts of land, is described by metes and bounds as follows:
“Beginning at a point on the N. E. line of Maple Avenue and at the south corner of the tract owned by the Stickle Lumber Corporation; thence N. W. and along the N. E. line of Maple Avenue and crossing the division line of said Grigsby & Bennett surveys and continuing N. W. along said line of Maple Avenue to the west corner of a 5.81 acre tract owned by F. B. Paine as appears of record in Vol. 1063, page -218, County Clerk Records, Dallas, Texas; thence in a northeasterly direction and along the N. W. line of said Paine Tract to a point in the N. E. line of the Dallas-Denton Interurban right of way; thence in a southeasterly direction along said line of said interurban right of way to its intersection with the S. E. line of the Stickle Lumber Corporation tract; thence in a southwesterly direction along the S. E. line of said Stickle Lumber Corporation tract to its south corner, the point of beginning.”

We have not attempted to detail all pleadings of the District, nor to even mention many things set out therein, but have only mentioned enough of them to show a cause of action was alleged, and more especially those applicable to the issues involved in the appeal.

Prayer was for judgment for the amount of its taxes shown to be due, and for a foreclosure of the tax lien against appel-lee’s property shown to be within the district.

Appellee resisted the claim of the District for taxes and the lien securing same on many grounds. But because of stipulations of the parties found in the record, we think it only necessary to mention those upon which issues of law and fact became involved. The defenses urged, which wc [190]*190think essential to this appeal, were: (a) That the creation of the District was illegal and void because the several acts of the Legislature under which the commissioners' court purported to act were in violation of the State and Federal Constitutions and the due process provisions thereof (Const. Tex. art. 1, § 19; Const.U.S.Amend. 1.4); and (b) that the boundaries of the District, as set out in the application, the commissioners’ court orders, and Special Legislative Act, are not sufficient to inclose any defined area and are not such as will give notice to persons owning land in that vicinity that said lands are situated within the area claimed to constitute the District, and for these reasons there was no District, and consequently no power to levy and assess taxes or perform any other function attempted in this proceeding by the District.

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Bluebook (online)
110 S.W.2d 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dallas-county-fresh-water-supply-dist-no-7-v-mercantile-securities-corp-texapp-1937.