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 *458affirmative 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 *459compliance 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.