Parker, Et Ux. v. Town of Callahan

On petition for rehearing, it is urged that petitioner was not advised of the oral argument in these causes as it had a right to expect, that all four cases were treated together on the theory that they were alike and involved similar questions when, as a matter of fact, they were different and involved different questions, that the constitutional questions argued in two of the cases were raised for the first time in this Court and that petitioner felt so sure of an affirmance, no briefs were filed.

On a reexamination of the records and briefs after argument we have reached the conclusion that our former opinion herein should be reaffirmed. True, there are some minor distinctions in the cases but the ultimate questions on which all turn are not materially different. In H. H. Carter and Rena Carter v. Town of Callahan, and Milton and Sybil Parker v. Town of Callahan, the questions raised are in substantial accord. Pickett v. Town of Callahan, and City Mortgage Bond Company,et al., v. Town of Callahan are different in some aspects from the Carter and Parker cases but turn on virtually the same questions as the former cases.

In addition to what we said in our former opinion on the main question, it is not out of place here to answer the question raised in Pickett v. Town of Callahan and City Mortgage Bond Company v. Town of Callahan as to whether or not in a bill to foreclose a tax lien, it is necessary for a municipality to allege with certainty the ordinance and laws under which the tax was levied and the lien accrued and under what law the municipality was created.

Our answer to this question is that we have such a variety of statutes and ordinances affecting their powers, good pleading requires that when a municipality brings a suit to *Page 271 foreclose a tax lien, it should be set out with certainty the law defining its power to tax. Such a procedure would be of material aid to the court and with the volume of legislation now on the books affecting municipalities a court would never be sure that the question in litigation was finally adjudicated unless this was done.

It was also contended that the constitutional validity of the Acts brought in question were challenged for the first time in this Court. Even if this contention is accurate, it is not reversible. A fundamental constitutional error may be raised at any time.

Reaffirmed on rehearing.

WHITFIELD, ELLIS, TERRELL, BROWN and BUFORD, J. J., concur.

DAVIS, C. J., absent and not participating.

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