Hall v. Houston & Texas Central Railway Co.

| Tex. | Jul 1, 1873

Walker, J.

The tax which is herein sought to be enjoined was levied by a resolution of the board of school directors, to be applied to the establishment and maintenance of the public schools.

Under the erroneous instructions of the court the jury rendered their verdict for the plaintiff, and the judge perpetuated the injunction.

So far as any necessity has arisen for the discussion of the principles on which this case appears to have been decided by the District Court, we have discussed and settled them in Kinney v. Zimpelman.

His honor the district judge appears to have considered that because Harris county was not divided into two or more school districts, therefore the board had no authority to levy the tax ; also that a special assessment of the property on which the tax was levied was necessary before the levy could be legally made; and that the law was inoperative for the reason that it did not designate the particular property on which the tax was to be assessed.

The court also appears to have had in mind a question as to whether the treasurer of the board and the sheriff had given bonds to secure the money when collected. How this question could invalidate the law, if answered in the negative, we are unable to determine. It was, however, submitted to the jury and found in the negative.

We do not think the Constitution or the law requires the county of Harris to be divided into two or more school districts before the levy could be made and the tax collected.

The second clause of Section 3, Article 9, of the Constitution, reads thus: “The Legislature may lay off the State into convenient school districts, and provide for the formation of a board of school directors in each district.”

The 3d Section of the act of August 13, 1870, provides that each organized county in this State shall be a school district.

The county courts were ex officio the school directors of their respective counties, and had full power to divide their counties into as many districts as the public convenience requires.

The act of April 24, 1871, somewhat changed the act of August 13,1870. It provided for the appointment of supervisors of education, and empowered them to subdivide the counties into school districts, and appoint directors for each district; and it was under this law that the board of directors was organized which levied the tax herein sought to be enjoined.

Under this legislation, it does not become material for us to inquire whether the counties were subdivided into districts or not; and the error of the court in instructing the jury that the county must have been divided into sub-districts is apparent.

And now let us see what force there is in the objection to this tax for the want of an especial assessment.

The act of August 13, 1870, provides for an ad valorem tax on the taxable property of the county not to exceed one percent.; and it is further provided, in Section 10 of the same act, that the tax shall be assessed and collected as other county taxes. And now, if we go to Section 4 of the general tax law of April 22, 1871, we find that other ad valorem taxes for county purposes are levied and collected on the assessments made for the collection of State taxes.

This leaves no doubt as to the manner in which this tax was to be assessed and collected. This same question has been repeatedly decided by the courts of half the States in the Union.

Indeed, it may be said to be almost a rule without exception, that where a special tax is to be raised, no special assessment of the taxable property on which the tax is to be collected is required to be made.

The law in this instance defines the amount beyond which the levy cannot go. It fixes the amount to be paid, and the property, trade, or profession which is to pay it.

And the constitutional requirement of uniformity in taxation is regarded; and there could be no other way better devised for carrying out this object than that which has been adopted.

The property to be taxed and its value being ascertained by State authority, and when the State has fixed these conditions by a general tax law, it would be a very unwise policy to adopt another.

This, then, brings us to declare that that portion of the charge of the district judge is erroneous wherein it directs the jury that the law was inoperative because not designating the property to be taxed.

The question raised as to the bond of the treasurer is answered by the treasurer himself, who testifies that he had qualified according to law; and if he had not, the objection would not be tenable.

The omission of an officer, charged with the collection of a tax, to qualify according to law, would by no means invalidate the tax; and if the law does not require such a bond, the utmost that could be said against it would be that the law had omitted a wise precaution against losses through a public officer.

Section 28, of Article 12, of the Constitution, provides that justices of the peace shall assess the property in their respective precincts under such laws as the Legislature shall provide, and the sheriffs of the several counties are to collect the taxes so assessed.

The sheriff, then, Hall, who appeals this case, is the only person properly authorized to collect this tax, and there is no ground in the world for supposing that he had not qualified as the sheriff of Harris county at the time he sought to collect this tax. It is nowhere contended in this record that the amount sought to be collected is greater than the amount assessed.

These views of this case and all others involving similar questions only are in accordance with our opinion in Kinney v. Zimpelman.

We therefore reverse the judgment of the District Court and dismiss the case, awarding the writ of procedendo to the appellant.

Reversed aed dismissed.