
    VANCE v. TOWN OF PLEASANTON.
    (No. 7112.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 26, 1924.
    Rehearing Denied April 30, 1924.)
    1. Appeal and error <&wkey;l 040(6) — Sustaining of demurrers to answer held not prejudicial, all evidence offered having been admitted.
    Defendant was not prejudiced by sustaining at conclusion of trial of general and special demurrers to his answer; court having admitted and considered all evidence tendered under pleadings.
    2. Appeal and error &wkey;>840(3) — Validity of statute limiting defenses in delinquent tax • suit not considered, where defendant permitted to prove all his defenses.
    In suit to collect delinquent taxes, validity of Rev. St. art. 7689a, as added by Acts 1923, 2d Called Sess. c. 13, § 6, restricting a delinquent taxpayer to certain defenses not determined on appeal, where defendant was permitted in trial court to present all his defenses, including some not permitted by statute.
    3. Municipal corporations <&wkey;956(I) — Municipality’s power to tax must be delegated. ,
    Municipal corporations functioning under general laws have no power to levy or collect taxes upon property within their territorial limits, except such as may be expressly delegated by Constitution or statute.
    4. Municipal corporations <&wkey;956(l) — Power to tax must be strictly construed.
    The grant of power to levy and collect taxes to a municipality must be strictly construed, and the power strictly pursued, and if any doubt' as to its existence, it will be denied, and if doubt as to its extent, it will be restricted, until doubt is excluded.
    5. Municipal corporations <&wkey;956(l) — Statutory mode of taxation must be strictly pursued.
    If, in delegating taxing power to a municipality, statute lays down manner by which it shall be exercised, such manner must be-strictly pursued , by municipality in order to give Validity to its acts.
    6. Municipal corporations <@=969 (I) — Statute providing form of ordinance levying tax Is mandatory.
    The requirement of Rev. St. art. 818, as to the form of ordinance for levying and assessment and collection of taxes, or substantial compliance therewith, is mandatory.
    7. Municipal corporations <&wkey;969(l) — Statute requiring tax levy by ordinance mandatory.
    Rev. St. arts. 923-964, providing that levying, assessment, and collection of taxes by municipalities shall be “by ordinance,” is mandatory.
    8. Municipal corporations <&wkey;969(l) — Requisites of “ordinance” levying tax stated.
    To be an “ordinance” within meaning of Rev. St. arts. 938-964, for levying, assessment, and collection of taxes, procedure must be in writing before being acted on by council, and must be Invested substantially with formalities and characteristics of an ordinance as distinguished from motions and simple resolutions.
    [Ed. Note. — Por other definitions, see Words and Phrases, Pirst and Second Series, Ordinance.]
    9. Municipal corporations <&wkey;956(l) — Failure to show compliance with statute fatal to judgment for delinquent taxes.
    Where a municipality gought to collect delinquent taxes, and no compliance was shown with statutes prescribing method of levying, assessing, and collecting taxes, a judgment in its favor could not be sustained.
    On Motion for Rehearing.
    10. Constitutional law <&wkey;321 — Taxation <&wkey; 587 — Defense that taxable value not aseer-, tained in manner provided by law cannot be out off by statute.
    Property owner cannot be cut off by statute from setting up defense, in suit to collect delinquent taxes, that taxable value of his property has not been ascertained in the manner provided by law as required by Const, art. 8,’ § 1.
    <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Atascosa County; Covey C. Thomas, Judge.
    Action by the Town of Pleasanton against P. A. Vance. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Carl & Swearingen and O. M. Powell, all of San Antonio, for appellant
    W. M. Abernethy and R. R. Smith, both of Jourdánton, for appellee.
   SMITH, J.

In this case the court below, -in the exercise of a sound discretion, took under advisement the general and special demurrers urged by the plaintiff, town of Pleasanton, against the answer of the defendant, Vance, and thereupon proceeded to a trial of the cause upon, the merits. At the conclusion of the trial, at which the parties were permitted to introduce all evidence offered, the court, “after duly considering the pleadings, the evidence, and the law,” entered a judgment sustaining the general and special demurrers to the answer of the defendant, and in favor of the town against Vance, for taxes and penalties alleged to have accrued during the years 1917, 1918, 1919, and 1920, against certain described property belonging to Vance. The latter has appealed.

The manner of disposing of the cause below was perhaps unusual, but not unheard of, and we take it that the sustaining of demurrers at the conclusion of the apparently full trial, followed by a judgment on the merits in favor of the town, amounted to no more than a rendition of judgment upon the evidence, and that the action upon the demurrers became immaterial. The purpose of affirmative pleadings is to put one’s adversary upon notice and to render admissible tbe evidence of tbe pleader’s cause of action or defenses. So, wben tbe court admits and considers all sucb evidence tendered under sucb pleadings, tbe pleader is not prejudiced by tbe subsequent action of tbe court declaring tbe pleadings insufficient for tbe purposes pleaded.

Appellant attacks tbe validity or applicability to tbis case of section 6, chapter 13, Gen. Laws 2d Called Sess. 38th Leg. p. 31, art. 76S9a, in wbicb it is sought by legislative enactment to restrict, defendants in suits for collection of delinquent taxes to tbe defenses: (1) Tbat tbe defendant was not the owner of the land at tbe time suit was filed, (2) tbat the taxes sued for have been paid, or (3) are in excess of tbe limit allowed by the law, in wbicb case sucb defense shall apply only to sucb excess. These questions were raised by exceptions to appellant’s answer, which exceptions, as we have shown, were sustained at tbe close of a full trial, in which appellant was permitted to present all bis defenses, including some not permitted under tbe act mentioned.. Since be was permitted to prove bis defenses, tbe subsequent action of tbe court sustaining exceptions to tbe allegations of those defenses became immaterial, and for tbat reason the assignments raising these questions will be overruled.

Municipal corporations, functioning under tbe general laws of tbe state, have no power to levy or collect taxes upon property within their territorial limits, except sucb power as may be expressly delegated to them by tbe Constitution or statutes. Dillon, Mun. Corp. §§ 673, 1402; Cooley, Tax. p. 647. Tbe grant of sucb power must be strictly construed, and tbe power itself strictly pursued. If there is a doubt as to tbe existence of tbe power under tbe grant, it will be denied; if there is doubt as to tbe extent of tbe power, it will be restricted until tbe doubt is excluded. Tbe boobs are full of reasons for these restrictions, wbicb have always existed.

If, in delegating tbis power to tbe municipality, tbe statute lays down tbe manner in wbicb, or mode by wbicb, it shall be exercised, then tbat manner and mode must be strictly pursued by the municipality in order to give validity to its acts. Dillon, §§ 575, 576, 1402; Wood v. Galveston, 76 Tex. 132, 13 S. W. 227; Frash v. Galveston, 73 Tex. 409, 11 S. W. 402.

The town of Pleasanton functions under tbe general laws, and its power to levy, assess, and collect taxes is derived from the grant thereof in chapters 6 and 7 of title 22 of tbe itevised Statutes. In these statutes it is expressly provided tbat tbe levy, assessment, and collection of taxes shall be “by ordinance.”

No set form of ordinance is prescribed by tbe statute (chapter 4, title 22), except tbat they shall all be styled, or begin with, “Be it ordained by tbe city council of the city of -” (article SIS), which requirement, or substantial compliance therewith, is held to be mandatory. Railway v. Harris (Tex. Civ. App.), 36 S. W. 776.

Tbe provision that tbe levy and assessment shall be “by ordinance” is mandatory, and failure to provide therefor in tbat mode is fatal to tbe proceeding, wbicb is rendered void by tbe omission. Earle v. City of Henrietta, 91 Tex. 301, 43 S. W. 15; City of Bryan v. Page, 51 Tex. 532, 32 Am. Rep. 637; Bank v. City of Ennis (Tex. Civ. App.) 50 S. W. 632; City of Waco v. Prather (Tex. Civ. App.) 35 S. W. 958; Miller v. State, 44 Tex. Cr. R. 99, 69 S. W. 522.

To be an “ordinance,” within tbe meaning of tbe statute, tbe procedure must be more than a mere verbal motion made, adopted, and entered on the minutes, more than a mere resolution subsequently reduced to writing by tbe secretary. It must be reduced to writing before being acted on by tbe council. It must be invested, not necessarily literally, but substantially, with tbe formalities, solemnities, and characteristics of an ordinance, as distinguished from motions and simple resolutions. Am. Const. Co. v. Seelig, 104 Tex. 16, 133 S. W. 429; Am. Const. Co. v. Davis (Tex. Civ. App.) 141 S. W. 1019; Bank v. City of Ennis, supra; City of Waco v. Prather, supra; Miller v. State, supra.

It is also held tbat it is incumbent upon a municipality, in a suit to enforce tbe payment of taxes, to prove tbe fact of tbe levy by introducing in evidence tbe ordinance by wbicb tbe levy was made, and, it being necessary to prove it, it is by tbe same rule necessary, in response to exceptions, to allege it. Earle v. City of Henrietta, supra; Dawson v. Ward, 71 Tex. 72, 9 S. W. 106; Greer v. Howell, 64 Tex. 688.

The provisions we have set forth, and tbe strict construction thereof, are intended to safeguard tbe citizen against hasty and ill-considered legislation affecting bis property and property rights, and. wbicb will be invoked to charge him with debt and divest him of bis property, in event of bis default in the payment of tbe debt. And, while it is true tbat tbe burdens of government should be equally distributed upon all citizens, according to their ability to bear it, and none should be permitted to shirk, yet nevertheless tbe government must proceed surely and justly in levying these burdens in strict accordance with tbe laws of tbe land.

In tbe case in band tbe town council bad before it, or should have bad before it, the statutes prescribing tbe mode of procedure for. tbe levy, assessment, and collection of taxes to support tbe municipality. There is nothing particularly intricate or confusing in tbe mode thus prescribed, substantial compliance with its requirements was obligatory upon the council, and failure to so comply with it was fatal to the procedure. It was incumbent upon the town, by pleadings and evidence, to show such compliance in order to entitle it to enforce the collection of the taxes under the levy and assessment for each of the several years in controversy. It has not done so in this case, as to all of the years, and for that reason the judgment in its favor must be reversed. The town practically concedes its failure, since it makes no reply to the specific assignments of error of appellant, or the statements thereunder, cites no authorities in its own behalf, and discusses none of those cited by appellant.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

The town of Pleasanton insists that this court should pass upon the validity of section 6, c. 13, Gen. Laws 2d Called Sess. 38th Leg. p. 31, art. 7689a, in which it is sought by legislative enactment to restrict defendants in suits for collection of delinquent taxes to the defenses: (1) That the defendant was not the owner of the land at the time suit was filed, (2) that the taxes sued for have been paid, or (3) are in excess of the limit allowed by the law, in which case such defense shall apply only to such excess. It is urged by counsel, and with reason, it is true, that, as the question of the validity of this act is so interwoven with the cause of action here asserted and contested that the decision thereof will- ultimately control the disposition of the case, the question ought to be determined at this juncture, so that the parties may thereafter proceed with assurance. We have said, and now reaffirm, that although the question is fairly raised on this appeal, its decision is not essential to the disi>osition of the appeal, and we hesitate to go out of our way to pass upon a question of such importance as the validity of a statute admittedly far-reaching in its purpose and effect.

If the statute has the effect of depriving the property owner of defenses vouchsafed to him under the due process or other provisions of the state or federal Constitutions, then, of course, to that extent the legislative act is void and ineffectual. For instance, if a town or city should levy and assess and endeavor to collect taxes upon property situated without the corporate limits of the municipality, then clearly the property owner could plead and prove that fact as a defense in a suit brought against him to enforce collection of the taxes, notwithstanding the statute in question precludes such defense.

So, also, would such statute be ineffectual to cut off an injured property owner from showing that a tax is materially out of proportion to the value of the property taxed, or that it was not equal and uniform with the taxes assessed against like property of others, because these defenses are guaranteed to the citizen in article 8, § 1, of the state Constitution, in which it is provided, that “taxation shall be * * * uniform,” and that all property “shall be taxed in proportion to its value.”

Nor can the injured property owner be cut off by statute from showing, in such suit, that the taxable value of his property has not been ascertained by the authority or in the manner provided by law, because this right also is vouchsafed to him in the Constitution, in section 1 of article 8, which provides that the taxable value of property “shall be ascertained as may be provided by law.” It was in obedience to this provision that the Legislature provided the present method, embraced in title 22, of the Revised Statutes, for ascertaining the taxable values of property, and the constitutional guaranty follows the method thus prescribed. It is the duty of the constituted authorities to pursue that method in ascertaining the taxable value of property, and the owner may invoke these statutory provisions to defeat a suit to force him to pay taxes not ascertained as thus provided, notwithstanding a subsequent statute which would deny him such defense. We have stated rules which we think are obvious and elemental. They ought not to be difficult to apply in this case.

Appellee complains that we held in the original opinion that the levy in 1917 was not made by proper ordinance. We did not intend to so hold, although the language used in the opinion in that connection was inapt and sometimes misleading, for, in saying that the town council had not complied with the statute in levying taxes “as to all the years,” in controversy, we meant to say “as to some of the years,” which may or may not mean the' same thing, according to the way it is read.

Appellee’s motion for rehearing will be overruled.  