*1 Hоusing Housing nor Administra- Bliss the Federal the Federal requirements of bound, Hargis. No. tion ever became did Administration, condition including —nor “Contracts,” Tex.Jur., p. 10-A II “Ele- we remembered 12), it is be to 27, Contract, Parties,” imposed ments of on said sec. A. restrictions held General”; p. seq., “In Mu- 304 et “E. properly removed lots were tuality,” inch, They 155-159, removed “In General- secs. below. court application all the owners Unilateral and Bilateral Contracts —Tests upon upon which lots, Mutuality Mutuality Remedy being lots said — —Im- placed pursuant plied to Obligation.” imprоvements had been In under consideration. approval here judgments are affirmed. phase upon con- our discussion mortgagees as the interests sidered of Bliss.
well as interest position opinion Bliss et our 16-A Tracts 16 and would
al. relative
necessarily consequence fail respect their suit
failure in to enforce on the lots the convenants of restriction HOUSTON, FEDERAL LAND BANK OF It was for the in Eastwood Addition. Appellant, placed protection construction to upon re- agency federal these lots that the Texas, Appellee. STATE of quired Hargis letter. With the need No. 6766. protection remоved incident to the lots, said “lifting” of restrictions Appeals Court of Civil of Texas. for Hargis’ the foundation action in exe- Amarillo. letter be material. cuting the would cease to May 5, 1958. verity (assuming As consideration its purpose than no other effectiveness) Rehearing Denied June benefit of the lots in Eastwood Ad- and, necessity dition therefor out passing existence, (if consideration for contract Tex.Jur., p. failed. 10-A
any) See 263, “ n —-Destruction or “Contracts,” sec. Subject
Nonexistence of Matter.”
Nevertheless, procure Bliss seeks prop-
asserted benefits under letter for (other than
erties lots) aforesaid contract, theory
Eastwood under money spent
under contention that he position changed Hargis’ his beсause of
purported agreement. theory On this
state of is such that the record the trial liberty left at was to believe that had not
Bliss et al. sustained the burden of
proof. We not believe the letter con- do representa-
stitutes either contract or a
tion, strength on the of which Bliss or person rely. Hargis entitled promise. Tex.Jur., p.
made 10-A no
“Contracts,” sec. “Promise.” Neither
Underwood, Sutton, Wilson, Heare & Boyce, Houston, Amarillo, Templeton, B. L. appellant. Ferguson, Dalhart, ap-
Richards & pellee.
CHAPMAN, Justice. County, Dallam acting for itself and the Texas, State of brought against this suit appellant, the Federal Land Bank of Hous- ton for the collection of ad valorem delin- taxes, quent penalty and interest for the years 1955 and assessed one-half undvided mineral interest own- by ed in the еast one-half of Sec- 4, Capital Syndicate Block Subdivi- Texas, County, of Dallam sion and to es- upon tablish and foreclose a lien Bank’s satisfy taxes, pen- mineral interest to such alties, interest and court costs. Texline impleaded, District required by cases, law in such but made default. The case was tried to and rendered for the State of County Dallam Texas and for a total of $8.20,penalty taxes, interest and an amount completely disproportionate questions of law involved. prior
The record before us shоws that had attempt Dallam made no separately classify mineral interests for the purpose of taxation. A few owners of voluntarily severed minerals had rendered years through the them and when so done accepted had authorities them at accepted and values rendered payments tax therefor when Begin- made. year ning continuing in the 1954and for all thereafter, trial, years by persons mineral interests time owned thereof; placed owning (2) mineral interests were the surfaces severed County whether rоlls Dallam authorities and all the tax assessed levied taxes on interests, is, oil, severed gas not rendered thereof mineral owners per mineral indiscriminately at classified and valued minerals $1 than same for all mineral interests other value for the acre same amount $1 per base, leaseholds; per 50‡ royalties wholly mineral acre irrespective interests; royalty minerals; actual royalty (3) all value acre for severed gas all per oil, acre for all oil leasehold severed nonparticiрating gas year 1954; royalties and mineral person not owned leasehold interests owning 75‡ per acre for 1955 surface in the for the same land were assess- *4 ed acre, at the same per value of irre- 50^ appellant by interests owned The mineral spective same; (4) value market County stipulated by in the Dallam all oil and gas by leasehold created estates parties. computation Appellant’s based oil gas per and leases were at assessed in one-half thereon shows it fee owned irresрective acre thereof; (5) of the value acres; 4,023 the minerals under that taxing the by authorities a and deliberate years, beginning a 50 owned for term of arbitrary pre-conceived plan did assess not 1940 on various dates in and 1941all miner- levy money deposit and taxes on in on 4,253.9 acres; als that it owned one- under County in banks Dallam and did not assess half lease as all minerals levy and taxes on the and surface owners in 640 acres and that it owns one-half of those who owned both the surface min- and one-eighth non-particiрating royalty in the eral interests in propor- thereunder the same 75,695.81 Appellee, minerals under acres. tion of the they values thereof as assessed having figures just raised issue no as the the interests, owners of severed mineral related, may accept them correct. oil, gas thus in resulting and mineral in- appellant being terests greater taxed at a The Commissioner’s Court ordered the rate and resulting in more taxes place tax all assessor to the severed mineral it than necessary. would otherwise be County of Dallam interests on the tax year 1954 for rolls for the the first time. findings Since no of fact were re did so and The assessor continued to do so quested this court must consider the testi up year each to the time trial this mony light in appel- the most favorable to case, were and notices sent to those owning lees, but in even doing so the record reveals interests, including appellant. He that on quality land like there was no appellant a notice to sent about October in variation the assessed value where testifiеd, The “I assessor wrote part of the separated minerals were from asking them times them to several render In the surface. other over en words, the a they wouldn’t answer and they letter county, systematically, tire lands which back either.” didn’t come all the mineral interests the same owner appellant ship In the below with contended the were the surface valued on by appellee which the method assessed quality same basis as like part land where capricious, arbitrary, the taxes was levied the mineral intеrests were severed. illegal wrong Specifically, in this case Section Block (1) by C.S.S., reasons that authorities a appellant in which un owned an deliberate, arbitrary preconceived plan divided one-half mineral interest east oil, gas one-half, all assessed severed and mineral exactly was valued for taxes by persons which were owned interests not the same basis as sections of owning surfaces of the quality land same where all mineral interests which such mineral under lie with- interests by were intact —owned cоmpletely the sur assessing levying out Appellees face owners. argue in brief
625
specifically
establish officers intended
proof
not
discriminate
type
does
this
that
injure-
property
It
interests
owners.
is sufficient
unsevered mineral
that the
that
agree
they
with
their action
cannot
denied
for taxes. We
not valued
equal protection
deduc-
Constitution
contention
believe
testimony
Missouri,
Laws
Lively
the State.
can be
from
v.
tion that
made
K.
Ry.
Texas,
T.
taxing authorities
&
Tex.
Co.
this case is
852;
systematically
S.W.
Brown
Im
followed
Water
1954 have
since
provement
leaving
McIntosh,
minerals and
Dist.
1 v.
Tex.
severed
No.
Civ.App.,
722;
still
164 S.W.2d
Land
untaxed the mineral interests
are
Garza
owning &
persons
Cattle
owned
Co.
Redwine
intact—still
Dist.,
Tex.Civ.App.,
surface.
626 deposit not taxed not of itself interests were does on in banks of Texas system complained about make more than a tax million dollars. We cannot illegal. just herein The law is well settled take the property con- mentioned into passing question does not lose its sideration in unit on the portion prop- one justly owing discrimination injury or substantial erty merely by Bank, of its reason failure reason that the being agency officers, designedly, Government, negligently either instrumentality of the Federal exempt is likewise payment except to assess other is from of taxes City taxable. v. 931; Sam Bassett Lumber Co. real estate. 12 Smith v. U.S.C.A. § 879; 492, Houston, 145 City Co., 198 S.W.2d Kansas Tex. Title U.S. & Trust 255 14, 180, State, 282 243, Whelan S.W.2d 577; v. 155 Tex. 41 S.Ct. 65 L.Ed. Federal 378; Cannon, 153 City Grasland, Bank Arlington v. Land of New Orleans v. However, 566, Tex. 374, 703; 261 271 S.W.2d U.S. 43 S.Ct. 67 L.Ed. large tax- segments of failure to tax such Federal Land Bank of St. Paul v. Bismark case, property, Co., should able as shown Lumber 314 U.S. 62 86 S.Ct. question 65; of discrimi- considered on the Corp. L.Ed. Reconstruction Finance in- question nation and the substantial Texas, Cir., 9; State of 229 F.2d Roth v. must, Conner, jury. Assuming, 246; Tex.Civ.App., 25 S.W.2d budgetry needs of the units were Art. Vernon’s Annotated Civil Stat- utes; met adopted and levied on Miller, rate Hall v. 102 Tex. valuations, addition assessed S.W. 1168. deposits, value,
bank as re- full It from follows what we have said quired, min- the addition of unsevered above that system we consider erals, of taxa in- and the addition the surface *6 tion heretofore described and discussed proportion terests at of their same showed an illegal er values controver- interest in as the mineral plan system. roneous sy, ap- deliberate by and all mineral interests owned adoption plan of a for pellant county, necessarily in the re- omission from would the tax large rolls of a property, volume of appellant’s in sult a substantial reduction of personal real, or is in direct Therefore, appellant contravention taxes. believe has statutory provisions constitutional and comparative proof, met the burden of on a equality uniformity basis, of taxation. injury to it show substantial to in a Such in results system the rankest kind of by taxation used Dallam discrimination taxpayers. between County It does since 1954. lie say
not
with local
authorities to
Through
offered,
testimony
in
certain classes
bear
should
the entire
brief, appellees
arguments by
of ad
City
burden
valorem taxation.
appellant’s
Cannon,
Arlingtоn
contended that
failure to render
153 Tex.
pay
deposit
compelled
say
or
taxes on its cash
in
S.W.2d
We feel
to
appellee
Texas
and on
promissory
banks
notes held
further
hope
should not
to
by
system
it
appellant
justify
contributed
show
to
such
in
against
the courts
substantially injured.
support
proper
complete
not
there
a
contest and a
showing.
they proved
promissory
appellees
the Bank owned
sys
are at fault in their
Just
by
taxation, pointed
notes secured
deed of trust liens
up by
record,
on real
tem of
this
ap
appellants
in Dallam County
estate situated
of an
are at fault
in attempting to
unpaid
proximate
$400,000,
payment
balance
any
total
avoid
taxes on their
$39,000
80,000
which approximately
than
type
constituted more
acres of various
additionally
Lien
interests,
*7
in
permits
plan
go
idly
and
sits
to
equal-
guaranty
constitutional
of
effect,
attempts to
into
then
defend the
ity of taxation
limited to the excess
is
tax,
properly
of
over and
collection
the
he assumes a much
above the amount
as-
City
basis,
Arlington
equality
of
sessable on an
is
more onerous burden.
which
expressly
the limit
fixed in
Cannon,
566,
414;
subdivision
153
271
Tex.
S.W.2d
v.
3 of article
Vernon’s Ann.Civ.
v. Northwest
School
McGinnis
City
St.”
Bassett Lumber Co. v.
Sam
District, Tex.Civ.App.,
Fourteenth Amendment used in as Subdivision Constitution, failing give interpreted to the own- Article should be mean 7329 to pro- against opportunity sought er an to heard on a one whоm tax is assessment, ex- posed to be is limited to collected could as to defend prop- properly excess over cess over and above amount and above the amount basis; basis, erly equality equality assessable an on an and assessable on unless expressly properly equal- the amount limit fixed in assessable on an which is the ity basis proven judgment 3 was would subdivision Revised Civil of art. stand. Statutes this state.”
See,
appellant
In its
also,
Independ
motion
in-
rehearing
McGinnis v. Northwest
part
sists we
District,
were in error in
of оur
Tex.Civ.App.,
ent
294 S.
opinion just
Further,
mentioned
holding
because in
W.2d
do not
understand
that Dallam
State,
op-
since
has been
Tex.
case
Whelan
erating
illegal
under
contrary
629 expressions of One latest equality and that basis an on Supreme concerning our Court defenses the full amount could recover units against judgment for proof. seeking units absence of such sued for in delinquent in Whelan v. taxes is found present Ar- when In written a case 378, 14, In 155 Tex. 282 State, S.W.2d 384. R.C.S., 7689a Article 7329 R.C.S. was ticle the trial refused to receive case court An- wording, San same with the exact purpose evidence offered show Appеals in v. Vance of Civil Court tonio ing plan arbitrary or of taxa an scheme 457, page at Pleasanton, 261 S.W. Town of appeals tion and the affirmed civil 459, article said: discussing said Supreme the case. The Court reversed courts, both saying, petitioners ‘If show de- can has the effect “If statute injury substantial reason of a retrial property of defenses priving the owner deposits the omission of taxable from bank proc- the due to him under vouchsafed they judg rolls be the tax will entitled to state provisions of the or ess setting mеnt aside the assessment for Constitutions, then, of or federal 1950, years 1951 1952 a and to reassess course, legislative that extent properties by taxing ment author in- For and ineffectual. act is void equal ities on basis levy an and uniform under city stance, if a town should * * 7346, V.A.C.S., Article *.” Thus tax- collect assess endeavor to system appears that where the upon property without es situated is ille taxing authorities based municipality, corporate limits of gal erroneous property clearly owner could then against taxation whоm and where one plead prove fact as a defense sought has the taxes are to be collected against en- brought a him to suit injury plan, shown substantial from such taxes, of the notwith- force collection both to be which conditions believe pre- question standing the statute case, present is in this the assessment itself cludes such defense. being void as in violation of both the state “So, also, in- be would such statute constitutions, any judg and federal injured property effectual to cut off an ment void. based thereon would be State ma- showing owner from tax is Richardson, 11, v. 126 Tex. 84 S.W.2d terially proportion the value out of 1076; City Tyler, Rowland v. Tex.Com. taxed, property or that it was 756; City App., 5 S.W.2d of West Univer equal not or uniform with taxes as- sity Co., Mortgage Tex.Civ. Place v. Home others, property sessed like 361; State, App., 155 72 S.W.2d Whelan v. guaranteed because these are defenses 378; 14, Tex. 282 Bashara Sara S.W.2d 1, to the citizen article § District, Tex. toga 139 Constitution, pro- state in which it is 631; Tex.Jur., Ten Yr. 163 S.W .2d * * * vided, that ‘taxation shall page Supp., Section 122a uniform,’ and that all ‘shall be ” proportion taxed in to its value.’ This writer the con comes just be Whittenburg, made with much reluctance State v. 153 Tex. clusion system possibly can Supreme no tax be com S.W.2d our Court cause *9 said, equaliza- discrimination in speaking pletely of boards free some “ * * * every tion, justice because reasonable infer no attack on valuations be resolved in favor the va fixed such can should boards or will be sus- ence levy proof fraud, lidity tained in the and assessment of taxes absence of jurisdiction, illegality, want of the state and its adop- or the that subdivisions order may upon the revenue therefrom arbitrary depending er- plan or funds with which to render the roneotis scheme have valuation.” However, required of them. (Emphasis added.) services the law to the conclusion come requires the State of a reversal and ultimately
Texas will and Dallam relevying and reas-
be benefited more property in accordance with our
sessing the compliance
holdings herein with
requirement statutes and constitu- they to continue to liti- than would
tions actions
gate similar Accordingly, might hereinafter filed. is judgment trial court reversed of the Andress, Lipscomb, Fisk, & El Peticolas appellees nothing on and rendered take Paso, appellant. for preju- but judgment without $8.20 right units re- dice to the Kemp, Smith, Brown, White, Goggin & levy question property reassess the Paso, El appellee. equal upon basis with a fair county kind and value in the and to like FRASER, Justice. thereon. collect taxes a laning case,
This is accident which was jury. jury tried to a plaintiff awarded some in damages, and then found that plaintiff had keep proper failed to a look- out and proximate that such was a cause of the collision. On the of these basis find- ings, the trial gave court a for the defendant, ISAAC, Appellant, plaintiff’s overruling James motion for judgment disregarding the answers contributory issues on negligence due to SHUMATE, Appellee. Harold keep proper failure lookout. From this 5269. No. action plaintiff appealed. has Appeals Court of Civil of Texas. travelling Plaintiff was west on Paisano El Paso. Drive on the inside three-lane north portion, a Sunday afternoon at which March time was very testified there was little traffic. Defendant plaintiff overtook
pulled up plaintiff’s him right beside side. pulled Defendant then his car over to the left so portion that the rear left fender or of the car struck right front end of plaintiff’s car. Defendant testified that his boy, up standing little in the back of the car, him, “Daddy, cried out to look out car;” whereupon defendant, quote testimony his own on direct examina- tion, stated, thought “So I he was talking car about this on the hand side and thought pass I had time to Mr. Isaac. Of up course the kid was standing and I *10 car, couldn’t pulled see Mr. Isaac’s so I over just enough clip him.” says Later he Vendor’s notes secured if by mineral indeed the defense superior by the Vendor’s Lien title to purpose. suit such is their this Converse County. real estate situated in Dallam by ly, if appel defense of this suit They proved January 1, only also that on sys- lant seeks call to attention to the County in Dallam tem of taxation “3. That used sued taxes for are in may be by that such excess law, since to the end allowed limit equitable but to altered conform a fair and only to apply shall to defense Article program required by of taxation as excess.” Texas, Seсtion 1 of the Constitution It will be noted last clause Vernon’s the Fourteenth Ann.St. provides, Subdivision 3 “but this defense Amendment to the Constitution brief, shall apply By such excess.” to just rendering United a may States it be appellant clause, a asserts this “is but that we But remain service. the fact does variation of 3 which would Subdivision delinquent have a and fore- suit for taxes purport to apply only a situation where to closure a has tax lien where the taxes in sued for were claimed amount, property any not rendered its law, excess a i. e. limit аllowed courtesy has not shown the assessor situation where rate used was tax notice, appeared reply aof has not his a sit- excess of the rate allowed law as any system manner to contest rate at uation statute law fixed a where complains against about was filed until suit per and a valuation hundred dollars $1.50 it, day, has can not to this so far as we rate per dollars valua- hundred $1.75 liability record, any tell from the admitted applied.” tion had been taxes its mineral interests against We are believe authorities Dallam has tendered no quoted, and appellant just the contention of conception of a fair into court based on its ques- There is no properly we believe so. valuation. appellant’s interests tion but that mineral a limited Though property' owner is not subject tax on some basis and are injunc- Supreme to the of mandamus and it owes for that Our remedies amount. Court, Folley speaking through Judge has units his defense said: illegal putting into and funda- effect taxation, mentally plan of erroneous Howth appeals “The court of held that civil District, v. French owner relief Tex.Civ.App., when he 115 S.W.2d against an assessment made violation