REPUBLIC INS. CO. v. HIGHLAND PARK INDEPENDENT SCHOOL DIST. OF DALLAS COUNTY.
No. 2766.
Court of Civil Appeals of Texas. El Paso.
Jan. 26, 1933.
Rehearing Denied March 9, 1933.
627
These two cases hold, and we believe it to be the law, that though a person may be in the general employ of one person, if he is lent to another person who assumes control over him and authority to direct and control both the manner and method of doing the work, such a servant becomes the special employee of such third person and ceases to be the employee of his general master.
We held in our original opinion and we reaffirm here that the facts in this case do not warrant the conclusion that Mamie Suttles had become the special employee of Moody-Seagraves.
In the case of Maryland Casualty Co. v. Donnelly, supra, Donnelly was working for Busby, who was engaged in the transfer business. Busby had a contract to haul material and deliver it to the south end of the plant. This he did and thereby completed his contract. After the material arrived at the end of the plant, the builder‘s foreman directed that the material be carried inside the plant. Donnelly undertook this work under the direct control of such foreman, who directed both the manner and method, of doing such work. We have pointed out that the facts in the present case are very different. It was Brown & Root‘s work to build the fish pond. The blasting of the spring was a part of this work. Suttles was therefore pursuing his master‘s business when he was injured.
The fact that the work had been pointed out by Mr. Seagraves does not justify the conclusion that he had assumed to dictate the manner and method of doing same, and especially when Mr. Seagraves had been gone from the ranch for some five days when the injury occurred.
In the case of Denton v. Yazoo & Mississippi Valley R. Co., supra, the case was decided largely on the ground that a regulation of the Postmaster General, adopted by authority of a federal statute placed the control of loading mail in a mail car exclusively under the mail clerk and no one else. This controlling fact is not involved in the present case. However, the Denton v. Yazoo & M. V. R. Co. Case, supra, cites with approval the cases of Standard Oil Co. v. Anderson, 212 U. S. 215, 29 S. Ct. 252, 53 L. Ed. 480, and Driscoll v. Towle, 181 Mass. 416, 63 N. E. 922, which two decisions we feel uphold the decision we have made herein.
The motion for a rehearing will be overruled.
J. Harold Goode and Bell & Clark, all of Dallas, for appellee.
James V. Allred, Atty. Gen., and Sidney Benbow, Asst. Atty. Gen., amicus curiæ for the state.
Worsham, Rollins, Burford, Ryburn & Hincks and Allen Charlton, all of Dallas, amicus curiæ for Gulf Ins. Co.
HIGGINS, Justice.
This is a suit by the Highland Park Independent School District of Dallas County, Texas, against the Republic Insurance Company, a Texas fire insurance corporation, domiciled in Dallas county, to recover balances alleged to be due by said company for taxes levied against it for the years 1926 and 1927.
The parties will be designated as they were in the court below.
It was alleged the tax for 1926 amounted to $18,978, and a payment thereon of $10,523.20 was made January 31, 1927, leaving a balance of $8,454.80, due and unpaid.
For the year 1927 it was alleged the tax amounted to $12,237, upon which a payment of $4,887.90 was made January 31, 1928, leaving a balance of $7,349.10 due and unpaid.
The suit is to recover the said balances with statutory penalty, costs, and interest.
Judgment was rendered in plaintiff‘s favor for $10,984.23, taxes, etc., for the year 1926, and $8,675.15, taxes, etc., for the year 1927.
It was alleged plaintiff‘s board of trustees for the years in question levied a tax of $1 per hundred valuation against all property in the district for the benefit of the public schools within the district, and “thereafter the tax assessor of Dallas county, as the duly and legally selected and designated assessor of said District, after the defendant had failed and refused to do so, duly and legally listed, inventoried and assessed said property along with other property in said district, in the manner and at the valuation shown in said exhibits, and included same in his regular tax rolls for said years.”
While it is alleged by plaintiff in its original petition that defendant failed and refused to list, inventory, and assess its property, it nevertheless appears from the evidence that defendant prepared and tendered upon the official forms a list, inventory, and assessment of its property to the tax assessor of Dallas county for each of the years in question, with certain deductions noted thereon, which it claimed it had the right to deduct from its assets as nontaxable.
With reference to the alleged failure of defendant to render its property for taxation, plaintiff, in a supplemental petition, alleged: “Plaintiff specially denies that any valid assessment at any time was tendered or offered to the assessor by the Defendant for either of said years 1926 and 1927, or that any assessment whatever was accepted from Defendant by the Assessor for either of said years or that any assessment was at any time made or equalized except the assessment herein sued on, and the Plaintiff specially alleges that after Defendant failed and refused to make a correct and legal assessment for said years, the same was made by the tax assessor, that the Defendant and its agents and representatives had full knowledge of the amount of said assessments, the items it contained, and the separate amounts of such items and knew that the tax assessor would not and did not accept, approve or execute any other assessments suggested or offered by it and that after the making and execution of said assessment by the tax assessor, it was finally and judicially approved by the duly existing Board of Equalization.”
The only two issues submitted read:
“Special Issue No. 1.
“Do you find from a preponderance of the evidence that the Tax Assessor of Dallas County prior to October 2nd, 1926, rejected as the rendition of the Defendant‘s property for taxation for the year 1926, the proposed rendition tendered to him for that year by the Defendant? Answer ‘Yes’ or ‘No.’
“Do you find from a preponderance of the evidence that the Tax Assessor of Dallas County prior to October 4th, 1927, rejected as the rendition of the Defendant‘s property for taxation for the year 1927, the proposed rendition tendered to him for that year by the Defendant? Answer ‘Yes’ or ‘No.‘”
Both of these issues were answered in the affirmative.
It will be noted both of these issues assume a rendition was tendered by defendant for both years.
Upon the inventory sheet for the year 1926, tendered by defendant to the assessor, it listed “Assets $4,844,596.” and then deducted the following items:
Premium Reserve................$1,364,364.00
Conflagration Fund............. 500,000.00
Losses......................... 114,537.00
Reinsurance balances due....... 46,344.00
Other deductions were claimed, the correctness of which is not questioned by plaintiff.
The inventory tendered by defendant was kept by the assessor, and from the data therein given, and other sources, the assessor made up a new inventory and assessment. Upon this he omitted the deductions listed above, thereby increasing the value of the taxable assets of defendant in the amount of such deductions.
For 1927 the procedure was the same as in 1926, except that in the inventory made up by the assessor in 1927 he deducted the premium reserve.
Prior to and subsequent to the action of the assessor in making such inventories and assessments, defendant‘s agent attempted to secure from the assessor the acceptance of the inventories and assessments tendered by it, with the deductions claimed, and was unsuccessful in its efforts so to do.
The inventories and assessments made by the assessor were by him submitted to the commissioners’ court, sitting as a board of equalization, and by it approved.
Opinion.
An assessment, as provided by law, is an indispensable prerequisite to the validity of a tax against an individual. Cooley on Taxation (4th Ed.) 596; 37 Cyc. 987; Clegg v. State, 42 Tex. 605; Sullivan v. Bitter, 51 Tex. Civ. App. 604, 113 S. W. 193; Richardson v. State (Tex. Civ. App.) 53 S.W.(2d) 508; Cook v. Ry. Co., 5 Tex. Civ. App. 644, 24 S. W. 544.
In Federal Royalty Co. v. State (Tex. Civ. App.) 42 S.W.(2d) 670, 674, Justice Walthall, speaking for this court, said: “It is the law that all tax assessments, to be valid, must be made as provided by the statute.”
And in Vance v. Town of Pleasanton (Tex. Civ. App.) 261 S. W. 457, 459, Justice Smith, in referring to what is now
In the same case (277 S. W. 89, 90), Judge Bishop, of the Commission of Appeal, said: “Our Constitution also provides that ‘taxation shall be equal and uniform,’ and that ‘all property in this state * * * shall be taxed in proportion to its value, which shall be ascertained as may be provided by law.’
An assessment involves, first, the preparation of a list of the property subject to the tax; and, second, the valuation of such property in the manner prescribed by law, and by the constituted authority. 26 R. C. L. Title Taxation, § 311; 37 Cyc. 987, and footnote 84.
The defendant questions the validity of the assessment against it made by the tax assessor in the manner stated above. It contends the assessor had no right to reject the inventory and valuation tendered by it and substitute therefor his own inventory and appraisement.
There was no issue between the defendant and the assessor as to the gross value of the former‘s assets. For both years they estimate the gross values at the same amounts. The controversy arose over the claim of the defendant that it had the right to deduct from the value of its gross assets the items indicated above and the refusal of the assessor to allow such deductions.
The quoted article has no present application, for the facts did not exist which would authorize the assessor to inventory and value defendant‘s property. This is true because the defendant had tendered its inventory and valuation upon the official form.
The quoted article (
In the event the list tendered by a taxpayer omits property which he owns, the assessor is by these articles authorized to list and value the omitted property and place the same upon the unrendered roll.
But we know of no statute conferring upon an assessor authority to reject a list and valuation tendered by a taxpayer and substitute one of his own and place upon the rendered roll the assessment so made by him. The plaintiff seems to have recognized this, for in apparent justification of the action of the assessor it alleged the defendant had failed and refused to list, inventory, and assess its property.
The law affords a remedy for the adjustment of differences between the taxpayer and the assessor such as here arose.
A portion of the assessor‘s oath prescribed by
“Each commissioners court shall convene and sit as a board of equalization on the second Monday in May of each year, or as soon
“1. They shall cause the assessor to bring before them at such meeting all said assessment lists, books, etc., for inspection, and see that every person has rendered his property at a fair market value, and shall have power to send for persons, books and papers, swear and qualify persons, to ascertain the value of such property, and to lower or raise the value on the same.
“2. They shall have power to correct errors in assessments. * * *
“5. Whenever said board shall find it their duty to raise the assessment of any person‘s property, they shall order the county clerk to give the person who rendered the same written notice that they desire to raise the value of same. They shall cause the county clerk to give ten days written notice before their meeting by publication in some newspaper, but, if none is published in the county, then by posting a written or printed notice in each justice‘s precinct, one of which must be at the court house door.”
The plain import and meaning of these statutory provisions is, that when an owner tenders to the assessor a listing and valuation of his property for taxation it is the duty of the assessor to receive the same, and in case of difference of opinion between them as to the valuations placed upon the property by the owner, the assessor‘s duty then is to refer the matter to the commissioners’ court as a board of equalization, and the court, after notice to the owner, is to hear evidence, settle and fix the disputed valuation.
This is the procedure which should have been followed by the assessor and commissioners’ court in the present instance, for the real difference between the assessor and defendant was as to the true value of defendant‘s assets. If the deductions claimed by defendant on its listing were not properly deductible, the commissioners’ court had the authority to correct the defendant‘s listing (
It follows the assessment in this case was not made in a lawful manner, was invalid, and the collection of a tax based thereon cannot be enforced.
What has been said disposes of all contentions of plaintiff respecting the necessity of an assessment and the validity of the ones in question, but it is further insisted by it: First, that defendant, by tendering and paying a portion of the taxes due for each of the years, thereby eliminated all defenses except that of excessive valuation, and there was neither plea nor proof of excessive valuation; second, the defense discussed is not such as is permitted by
In support of its first position plaintiff cites the cases of City of Rising Star v. Dill (Tex. Civ. App.) 259 S. W. 652; Id. (Tex. Com. App.) 269 S. W. 769, and Zachry v. City of Uvalde (Tex. Civ. App.) 24 S.W.(2d) 517, 518; Id. (Tex. Com. App.) 42 S.W.(2d) 417.
In each of these cases there was a valid assessment.
In the City of Rising Star Case, the Court of Civil Appeals held that by tendering to the tax collector and also tendering in open court the amount admitted to be due, the defendant waived the ninety days’ notice required by
In the Zachry Case, in the opinion rendered by the Court of Civil Appeals, it was broadly stated that “appellants had, by admitting a large portion of the debt, admitted everything had been properly performed, except the equalization,” but such ruling was not necessary to the decision as is apparent from the whole opinion of that court as well as the opinion of the Commission of Appeals.
Writs of error were granted in both of these cases, and the judgments of the Courts of Civil Appeals affirmed upon recommendation of the Commission of Appeals. It will be noted from the opinions of the Commission of Appeals that affirmance was based upon grounds other than the doctrine of waiver announced in the opinions of the Courts of Civil Appeals. It may be that upon the facts in those cases the doctrine of waiver was properly applied, but we think it has no application to the present facts.
The assessment here was not made in the manner prescribed by law; for that reason was invalid, and we do not think it should be considered that by paying the amount it admitted to be just, the defendant should be held to have waived the invalidity of the manner in which the assessment was made against the disputed items and which it claimed were deductible. By the payment made defendant waived the irregular assessment of the property which it conceded to be taxable; but its waiver extended no farther. State v. Hoffman, 109 Tex. 133, 201 S. W. 653.
Nor is
It was necessary for the plaintiff to plead and prove a valid assessment. Under its general denial defendant had the right to dis-
To hold that the statute applies to a defense of such a nature would render the statute unconstitutional. Vance v. Town of Pleasanton (Tex. Civ. App.) 261 S. W. 457; Id. (Tex. Com. App.) 277 S. W. 89; Geffert v. Yorktown, etc. (Tex. Com. App.) 290 S. W. 1083; Masterson v. Town of Hedley (Tex. Civ. App.) 265 S. W. 406.
That
Nor is there any merit in the contention that the action of the board of equalization in approving the assessment has any controlling effect upon the question at issue. The invalid assessment made by the assessor was not validated by the board‘s action in approving same. Such action is not within the scope of the authority conferred by the statutes upon commissioners’ courts sitting as boards of equalization.
For want of a valid assessment, collection of taxes sued for cannot be enforced, and, the case having been fully developed, the judgment is reversed and here rendered in defendant‘s favor.
Reversed and rendered.
On Rehearing.
Counsel for appellee, in their motion for rehearing, in some respects seem to misapprehend the effect of our opinion. They assume we hold that when a taxpayer omits property from the inventory tendered to the assessor, the assessment of such omitted property must be made by the board of equalization. It is further assumed we hold the taxpayer has the right to determine the taxable status of his assets, and what portion of his property shall be assessed. No such rulings have been made, and there is nothing in the opinion to support such a view.
Counsel complain of our failure to discuss some of the cases cited by them in support of the validity of the assessment here involved. They particularly rely upon Moody v. City of Galveston, 21 Tex. Civ. App. 16, 50 S. W. 481, 482; Blewett v. Richardson Independent School District (Tex. Com. App.) 240 S. W. 529; and Haynes v. State, 44 Tex. Civ. App. 492, 99 S. W. 405.
These cases were considered and not regarded as in point. For that reason it was not considered necessary to comment upon them.
We will now briefly discuss same. In the Moody Case, the taxpayer, upon the inventory tendered by him, listed “Credits, cash, office furniture, etc., $20,000.” This valuation the assessor refused to accept, and listed and valued the same at $200,000, and placed the same upon the unrendered roll, and submitted the same to the board of equalization which gave the required notice to the public.
We regard the Moody Case as one where the taxpayer omitted to inventory and list a portion of his taxable property, and in such case it was the duty of the assessor to inventory same and place such omitted property upon the unrendered roll. In that case the procedure prescribed by the statutes in the case of unrendered property was observed.
Blewett v. Richardson, etc., is a case where certain taxpayers refused to render their property. The facts are not very fully stated, but it seems the assessments were made as in cases of unrendered property.
Haynes v. State was another case of unrendered property which was placed upon the unrendered roll by the assessor. It was held that the statute imposing upon the assessor, in such cases, the duty of first listing the property, is directory, and the failure to so list the same did not invalidate the assessment in the absence of a showing by the taxpayer that he suffered by the omission.
The distinguishing feature of these three cases is that they involved assessments of property which the taxpayer had omitted to render; which property was rendered and assessed by the assessor and placed upon the unrendered roll as the law requires shall be done when property is not rendered by the taxpayer.
In the present case the assessor did not follow the procedure prescribed in such cases. He rejected the lists and inventories tendered by appellant, made lists and inventories of his own, and carried the same forward upon the rendered rolls.
In the original opinion it was held that the real difference between the assessor and the appellant was as to the true value of the latter‘s assets, and if the deductions claimed on the listings were not properly deductible the commissioners’ court, functioning as the board of equalization, had the authority to correct defendant‘s listings by eliminating the deductions and thereby increase the valuation of the taxable assets. Ferguson v. Steen (Tex. Civ. App.) 293 S. W. 318, supports the view that such a correction may be made by the board of equalization.
If the true issue between the assessor and defendant was not over the proper valuation, then, the case is one of failure on the part of appellant to inventory all of its taxable assets. It is then a case of assets omitted, and the assessor should have proceeded as in the case of unrendered property and placed the omitted assets upon the unrendered roll in the name of the defendant.
It is perhaps advisable for us here to consider more fully the right of the taxpayer to insist that the statutory provisions governing assessments against his property be sub-
“Necessity for Assessment. An assessment, when taxes are to be levied upon a valuation, is obviously indispensable. It is required as the first step in the proceedings against individual subjects of taxation, and is the foundation of all which follow it. Without an assessment they have no support, and are nullities. The assessment is, therefore, the most important of all the proceedings in taxation, and the provisions to insure its accomplishing its office are commonly very full and particular.
“Mandatory Requirements. The assessment being so important, the statutory provisions respecting its preparation and contents ought to be observed with particularity. They are prescribed in order to secure equality and uniformity in the contributions which are demanded for the public service, and if officers, instead of observing them, may substitute a discretion of their own, the most important security which has been devised for the protection of the citizens in tax cases might be rendered valueless.”
In 26 R. C. L. p. 355, it is said: “All those provisions which are intended for the security of the citizens, for insuring an equality of taxation and to enable everyone to know with reasonable certainty for what real and personal estate he is taxed and for what all those who are liable with him are taxed are conditions precedent and if they are not observed he is not legally taxed.”
In the Vance Case ([Tex. Civ. App.] 261 S. W. 457, and [Tex. Com. App.] 277 S. W. 89), from which we quote in the main opinion, this constitutional provision is referred to, and it was held that in obedience thereto taxable values must be ascertained in the manner provided by law.
In the case at bar, if the difference between the assessor and defendant was one of valuation, then the statutory method of adjusting such difference was not observed.
On the other hand, if it is a case of property omitted by the taxpayer from his inventory, then it was unrendered property, and the statutes governing the assessment of unrendered property were not observed.
The inventory for the year 1926 tendered by appellant‘s agent, Jalonick, was not verified by his oath, and the one for 1927 not signed by him. We attach no importance to this defect because it had nothing to do with the assessor‘s rejection thereof. Jalonick made every effort to secure acceptance thereof by the assessor, and he was evidently willing to sign and verify same. The assessor‘s refusal to accept same was due solely to the deductions which Jalonick claimed were properly deductible.
If Jalonick had refused to sign and verify the inventories it would have authorized the assessor to treat it as a refusal to render the appellant‘s property and to assess the same as unrendered property, as was done in the Moody Case, supra.
In its motion appellee presents the point that no costs should be taxed against it, and we think this is well taken.
The motion for rehearing is overruled. No costs will be taxed against the appellee, but it is ordered, in behalf of the court officers, that all costs incurred by appellant in the court below and upon appeal be taxed and adjudged against it.