City of Austin v. Joseph Nalle, 102 Tex. 536

Mr. Chief Justice Gaines delivered the opinion of the court. This is a suit by the city of Austin to recover of Joseph Nalle for -the sum of $1163.50, assessed against a certain lot in the city of Austin for the expense of paving with vitrified brick the street in front of the same.

The petition alleges that an ordinance was passed by the city council, providing for the paving of parts ■ of Congress Avenue and Pecan Street, and also providing that in case the property owners where property abutted on said street should fail to pay for the improvement in front of their property the city should appoint Commissioners to assess the benefits to accrue from the improvements and that their report should be used for the assessment. The answer fails to show us that any complaint is made of a noncompliance with the ordinance of the city in making the assessment.

The objections to the proceedings are aimed at the statute which authorized the ordinance. The trial court held that because the petition showed that the improvement had not been made but was to be made when the money was paid, the assessment was illegal, and gave judgment for the defendant; but upon appeal to the Court of Civil Appeals that court held since the work was not performed at the time the assessment was made, that no adequate compensation was made for the money that was assessed and that therefore the imposition was illegal.

First it is maintained that the charge of $1163.50 made against the property is not taxation but the exercise of the right of eminent domain. But this is, in our opinion, a- radical misconception of the law. Eminent domain is defined to be: “The sovereign power vested in the State to take private property for the public use, providing first a just compensation therefor.” (15 Cyc., 557.) “Taxes are defined to be burthens, or charges, imposed by the legislative power of a State upon persons or property, to raise money for public purposes.” (Clegg v.

The State, 42 Texas, 608.) The former takes specific property (not money) upon paying compensation therefor. The other takes money, the only compensation being that it will be appropriated according to law. In this case there is no direct attempt to take the lots by virtue of which the assessment is made; but it is the mere levy of an imposition upon the owner of a sum of money to pay his part of the costs of the improvement, which is proposed to be made, and which is proportioned to him upon principles the justice of which can not be gainsaid.

From these considerations we think it follows that this is not the taking of property under the law of eminent domain. This principle is recognized in the following cases to which many others might be added. Woodbridge v. Detroit, 8 Mich., 274; The People v. Brooklyn, 4 N. Y., 419; Macon v. Patty, 57 Miss., 378; Martin v. Dix, 52 Miss., 53; Davies v. Los Angeles, 86 Cal., 37; Lexington v. McQuillan, Heirs, 9 Dana, 513.

But. it is also insisted that the law which is claimed as authorizing the procedure in this case is unconstitutional in that it authorizes the collection of the imposition before the work is done and before the benefits can have accrued. But we think it not unusual to levy taxes for work to be performed. At each session of the Legislature taxes are authorized to be levied, necessary to meet the expenses of the State government for the next two years and appropriations are made for the payment of the money so collected, for services to be rendered and work to be performed as it may arise.

In no other way could the State government be administered. But it is also urged “that the pleadings and evidence showed that the judgment sought was for a tax and to fix a lien upon appellee’s property which added to the ordinary tax otherwise levied by appellant for the years 1906 and 1907 ivould subject the property of appellee for each of said years to a tax in excess of the constitutional limit.” But it has been expressly held by this court that the constitutional limit referred to does not embrace these local special assessments. (Roundtree v. Galveston, 42 Texas, 612; Taylor v.

Boyd, 63 Texas, 533.) For the errors pointed out the judgment of the District Court and that of the Court of Civil Appeals are reversed and judgment is now rendered for the city of Austin. Reversed and rendered for plaintiff in error.