
    PUTMAN v. STATE et al.
    (No. 3010.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 11, 1925.
    Rehearing Denied Feb. 19, 1925.)
    1. Levees and flood control <§=>27 — State the necessary party plaintiff to suit for delinquent taxes due ievee district.
    State is the necessary party plaintiff to suit for delinquent taxes due a levee district, in'view of provision of Rev. St. art. 5563, that such taxes shall be collected in same manner as delinquent state and county taxes, and provision of article 76S8 requiring suits for delinquent taxes to be filed in name of. state.
    2. Levees and flood control <§=>27 — Proceedings under general tax law to collect delinquent taxes available to levee districts.
    Fact that general tax law in providing for proceedings to collect delinquent taxes does not in terms extend right of “similar proceedings” to delinquent taxes of levee districts does not render such proceedings unavailable, in view of fact that Levee District Act legally operates to include levee districts.
    3. Levees and flood control <§=>27 — Evidence held to sustain recovery in suit for delinquent levee district taxes.
    In suit to recover delinquent taxes due levee improvement district and to foreclose tax lien upon land, evidence held sufficient to sustain recovery in view of Acts 2d Called Sess. 1923, c. 13, as amended by Acts 3d .Called Sess. 1923, c. 21, making certified delinquent tax rolls admissible and prima facie evidence, and limiting defense to certain matters.
    Error from District Court, Hopkins County; Geo. B. Hall, Judge.
    Suit to enforce payment of delinquent taxes by the State of Texas and the Hopkins County Levee Improvement District No. 2 against H. E. Putman. From a judgment for plaintiffs, defendant brings error.
    Judgment affirmed.
    The suit was to enforce against the plaintiff in error the payment of delinquent taxes due levee improvement district No. 2 in Hopkins county, and to foreclose the tax lien on certain real estate located within the boundaries of the district. Judgment'was entered against the plaintiff in error for the amount of the taxes, penalties, and interest, with the foreclosure of the tax lien on the land described in the petition; and he has brought the case to this court for review.
    The following facts were agreed to: (1) “That the levee district was organized under and by virtue of the act of 1915, passed in regular session, chapter 146, p. 229 [Vernon’s Ann. Civ. St. Supp. 1918, art. 5530 et seq.], and the Acts 35th Legislature, Fourth Called Session, chapter 25, p. 40 [Vernon’s Ann. Civ. St. Supp.. 1922, art. 5107 — 267 to 5107 — 276].” (2) “H. E. Putman, the defendant, and Theodore Arnold, are now, and have been since the organization of the levee district, the duly qualified supervisors of the district. That there is now a vacancy in the place of the third supervisor.” (3) “That 1-Ion. J. M. Nelson of Sulphur Springs, Tex., is the regular appointed and employed attorney for the levee district.” (4) “That Em-met Thornton, whose name is signed to the petition, is the duly elected and qualified county attorney of Hopkins county, and was such at the time he signed the petition in this cause.”
    The evidence appearing in the statement of facts, is rather meager. It shows a map of the district, approved by the state reclamation engineer on August 2, 1919, and filed on August 7, 1919, in the county clerk’s office of Hopkins county. On the face of the map appears the name of H. E. Putman as the owner of 99.4 acres of land of the S. McCulloch survey, and of 39 acres of land of the J. Zunega survey. It further shows a delinquent tax list which recites the following:
    “Report of lands and lots assessed on the tax rolls of Hopkins county levee district No. 1, Hopkins county, Tex., for the year 1921, which are delinquent for taxes of 1922, returned by S. S. Bullock, tax collector.” (Then follow,the names of the taxpayers.)
    Also:
    “Assessment, of property in Hopkins county levee improvement district No. 2 rendered for taxation by the owners or agents thereof for the year 1921.” (Then follows, as pertinent to give): “Owner, H. E. Putman. Abstract No. 589. Original grantee, S. McCul-loch, J. Zuniga. No. acre's assessed, 66.39. No. of acres delinquent 66.39. Special 462.46. Penalty 46.25. Total $508.71.”
    The delinquent list is certified by the tax collector, and approved and certified by the county judge, county commissioners, and attested by the county clerk, and appears filed in the county clerk’s office on May 11, 1922.
    The first paragraph of the petition reads as follows:
    “Now comes the state of Texas, suing herein for the use and benefit of Hopkins county levee improvement district No. 2, of Hopkins county, Tex., and the said Hopkins county levee improvement district No. 2 suing herein in its own right and behalf, herein styled plaintiff, complaining of H. E. Putman,” etc.
    The prayer is “that upon final hearing the plaintiff, Hopkins county levee improvement district No. 2, and the state of Texas recover,” etc. The defendant filed pleas of misjoinder of parties plaintiff and in abatement of the suit. The court overruled the pleas, and the defendant duly excepted to the ruling. The plea of misjoinder is to the effect that the law does not warrant or authorize a suit of this character to be brought “in tlie name of the. state of Texas for the use and benefit of Hopkins county levee improvement district No. 2,” and that the state is an improper and unnecessary party. The plea in abatement is to the effect that there is no legal and proper party plaintiff to the suit, since there is no legal authority for the state to bring the suit, and the suit is not brought “through the district supervisors in the name -of the district,” as required by law, but merely in the name of “Hopkins County Levee Improvement District No. 2.” Also files, besides demurrer and exceptions, general denial.
    Allen & Sellers, of Sulphur Springs, for plaintiff in error.
    J. M. Melson, of Sulphur Springs, for defendants in error.
   LEVY, J.

(after stating the facts as above).

The first question presented is that of whether or not suits for the collection of delinquent taxes 'due to a levee district can be brought in the name of the state of Texas. That precise question has been decided in the case of Holt v. State (Tex. Civ. App.) 176 S. W. 743, and we approve the ruling. The act creating levee districts expressly provides for the assessment and collection of taxes and for suits for the collection of delinquent taxes due the levee district. It is made the duty of the tax collector of the county to make out a certified list of all delinquent taxes due the district which have not been paid, and return the same to the county commissioners’ court. After the tax collector has made the return, the commissioners’ court, as the law reads, “shall proceed to have said taxes collected by sale by the collector or by suit, in the same manner as now provided for the collection of delinquent state and county taxes.” Article 5563, R. S., or section 34, Acts 1915, p. 242 (Vernon’s Ann. Oiv. St. Supp. 1918, art. 5563). The term “same manner,” as used, means the same method of procedure shall be followed as is provided for the collection of “delinquent state and county taxes.” The effect as well as the intention is to have the collection of the delinquent levee district taxes “by suit” controlled entirely by' the general tax laws of the state, and not to provide a separate and independent method of collecting the same. Article 768S, R. S., requires a “suit” to recover delinquent taxes “to be filed in the name of the state of Téxas in the district court of said county.” • The special levee district law does not say that the supervisors of the district shall bring the suit, nor does the act make it their duty to do so. Making the state the party to bring the suit for the use of the levee district in no wise conflicts with the powers or duties of the supervisors of the district. Hence, in view of the terms of the law, the state of Texas is the proper and necessary party plaintiff in this character of suit.

Plaintiff in error insists that the general tax law cannot be made available to delinquent taxes of levee districts, because it does not in terms extend the right of “similar proceedings” to levee improvement districts. The contention cannot be sustained, for the Levee District Act in providing for the same method of procedure legally operates to include levee improvement districts.

We have carefully considered all the points, very clearly presented, and think that reversible error cannot be predicated in the record. The evidence cannot be held insufficient to sustain the recovery in view of the late Acts of 1923 (chapter 13 [2d Galled Sess.] as amended by chapter 21 [3d Galled Sess.-]), making the certified delinquent tax rolls admissible and prima facie evidence, and limiting the defense to certain matters. The answer filed here was a general denial.

The judgment is affirmed. ' 
      <§=>For other eases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes 268 S.W. — 65
     