The opinion
ON REHEARING.
Mr. Chief Justice Alexander
delivered the opinion of the Court.
In its motion for rehearing petitioner asserts that a part of the funds received from the sale of the supplemental bonds was used to complete the original plan of reclamation. We fail to find proof of this fact in the record, but doubtless it will be more fully developed upon another trial.
It is undisputed that a part of the funds received from the sale of the supplemental bonds was used for new work not contemplated under the original plan. Since there was never *100 any appraisement of the benefits that would accrue to the property owner from the new work contemplated under the supplemental plan, there was no valid levy of a tax to- pay that part of the bonds issued for that purpose; and there can be no valid levy for that purpose until such appraisement has been made. But under the holdings of this Court in Thomas v. Dallas County Levee Improvement District No. 6 (Com. App.), 23 S. W. (2d) 325 , a tax could be levied (without a new appraisal of benefits) for the payment of such portions of the bonds as was used to complete the work contemplated under the original plan. If, upon another trial, it should develop that a part of the proceeds of the supplemental bonds was so used, then a recovery can be had for any taxes properly levied for the payment of that portion of the bonds..
However, it is asserted that a tax of $2.00 per each $100.00 assessed benefits was levied to pay the entire indebtedness evidence by the supplemental bonds. It is apparent, then, that the assessment was in part legal and in part illegal. Where a tax has been levied for a purpose, part of which is legal and part illegal, the lawful part will be sustained if it can be clearly and definitely ascertained and separated from the unlawful, part; otherwise the whole levy will be held invalid. 61 C. J. 574, sec. 704; Dean v. Lufkin, 54 Texas 265 ; Nalle v. City of Austin, 91 Texas 424 , 44 S. W. 66 ; Stetson v. Kempton, 13 Mass. 272 , 7 Am. Dec. 145 .
In Nalle v. City of Austin this Court had before it a case in which the City had levied a tax of 91 cents on the $100.00 valuation of property to pay the interest and provide a 2% sinking fund for a bond issue in the sum of $1,400,000.00, but of which only $950,000.00 had been sold. It seems to have been conceded that the City had no right to levy a tax for the payment of the unsold bonds, but that it could make a levy for the payment of the bonds that were outstanding. The trial court held that a levy of 61-3/4 cents on the $100.00 valuation was reasonably sufficient to pay the interest and to provide a 2% sinking fund for the bonds that had been sold, and a judgment for taxes at the proportionate rate was sustained. (See Nalle v. City of Austin (Civ. App.), 42 S. W. 780 .) This Court affirmed the judgment on the ground that the legal part of the tax was capable of definite ascertainment and apportionment. It was there said that where “it is found that such tax is in part lawful and in part illegal, if the legal and illegal parts are capable of definite ascertainment and apportionment, a *101 court will apportion the taxes and give judgment for that part which might lawfully have been levied.”
Since the record does not show whether it can be definitely ascertained what amount of the second bond issue was used to complete the original plan, we are unable to say whether the tax rate of $2.00 per $100.00 benefit assessment can be apportioned so as to authorize the collection of the proportionate tax necessary to pay that part of the bonds. This is a matter that may be ascertained upon another trial.
The judgment heretofore entered, remanding the cause with instructions set out in the original opinion, is set aside and in lieu thereof the cause is remanded for a new trial not inconsistent with this opinion.
Opinion delivered June 25, 1947.
Second rehearing overruled July 16, 1947.