¶1 ON MOTION EOE EEHEAEING.
¶2 —The grounds upon which this motion is based are in substance as follows:
¶3 1. That this court erred in holding that the judgment in the case of The City of Beaumont v. William and Mary Higgins was void for want of jurisdiction of the subject matter.
¶4 2. That the court erred in holding that sidewalk and street assessments were not taxes within the meaning of section 50, article 16, of the Constitution.
¶5 3. That the decision of this court in this case is in violation of the accepted doctrine of stare decisis.
¶6 The argument of counsel presents another question of importance and interest, to the effect, that contracts made during the time that the decision of Lufkin v. The City of Galveston remained in force would be protected under the Constitutions of the United States and of this State, which prohibit the passing of any laws violating the obligations of contract. The question is not involved in this case, and will not be either discussed or decided. Whenever the question arises this court will consider it upon its merits as then presented, but will not express an opinion upon the proposition in advance.
¶7 We will not review at length the questions decided in the former opinion, but will briefly say, with regard to the first ground of the motion, that the petition and judgment in the case of City of Beaumont v. William Higgins and Wife, showed upon their face that William and Mary Higgins were husband and wife, and that they occupied the property. The highest evidence of the homestead right is the occupancy of it by a family, and we presume that no court would hold, that such proof as is made by the allegations of the petition in that case was not sufficient to establish the homestead right.
¶8 The District Court of Jefferson County had no jurisdiction of the subject matter of that suit, unless there was a lien upon the land sought to be subjected to the payment of the claim. The petition and judgment showed upon their face that a lien could not exist upon the land; therefore, there was no jurisdiction of the subject matter, and there was no necessity for a defense, because the court had no power to hear the case, or to render any judgment therein.
¶9 Upon the second ground of the motion, we will only say, that we are firmly convinced that our construction of the Constitution is sustained by authority. and sound in principle; and we have not been *466 cited to any authority which in the least shakes our conclusion upon that question.
¶10 The third ground was well considered by this court before the former opinion was written. We recognize the impropriety of unsettling questions which have been well settled by former decisions of this court, and thereby rendering the law uncertain, and we fully recognize the rule that a court should not overturn a well established line of decisions, unless it be for “cogent reasons,” and because of the fact that an error committed by such decisions being perpetuated would deprive others of rights secured to them. We do not purpose to enter into a discussion of the doctrine of stare decisis, which is not observed by any court to the extent that is claimed by the defendants in error in this case, as is shown by the great number of overruled and modified cases to be found in our own and the reports of the courts of all other States. We will attempt, however, to show the want of its proper application to the character of case now before the court, by calling attention to the evil consequences that would follow from an adherence to the decision made in the case of Lufkin v. The City of Galveston.
¶11 The proposition contended for by defendant in error in this ease is fairly stated, thus: The Constitution exempts homesteads from forced sale for the payment of assessments for local improvements. The decision of this court in the case of Lufkin v. City of Galveston construes that Constitution so as to make homesteads subject to forced sale for such claims; in the language of the motion, “that the meaning and intent of the phrase, ‘the taxes due thereon,’ in section 50 of article 16 of the existing Constitution of Texas, as grafted thereon by this court on February 13, 18S3, in the case of Lufkin v. City of Galveston,” so changes the Constitution as to subject property, as before stated, to forced sale in a case in which the Constitution as framed forbade its sale. To sustain the former decision deprives all owners of homesteads in the State of Texas of the protection of the Constitution for all time to come, or so long as that Constitution shall remain in force. To overrule the case of Lufkin v. City of Galveston may interfere with, and possibly destroy, the rights and claims of persons who have acquired them with reference to that decision. Shall we uphold the Constitution as it was made by the sovereign power of the State of Texas, or shall we uphold a decision of the Supreme Court, itself a creature of the Constitution ?
¶12 This question is ably answered by Judge Moore in the case of Willis v. Owens, 43 Texas, 48. That case involved the constitutionality of an “Act to organize and maintain a system of public schools, approved April 24, 1872.” The constitutionality of the law had been sustained by four separate and distinct decisions of the Supreme Court of this State. The case involved the power of the Legislature to subject the property of the citizen to taxation under the Constitution then in force. The same question is here presented: has the Legislature the power to *467 subject the homestead to sale for assessments for local improvements, claimed to be made under the power of taxation ? In the case of Willis v. Owens, the doctrine of stare decisis was invoked, and Judge Moore said: “We can not, however, regard the'rule of stare decisis as having any just application to questions of the character involved in these eases. This doctrine grows out of the necessity for a uniform and settled rule of property, and definite basis for contracts and business transactions. If a decision is wrong, it is only when it has been so long the rule of action, as that time and its continued application as the rule of right between parties demands the sanction of its error. Because, when a decision has been recognized as the rule of property, and conflicting demands have been adjusted, and contracts have been made with reference to and on faith of it, greater injustice would be done to individuals, and more injury result to society, by a reversal of such decision, though erroneous, than to follow and observe it. But when a decision is not of this character, upon no sound principle do we feel at liberty to perpetuate an error into which either our predecessors or ourselves may have unadvisedly fallen, merely upon the ground of such erroneous decision having been previously rendered.
¶13 “The questions to be considered in these cases have no application whatever to the title or transfer of property, or to matters of contract. They involve the construction and interpretation of the organic law, and present for consideration the structure of the government, the limitations upon legislative and executive power, as safeguards against tyranny and oppression. Certainly, it can not be seriously insisted, that questions of this character can be disposed of by the doctrine of stare decisis. The former decisions of the court in such cases are unquestionably entitled to most respectful consideration, and should not be lightly disregarded or overruled. And in case of doubtful interpretation, a long-settled and well-recognized judicial interpretation, or even legislative or executive construction within the sphere of their respective functions, might be sufficient to turn the balanced scale. But in such case, the former decision or previous construction is received and weighed merely as an authority tending to convince the judgment of the correctness of the particular conclusion, and not as a rule to be followed without inquiry into its correctness.”
¶14 We have carefully considered the decision invoked upon this question, which was made apparently without that thorough investigation which the subject demands, without reason to support it; and notwithstanding the great ability of the judges who composed the court at that time, we are forced to the conclusion, that the decision in Lufkin v. City of Galveston is directly antagonistic to the express provisions of the Constitution of this State. The doctrine of that case is in antagonism to a long line of decisions of our own court upon kindred ques-tions. It is unsupported by any other decisions of this court, and is opposed to a line of decisions in the courts of other States, almost unbroken. To follow it, means to disregard the Constitution, as we understand. *468 its provisions; and in our judgment, would deprive citizens of a constitutional protection provided by a convention representing the sovereign power of the State, which had the right to determine the policy of this State with regard to this question.
¶15 This case does not involve any question of contract. The city of Beaumont, under the law, undertook to exercise a power which could not be conferred by the Legislature under the Constitution, and in no phase of the case can it be claimed that the purchaser under the judgment rendered in favor of the City of Beaumont v. Higgins and Wife, upon the claim thus created, is entitled to any of the benefits of the constitutional provisions protecting contracts from interference by subsequent legislation.
¶16 Being firmly convinced that our former opinion properly construes article 16, section 50, of the Constitution of this State, and preserves to the citizens of this State the protection which the Constitution guarantees to them, we are constrained to overrule the motion for a rehearing in this case.
¶17 Rehearing refused.
¶18 Delivered June 29, 1895.