Allen v. City of Galveston

Gould, Associate Justice. This suit was brought by the appellants, twenty-seven in number, to obtain an injunction against a sale by the tax collector of the city of Galveston of lots and parts of lots fronting on Market street, for assessments thereon for shelling the street in front of the blocks containing said lots. The advertisement of the sale, all the sections of the charter, the ordinances of the council, and the proceedings of the officials under which said assessments were made, are set forth by exact copies thereof, and the authority to make the sale and the validity thereof are denied. Preliminary injunction being refused, the petition was filed in court. The sales were made by the city collector, and the city of Galveston became the purchaser of all the lots offered for sale, bidding the amount of the tax and costs on each. Defendants answered, first, by general demurrer; second, by general denial; third, by affirming the lawfulness and sufficiency of the assessment, proceedings, and sale, but suggesting no other act or proceeding than set out in the petition; — 316 — that the city had purchased the property at said sale and holds the lawful title thereto, subject only to the right of redemption of same, and denying all right to relief; fourth, that the property of the plaintiffs had been enhanced in value by the shelling done by the city, and that it was inequitable that the burden therefor should be imposed on the city at large. By supplemental petition, the sales were alleged, and prayer that they should be set aside and the sale and assessment declared void. Plaintiffs’ demurrer to the third and fourth pleas was overruled. The cause was submitted to the court on an agreed statement of facts, as follows: “For the purposes of the trial of this cause, it is admitted that the copies from the charter and ordinances of the city of Galveston, and from the proceedings of the council, and from the officials thereof, recited and set forth in the petition, the advertisement by F. R. Lubbock, tax collector, as copied in the petition, are correct and are evidence in the case; that sale was made by said tax collector on Tuesday, the 2d of October, 1877, as stated in the supplemental petition, and the property as advertised was all bid in by said Lubbock for the city of Galveston, for the amount of the tax claimed, interest and costs, and deeds made to the city therefor. “ That plaintiffs were respectively the owners of the property, as advertised, set opposite their names in exhibit Kb. 1. “ The charter and ordinances of the city, and any ordinances or proceedings of the city council bearing on the subject, may be added to the statement of facts and presented to the Supreme Court.” The court gave judgment for the defendants and dismissed the suit Motion for new trial was overruled. The questions presented are as to the validity of the assessments and of the sale of the lots by the tax collector of the city. The power and authority of the city council, under the charter of 1871, to shell Market or any other street of the city, and to assess two-thirds of the probable cost or estimated expense of such improvement on the lots fronting on said street, is not — 317 — questioned. (Roundtree v. City of Galveston, 42 Tex., 625.) The position of appellants is, that the city council failed to exercise this power in the manner prescribed by law, and that for this reason no valid assessment has ever been made on their respective lots. Their position is further, that if the assessments were valid, the sale by the tax collector without suit was unauthorized, and was otherwise irregular and invalid. One objection to the assessment is embodied in the following proposition, made in the brief of counsel for appellants: “ The assessment authorized by the charter on each lot or fractional lot was for one-third of the estimated expense for the improvement on the street fronting, adjoining, or opposite such lot or fractional lot. The assessment made and enforced was for one-third of the cost of the improvement of the street in front of the entire block, in proportion to the frontage of lots or parts of lots therein, and the assessment was in violation of the charter and void.” The counter-proposition of counsel for appellees does not deny this construction given to the charter, but merely asserts in general terms that the assessments were “ equitably made on the several pieces of property on each side of the street improved, and are a substantial and sufficient compliance with the charter.” Looking to the. second article of the charter, under the title “ streets and alleys,” we find that it requires to be entered on the list of lots, with names of owners, &c., “ opposite each lot or fractional lot lying and being on each side of the street, avenue, or alley so to be improved as aforesaid, one-third of the estimated expense for such work or improvement on such avenue, street, or alley fronting, adjoining, or opposite such lot or fractional lot.” The legislative intention seems to have been, to apportion to each lot or fractional lot one-third of the probable cost or estimated expense for shelling that part of the street opposite such lot or fractional lot. This mode of assessment must be assumed to have been adopted by the Legislature as substan — 318 — tially apportioning the cost with reference to the benefit received. At best, and by any mode of assessment adopted, it is only practicable to approximate the relative benefit to each lot from the improvement, and in this case we cannot say that the mode of apportionment was otherwise than valid and proper. The power conferred on the council by the charter was certainly only to assess against each lot or fractional lot one-third of the expense, estimated or actual, of the shelling of that part of the street opposite that lot or fractional lot. These grants of power to make local assessments are strictly construed, and must be strictly followed. (Cooley on Tax., pp. 418, 464; Burr. on Tax., pp. 436, 471, 472.) It appears that the estimates of the cost were made for blocks, and not for each lot or fractional lot; that is, each lot is charged "with its proportion of the expense of shelling the street opposite the block of which it forms a part, instead of the expense of shelling that part of the street in front of the lot itself. It is enough to invalidate it, that this is not the assessment authorized by the charter. It may be, in view of the comparatively uniform level of the streets of Galveston, that the difference would not be great. It may even be that the lots of plaintiffs have been assessed with less than they would have been had the directions of the Legislature been followed. The answer is, that the power conferred was to assess in one mode, and the power assumed by the council and officers of the city was to assess in another mode. Eo other power to make assessments existed in the council than such as was plainly conferred by the charter. The power to shell the streets and to assess two-thirds of the cost on the property owners, was undoubtedly vested in the council. By their action they were enabled to create a charge on the lots fronting on the street shelled. But until the steps prescribed by the charter are taken, there is no valid assessment. Another proposition submitted by counsel for appellants is, that “no authority to levy and sell for assessments prior — 319 — to 1876, was conferred by the charter of 1876, nor exists otherwise by law.” On behalf of the city, the power of the tax collector to levy and sell is claimed under the charter of 1876; the tenth and' eleventh sections of the act of August 19, 1876, “To enforce the collection of delinquent taxes on lands assessed since January, 1870”; and the amended ordinance of the city of July 17, 1877. The provisions of the charter and statute referred to, so far as material to be stated, are as follows: Section 88 of article 1, title 6, “ collection of taxes,” gives the council “ Power to provide by ordinance for the prompt collection of all taxes assessed, levied, and imposed by this act, or hereby authorized and due, or becoming due to the said city, and to that end may and shall have full power and authority to sell real as well as personal property, and may and shall make all such rules and regulations and ordain and pass all ordinances as they may deem necessary to the levying, laying, imposing, assessing, and collecting of any of the taxes herein provided.” (Special Acts of 1876, p. 24.) Section 165 vests in and authorizes to be prosecuted by the corporation thereby created all rights, actions, fines, penalties, and forfeitures, in suit or otherwise, accrued under the laws heretofore in force; and no suit pending is to be affected by the act, but is to be prosecuted or defended by the corporation. Section 10 of the “Act to enforce the collection of delinquent taxes on lands assessed since January, 1870,” (Acts of 1876, p. 258,) provides: “The provisions of this act in reference to the seizure and sale of real and personal property for taxes, penalties, and costs due thereon, shall apply to collectors of taxes for towns and cities, as for .collectors of taxes for counties, and they shall be governed in selling real and personal property by the same rules and regulations in all respects as to time, place, manner and terms, and making deeds, as are provided for collectors of taxes for counties.” Section 20 of the “Act regulating the duties of tax collectors in reference to the seizure and sale of property of delin — 320 — quent tax-payers, and to define the further duties, powers, qualifications, and liabilities of collectors of taxes, and to regulate their compensation,” approved August 21, 1876, is literally the same as the preceding section. These provisions seem to refer to ordinary taxation, and “ not to assessments for local improvements.” Such assessments are not within the meaning of the term “ taxation ” as “ usually employed in our Constitutions and statutes.” (Burr. on Tax., p. 435; Cooley on Tax., p. 446; Sharp v. Speir, 4 Hill, 76; Austin v. Gulf, Colorado and Santa Fe Railroad, 45 Tex., 271; Roundtree v. City of Galveston, 42 Tex., 626; Burr. on Tax., sec. 150, citing Paine v. Spratley, 5 Kan., 525; Leavenworth v. Laing, 6 Id., 274.) Such being the ordinary meaning of the word “ taxes,” no sufficient reason is perceived for enlarging its meaning, in the charter or statute, so as to extend the power of sale conferred in cases of delinquent taxes, to delinquent local assessments. The strictness of construction applied to statutes granting such power, will not allow of this. (Burr. on Tax., pp. 433-435; Cooley on Tax., p. 461.) If, however, the charter refers to assessments as well as taxes, it, by its terms, provides only for taxes “ assessed, levied, and imposed by” that act, and would not include assessments under the former charter. For these reasons, we are satisfied that the power to levy and sell without suit, if it existed, was derived, not from the charter of 1876 or the statute of that year, hut from the charter of 1871. By the terms of that charter, (title 9, arts. 3, 4,) the power was granted to the city council to collect by levy and sale, or by suit; but the ordinances enacted by the council made no provision for such levy and sale. On the contrary, they directed that in all cases suit be brought. (See ordinance of April 2, 1872, sec. 3.) We do not doubt that, under the charter of 1871, it was competent for the city council to direct that collections in cases of non-payment of assessments be made by suit, and — 321 — that, whilst section 3 of the ordinance of April, 1872, was in force, the collector was not authorized to proceed by levy and sale. It is evident from the terms of the charter that the levy and sale were to be made in pursuance of regulations to be prescribed by ordinance, and in the fourth article the power and authority to collect are spoken of as granted to the city council. At the time these assessments were made, (October, 1873,) and subsequently up to the amended ordinance of 1877, the collector was not authorized to sell, because the ordinances of the city council directed collection by suit. The repeal of the charter of 1871 preceded the amendment of the ordinance by which a levy and sale were attempted1 to he authorized. After that repeal, our opinion is that the-power of the city council over the subject must be derived from the new charter, or from some provision therein by reason whereof the power continued notwithstanding the repeal of the charter granting it. We have been cited to no clause in the new charter sufficiently comprehensive to support such continuance of power in the city council, and in our opinion the ordinance of July, 1877, if designed to affect the remedy in cases where the assessment was made, and the delinquency occurred under the charter of 1871, was ineffectual for that purpose. Other objections, both to the assessments and to the sale, have been urged; but it has not been deemed necessary to-pass upon them. Because the assessment was not made in-pursuance of the authority conferred, and because the sale as. made was unauthorized, our opinion is that the judgment of' the court below is erroneous. It is accordingly ordered that the judgment be reversed and the cause remanded. Reversed and remanded. This case was taken to Austin. Term.. Opinion April 15,. 1879.