WALKER et al. v. MEYERS et al., 266 S.W. 499

CURETON, C. J. This is an injunction suit brought by R. L. Meyers and others against the mayor and commissioners of the city of Lamesa. . The purpose of the suit was to restrain the latter from declaring the result of a bond election for street improvements, from selling or offering to sell the bonds, from levying or collecting the 30-cent tax provided therefor, and further restraining the city officers from contracting for the contemplated street improvements. A temporary injunction was granted on the sworn petition of defendants in error on January 24, 1924, restraining the plaintiffs in error as prayed for.

On January 31, 1924, the plaintiffs in error presented to the •‘■district judge, in vacation, "an answer to the petition, the effect of which, if sustained, was to dissolve the temporary injunction. No previous notice of the filing of the answer was given, and defendants in error protested and objected to the hearing on that ground.

Th’e bill of exception recites that the defendants in error “protested against and objected to any hearing before entering into any proceeding, on the ground that the motion aforesaid had not been filed with the clerk, and on the further ground that neither the plaintiffs .nor attorney for plaintiffs had been served with 10 days’ notice, as required by

article 4664 of the Revised Statutes of Texas, and on the further ground that the plaintiffs were not prepared to resist the defendants’ said motion, and were not acquainted with the grounds thereof.” When the motion was presented, according to the bill of exception, it consisted of about 23 typewritten pages, and had been finished but a few minutes before its presentation; that it had not been filed "with the clerk, and no notice thereof had beep served on the defendants in error or their attorneys, and “they had had no opportunity for knowing the grounds of the motion, other than that afforded during the hearing.” The trial judge, however, heard the answer or motion, dissolved the temporary injunction, and dismissed the petition.

To this action defendants in error excepted and appealed. The case was reversed by the Court of Civil Appeals for various reasons, and the temporary injunction reinstated and continued until the further order of the trial court. 264 S. W. 314. The case is before this court by writ of error. The Court of Civil Appeals held that the trial court erred in dissolving the temporary injunction without the statutory notice, over the protest of the defendants in error. This was manifestly correct. Revised Statutes, art. 4664. The case not having been tried by consent of the parties in vacation, under the terms of

article 1714, the action of the court in dismissing the petition was likewise erroneous. It is well settled in this state, as well as in other jurisdictions, that a judge during! vacation cannot dismiss a bill in equity. Price v. Bland, 44 Tex. 145; Aiken v. Carroll, 37 Tex. 73; Coleman v. Goyne, 37 Tex. 552; Grant v. Chambers, 34 Tex. 574-588; Ann. Cas. 1916A, 1230, notes. The opinion of the Court of Civil Appeals on the other - questions discussed is correct, except as to one, which, since the case must go back for retrial, we will discuss. The city of Lamesa is a municipal corporation, incorporated under the commission form of government, in accordance with

chapter 21 of the General Laws of the Thirty-Third Legislature (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. lOTO'-lOTCa), and has accepted the provisions and assumed the duties set forth in chapters 1 to 13 of title 22 of the Revised Statutes of the state. The bond issue here involved was $40,000, and ¿he tax for liquidation of the bonds was 30 cents on the $100 of taxable property-valuation. The Court of Civil Appeals concluded that the power of the city to tax for street improvement purposes was limited by

section 9 of

article 8 of the Constitution to an amount not to exceed 25 cents on the $100 valuation, álthough

section 4 of

article 11 of the Constitution provides that cities and towns of 5,000 and less inhabitants may assess and collect such taxes as may be authorized by law, in an amount not to exceed 1% per cent, of the taxable property of the city.

Article 8 of the Constitution relates to taxation and revenue, and

section 9 has reference generally to state, county, and municipal taxation.

Article 11 refers to municipal corporations, and sections 4 and 5 have reference to the classification of such corporations according to population, the methods of incorporation applicable, and the powers which each may respectively exercise in regard to levying and collecting taxes.

Section 4 of

article 11, as it originally existed in the Constitution of 1876, related to cities and towns having a population of 10,000 inhabitants or less. It provided that this class of cities might be chartered alone by general law, and that they could collect taxes “to defray the current expenses of their local government,” not in excess of % of 1 peí-cent. (Italics ours.)

Section 5 of

article 11 of the Constitution of 1876 provided that cities having more than 10,000 inhabitants might have their charters granted or amended by special act of the Legislature, and that they might levy and collect “such taxes as may be authorized by law,” not to exceed 2% per cent, of the taxable property of the city. These two sections of

article 11 of the Constitution, as they originally stood, thus divided the cities and towns into two classes, with different taxing powers both in amount and purpose. A city of the first-named class, having a population of 10,000 inhabitants or less, was not authorized to levy and collect taxes except for “cun-ent expenses," and could not have done so but for the existence of

section 9, art. 8, of the Constitution. As to the other class, the cities therein were not limited to the collection of taxes merely for “current expenses," but could collect taxes for any purpose “authorized by law.”

Section 9 of

article 8 of the Constitution of 1876 provided that the state tax rate should not exceed 50 cents on the $100, and that .no county, city or town should levy more than one-half of the state tax, except for debts already incurred, and for the erection of public buildings, not to exceed 50 cents on' the $100, “and except as in this Constitution is otherwise pi'ovided." By an amendment to this

section in 1883, a limit of 25 cents was fixed for county, city, and town purposes, and 25 cents for the erection of public buildings, street, sewer, and other permanent improvements. These specified limits were to govern, “except as in this Constitution is otherwise provided.” These several sections of the Constitution stood substantially as we have described them, when the ease of Lufkin v. City of Galveston, 63 Tex. 437, arose. That suit questioned the right of the city of Galveston to levy a tax of 99 cents on the $100 valuation of taxable property for general purposes, and 7 cents as an emergency fund.

The city claimed the right to levy this tax by virtue of its charter, and under the terms of

section 5 of

article 11 of the Constitution. This original

section of the Constitution we have just explained, and the effect of it was to permit cities having more than 10,000 inhabitants to levy, assess, and collect such taxes “as may be authorized by law.” Insistence was made that

section 9 of

article 8, as amended in 1883, controlled and limited the general grant of power contained in

section 5 of

article 11 of the Constitution. In that section, as we have seen, it was provided that no city or town could levy more than 25 cents for city purposes, and not exceeding 25 cents for buildings, street, and sewer purposes. The matter came before this court, and, in an opinion by Chief Justice Willie, it was held that the provisions of

section 5 of

article 11 were not limited by the terms of

section 9 of

article 8. This court said that

section 5 of

article 11 related specially to cities of the class designated by the section, and could not be controlled by the general section, which was

section 9 of

article 8. Discussing these provisions, Chief Justice Willie in part said: “Construing these two sections together, in view of the exception provided for in the former, the conclusion is irresistible that cities of 10,000 inhabitants are to be excepted from the maximum limit prescribed for municipal governments as a class, and may levy ad valor-em taxes to the extent of 2% per cent., if so authorized by the Legislature.”.

Section 9 of

article 8 was again amended in 1890 and in 1906, but that portion of the

section here under examination remained substantially, the same as it was at the time of the decision in the Lufkin Case. As the

section stands to-day, it fixes a limit of 25 cents for city and town purposes, and 25 cents for the erection of public buildings, streets, sewiers, waterworks, and other permanent improvements, “except as is in this Constitution otherwise provided.” The first amendment to

section 4 of

article 11 made the

section applicable only to cities of 5,000 or less population, but made no. change in the original taxation provision, still confined the powers of taxation under it to “current expenses" of local government, with the same limitation as to amount as previously existed. Under that amendment, as under the original section, additional powers of taxation were to be derived from

section 9 of

article 8, to which we have just referred. It

Section 5 of

article 11 was amended in 1909 and 1912, in the matter of cities to which it should apply and the method of their incorporation, but in each amendment such cities were authorized to collect “such taxes as may he authorised, hy law or hy their charters,” not to exceed 2% per cent, of taxable property. It is thus seen that the amendments to

section 5, adopted in 1909 and 1912, were adopted after the opinion of this court in Lufkin v. City of Galveston, supra, in which we held that the general terms of

section 5, authorizing cities to levy, assess, and collect “such taxes as may be authorized by law,” not to exceed 2% per cent., were not controlled by the limitations of

section 9 of

article 8. This had the effect of adopting the construction previously given this language by this court in the Lufkin Case. Richey v. Moor, 112 Tex. 493, 497, 249 S. W. 172; Taylor v. Boyd, 63 Tex. 633, 541; Muench v. Oppenheimer, 86 Tex. 568, 20 S. W. 496; Michie’s Texas Digest, vol. 4, p. 400. Up to this time, cities and towns having a population of 5,000 or less, however, were controlled by the limitations of

section 9 of

article S. But in 1920

section 4 of

article 11 was again amended, and material and far-reaching changes made in its original meaning and purpose. This

section as amended, in so far as material here, reads as follows: “Sec. 4. Cities and towns having a population of five thousand or less may be chartered alone by general law. They may levy, assess and collect such taxes, as may be authorized by law, but no tax for any purpose shall ever be lawful for any one year which shall exceed one and one-half per cent, of the taxable property of such city.” It is to be noted that in this section, as amended, the limit of-taxation was raised from % of 1 per cent, to iy2 per cent. This was a material and far-reaching change, permitting the levy of six times the amount of taxes that could have been levied under the

section before its amendment. It is unreasonable to suppose that this vast increase in the tax rate was not to be accompanied by a corresponding enlargement of the purpose for which the tax money might be expended. And so there was. We have seen that, under this

section as it originally stood, the power of taxation thereunder was limited “to defray the current expenses of their local government.” In the amendment of 1909 this same .limitation was carried forward. But in the amendment of 1920, which is the

section as it stands to-day, this limitation was entirely omitted, and the language used originally in

section 5, and the several amendments thereunder, and which was a part of the

section when the opinion in Lufkin v. City of Galveston was written, was substituted for that previously used in

section 4. That is to say, instead of limiting the taxation purpose of

section 4 to “current expenses of their local government,” cities governed by

section 4 were authorized by the amendment to levy and collect “such taxes as may he authorised hy law." From the change in the language used, it must be presumed that there was an intention to change the meaning of the section. Halbert v. San Saba Springs Land, etc., Ass’n, 89 Tex. 230, 232, 34 S. W. 639. 49 L. R. A. 193. The words of the amendment, “such taxes as may be authorized by law,” are broad and- general, and necessarily embrace every purpose for which a. city could exercise the taxing power. Prior thereto a city of the class before us could only find such broad and complete authority in

section 9 of

article 8, and then was compelled to exercise it under the limitations of that section. By taking out of

section 4 the limited right to tax for “current expenses” .only, and substituting therefor the powers specified in the amendment, it is plain, we think, that the limitations of

section 9 of

article 8 should no longer control. This is entirely consistent with the terms of

section 9 itself, which expressly declares that the limitations therein prescribed should not apply, where provision was otherwise made in the Constitution. In view of the construction of

section 5, and in view of the fact that the people, in adopting the amendment to

section 4. in 1920, used precisely the same language, instead' of the previous limitation, it is plain that by adopting the • amendment to

section 4, in 1920, the people adopted the construction previously given the same language. That is to say, by stating that cities and towns having a population of 5,000 or less might levy, assess, and collect such taxes as may be authorized by law, not to exceed iy2 per cent., the people intended that

section 4 as thus amended should be dominant and controlling, and that cities operating under that

section should be free of the limitations theretofore existing in

section 9 of

article 8. The caption of the resolution submitting the amendment to

section 4 was broad and general, and persuasive of the correctness of this construction. That this

interpretation is a correct one is further emphasized by the legislative construction of the 1920 amendment to

section 4 of

article 11. The rule is general and elementary that contemporaneous and practical construction of constitutional provisions by the Legislature. in .the enactment of laws, has great weight, and gives rise to a strong presumption that the construction rightly interprets the meaning of the provisions. State v McAlister, 88 Tex. 284. 286, 31 S. W 187, 28 L. R. A. 523; Fort Worth v. Davis, 57 Tex. 225, 233; Cooley’s Const. Lim. (7th Ed) p. 102. See, also, Michie’s Texas Digest, vol. 4, p. 398. This rule has heen declared by this court to be peculiarly applicable to the creation and regulation of municipal corporations. State v. McAlister, supra. In 1921 by

chapter 9 of the Acts of the thirty-seventh Legislature, the Legislature amended the previous statute relating to this subject by declaring that cities and towns of this state having a population of 5,000 or less should have power to levy, assess, and collect “such taxes as such city council or governing body may determine, not to exceed for any one year one and one-half per cent of the taxable property of such city or town.” for current expenses, public buildings, waterworks, sewers, and other permanent improvements, including roads, bridges, and streets. Vernon’s Texas Statutes, 1922 Supplement, art. 925.

This act was held valid by the Court of Civil Appeals. City of Henderson v. Fields, 258 S. W 523. The amended statute is clearly a legislative determination that the general terms of

section 4 of

article 11 are not limited by

section 9 of

article 8. With that construction we agree. Bass v. City of Clifton, 261 S. W. 795. The opinion of the Court of Civil Appeals, in so far as it held to the contrary, is erroneous. However, the Court of Civil Appeals reversed the case, and reinstated the temporary injunction for other reasons, which are sound. The judgment of the Court of Civil Appeals must therefore be afhrmed, and it is accordingly so ordered. «g^sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes