City of Houston v. Stewart , 99 Tex. 67 ( 1905 )

Certified questions from the Court of Civil Appeals of the First Supreme Judicial District. The statement and questions are as follows:

"In the above entitled cause pending in this court on appeal from the District Court of Harris County, we deem it wise to certify for your determination the questions hereinafter stated which are presented by the record.

"The suit was brought to set aside an alleged settlement of the claim of the city against appellee for delinquent taxes, and to recover such taxes and foreclose appellant's lien therefor upon property described in the petition. The taxes claimed to be due were for the years 1881 to 1889 inclusive and the years 1895, 1896, 1897, 1898 and 1901, the aggregate amount claimed being $5,174.75.

"The defendant answered by general and special exceptions and general denial and by various special pleas, one of which was a plea in reconvention for the amount of certain refunding certificates issued by the city of Houston to defendant's testator, Charles Stewart. Another of said special pleas was in substance as follows:

"`That the taxes for the years 1895, 1897 and 1898, as assessed by the owner, were raised by a board of appraisement, two members of which were aldermen of the city of Houston, and could not lawfully serve on the board of appraisement, same being an office within the meaning of section No. 40, article XVI, State Constitution.'

"In reply to this answer plaintiff attacked the section of the charter of the city of Houston under which the refunding certificates were issued claiming that it was unconstitutional, for reasons which we will state later, and praying that said certificate be cancelled. The trial resulted in a judgment in favor of the plaintiff for taxes due for the years 1895, 1897, 1898 and 1901, amounting to the sum of $2,733.06, and in favor of defendant on her plea in reconvention for the sum of $2,518.09. No judgment was rendered cancelling the refunding certificates as prayed for by plaintiff, nor was defendant allowed to recover on her plea in reconvention for any portion of the amount for which said certificates were issued, her recovery being limited to the amount found to be due upon the claim of John S. Stewart for services rendered the plaintiff, which claim had been assigned to her.

"The record discloses that under the charter of the city of Houston in force prior to 1899 the city paved the streets upon which a portion of the property of defendant abutted, assessed such property under the front foot rule for its proportion of the cost of the improvement and collected said assessment from defendant's testator, the then owner of the property.

"In 1899 the Legislature amended the charter of the city by adding thereto section 40b, which is as follows:

"`The city council shall have power to provide by ordinance for the gradual refunding of money heretofore paid by persons for pavements in front of their property according to the front foot rule heretofore in existence, and to provide how and to whom such money shall be refunded, and to provide how same shall be paid and for that purpose shall have power to authorize the city council to reduce the rate of taxation on or to reduce the valuation of the property in front of which such pavements were made.' (Special Law, 26th Legislature, p. 192.)

"Acting under this amendment the city council in October, 1900, passed an ordinance which provides in substance for the issuance of certificates to the owners of property reciting the amounts paid by them for improvements of the streets in front of their property under the front foot assessment rule and certifying that such property was entitled to a credit for the amount of said payments against the city taxes which might thereafter be levied upon it, but providing that only one-twentieth of such amount could be credited against the taxes levied for any one year. Under this ordinance certificates were issued to the defendant in December, 1900, for $2,433.31, that being the amount paid by her testator, Charles Stewart, for the pavement of the streets in front of the property upon which a portion of the taxes claimed in this suit are alleged to be due for the year 1901. These certificates refer to the charter amendment and the ordinance under which they were issued and each has nineteen coupons attached thereto, each of said coupons being for one-twentieth the amount of the certificate. These coupons are dated from 1901 to 1919 consecutively and could only be received in payment of taxes on the property described in the certificate for the respective years for which they were issued.

"Appellant assails the validity of these certificates on the ground that the amendment to the charter under which the ordinance was passed authorizing their issuance is unconstitutional for the following reasons:

"(a) It was an attempt on the part of said legislature to authorize the payment by the city of Houston of claims against it not created by an agreement or contract duly made and entered into by it, in the manner and form provided for by its charter and ordinances.

"(b) It was an attempt on the part of said legislature to authorize the payment of a claim created against it under an agreement and contract made without authority of law.

"(c) It was an attempt on the part of the said legislature to relieve and exempt the property against which improvement certificates had been theretofore issued in payment for pavements in front thereof, according to the front foot rule, where said certificates had been paid, from the payment of its share of the taxes laid, levied and assessed against and collected on property generally within the corporate limits of the said city of Houston by it; and to render unequal and not uniform the taxes laid, levied, assessed and collected in and by said city.

"(d) It was an attempt on the part of said legislature to authorize the city of Houston to apply taxes laid, levied and assessed and collected by it, to other than public purposes; said sums of money, for which same were authorized to be issued, not being valid, legal and subsisting obligations of the said city of Houston.

"(e) It was an attempt by said legislature to authorize and empower the city of Houston to accept and collect sums of money laid, levied and assessed as taxes by it, in other manner than by the payment thereof in current money of the United States.

"(f) It was an attempt by said legislature to authorize and empower the said city of Houston to create and incur a debt and obligation without making provision at the time of creating the same for levying and collecting a sufficient tax to pay the interest thereon and provide for a sinking fund of at least two percent.'

"The charter of the city of Houston, passed in 1895, contains the following provision:

"`A board of appraisement shall be appointed by the mayor and confirmed by the council, and shall continue to act as such board until their term of office as aldermen has expired, and all matters pertaining to taxation shall be referred to said board, from whose final decision there shall be no appeal. The board appointed by the present administration at its commencement in 1894 is hereby constituted the board of appraisement and shall continue to serve as such until their present term as aldermen shall expire.' (Special Laws, 24th Leg., p. 10.)

"This section of the charter was amended in 1897 so as to read as follows:

"`A board of appraisement, composed of two aldermen and one citizen, shall be annually nominated by the mayor, and confirmed by the council, and it shall be their duty, as soon as possible after the completion of any one of the assessment rolls by the assessor and collector of taxes, to meet and carefully examine said roll, and properly and equitably adjust the taxable values thereon, thus continuing until they have examined and adjusted and equalized the taxes assessed on all the rolls under regulations to be fixed by the city council, when they, together with the assessor and collector of taxes, shall make due report of their action to the city council. The members of said board shall receive such compensation for their services while engaged upon said rolls, as the council may determine, not to exceed five dollars per day, and all matters pertaining to taxation shall be referred to such board, from whose final decision there shall be no appeal; provided, further, that the board of appraisement shall not remain in session over sixty days.'

"The ordinances of the city under which the city board of appraisers for the years 1895, 1897 and 1898 were appointed required that the board should be composed of two aldermen and one citizen. The compensation of the members of these boards and of the city aldermen allowed by ordinance of the city was $5.00 per day for each day of service. The members of the board of appraisers were required to take an oath of office different from that required of the aldermen. These boards were appointed annually.

"The valuation of the property of appellee upon which taxes were recovered in this suit for the years before stated as fixed by the owner and the city assessor was increased by the city board of appraisers.

"Appellee urges that the amount of the taxes claimed by appellant for said years is illegal because the provisions of the city charter and the ordinances of the city creating said board were unconstitutional and void and that they required the majority of the board to hold more than one civil office of emolument at the same time.

"Upon the foregoing statement we respectfully certify for your decision the following questions:

"First. Is section 40b of the charter of the city of Houston authorizing the refunding of the paving assessments paid under the front foot rule unconstitutional?

"Second. Is the charter provision and ordinances providing for the appointment of a board of appraisers unconstitutional?

"Third. If the second question be answered in the affirmative, should appellant be denied recovery for all of the taxes sued for upon the property upon which the valuation was raised by the board, or only for taxes due upon the increase in the valuation made by the board?"

The section of the charter referred to in the first question is not unconstitutional. The sum authorized to be refunded was not a debt within the meaning of article XI, sections 5 and 7 of the constitution of the state. It did not grow out of any contract between the parties but originated from the collection of an assessment made by the city upon the property of the persons to whom it was to be returned, and, for sound reasons the city was authorized by the state to return that sum. (McNeal v. Waco,89 Tex. 83.) The assessment made for street improvements was based upon a policy which was thereafter abandoned and the plan of improving the streets of the city by taxation adopted. It would be great injustice to property holders, who had already paid for the improvements of streets in front of their property, to subject them to taxation for a general system of such improvements from which they could receive no benefit without restoring to them that which they had already paid to the city for that purpose. It was within the power of the legislature to authorize the city to make an equitable adjustment of these matters so as to equalize the burden upon the property of its citizens.

It is objected that the section of the charter in question is unconstitutional, because it authorizes the city to receive in payment of taxes certificates of indebtedness, whereas the constitution forbids that taxes should be paid in anything but money. Article XI, section 4, which contains this language, "shall be collectible only in current money," applies only to cities of ten thousand population or less. There is no such provision in section 5 of that article which regulates the subject of taxation in cities of more than ten thousand population. The city of Houston contains a population of more than ten thousand, therefore, the prohibitory clause relied upon does not apply to that city.

The charter provisions and ordinances, providing for the appointment of a board of appraisers is not unconstitutional. The section of the charter referred to in the second question did not create a new office, but conferred upon the aldermen, when selected, a power which might have been given to the entire council. (Vol. 2, Current Law, 810.) When appointed on the board of equalization they continued to be aldermen and performed their work of equalization as aldermen of the city; there was no violation of this clause of article XVI, section 40, of the constitution: "No person shall hold or exercise at the same time more than one civil office of emolument." There is no constitutional prohibition against conferring power upon any officer, except that the authority vested in the officers of one department of the government shall not be conferred upon those of another department; the facts do not bring this case within any prohibition of the constitution.

The first and second questions are answered in the negative, and the third does not require an answer.