Perry v. City of Rockdale

Stayton, Associate Justice.

The question of the power of municipal corporations to collect a tax for the purpose of supporting public free schools, when they have assumed control of such schools in accordance with the provisions of the statute regulating that matter, was fully considered in the cases of the City of Fort Worth v. Davis, 57 Tex., 225; and Dwyer v. Hackworth, 57 Tex., 245. And it was there held that such power existed when the provisions of the statute were complied with, and we regard these cases as decisive of the question.

In this case the admitted facts show that the city of Bockdale had complied with the requirements of the statute in so far as to acquire the power to levy the tax, except that it is contended that the proper question was not submitted to the vote of the people.

The question submitted was:- “ Shall a tax of one-half of one per cent, be levied and collected to support the public free schools?”

The statute provides that “ The proposition submitted may be for a tax not exceeding one-half of one per cent., or it may be for a specific per cent.” Gen’l Laws, 1881, p. 64. The question submitted was, whether a tax of one-half of one per cent, should be levied; this was for a specific per cent., and was authorized by the last member of the clause above copied.

The only other question necessary to be considered is: Has the legislature the power to authorize a municipal corporation to levy a poll tax?

Article VIII, section 1, of the constitution, expressly gives to the legislature power to impose a poll tax.

Article XI, section 4, provides that towns and cities of the class to which the city of Bockdale belongs “may 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.” This evidently refers to an ad valorem tax, and was not intended to operate as a denial of power to collect other classes of taxes; for the same section recognizes the power of such cities and towns to collect other taxes, as does section 1 of article VIII, which to some extent limits the power. The power of a legislature, unless restricted by some constitutional provision, to delegate its power to municipal corporations, is thus stated by Mr. Dillon : “ In the general power of the legislature, as well as in its power to create municipal corporations, may be found the right to authorize them, when created, to impose or levy local rates, taxes and assessments upon their inhabitants, and upon all property within the limits of the designated taxing district, which is ordinarily co-extensive with the territorial limits of the municipality. Indeed, it is one of the distinguishing features of our municipal institutions, that local rates shall be locally imposed by those who have to pay them or bear their burden; and this power, from very early periods, has in the different states been constantly delegated to and exercised by the local authorities.” 2 Dillon on Mun. Corp., sec. 139; Blessing v. City of Galveston, 42 Tex., 659; City of Marshall v. Snediker, 25 Tex., 460; Burgess v. Pue, 2 Gill, 19; Alexander et al. v. Mayor and C. C. of Baltimore, 5 Gill, 3S9; Harrison v. Mayor and Council of Vicksburg, 3 S. & M., 585; Smith v. Corporation of Aberdeen, 25 Miss., 461.

[Opinion delivered November 21, 1884.]

In reference to cities of that class to which the city of Rockdale belongs, the legislature has declared that “ The city council shall have power to levy and collect an annual poll tax, not to exceed $1, of every male inhabitant of said city over the age of twenty-one years (idiots and lunatics excepted), who is a resident thereof at the time of such annual assessment.” R. S., 428.

This statute confers the power as fully as the legislature possessed it.

It was held, however, that the ordinance under which the several taxes sought to be enjoined were levied was invalid, and the court therefore modified the preliminary injunction granted,so as to enjoin the collection of the taxes levied under the insufficient or invalid ordinance, and left the city free, should it see proper to do so, to levy and collect, under valid ordinance, like taxes as those enjoined.

There is no error in the judgment, and it is affirmed.

Affirmed.