
    SLATER et al. v. ELLIS COUNTY LEVEE IMPROVEMENT DIST. NO. 9 et al.
    No. 1252-5634.
    Commission of Appeals of Texas, Section B.
    April 1, 1931.
    
      J. L. Zumwalt, of Dallas, and Tom Whipple, of Waxahachie, for appellants.
    W. P. Dumas and L. S. Stemmons, both of Dallas, and Elcock & Martin, of Wichita, Kan., for appellees.
   LEDDY, J.’

Certified questions from the Court of Civil Appeals for the Tenth Supreme Judicial District. The statement and questions are as follows:

“This suit was instituted by appellee, Ellis County Levee Improvement District No. 9, on the relation of the Brown-Grummer Investment Company, a corporation, under article 8017 of the Revised Statutes', to recover delinquent taxes due on certain land embraced within said levee district for the years 1919 to 1926, inclusive.
“Appellees~airéged that the levee district was duly created under and by virtue of the Acts of the Fourth Called Session of the 35th legislature, known as the ‘Canales Act’; that bonds to the amount of $55,000.00 were duly voted by said district ¿ncTTfiaF the Brown-Orummer Investment Company had purchased and was the owner of said bonds; that the board of supervisors of said district had failed and refused to commence suit to collect the delinquent taxes in said distinct and by reason thereof this suit was instituted. /Appellees alleged that the land owned by appellants on which taxes were due consisted of 177.3 acres out of the Robert' Ray and G. B. McKinstry Surveys, and had been assessed for each of, the years from 1919 to 1926, inclusive, as 119 acres out of theTMc-Kinstry Survey, valuecTanp^SO'.OOi, and 55 acres out of the Ray Survey, valued at $449.00, a total valuation for taxation purposes of $3,190.00. Appellees alleged that for 1919 there was duly and regularly levied by the commissioners court of Ellis county a tax of and at the rate of ,$43.00 on each $100.00 valuation of taxable property located m said levee district; for 1920 at $72.00 on each $100.00 valuation; for 1921 at $55.00 on each $100.00 valuation; for 1922 at $53.00 on each $100l.09 valuation; for 1923 at $62.38 on each $100.00 valuation ; for 1924 at $60.30 on each $100.00 valuation; for 1925 at $53.96 on each $100'.00 valuation, and for 1926 at $63.00 on each $109.09 valuation; a total tax for the eight years- of $20,47R22 on land valued for taxation at |¾1^⅞07 "Ap-pellees specifically alleged that bonds aggregating $55,000;00 were duly issued and sold pursuant to a favorable vote of the qualified property taxpaying voters of said levee district, and an election duly petitioned for and ordered and held within said district for that purpose on the 14th day of June, 1919, and of which election due notice was given by the county clerk of said county, in the manner and for the length of time prescribed by law, and that the returns of Said election were duly made to and canvassed by the commissioners court of Ellis county. It also alleged that the bonds were issued and that same were signed and executed by the county judge and treasurer of Ellis county and approved by the Attorney General of Texas, and registered with the State Comptroller, and thereafter sold to appellee Brown-Orummer Investment Company.
“Appellant, 'in addition to other defenses', specially denied that any legal bonds were ever issued against the levee district, and that the ldvy-trf-the-tax-Tof"the’payment of the interest and sinking fund on said bonds was illegally and wrongfully made, because no legal election was ever held in said levee district for the issuance of bonds. They alleged that while the election was ordered to be held on the 14th of June, 1919', that the officers, judges and clerks, if there were any, who held said election fraudulently made returns with reference thereto which were untrue, and that said election was fraudulently held and returns thereof fraudulently made, and that the commissioners court ■ knew, or at least one member thereof did, that none of the parties who voted at said election were qualified voters within said levee district; that as a matter of fact none of the persons voting in said election were qualified voters within said levee district, and that none of the persons who held said election were residents of or qualified voters witMn said district, and that all of said facts were known to at least one member of the commissioners court of Ellis county at the time the election was' held and the returns canvassed and the bonds ordered issued. They alleged that by reason of the above facts said election was absolutely void and of no force and effect, and that the bonds issued thereunder were void and that the tax levy made against their lands was void.
“Appellees specially excepted to appellants’ allegations above, calling in question' the legality of the bond election in the levee district and the legality of the bonds of said district and the legality of the levy of the tax for the payment of interest and principal,/because same could be attacked only by a quo warranto proceeding brought by the State of Texas, or by someone under its authority, and because appellants could not be heard in a proceeding for the collection o⅛ delinquent taxes to contest a bond election/ since articles 3041 to 3075, inclusive, of the Revised Statutes provide an exclusive method for the contest of a bond election; and further, because appellants’ alleged defense was in the nature of a collateral attack upon the orders of the commissioners court of Ellis county in declaring the result of the bond election and authorizing the bonds issued in compliance therewith. The trial court sustained said special exception of appellee, and appellants present same as ground for reversal in this court.
“Appellants also present as ground for reversal what they term fundamental error, contending that the petition of appellees /Shows on its face that the taxes levied are ^confiscatory and amount to a taking of their property without due process of ’law, in contravention of Amendment 14 of the Federal Constitution and of sectiohs 17 and 19' of the Bill of Rights of the State Constitution, on the theory that appellees’ petition alleges the tax assessed for each year was more than fifty per cent of the value of the property, and for the eight-.years the taxes amount, ^according to said allegations, to six times the value of appellants’ property.
“There is' no statement of facts nor findings of fact with the record. We are sending with this certificate the transcript, and refer the court to the pleadings of the parties for a full statement thereof.
“There being some doubt in our minds as to the correct determination of the above questions, we1 have deemed it advisable to and we do hereby respectfully submit to the Honorable Supreme Court of this state, for its determination upon the facts hereinbe-fore set out, the following questions: •
“First Question.
“Did the trial court err in sustaining ap-pellees’ special exception to that portion of appellants’ answer which set up the fact that no legal bond election was held in said district because the true facts, of which the commissioners court had actual knowledge, were that none of the parties who voted therein were property holders or qualified voters within said district, and because the judges and clerks who held said election were not qualified voters within said district?
“Second Question.
“Since appellees’ pleadings allege that the property was valued for taxation for each of the eight years for which same is delinquent and for which taxes suit is brought, at $3190.00, and further allege that the tax rate as fixed by the commissioners court for each of said years ranged from $43.00' on the $100.00 valuation to $72.00 on the $100.00 valuation, giving the tax rate separately for each year, making a total fax for the eight years of $20,473.22 against/ ia!nd valued for taxation at $3190.00, does same present on its face a taking of appellants’ property without due process of law, in violation of the fourteenth Amendment to the Federal Constitution, or in violation, of sections 17 and 19 of the Bill of Rights of the State Constitution?
“Third Question.
“If question No. 2 is answered in the affirmative, then do said pleadings present such fundamental error apparent of record, Which would authorize this court to reverse the judgment of the trial court by reason thereof? ”

The remedy given by the statutes (articles 3041 to 3075) for contesting elections of this character for irregularities or fraud is exclusive of all others. State v. Bank of Mineral Wells (Tex. Civ. App.) 251 S. W. 1107, 1113 (writ refused); Wilmarth v. Reagan (Tex. Com. App.) 242 S. W. 726; Robertson v. Haynes (Tex. Civ. App.) 190 S. W. 735; Parker v. Harris County Drainage District (Tex. Civ. App.) 148 S. W. 351.

Appellants have frankly conceded in the argument in this court that this question was determined adversely to their contention by the Court of Civil Appeals in the case of State v. Bank of Mineral Wells, above cited, in which a writ of error was denied by the Supreme Court. They assert, however, that the court, in deciding that ease, failed to take into consideration the provisions of article 8010, R. S. 1925, which in effect provides that, after bonds' have been issued by a levee district, approved by the Attorney General, and registered with the comptroller, in every action \brought to enforce their collection, a taxpayer may urge either forgery or fraud as a defense against the validity thereof. Under this provision it is claimed that they are entitled in a suit against them to recover delinquent taxes to maintain the defense that the election for the issuance of the bonds was fraudulently conducted.

Articles 8041 to 3075, outlining the procedure for the contesting of elections, as well as' article 8010, were adopted as a part of the Code of 1925. These statutes being enacted by the same Legislature, relating to the same subject-matter, should be so interpreted as to harmonize their provisions, if such a construction be fairly justified. Southern Pac. Co. v. Sorey, 104 Tex. 476, 140 S. W. 834; Conley v. Daughters of the Republic, 106 Tex. 80, 156 S. W. 197, 157 S. W. 937.

To construe article 8010 as permitting the contesting of elections of this kind for fraud in the conducting of same in a suit to recover delinquent taxes would bring it in conflict with the provisions of the statutes establishing a method for ‘the contesting of elections, as under such statutes fraud or any other irregularity is made the basis for the contest therein provided.

Article 8010 is susceptible of a construction which will not conflict with the statutes outlining procedure for contesting bond elections, and that is the fraud, permitted as a defense in a suit by the bondholders was intended to refer to fraud occurring subsequent to the bond election in the issuance, sale, or delivery of the bonds. It is a well-known fact that there have been a number of cases where fraud has been perpetrated by officials of counties and districts in the issuance, sale, and delivery of bonds voted by the taxpayers. The Legislature, knowing this fact, doubtless intended to give interested property holders the right to defend in a suit to enforce the collection of a tax against their property where such fraud had been committed, as such a defense could not be made under the statutes providing for an election contest.

This view as to the legislative intent in enacting this article is strengthened when consideration is given to the fact that the Legislature in 1909 passed a similar statute with reference to bonds of various districts (now article 2670, R. S. 1925). The latter statute had been construed by our appellate courts prior. to the time the Legislature enacted the statute now under consideration to foreclose the right of property holders to contest an election for the issuance of bonds upon any grounds except in the manner provided for election contests. Under these circumstances it must be presumed that article 8010 was passed with the intent that its effect would be the same as that given by the courts to a previous enactment of similar import. Cooper v. Yoakum, 91 Tex. 391, 43 S. W. 871; Bonner v. Hearne, 75 Tex. 242, 12 S. W. 38.

Again, no sound reason can be advanced why the Legislature should discriminate in favor of property holders in levee districts by according them a privilege which it has denied property holders in all other districts whose rights might be similarly affected. Such an unreasonable construction should not be given- this statute in the absence of compelling language. Stone v. Hill, 72 Tex. 540, 10 S. W. 665; St. Louis S. W. R. Co. v. Tod, 94 Tex. 632, 64 S. W. 778.

The second question certified presents the proposition that the taxes levied against appellant’s land appear, from the face of their petition, to be so excessive as to show a taking of property without due process of law, in violation of the provisions' of both state and federal Constitutions.

The mere fact that taxation imposed, or authorized to be imposed, by the Legislature, is oppressive and confiscatory, presents no ground for judicial interference, where no constitutional restriction exists upon the taxing power, McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579; State v. Board of Com’rs of Marion County, 170 Ind. 595, 85 N. E. 513; Judy v. Beckwith, 137 Iowa, 24, 114 N. W. 566, 15 L. R. A. (N. S.) 142, 15 Ann. Cas. 890; North Mo. R. R. Co. v. Maguire, 49 Mo. 490, 8 Am. Rep. 141.

The principle announced in these cases is well stated in Ruling Case Law, vol. 26, § 17, in this language: “One of the principles first laid down by the supreme court of the United States with respect to the power of taxation was that the power to tax involves the power to destroy. * ⅜ * Since the taxing power conferred by the constitution knows no limits except those expressly stated in that instrument, it must follow that if a tax be within the lawful power, the exertion of that power may not be judicially restrained because of the results to arise' from its exercise.”

As said in McCulloch v. Maryland, the only security against an abuse of the power of taxation, when the same is not limited by constitutional provision, is found in the structure of the government itself, in that, in imposing or authorizing the imposition of a tax, the Legislature acts upon its constituents.

Under the terms of the Conservations. Amendment (Const, art. 16, § 59a) there is no limit to- the amount of taxes which may be imposed to secure the payment of bonds authorized to be issued by a majority vote of the property taxpayers of a levee district operating thereunder. When bonds have been voluntarily voted by the taxpayers of such a district, at an election held in accord-, anee with the statutes, those purchasing the bonds are entitled to have taxes levied in sufficient amount to pay the principal and interest according to the terms thereof. If the tax necessary to be levied to mature such bonds is oppressive and. operates to confiscate property situated in such district, this unfortunate result is due to a failure of the people to place some restriction in the Constitution limiting the amount of bonded indebtedness which the Legislature might authorize thereunder and to the voluntary action of the majority of the property holders residing within the district in voting an amount of bonds which would require the levying of taxes to such an extent as to operate to deprive them of their property. The courts are without authority to fix, a limit upon the power of the people or the Legislature to levy taxes for lawful purposes where the organic law has placed no restriction thereon.

Appellants assail the Canales Act (Acts 35th Leg., 4th Called Sess. [1918] e. 25), under the authority of which the bonds were issued, as being unconstitutional and void. We are not authorized to pass upon this question, as in answering certified questions we are confined to a consideration of the questions submitted in the certificate of the Court of Civil Appeals. Berlin Iron Bridge Co. v. City of San Antonio, 92 Tex. 388, 49 S. W. 211; Snyder v. Baird Ind. School Dist., 102 Tex. 4, 111 S. W. 723, 113 S. W. 521; Clary v. Hurst, 104 Tex. 423, 138 S. W. 566.

We recommend that the first and second questions be answered in the negative, which renders unnecessary an answer to the third question.

• CURETON, C. J.

Opinion answering certified questions adopted, and ordered certified.  