Brennan v. City of Weatherford | Cases | Westlaw

**1 *331 APPEAL from Parker. Tried below before the Hon. A. J. Hood.

Suit was instituted August 19, 1879, and this, as finally tried, was by P. F. Brennan and sundry other citizens of the city of Weatherford, in the county of Parker, as plaintiffs, against that city, and H. N. Bradshaw as its assessor and collector of taxes.

Judgment below was rendered, sustaining general and special demurrers to the petition, from which this appeal is taken.

The material allegations in the petition are:

1. That the legislature of the state of Texas, by special act approved January 2, 1858, incorporated the “town of Weatherford.”

2. That by section 1 of the subsequent general incorporation act, approved March 15, 1875 (Laws second session 14th Leg., 113), it was provided “that any city within the limits of this state, containing one thousand inhabitants or over, may accept the provisions of this act, in lieu of any existing charter, by a two-thirds vote of the city council of such city, which action by the city council shall be held at a regular meeting thereof, and entered upon the journal of their proceedings, and a copy of the same, signed by the mayor and attested by the city clerk or secretary, under the corporate seal, filed and recorded in the office of the clerk of the district court of the county in which such city is situated; and the provisions of this act shall be in force, and all acts heretofore passed incorporating such city, which may be in force by virtue of any existing charter, shall be repealed from and after the filing of the said copy of their proceedings as aforesaid.”

3. That on April 2, 1878, the town of Weatherford, intending *332 to avail itself of the provisions of this general incorporation act, proceeded to accept the same under the name “The City of Weatherford,” by a two-thirds vote of the city council, had at a regular meeting thereof, and entered upon the journal of their proceedings, and by filing and having recorded in the proper office a copy of the same, signed by the mayor and attested by the city secretary, but which was not under the corporate seal.

4. That the “town of Weatherford” had no corporate seal, but that some months after the above proceedings, and after the copy had been recorded, but before the institution of this suit, the “city of Weatherford” adopted a corporate seal, and had the same affixed to said copy.

5. That the “city of Weatherford,” acting under the new charter, on the first Tuesday in April, 1879, elected a city council, and the defendant Bradshaw as assessor and collector of taxes; and that the council subsequently passed by-laws providing for the levy, assessment and collection of municipal taxes, poll, ad valorem and occupation, against the citizens of said city, including plaintiffs; and that defendant Bradshaw would proceed to collect the same unless enjoined.

6. That the “town of Weatherford” was never, in fact, legally incorporated under the general incorporation act, because of the failure to affix the corporate seal to the copy of their proceedings intended for this purpose, and that consequently “the city of Weatherford” had no legal corporate existence, and the proceedings in the election of officers and the levy of taxes was unauthorized and void.

**2 7. The pleadings concluded with a prayer that “process be served upon the city of Weatherford and defendant Bradshaw, * * * that an injunction be granted to perpetually restrain them from performing any further corporate action under their present unlawfully accepted charter of 1878, * * * and that the said Bradshaw, on final hearing, be perpetually restrained from the collection of the taxes, or any portion of them, mentioned in the petition.”

*333 To this pleading defendants filed general and special demurrers, presenting, among other questions, that the suit should have been by proceedings in the nature of a quo warranto.

The demurrers were sustained, the judge presiding assigning as his reason therefor, that so much of the general incorporation act as required the copy of the proceedings by the council to be under the corporate seal, was not mandatory, but directory only.

I. It is necessary that the corporate seal be upon the copy of the proceedings in controversy, wherein the town of Weatherford claimed to accept the general incorporation act, approved March 15, 1875, General Laws, in accordance with section one of said act, acceptance being invalid without it. 1 Pasch. Dig., art. 8210. See by way of relative and incidental application, Pasch. Dig., art. 3961; Angell & Ames on Corp., secs. 82, 83; Dillon on Corp., secs. 23 et seq.; State ex rel. Attorney General v. Lee, 21 Ohio St., 662; Warner v. Callender, 20 Ohio St., 190; Fire Department v. Kip, 10 Wend., 268; Walker's American Law, 6th ed., p. 226, note; Potter's Dwarris on Statutes, p. 222, note 29; 5 Ohio, 59, 528; 7 Ohio, 109-115; 11 Ohio, 219, 222, 228; 14 Ohio, 569-580; Cooley's Const. Laws, 394-5, and notes; 8 Ohio, 257-286; 17 Ohio, 263; 11 Ohio, 96; 18 Johns., 137; 15 Ohio, 334; 4 Kent, 125; Angell & Ames on Corp., ch. 2, § 8; Dwarris on Statutes, 2d Eng. ed., 668-9; 22 Wis., 365; 17 Ohio, 542; 7 Ohio, 261; 3 Ohio, 564-5; 1 Ohio, 335; 9 Cow., 506-7; 2 Cranch, 127. This court is well aware of the unyielding, rigid and inflexible pertinacity with which the law clings to the following principle: that corporate bodies substituting new for old charters, and associations accepting any charter, must comply strictly and literally with all of the precedent conditions, when conditions are imposed. In all the wide and varied range of civil jurisprudence, this principle prevails; there is no deviation or deflection from it; there is no escape, no subterfuge, no resource, *334 however subtle and ingenious, that can be employed to evade the direct, certain, positive and absolute conditions imposed by the law. And why not? The power belongs to the law; it is the law itself. The law is the master. The servant may accept on conditions, the conditions are made known, and he may accept or not as he sees fit; but if he undertakes to accept, the least he can do or ask to obtain the benefits offered, is to perform the conditions imposed, and which must be performed before the benefits attach.

**3 II. An injunction suit may be maintained against the levy of an unlawful tax by a corporation, or persons acting as such corporation. High on Injunctions, § 354; Dillon on Corp., §§ 213, 731, 736 et seq.;4 Tex., 402. It is contended in the exceptions to plaintiff's petition that this suit is improperly brought, and that the proper remedy, if any, is by quo warranto. The object of this suit was to restrain the collection of taxes unlawfully imposed. Proceedings in quo warranto would be ineffectual, then, to accomplish this purpose. It cannot, in the light of the law, be pretended that a quo warranto proceeding would have arrested or prevented the collection of the taxes complained of in plaintiff's petition. Then it follows that either there was no remedy at all for the prevention of the collection of the taxes complained of, or if so, the remedy is by injunction. The very essence of a quo warranto proceeding, as indicated by the common law, and our own statute upon the subject, which went into effect since this suit was brought, is to obtain a judgment of ouster against the party complained of; and the question is: Is there no remedy under our comprehensive and latitudinarian system of jurisprudence (which seeks a remedy for every possible wrong) to prevent and restrain the action of a party illegally created, and without authority, acting to the detriment of the citizens of the state and a so-called corporation? It will not be disputed that a corporation legally created, and afterwards acting ultra vires, could be restrained from the performance of unlawful acts. Shall an illegal body, having no foundation in law, exercise immunities which a lawful body could not enjoy, *335 merely by virtue of its illegality? Shall the people first pay their money with no hope of ever recovering it, and then, after paying it, ask in stentorian tones the authority the party has for collecting it by a proceeding in quo warranto? What good is a remedy that has no application to the disease? It may be said that the acts of a de facto officer cannot be questioned in a collateral proceeding, as is said in 1 Tex., 653. In that instance it must be remarked that there was a de jure office.

I. The district court properly sustained the demurrers to plaintiff's petition. Special act of legislature, approved January 2, 1858; R. S., arts. 340-505; Dillon on Mun. Corp., §§ 130-32.

II. The directions in the act of the legislature (R. S., 340) of 1875, authorizing a city to adopt its provisions in lieu of any existing charter, by resolution of the city council, etc., by a two-thirds vote to be entered upon the journal of their proceedings, was strictly followed and substantially complied with; and the direction to the city secretary as to attesting the copy of the proceedings to be filed and recorded in the district court, etc., under the corporate seal, is merely directory and not mandatory. Trueheart v. Addicks, 2 Tex., 224; Sydnor v. Roberts, 13 Tex., 598; Fleckner v. B'k of U. S., 8 Wheat., 357; Eureka Co. v. Bailey Co., 11 Wheat., 488; Potter's Dwarris on Statutes, 221-2, note 29; Caniff v. Mayor, 4 E. D. Smith (N. Y.), 430; Marchant v. Langworthy, 6 Hill, 646; Striker v. Kelly, 7 Hill, 9; Rex v. Loxdale, 1 Burr., 447.

**4 III. The writ of injunction is not the proper remedy to adjudicate the question of the legal existence, or non-existence, of the corporation of the city of Weatherford. The proper remedy is “quo warranto” in the name of the state and by its authority. As will be seen, the petition was filed by individuals only, and seeks to adjudicate the legal existence *336 of an integral part of the state government (viz., the city of Weatherford acting by authority of the state of Texas and for it), by a collateral attack upon a mere technical omission. R. S., appendix, 45; State v. S. Pacific R. R. Co., 24 Tex., 117-21; 2 Bouv. Law Dict., 405; Dillon on Mun. Corp., §§ 141, 680, 735, note 2, 719, 714, 716, 718, 727; Aulanier v. Governor, 1 Tex., 666; Grant v. Chambers, 34 Tex., 588; Banton v. Wilson, 4 Tex., 400; Wright v. Allen, 2 Tex., 158; Hilliard on Injunctions, 447.