
    HOPKINS COUNTY LEVEE IMPROVEMENT DIST. NO. 1 et al. v. SMITH et al.
    (No. 2976.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 27, 1924.
    Rehearing Denied Dec. 18, 1924.)
    Levees and flood control <©==>22 — Statute held to authorize taxation for construction and maintenance of levees, notwithstanding previous exercise of taxing power to retire bonds issued therefor.
    Under Act 34th Leg. (1915) c. 146, §§ 1, 7, 30 (Vernon’s Ann. Civ. St. Supp. 1918, arts. 5530, 5534a, 5558) and in view of Vernon’s Ann. Civ. St. Supp. 1922, art. 5107 — 270, and Const, art. 16, § 59, county levee improvement ^districts may levy taxes tó pay for construction and maintenance and to retire bonds issued therefor, and are not limited to either alternative, hence, where commissioners’ court had levied taxes for interest and sinking fund to retire bonds, it did not exhaust taxing power, and could be compelled to levy taxes to pay valid judgment for damages to property resulting from construction.
    Appeal from District Court, Hopkins County ; Geo. B. Hall, Judge.
    Suit by Hopkins County Levee Improvement District No. 1 and others against "Mrs. Hattie Smith and others, in which defendants filed cross-bill for writ of mandamus to compel the commissioners’ court of Hopkins county to levy tax to pay judgment in previous action. From judgment for plaintiff and for defendants on their cross-bill, plaintiffs appeal.
    Affirmed.
    Dial, Melson & Brim, of Sulphur Springs, for appellants.
    R. D. Allen, of Sulphur Springs, for ap-pellees.
   HODGE, J.

Hopkins county levee improvement district No. 1 was organized in, 1918 under the act of the Thirty-Fourth Legislature passed in 1915. See chapter 146, p. 229, Acts of the Regular Session (Vernon’s Ann. Civ. St. Supp. 1918, arts, 5530-5584d). The purpose for which the district was organized was to erect, “dig and build canals, ditches, laterals and levees required for the protection of said district from overflows, and to complete the drainage thereof, and to maintain the dams in the manner provided and contemplated by law.” On September 3, 1921, the appellees recovered a judgment in the district court of Hopkins county against the district for damages in the sum of $1,000, with interest and costs. The judgment was based upon an alleged injury to their property resulting from the construction of the improvements of the district. An execution was thereafter issued upon that judgment, and on the 11th day of June, 1923, was levied upon the levees which had been constructed for the purpose of protecting the lands of the district from overflow. On August 1, 1923, this suit was filed by the levee district and by the state of Texas for the use and benefit of the district and by the supervisors of the levee district, in the district court of Hopkins county, seeking to enjoin the sale of the levees referred to under the execution theretofore issued. The appellees filed an answer and a cross-bill setting up the recovery of the judgment above mentioned, and prayed for the issuance of a writ of mandamus compelling the commissioners’ court of Hopkins county to levy a tax on all the property situated in district No. 1, at a rate not to exceed 50 cents on the $100 valuation of property, or so much thereof as might be necessary to pay their judgment. In, the trial which followed judgment was rendered enjoining thé sale of the property of the district under the execution referred to, and also a judgment in favor of the appellees granting the writ of mandamus prayed for. From that judgment an appeal has been prosecuted by the appellants, who were the plaintiffs in the injunction suit.

Practically the only question presented in this appeal is one which challenges the authority of the district court to direct the commissioners’ court of Hopkins county to levy the tax for the purposes of satisfying the judgment theretofore rendered in favor of the appellees. The contention is that the act under which the district was organized confers no power upon the commissioners’ court to levy such a tax, and therefore the judgment granting the writ of mandamus was unauthorized.

The first section of the act (Vernon’s Ann. Civ. St. Supp. 1918, art. 5530) under which 'the district was organized provides, among other things:

“Such districts, when so created, established and defined, may build and construct, or cause to be built and constructed and maintained, levees or other improvements on all rivers, creeks and streams within such district, or which may border on the same, to prevent overflows thereof, and may, or may not, issue bonds in payment therefor, and the maintenance thereof, and may levy and collect taxes for the payment of said bonds and interest thereon; and may levy and collect taxes for the maintenance and upkeep of the levees and other improvements in said district, as hereinafter provided; and may acquire by grant, condemnation or otherwise such levees or other improvements as may already have been constructed in such district.”

Section 7 of the act (article 5534a) contains the following:

“If, after being declared a body corporate, as hereinbefore provided, any levee improvement district shall desire to accomplish the reclamation authorized by this act, without the issuance of district bonds, it is hereby empowered to do so, and may employ all the necessary assistance, make all the necessary purchases, and do all things needful to effect such reclamation, and may provide the funds therefor in such manner as such district may deem best; and all expenses of whatsoever nature incurred in connection with such work shall be a liability against such district. Such district shall have all the rights, powers, privileges and obligations provided in this act, and shall be subject to all the supervision, approval and control of the state reclamation engineer,” etc.

Section 30 (article 5558) is as follows:

“If the said district shall issue bonds as herein provided for the construction of the improvements authorized by this act, all proper expenses incurred Dy said district from and after its creation shall be paid out of the construction and maintenance funds of said district, which funds shall consist of all moneys or property received by such district, whatsoever the source, except tax collections applied to sinking funds and the payment of interest on the district bonds. * * * ”
“Sec. 44. In all such levee improvement districts heretofore created under any law of this state, or that may hereafter be created, the commissioners’ courts of the respective counties are hereby authorized to levy and cause to be assessed and collected, for the maintenance and upkeep of the levees and other improvements in such districts, an annual tax not to exceed 50 cents on the one hundred dollar valuation upon all the property, real, personal and mixed within the said district.” Article 5569a.

Other portions of the act ’confer upon such districts the power to condemn property when necessary to make the contemplated improvements. Section 4 of the Oannales Act, adopted in 1918, and which appears as article 5107 — 270 of Vernon’s Ann. Civ. St. Supp. 1922, contains the following:

“All limitations of indebtedness authorized to be incurred and taxes to be levied, imposed by section 52 of article 3 of the Constitution, and any and all laws under which any such district .has been or may be organized, are removed as to all districts which may become conservation and reclamation districts under the terms of this act.”

Under the provisions of what is known as the “conservation amendment” adopted in 1917, which appears as section 59 of article 16 of the Constitution, such districts “shall be governmental agencies and bodies politic and corporate with such powers of government and with the authority to exercise such rights, privileges and functions concerning the subject-matter of this amendment as may be conferred by law. * * * The Legislature shall authorize all such indebtedness as may be necessary to provide all improvements and the maintenance thereof requisite to the achievement of the purposes of this amendment, and all such indebtedness may be evidenced by bonds of such conservation and reclamation districts,” etc.

It appears that improvement districts ,of this character have the power to levy taxes for two purposes; one to raise funds to be used in the construction and maintenance of the improvements required, and the other for the retirement of bonds issued for the purpose of raising the needed funds. According to the findings filed by the trial judge, the appellant district has levied taxes only for the purpose’ of raising an interest .and sinking fund to retire bonds theretofore issued. No levy has ever been made for taxes to raise a fund to be used in the work of com-struetion, or for the payment of damages resulting from the improvements made.

If the commissioners’ court of Hopkins county ever had the power to make such a levy that power has not been exercised or exhausted. That a fund for construction and for the payment of incidental expenses which may grow out of the improvements made might be raised by direct taxation of the property situated in the district is, we think, authorized by the terms of the statute. That the judgment here involved is a valid liability against the district is not denied. It must also be assumed that it is a liability which the district might lawfully incur in the construction of the necessary improvements. That being true, the taxation authorities of the district may be compelled to levy taxes sufficient to pay the judgment, unless that taxing power had been ex- • hausted. The Only taxing power that has been exercised in this instance is that which authorized the creation of an interest and sinking fund for the bonds issued. That fund, however, cannot be diverted to the payment of any other liability. If the district is'sues bonds for a sum less than’what it might issue and less than what is required to pay for the work of constructing the improvements and the incidental damages, it cannot complain of the enforced collection of a general tax to meet its legal obligations if these might have been provided for by a larger bond issue. The language of the statute, “and may, or may not, issue bonds in payment therefor,” etc., does not limit the district to the exercise of only one of the alternative methods of raising the needed funds. It may use either or both methods, provided it does not exceed the limits elsewhere prescribed in the statute.

We conclude that the power to levy the tax directed in the judgment appealed from is clearly implied, if not in express terms authorized, by the Act of 1915 considered in its entirety. Section 7, referred to above, after authorizing and empowering the district to employ all- necessary assistance, make all the necessary purchases, and do all things needful to effect such reclamation, said:

“And may provide the funds therefor in such manner as such district may deem best; and all expenses of whatsoever nature incurred in connection with such work shall be a liability against such district.”

The judgment will therefore be affirmed. 
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