Labadie v. Dean

47 Tex. 90 | Tex. | 1877

Moore, Associate Justice.

This suit was brought by appellants against appellee, as collector of taxes for Galveston county, to contest the validity of the following taxes, to wit:

1. An ad valorem tax of one fourth of one per cent., levied for general county purposes for the year 1875.

2. A tax of one tenth of one per cent., levied to pay the interest, and provide a sinking fund to liquidate certain bonds issued by the county of Galveston, under a special act of the Legislature authorizing their issue, passed Hovember 29, 1871.

3. A tax of one eighth of one per cent., levied under an act of the Legislature, to pay the interest on registered county scrip.

4. A county poll tax.

On the trial of the cause in the district court, judgment was . rendered in favor of the defendants, and the plaintiffs gave notice of an appeal; hut they failed to perfect their appeal by giving bond, with two or more securities, as required by the statute regulating appeals to this court. Ho objection, however, was made by appellee to the bond found in the record. If, therefore, the bond had been of such a character as to give the court jurisdiction of the case, it would be unnecessary for us to notice its deficiencies. • But sucji, in our opinion, is not the character of the instrument which was filed in the District Court for the purpose of perfecting the appeal taken by the plaintiffs, and by reason of which they are asking of this court a reversal of the judgment. The pretended appeal bond copied in the transcript is signed only by three of the plaintiffs, and has no sureties to it whatever. An appeal bond is an essential requisite to the jurisdiction of the court, except in the cases in which it has been dispensed with by statute. That the individual obligation or bond of the appellants cannot be regarded as an appeal bond in the sense of the statute, is clearly dedueible from its plain language.

The appeal not having been perfected, and this court having acquired no jurisdiction of the case, the only judgment which can he rendered by us is, that it he dismissed. However, as the questions presented by the assignment of errors have been fully discussed by counsel, and maturely considered by the court, it may, perhaps, tend to avoid future litigation for us to briefly indicate the conclusions at which we have arrived in regard to them.

The objection that these taxes had not been legally levied, because this had not been done at or during a regular term of the County Court., is untenable. The court convened and was duly organized at the time prescribed 'by law. "When a court is organized and opened for a, regular term, the term continues until it is ended by order of final adjournment, or until the efflux of the time fixed by law for its continuance. The sessions or sittings of the court during term are entirely within the discretion and control of the court. And its orders in respect thereto are intended for its convenience and the convenience of parties interested in its proceedings. Hence they may be altered, revoked, or annulled from time to time, as the exigency of the business to be transacted may require. The orders of adjournment of its sessions from day to day, or to a particular horn of the day, are mere announcements of its proposed or intended order of transacting the business to come before it during the term. But certainly the failure of the court to meet at the hour or on the day to which it had thus taken a recess, can in no way affect or put an end to its term.

The objections to the levy of the tax of one tenth of one per cent, have been considered and decided in the case of George et al. v. Dean, and need not be here noticed.

The levy of the tax of one eighth of one per cent, is not so full, clear, and explicit as is appropriate in orders of the court of such character. Nevertheless, it cannot be said, when we look to the entire order, that the levy is void. The amount and character of the tax, and of the property upon which it is levied can be sufficiently inferred and understood from the order to support the levy.

The objection that in the levy of this tax there is a discrimination in favor of occupations, seems not to have been made in the court below. If it was in the mind of the pleader when he drew the petition, it is not set forth with sufficient clearness to call the attention of the court to it. The levy is only for one half of the amount which the court was authorized to impose upon property; and if a like tax should have been imposed on taxable occupations, it does not appear that it has not been done.

The levy of a county poll tax was made by the Legislature; therefore there was no necessity for a levy of it by the County Court, if it had the authority to do so. (Paschal’s Dig., art. 7711.)

It is also objected that the figures, upon the consolidated assessment roll, in the columns for the value of property, and for the different kinds of taxes, do not indicate any denominate value of money, as it cannot be told whether they indicate eagles, dollars, cents, or mills; but this, at most, is a mere defect in the form and manner of making up the roll. The proper import of these figures, however, when the assessment roll is looked at in the light thrown upon it by the different statutes in regard to the levy and assessment of taxes, and the instructions of the comptroller upon the subject, is so obvious, that it may well be doubted whether the alleged defect is of any significance whatever. It certainly affords no ground for the interposition of a court of equity, or warrant for an injunction against the collection of the tax the amount of which is clearly and correctly shown by the assessment lists. It has no doubt been held, in cases where there were like defects or irregularities in the wai’rant or authority under which property had been sold for taxes, that they were fatal to the title of the purchaser. But it is well known, unless the general rule has, as with us, been modified by statute, that it is usually held that it devolves upon the purchaser at a tax sale to show, in support of his title, the strictest compliance with every formality, not only in the levy and assessment of the tax, but likewise in the form and manner of making such sales. The question in such cases as are here referred to, is altogether different from that presented in this case, and was decided under an altogether different state of law from that applicable to like questions with us.

There being no valid appeal bond to give this court jurisdiction of this case, it is dismissed.

Dismissed.