City of Sherman v. Langham , 92 Tex. 13 ( 1897 )

ON MOTION FOR REHEARING. We only deem it necessary to notice two of the grounds for rehearing. The first seeks to question the validity of the original cause of action. This was settled adversely to the city by the rendition of the original judgment, and the question can not be raised collaterally in this proceeding to enforce such judgment by mandamus. United States v. New Orleans, 98 U.S. 225. The second raises the question, not heretofore presented, that pending this appeal the Legislature by special act, of which by its terms the courts are required to take judicial notice (Special Laws 1895, p. 41), granted to the city of Sherman a special charter, which declares that it shall levy no tax in excess of 1 1/2 per cent of the taxable property, and distributes such total taxing power among various objects, allowing not to exceed 30 cents on the $100 assessed taxable values "for general purposes and current expense" (sections 97-102), and that, since this act removes the city from the operation of the provision of the Revised Statutes under which we held in the original opinion that the city was authorized to levy a special tax of 25 cents to pay off indebtedness contracted prior to the first day of January, 1889, therefore we were in error in affirming the judgment of the Court of Civil Appeals ordering the levy of a sufficient tax to pay the judgment. To this it is objected (1) that the judgment is a contract, and that the special charter reducing the power of the city to levy taxes to pay same impairs its obligations and is therefore prohibited by the Constitution of the United States, and (2) that such charter deprives the owner of the judgment of his property therein without due process of law. It has been settled by the Supreme Court of the United States that a judgment founded upon a tort is not a contract within the meaning of the constitutional provision invoked (Louisiana v. Mayor of New Orleans, 109 U.S. 285, cited in Louisiana v. Police Jury,111 U.S. 720), and hence the first objection is not well taken even if it should be held that a person contracting a debt with a city of less than 10,000 acquires a contract right in the increased taxing power conferred by the charter when such city reaches a population of 10,000. We also understand the decision of that learned court in the case cited to be adverse to the second objection urged above, for it was there said:

"The clause of the fourteenth amendment cited is equally inoperative to restrain the action of the State. Conceding that the judgments, though founded upon claims to indemnity for unlawful acts of mobs or riotous assemblages, are property in the sense that they are capable of ownership and may have a pecuniary value, the relators can not be said to be deprived of them so long as they continue an existing liability against the city. Although the present limitation of the taxing power of the city may prevent the receipt of sufficient funds to pay the judgments, the Legislature of the State may, upon proper appeal, make other provision for their satisfaction. The judgments may also perhaps be used by the relators or their assignees as offsets to demands of the city; at least it is possible that they may be available in various ways. Be this as it may, the relators have no such vested right in the taxing power of the city as to render its diminution by the State, to a degree affecting the present collection of their judgments, a deprivation of their property in the sense of the constitutional prohibition. A party can not be said to be deprived of his property in a judgment because at the time he is unable to collect it.

"The cases in which we have held that the taxing power of a municipality continues, notwithstanding a legislative act of limitation or repeal, are founded upon contracts, and decisions in them do not rest upon the principle that the party affected in the enforcement of his contract rights has been thereby deprived of any property, but upon the principle that the remedies for the enforcement of his contracts, existing when they were made, have been by such legislation impaired. The usual mode in which municipal bodies meet their pecuniary contracts is by taxation. And when, upon the faith that such taxation will be levied, contracts have been made, the constitutional inhibition has been held to restrain the State from repealing or diminishing the power of the corporation so as to deprive the holder of the contract of all adequate and efficacious remedy. As we have often said, the power of taxation belongs exclusively to the legislative department of the government, and the extent to which it shall be delegated to a municipal body is a matter of discretion, and may be limited or revoked, at the pleasure of the Legislature. But, as we held in Wolff v. New Orleans, at October term, 1880 (XXVI, 395), and repeated in Louisiana v. Pilsbury, at October term, 1881 (XXVI, 1090), in both cases by the unanimous judgment of the court, the legislation in that respect is subject to this qualification, which attends all State legislation, that it 'shall not conflict with the prohibitions of the Constitution of the United States, and, among other things, shall not operate directly upon contracts of the corporation, so as to impair their obligation by abrogating or lessening the means of their enforcement. Legislation producing this latter result, not indirectly as a consequence of legitimate measures taken, as will sometimes happen, but directly by operating upon those means, is prohibited by the Constitution and must be disregarded — treated as if never enacted — by all courts recognizing the Constitution as the paramount law of the land. This doctrine has been repeatedly asserted by this court when attempts have been made to limit the power of taxation of a municipal body, upon the faith of which contracts have been made, and by means of which alone they could be performed. * * * However great the control of the Legislature over the corporation while it is in existence, it must be exercised in subordination to the principle which secures the inviolability of contracts.' "

It is true that the court withheld the expression of any opinion as to "the effect of legislation upon the means of enforcing an ordinary judgment of damages for a tort rendered against the person committing it in favor of the person injured," but we do not understand such reservation to affect cities like those of this State which have no property and against which no execution can issue, and whose only means of payment is the levy and collection of taxes upon property of others within their limits. In such cases the judgments are virtually against the mass of taxable property within the city; and thereby a legislative policy of compelling the election of proper officers and securing the vigilant performance of their duties is sought to be made effective by imposing upon such property, which is assumed to be owned by their constituents, liability for the tortious acts of such officers. This would seem to be in principle the same policy that imposed such liability for damages done by a mob. It is very questionable if such policy is founded in real justice, for it is not certain that in actual practice the officers are elected by the owners of the property — a majority of whom may have voted for others. However this may be, it is a mere matter of governmental policy whether it is deemed wise to impose upon such property liability for torts for the commission of which the owners thereof are not responsible, and if such policy be changed the injured party has no legal cause of complaint. It matters not in what shape his claim be when such change is made, it falls with the policy. His judgment can be of no higher dignity than his cause of action, for the judgment is a mere determination of its existence and extent. If the claim can be destroyed by legislation, its collection can be impeded by reducing the taxing power of the city.

We are therefore of the opinion that we erred in affirming the judgment upon the ground that the city had the power to levy the special tax referred to above, and that, according to the reasoning of the first portion of our former opinion herein and the views above expressed, the motion for rehearing must be granted, and the judgments of the trial court and the Court of Civil Appeals be set aside and judgment here rendered directing the officers of the city to levy the full 30 cents on the $100 referred to above as allowed by its special charter each year until the judgment is paid, and to pay over on such judgment each year such of the sums realized from such tax as may not be necessary to defray current expenses.

Reversed and rendered.

BROWN, J., not sitting.