Opinion
No. 3679.
May 29, 1929. Rehearing Denied June 6, 1929.
Appeal from District Court, Van Zandt County; Joel R. Bond, Judge.
Suit by the Colfax Consolidated School District against J. W. Mullins and others. Judgment for plaintiff, and defendants appeal. Reversed, and rendered.
The suit was by the Colfax consolidated school district to enforce the collection of delinquent taxes "for the year 1926" upon 224 acres of land owned by appellants. The appellants have appealed from the judgment in favor of the school district, claiming that there was no valid levy of tax for the year 1926. The facts are undisputed.
In legal compliance with the law the Colfax common school district and the Clower common school district were consolidated in 1925 for the purpose of establishing and operating a rural high school. At the time of the consolidation seven trustees were duly appointed, and they have been from that date until the date of the trial of this cause on May 7, 1928, the duly qualified and acting trustees for the consolidated district as such. In the year 1926 appellant J. W. Mullins, as the owner thereof, rendered the 224 acres of land for taxation to the tax assessor of the consolidated district duly appointed as such by the trustees. The appellant Tisdale holds an oil lease on the land. The 224 acres of land are located entirely within the area of the Clower common school district as it existed at the time of the grouping of the two common school districts into the present high school district. A board of equalization duly appointed by the trustees of the consolidated district increased the rendition as made by Mr. Mullins, after due notice to him. The assessment roll of the consolidated district was duly made by such assessor for said district, and such completed assessment as made by such assessor was duly delivered to the county tax collector of Van Zandt county, Texas.
The following agreement appears: "It is agreed in open court that since the date of the consolidation of the Colfax and Clower common school districts there has never been any order of any kind made by the board of trustees of the Colfax consolidated school district levying any taxes or fixing any rate of taxes upon the property situated in such consolidated school district at any time. There has been no order of any kind entered upon the minutes of said school trustees, attempting to levy any taxes or fix any rate whatever." The voters within the consolidated school district have never voted in favor of the levying of any tax on the property within the high school district. No election for the purpose has been held in the consolidated district since its organization.
The plaintiff in the suit offered in evidence the two orders of the commissioners' court levying taxes for the years 1925 and 1926, respectively, for the purposes of showing the local taxes authorized in each district previous to and at the time of the consolidation, and that a levy of such taxes for each common school district was in fact made before the consolidation in 1925, and again levied by the commissioners' court for 1926 after the consolidation. The order made in 1925 reads:
"Be it ordered by the commissioners' court of Van Zandt county, Texas, that there is hereby levied for the year 1925, on all taxable property in the various common school districts of this county on the 1st day of January of the current year, the following taxes:
Name of School No. Local Maintenance. Sinking Total Tax District. Fund. Rate.
Colfax 18 .50 .50 $1.00 Clower 121 .75 .25 1.00"
The order made in 1926 reads:
"Be it ordered by the commissioners' court of Van Zandt county, Texas, that there is hereby levied for the year 1926, on all taxable property in the various common school districts of this county on the 1st day of January of the current year, the following taxes:
Name of School No. Local Maintenance. Sinking Total Tax District. Fund. Rate
Colfax 18 .50 .50 $1.00
Clower 121 (with Colfax Consolidated)."
The trial court concluded, in effect, that the proviso of article 2922 l, Rev.St. 1925, that "the local taxes previously authorized by a district or districts shall continue in force until such time as a uniform tax may be provided for the benefit of the rural high school district" entitled the plaintiff to enforce collection of the taxes for the year 1926. Judgment was accordingly entered.
Jones Jones, of Mineola, for appellants.
James M. Shields, of Canton, and Wynne Wynne, of Wills Point, for appellee.
As will be observed, the power is expressly conferred upon the trustees "to levy and collect an annual ad valorem tax," which is not "to exceed" the maximum tax rate specified, on "the taxable property of the district," for the purposes named. Official action of levy is explicitly required to be taken by "the trustees," and that "annually." And it is the plain and evident purpose of the act to make such conferred power and the duty imposed to make levies annually a continuing one on the part of the trustees from the time of the grouping of the two common school districts. Upon the consolidation of the two common school districts the trustees thereof ceased to have any further powers, and their offices are abolished. Article 2922e, Rev.St. 1925. The control and management of a rural district are immediately vested in the trustees by articles 2922e and 2922k, Rev.St. 1925. And the power to levy and collect taxes "on the property of the district" is expressly lodged in the trustees of the district. Article 2922 l, Rev.St. 1925. The several provisos of the act in no wise require or contemplate a different construction. While the proviso contemplates an "annual levy" by the trustees of "a uniform tax" upon the taxable property of the district as a whole, when such uniform tax rate has been authorized by a majority of the taxpaying voters at an election held in the district for the purpose, yet, as next expressly provided, "until such time as a uniform tax may be provided for the benefit of the rural high school," then and in that event the same "local taxes previously authorized by a district or districts included in a rural high school district" shall be "continued in force" for the purposes authorized. The plain meaning and purpose is that until and unless there was adopted, by the method prescribed by the act, "a uniform tax" at a rate bearing equally and alike upon the taxable property of the whole district, there should be the continuance of the annual levy by the trustees, upon whom the taxing power was conferred, of the same local tax rate allowable in each separate common school district at the time of the grouping for a high school district. The latter proviso is in the nature of a saving clause, introduced in order to continue in force the old law applicable to common school districts for and during the time until a change was effected to "a uniform tax" for the consolidated district, as a taxing district.
It is in strict accordance with fundamental law that all taxable property within the consolidated district, as a taxing district, should be taxed uniformly, and that there should not be a nonuniformity of tax rate for the same public purposes. 1 Cooley on Taxation, p. 420. The Legislature had in view, not to absolutely fix by the act a sum of "taxes" collectible for each common school district, but merely to continue the authority to levy "a rate," or percentage, in the discretion of the trustees, not to exceed the legal rate "previously authorized"; for the local taxes "previously authorized" by law for common school districts prescribed that "the rate of bond tax together with the rate of maintenance tax" shall not "exceed" $1 on the $100 valuation. Article 2784, subd. 3, Rev.St. 1925. And "previously" to the consolidation the law directed the required percentage of taxes for common school districts to be levied and collected "annually." Article 2784. There was no intention to change such existing law in these respects.
The fact is admitted in the record that the trustees did not make a levy of the tax for the year 1926 upon property situate within either of the common school districts. No levy of any kind was made by the trustees. Such levy was necessary and essential. Earle v. City of Henrietta, 91 Tex. 301, 43 S.W. 15; Geffert v. School Dist. (Tex.Com.App.) 290 S.W. 1083. The commissioners' court had the power to annually levy and collect taxes for the common school districts so long as such common school districts remained distinctively such (article 2784), but not so after the consolidation. However, it is proper to state that the order of the commissioners' court made in 1925, before the consolidation, was the character of levy that the trustees should have made and entered of record in 1926.
Appellee cites McPhail v. Tax Collector (Tex.Civ.App.) 280 S.W. 260, as supporting the judgment. We do not understand that case as in any wise deciding the point involved in the present appeal to the contrary of the conclusion reached by this court. In that case it was stated: "Immediately after their appointment the trustees organized the board and levied a tax on the property in the district at the same rate that had been theretofore levied by the trustees in the respective common school districts." The factual element that "the trustees levied a tax on the property" in the districts, respectively, for that particular year, does not so appear in the present appeal, and is the vital fact of the present appeal. The court in that case said: "As no uniform tax has been voted, it was the duty of the trustees to do just as they did; that is, to levy on those districts, respectively, the same tax previously authorized by them." We fully agree to such conclusion.
The judgment is reversed, and judgment is here rendered in favor of appellants.