
    CITY OF ATHENS et al. v. MOODY, Atty. Gen.
    (No. 569-4438.)
    
    (Commission of Appeals of Texas, Section B.
    Feb. 10, 1926.)
    Municipal corporations <§=»957 (3) — Maximum tax of city of 5,000 assuming control of schools must include tax for retiring bonds issued for school buildings.
    Where city of 5,000 or less has assumed control of its schools under Acts 36th Leg. (1919) 2d Called Sess., c. 9 (Vernon’s Ann. Civ. St. Supp. 1922, arts. 2851a-2851e), the $1.50 maximum tax limit per $100 valuation, under Const, art. 8, § 9, and article 11, § 4, as amended in 1920 (see Laws 1919, p. 346), and Act Feb. 24, 1921 (Acts 37th Leg. c. 9, § 1 [Vernon’s Ann. Civ. St. Supp. 1922, art. 925]), putting amendment of 1920 into effect, and repealing Rev. St. 1911, art. 925, as amended in 1917, must care for its -bonded indebtedness incurred in erection of school buildings and permanent improvements as well as current expenses, and therefore, where proposed refunding bond issue would require tax rate in excess of limit, unless city were relieved, so far as the $1.50 maximum tax is concerned, of its outstanding bonds for school buildings and improvements, city could not compel Attorney General by mandamus to approve such proposed issue.
    Mandamus by the City of Athens and others against Dan Moody, Attorney Gen'eral.
    Wfcit denied.
    Sam Holland, of Athens, J. W. Young, of Crockett, and W. P. Dumas, of Dallas, for relators.
    Dan Moody, Atty. Gen., and C. A. Wheeler and Geo. E. Christian, Asst. Attys. Gen., for respondent.
    
      
       Rehearing denied April 7, 1926.
    
   POWELL, P. J,

This is an action in mandamus, instituted in the Supreme Court by the city of Athens, a municipality having a population of less than 5,000 inhabitants, against the Attorney General of this state, in which it is sought to compel the latter to officially approve an issue of refunding bonds by said city in the sum of $265,000. It appears from the pleadings that the' Attorney General is withholding his approval because it is shown, from the record before him, that the city of Athens cannot, within the constitutional tax limit of $1.50 on the $100 valuation of its property, take care of the interest due on the bonds already owing by said city and the refunding bonds now proposed. To be more specific, it seems to be conceded that the city of Athens cannot care for the proposed bonds and its current expenses, unless it be relieved, so far as its municipal tax of $1.50 on the $100 of valuation is concerned, of all bonds now 'outstanding against the city of Athens by reason of its school buildings and improvements. The total of this school bond indebtedness now outstanding is $147,000. Of this amount, the sum of $125,000 was authorized October 19, 1921, and issued November 1, 1921.

So far as the record before us, by which we must be controlled, is concerned, we must determine whether or not the maximum tax of $1.50 on the $100 which the city of Athens is authorized to levy for certain purposes must include the tax necessary for the retiring of the bonds issued for public school buildings within said city. In determining what tax a city like Athens can levy, we must look to the Constitution and statutes of our state.

In 1909 such cities were authorized, under section 9 of article 8 of our Constitution, to levy a tax not to exceed 25 cents on the $100 of valuation “for the erection of public buildings, streets, sewers, waterworks, and other permanent improvements.” In 1909, section 4 of article 11 of our Constitution read as follows:

“Cities and towns, having a population of five thousand or less, may be chartered alone by general law. They may levy, assess and collect an annual tax to defray the current expenses of their local government; but such tax shall never exceed, for any one year, one-fourth of one per cent, and shall be collectible only in current money; and all licenses and occupation taxes levied, and all fines, forfeitures, penalties and other dues accruing to cities and towns, shall be collectible only in current money.”

In 1920, section 4 aforesaid was amended by the people so as to read:

“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.”

See Laws 1919, p. 846.

The Thirty-Seventh Legislature, in 1921, took prompt action, and passed an act putting into effect the amended section 4 of article 11. That was one of the expressed purposes of the act. This act (Acts 1921, 37th Leg. c. 9, § 1 [Vernon’s Ann. Civ. St. Supp. 1922, art. 925]) became effective February 24, 1921, and section 1 thereof reads as follows;

“The city council or governing body of any city or town in this state having a population of five thousand or less shall have power by ordinance to levy, assess and collect an annual ad valorem tax sufficient to meet the interest and sinking fund on all indebtedness legally incurred prior to the! adoption of the constitutional amendment of September 25, 1883, regarding the power of cities and towns to levy and collect taxes, etc., and may .also levy, assess and collect such taxes ás 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 and for the purpose of construction or the purchase of public buildings, waterwork, sewers, and other permanent improvements, within the limits of such city or town, and for the construction and improvement of the roads, bridges and streets of such city or town within its limits.”

Section 2 (article 925a) refers to cities of more than 5,000 inhabitants, where the maximum tax rate under section 5 of article 11 of our Constitution is 2% per cent. It is not applicable here, and we omit it.

Section 3 of the act'(article 882) reads as follows:

“Any city or town providing for improvements mentioned in the two preceding sections * * * shall have the power to issue coupon bonds therefor in such sum as it may deem expedient, to bear interest not exceeding six per cent, per annum, and to mature serially or otherwise, not exceeding forty years from their date, and shall provide for payment of the interest on, and principal of bonds heretofore issued and of all bonds issued under this act, except for indebtedness incurred ^rior to September 25, 1883, out of the taxes herein authorized, and the limitations now provided by law upon the amount of bonds that- such cities may issue, shall not apply to bonds issued under this act. Within the meaning of this, act shall be included building sites and buildings for the public free schools and institutions, of learning within such cities and towns which have assumed or may hereafter assume the exclusive control and management of the public free schools and institutions of learning within their limits, and the cities and towns herein-before mentioned may issue coupon bonds therefor under the terms of this act.”

Section 6 of the act repeals all laws and parts of laws in conflict therewith, and particularly and expressly repeals article 925, as amended, of the Revised Civil Statutes of 1911, We shall hereafter refer to thi| particular article. The codifiers of the' 1925 Revised Civil Statutes gave effect to the act of 1921, and carried it forward and eliminated all statutes in conflict therewith, so the act is still the law.

We think a vast change was made in the taxing power of small cities by the said amendment of 1920. This change is ably reviewed by our Supreme Court, speaking through Chief Justice Cureton, in the case of Walker v. Meyers, 266 &. W. 499. The amendment enlarged the taxing power very greatly. It almost trebled the former total taxing power of such cities. Judge Cureton said in the Meyers Case, supra, that cities in making permanent improvements were no longer limited by section 9 of article 8 of the Constitution and held down to 25 cents on the $100 of valuation. In that very case the bond issue approved by the court required a 30-eent tax on the $100 of valuation.

But, in authorizing such a vast increase in the taxing powers of such cities, the people left it to the Legislature to say what taxes should be authorized within the maximum limit of $1.50 on the $100. The Legislature has spoken on this point, as shown by the act of 1921, which we have already quoted. We think the legislative intent is perfectly clear, as expressed in that act alone. And it is clear that people living within the 4 square miles of territory of the city of Athens proper cannot be taxed $1.50 .on the $100 valuation of their property for current expenses and indebtedness exclusive of the bonds owing by the city for school buildings. The pleadings show that it requires a tax of 38 cents on the $100 to take care of the $125,-000 of schoolhouse bonds heretofore mentioned. Under the act of 1921 people of Athens cannot be taxed $1.88 on the $100 for current expenses of the city and indebtedness incurred in the erection of permanent improvements including school buildings. Of course, it would take an additional tax to take care of the $22,000 of school bonds for which the city of Athens was also liable. Both issues must be taken care of within the $1.50 tax rate.

In view of the wording of the act of 1921, we do not think it necessary to look to the history of legislation in order to determine whether or not school buildings have been included by the lawmakers in the act of' 1921 as being within the tax limit of cities which have assumed'control of their schools. But, looking into such history, we are abundantly confirmed, in our view' already expressed. In 1909 was passed what became article 925 of the Revised Statutes of 1911. It read, in part, as follows:

Oities “may levy and collect an additional twenty-five cents on the one hundred dollars valuation for the purpose of construction or the purchase of public buildings, waterworks, sewers, and other permanent improvements within the limits of such city or town, and sin 11 also have power, by ordinance, to levy and collect a tax not exceeding fifteen cents on the one hundred dollars valuation of property for the construction and improvement of the roads, bridges and streets of such city or town within its limits. Within the meaning of this article shall be included building sites and buildings for the public free schools and institutions of learning within those cities and towns which had assumed, or may assume hereafter, the exclusive control and management of the public free schools and institutions of learning within their limits.”

From the quotation from the act of 1921 already set out herein it will be seen that the latter act goes back to that of 1909. But in 1917 (Acts 3d Called Sess. 1917, c. 14, § 1 [Vernon’s Ann. Civ. St. Supp. 1918, art. 925]) article 925 of the statutes of 1911 was amended so as to read:

“May levy and collect twenty-five cents on the one hundred dollar valuation of all property in such city or town for current expenses, and may levy and collect an additional twenty-ffive cents on the one hundred dollar valuation for the purpose of the erection and equipment or the purchase of public buildings, waterworks, sewers and other permanent improvements, except building sites and buildings for the public pree schools, within the limits of such city or town, and shall have power, by ordinance, to levy and collect a tax not to exceed fifteen cents on the one hundred dollar valuation of property for the construction and improvement of the roads, bridges and streets of such city or town within its limits, and shall have power, by ordinance, to annually levy and collect such ad valorem tax for the support and maintenance of public free schools and for the erection and equipment of public free school buildings in the city or town, where such city or town is a separate and independent school district, as the electors of any such district may determine under the provisions of chapter 169, Acts of the Thirty-Fifth Legislature (articles 2876-2880, post). Within the meaning of this article shall be included all such separate and independent school districts that the management and control of the public free schools therein has been assumed or may hereafter be assumed by a city or town under the provisions of chapter 17, title 48, Revised Civil Statutes of Texas 1911, and amendments thereto; the boundaries of such districts shall be coincident with the city or town, as incorporated, in such cities and towns as have not extended their lines for school purposes only, and in such cities and towns as have extended their lines or may hereafter extend their lines for school purposes only, under the provisions of article 2883, Revised Civil Statutes of Texas 1911, the boundaries of such districts shall be coincident with the boundaries of the city or town as extended for school purposes only, and all such separate and independent districts shall be classified as municipal districts.”

We have underscored the words which control the act of 1917. It was this act which formed the basis of the decision of our Supreme Court in the case of City of Rockdale v. Cureton, 111 Tex. 136, 229 S. W. 852. Under the act of 1917. the Legislature expressly provided that school buildings should not he included in the ordinary city taxes. Therefore the Supreme Court ruled the Rock-dale bonds were governed by the power to levy taxes under school laws. The act of 1917 expressly authorized that procedure. But, as already shown, this very act was expressly repealed in 1921 and all related statutes omitted from the Revised Statutes of 1925.

The case of City of Rockdale v. Cureton, supra, is not authority under the situation now before us. It is not applicable here. The law has been changed. Almost immediately after that decision was rendered the act of 1921 came up for construction by the Attorney General upon request from the city of Yan Alstyne. An opinion was prepared by an able Assistant Attorney General, construing the act of 1921 just as we do. See Report and Opinions of the Attorhey General, vol. 7, years 1920-1922, p. 520. This construction has been followed by the Attorney General’s department since that time. We know óf no authorities holding to the contrary.

The city of Athens, under chapter 9 of the Acts of the Second Called Session of the Thirty-Sixth Legislature (Vernon’s Ann. Civ. St. Supp. 1922, arts. 2851a-2851e), on August 9, 1921, assumed control and management of the Athens school district. The boundaries of the city, about 4 square miles for general purposes, were then extended to 16 square miles for school purposes.

The statute under which the city of Athens acted in this connection was carried forward in the Revised Statutes of 1925. When the city of Athens took this action, and it was after the taking effect of the city taxing act of 1921 aforesaid, it became liable for the bonds of the school district then outstanding.' For instance, the act reads:

“If such independent school district shall have an outstanding bonded indebtedness, then the incorporated city or town shall become bound and liable for the payment of such bonded indebtedness.”

Under that act, the city of Athens became liable for the $22,000 of school bonds outstanding when it assumed control. Of course, after assuming such control, the city itself, as a school district, issued the $125,000 of bonds, and is liable thereon.

Having assumed control of its schools, under the statutes of our state governing such matters, the city of Athens comes within section 3 of the act- of 1921 aforesaid, and the $1.50 maximum tax rate which cities of that size may levy must care for the school bonds. The Legislature has the right, under the amendment of 1920 aforementioned, to prescribe the purposes for which such cities may levy taxes. It has spoken and included school buildings within the city tax. Under the pleadings it seems clear that the Attorney General is justified in failing and refusing to approve the refunding bonds in the sum of $265,000. For this reason we think the writ of mandamus should not issue.

We do not wish to be understood as holding that no conditions could possibly arise under which a city like Athens would be authorized or compelled to levy a tax in excess of $1.50 on the $100. An interesting question might be presented should it be made to appear that the indebtedness sought to be refunded had been validly and lawfully incurred. We do not say what we would hold in such a situation. The record before us does not present any such status, and we do not pass upon the rule of law which might be applicable in such an extreme case which might arise. It will be time enough to pass upon that question when it is presented.

It seems clear to us that, as presented to the Attorney General, the record in this case does not show it to be his duty to approve the bonds. On the contrary, his duty to withhold such approval seems clear to us. Therer fore we recommend that the writ of mandamus, as prayed for, be denied.

CURETON, C. J.

The opinion of the Commission of Appeals is adopted and mandamus refused. 
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