No. 5338. | Tex. App. | Oct 28, 1914
Appellant, Jennie Raley, brought suit against John A. Bitter, tax collector of Bexar county, appellee, and, as grounds of said suit alleged, substantially: That she is the owner of certain lots of real estate in the city of San Antonio, and that there are back taxes that appear to be due thereon and a lien on the property for various years from 1886 down to 1901, on others from 1886 down to 1905, and on still others from 1898 down to 1910. But it is alleged that all of the taxes are illegal and void on account of improper assessments, and still constitute a cloud on the title. It is also alleged
"That the officers of state and county charged with the assessment and collection of taxes for the year 1894 have fraudulently charged to the above property $56.62 and $63 interest, when $4 or $5 was the very largest amount that could be saddled upon it."
"Plaintiff says she has importuned the county officers to bring suit to collect these taxes and they have refused to do so."
"Plaintiff asks for a decree clearing the title of the above property from the cloud now resting upon it and for an injunction restraining the collection of such taxes, but if the court should find that any part of said taxes are a legal charge on the property, she expresses a willingness to pay it."
The trial court sustained exceptions to the petition on the following points: (1) Because the tax collector of Bexar county has no power to relieve the property of any such lien for state and county taxes; (2) because the petition is vague and indefinite, in that it does not appear therefrom what property is incumbered with taxes for particular years; (3) because the petition charges county officers with fraud in the assessment of interest and penalties, and does not specify what officers did this; (4) because plaintiff has an adequate remedy at law under articles 7702, 7703, and 7704 of the Revised Statutes of 1911; and (5) because no right to equitable relief appears in the bill.
The plaintiff declined to amend, and her suit was dismissed, and from the order of dismissal this appeal is prosecuted.
Counsel for appellant, in his brief argument, says: "When the best lawyers are trying to raise the standard of legal learning, it is not wise to offer a premium on ignorance" — and again: "Poor Richard says, `Necessity knows no law,' and I know some attorneys in the same condition"; and this court is somewhat inclined to agree with those statements. At the same time, we are unable to determine upon what theory appellant predicates her right to the relief prayed for in this case. It is alleged that the officers (which must be taken to include appellee) have refused to bring a suit to enforce collection of the taxes, although they have been importuned to do so. And it is not charged that the tax collector has the right or power in law to do that which this suit seeks to compel him to do. Appellant must know that suits for taxes are brought in the name of the state of Texas. The collector could not even make a correction or adjustment of the taxes, for that right rests with the commissioners' court. The assessor makes up the rolls, and the sole duty of the collector is to collect the taxes and pay them over where they properly belong.
The proposition of appellant that "injunction is the proper remedy to prevent the collection of taxes under a void assessment" has absolutely nothing to do with this case, because the petition itself shows that Bitter has refused to make any attempt to collect the taxes. This court knows of no *858 law that gives the tax collector any right to release property from tax liens, whether they be "void liens" or otherwise; and we had always thought that the commissioners' court was the proper body to exercise that function, if exercised at all.
The court did not err in sustaining the exceptions mentioned, unless in sustaining the one referred to in No. 2 above. The statement of the taxes showing the years for which same were due and the lots incumbered thereby was attached to the petition and made a part of it. This becomes immaterial, in the disposition we make of the case, and the judgment is affirmed.