George v. Dean, 47 Tex. 73

George v. Dean

47 Tex. 73 | Tex. | 1877

Moore, Associate Justice.

This suit was brought by appellants to enjoin appellee, the collector of taxes of Galveston county, from collecting the following taxes, viz: ..

1. A tax of one fourth of one per cent., levied for the purpose of building and repairing school-houses, hy section 28 of “An act to establish and maintain a system of public free schools,” passed April 30,1873.

2. A special tax of one tenth of one per cent., levied by *84the County Court of Galveston county, to meet the interest and provide a sinking fund for the payment of the bonds issued by said county, under a special act of the 12th Legislature, approved November 29, 1871.

In the case of Blessing v. The City of Galveston, 42 Tex., 641, it is said, that when the rights of a large number of persons are involved, or a multitude of suits may be avoided and great individual loss and damage prevented, a court of equity may interpose to prevent the collection of a tax, if its validity may be considered and determined by the court, just as consistently with public policy before as after its collection; and the rule thus announced was subsequently approved and sanctioned by the action of the court in quite a number of cases involving the validity of the school-tax of one per cent, levied for the year 1871. (43 Tex., 41.) Still, it is to be noted, while it is held in the case referred to, that the collection of taxes, either municipal or State, under such circumstances as are there indicated, may be restrained by injunction, it is also said, that this power should be exercised by the court with the greatest circumspection, and only in cases where the parties are equitably entitled to be relieved from the payment of the tax demanded of them, (Blessing v. City of Galveston, 42 Tex., 641;) and in the case of Harrison' v. Vines, 46 Tex., 15, it is held that a misdescription of the property by the assessor, or a mere irregularity in his entry of it upon the assessment list or roll, furnishes no sufficient ground for enjoining the collection of a tax for which the plaintiff was justly liable, and with which his property had been legally and truly assessed by the proper officer charged with this duty.

The essential requisites of a valid tax are, unquestionably, 1st, a legal levy by competent legislative authority; 2d, a valid assessment of the property upon which such tax is levied by the officer or tribunal to whom this duty is committed by law. If these two requisites concur, the citizen is justly liable for the amount of tax assessed upon his property. *85Still, it may be, if be fails or refuses to pay the tax thus assessed, that the officer whose duty it is to collect the taxes, would be a wrongdoer and trespasser, and might subject himself to damages, if he should seize and sell property for this purpose without a valid and' sufficient warrant for its collection, or where the assessment roll, by virtue of which he acts, does not emanate from proper authority, or is so defective upon its face as not to give color of authority for his action. But a mere defect in the process under which the collector acts, or the fact that it is absolutely void, affords no sufficient ground for the interference of a court of equity, unless the party who seeks aid is himself ready and wilting to do equity. It is therefore essential for him to proffer to pay the amount of tax properly assessed upon his property before the court will interpose for his relief.

There is no pretense that the tax of which appellants first complain was not legally levied, or that any part of this tax had been relinquished to the táx-payers, by the board of school directors, in any district in which it was being collected, or that it had been levied for the purpose of building or repairing school houses in other districts than those in which the property upon which it had been assessed was situated, or that there was no public free school established, or proposed to be established, in any district in which it was being collected. (Sec. 23, Act of April 30, 1873, 13th Legislature, p. 91.) htor is it alleged or claimed, unless in some few instances, that the property of appellants was not assessed by the justice of the peace for the precinct in which it was situated. The objections to it are, in effect, that the property of appellants, and all other tax-payers of Galveston county, had not been assessed upon the assessment rolls of said county for the year 1874, by precincts, as taxing districts, nor by school districts; and that the assessment roll of taxes does not set forth the amount or rate per cent, of said fax. It seems also to be insisted that said tax has not been legally assessed, because the name of the tax-payers had not been *86arranged in alphabetical order on precinct rolls; that the consolidated tax-roll, made by the justice after the completion of the assessment, does not show the precinct in which the property assessed is situated; and that the columns upon the roll should have been correctly added up, and the footings recapitulated.

Evidently none of these objections tend to show that appellants are not, in equity and good conscience, chargeable for the full amount of taxes demanded of them. They present mere irregularities in making the tax-roll. If true, they show merely a want of proper care and diligence in the discharge of their duties by the officers of the county, which duties, however, were evidently prescribed and intended for the benefit of the public rather than that of the individual tax-payer.

The amount of tax with which a party is justly chargeable by reason of the levy of an ad valorem tax can be properly ascertained only by an assessment in the manner, and by the officer or tribunal to whom this duty is committed by law. Until his property has been thus assessed, the tax-payer cannot be called upon for its payment. So liability for it attaches either to him or to his property. (Clegg v. The State, 42 Tex., 605.) An assessment, however, is an altogether different thing from the tax-roll. By the assessment, the liability of the tax-payer is fixed. It ascertains the facts, and furnishes the data for the proper preparation of the rolls. To make an assessment, the officer or tribunal ,to whom the duty is committed, is required to ascertain and make an inventory or list of the property upon which the tax has been levied, and to estimate or determine its value. (Cooley on Taxation, 258.) When the property is listed and valued, the amount of tax for which the owner is liable is merely a matter of arithmetical calculation. WTiile this amount should be shown and exhibited by the tax-roll, if properly prepared, it is not an essential part or requisite of the assessment.

The evidence in the record shows, with reasonable certainty, *87that the property of appellants, as well as all other taxpayers of the county, was properly inventoried or listed, and valued by the justice of the peace for the precinct in which it was situated. If in some instances, when the tax-payer owned property in different precincts, it was, for his convenience, valued in the precinct in which he lived, it is testified that this valuation was submitted to the justice of the precinct in which it was situated for his ratification and approval. When the justice of the precinct in which the property was situated approved of the valuation thus made, it became in effect his act. The statute does not in direct terms prescribe fully and precisely what the tax-roll shall set forth or exhibit. This seems to be determined by tbe instructions and regulations of the comptroller. The seemingly contradictory instructions given by this officer, which we find in the record, the dates of which, however, are not shown, renders it impossible for us to say whether his instructions have been fully complied with or not. But it is quite certain that irregularities, or even a failure to make any precinct rolls whatever, can in no way affect appellants’ liability to pay the taxes here in question. These rolls are to be made after the precinct assessments are completed. They therefore form no necessary part of the assessment. They do not go into the hands of the collector, and consequently do not serve as a warrant, or authority, for the collection of the tax. The consolidated rolls seem to conform in all essentials to the instructions of the comptroller, given in evidence by the appellee, except in its failure to show the amount of school-tax with which each individual tax-payer was chargeable. As this roll is the warrant by which the collector is authorized to demand taxes, and to seize and sell property in default of their payment, it should undoubtedly-set forth and exhibit not only the list and valuation of the property of each individual tax-payer as shown by the assessment, but it should also show, in its appropriate column, the amount of each specific tax for which he is liable. This *88omission in the roll should have been corrected and supplied, no doubt, as ordered by the County Court, when the defect was ascertained. But the neglect or failure of the court to see that this was done, certainly did not relieve the tax-payers from liability for the payment of the tax, and at most, it can only be said, that the roll, by reason of the omission, was an irregular or defective warrant for the collection of the tax, and would not justify the collector in the seizure of property for its payment. Whether this defect is of a character, however, to render the collector liable as a trespasser, in case he should levy upon or seize property of a tax-payer, while the roll in his hands did not set forth the amount of the tax for • which he was in fact liable, although this was easily ascertained by arithmetical calculation from the per centum, or rate of tax, as levied by the Legislature, and the value of the property ascertained by its assessment as shown by the roll; and although the collector had been authorized by the County Court to make the correction,—we are not now called upon to determine. Whatevér may be the effect of the omission, it certainly did not relieve appellants from liability for the tax, or entitle them to the interposition of a court of equity in their behalf. It does not appear from the instructions of the comptroller that the consolidated roll should show the school district in which the property is situated, upon which this tax was assessed. And there seems to be no necessity that it should do so. The collector does not distribute the tax, when collected, among the different school districts. The tax unquestionably belongs to the district in which it is collected. But a proper distribution can, no . doubt, be readily made by the court from the inventories, or assessment lists, returned by the justices for their respective precincts. Be that, however, as it may, it is not a matter of wdiich appellants can here complain, or into which the court can inquire in this suit.

The objection made to the tax of one tenth of one per cent, is, that power to levy a tax to meet the interest and provide *89a sinking fund for the payment of the bonds issued by Galveston county, by authority of the act of the Legislature, of November 29, 1871, is not given by said act. We are unable to perceive the force of this objection. The validity of the tax depends upon the authority of the county to make the levy, and pot upon the fact that it is conferred in the act authorizing the issuance of the bonds, rather than by some other statute. The act authorizing the issuance of the bonds, in clear and unmistakable language, directs and requires the county to provide for the payment of the interest upon them, and for a sinking fund to meet the principal, “ under the laws now in force.” It thus, as we think, clearly appears that according to the legislative interpretation of the existing laws, the county had the authority to provide for the payment of the principal and interest of the bonds. If it was authorized to do this, it could, unquestionably, only do it by levying a tax. That the county was fully authorized to levy a tax to pay these bonds, by the existing statutes, without the aid of legislative construction, by the act authorizing them issue, is, we think, plain beyond all question. To pay its debts, and provide for the discharge of its just liabilities, is certainly “ a county purpose,” as well as a legal duty. The act of August 13, 1870, organizing County Courts, expressly delegates to said courts ample power and authority to levy and collect taxes “ for county purposes.”

If, however, any reasonable doubt could he entertained as to the authority of the county to provide for the payment of the principal and interest of these bonds under the laws in force when said special act was passed, there could be little question, we think, that the special act itself would be found amply sufficient, without a strained construction of it," to warrant the levy of this tax.

There is no error in the judgment, and it is therefore affirmed.

Affirmed.