141 Tex. 224 | Tex. | 1943
delivered the opinion of the Commission of Appeals, Section A.
This is a tax suit. It is the fourth in a series of lawsuits between Highland Park Independent School District, respondent, and Republic Insurance Company, petitioner. The first suit was for taxes for 1926 and 1927. It was terminated by the opinion of the El Paso Court of Civil Appeals reported in 57 S. W. (2d) 627 (error refused, 122 Texas 677). The second involved taxes alleged to be due for 1933. The opinions on appeal appear in 80 S. W. (2d) 1053 (Civ. App.), and 129 Texas, 55, 102 S. W. (2d) 184. The third was for 1934 taxes, and the opinions on appeal appear in 123.S. W. (2d) 784 (Civ. App.), and 133 Texas, 545, 125 S. W. (2d) 270.
Petitioner urges fifteen points of error in the judgment of the Court of Civil Appeals. However, we have condensed them into fewer propositions, which we shall consider in our own order rather than in that used by petitioner. In connection with our discussion of these several propositions, we shall state such of the facts as we consider relevant to each.
It is contended, in three points of error, that the back assessment is void because it was made by respondent’s assessor without notice to petitioner and approved by its board of equalization without giving petitioner an opportunity to be heard. Then, as a corollary proposition, it is urged that the Court of Civil Appeals erred in its holding that the district court can validate the assessment. These contentions must be sustained.
It seems undisputed that the assessment in question was made by the assessor without notice and approved by the board of equalization without a hearing. Therefore, we agree with the Court of Civil Appeals that it was void. However, we do not agree with the further conclusion of that court that such hearing can be afforded in a retrial of the case in the district court. The decisions are clearly to the contrary. Assessing and equalizing taxes are not functions of the courts. Electra Independent School District v. W. T. Waggoner Estate, 140 Texas, 483; 168 S. W. (2d) 645. Therefore, the trial court was correct in rendering judgment for the petitioner. However, we affirm that judgment on the sole ground that the assessment is void, and we reform it to show that it is rendered without prejudice to the right of the respondent again to assess and value the property
In view of the possibility of further litigation in this prolonged controversy, it is our duty to consider other questions raised by this appeal.
Petitioner claims it is absolved from any liability for taxes for the year 1923 to 1928, inclusive, because of a certificate issued on October 31, 1940, by the tax collector of Dallas County, covering (besides described real estate) “all the personal property owned by the Republic Insurance Company in the years 1919 to 1940, both inclusive,” in which it is certified “that there are no taxes due or unpaid thereon, and that all taxes, interest, penalty and costs on all the above described property have been paid by the Republic Insurance Company for the years 1919 to 1940, both inclusive and for each all (sic) the intervening years; and for the years 1919 to 1928 both inclusive * * this certificate covers the taxes * *, during said years the • taxes for said district were assessed, equalized and collected by the proper officials of Dallas County.”
This certificate was issued under Art. 7258a, Vernon’s Tex. Civ. Stat., Acts 41st Leg. (1929), 2nd C. S., Chap. 77, p. 153, providing that in any county with a population of 210,000 or more the tax collector “shall, upon request, issue a certificate showing the amount of taxes,” etc., due on the property described therein, and further providing that “when any certificate so issued shows all taxes, interest, penalty and costs of the property therein described to be paid in full to and including the year therein stated, the said certificate shall be conclusive evidence of the full payment of all taxes, interest, penalty and costs due on the property described in said certificate for all years to and including the year stated therein. * * And the introduction of the same (in evidence) shall be conclusive proof of the payment in full of all taxes, interest, penalty and costs covered by the same.” Dallas County at all times involved had a population of more than 210,000, and the above described certificate was introduced in evidence in the trial court. We do not believe that its introduction had the effect to prove, under the facts of this case, that the taxes sued for had been paid.
Aside from the proposition now under discussion and that raised' in its 10th point of error, next considered, petitioner
Likewise we overrule the proposition that the yearly renditions made by petitioner, when accepted by the assessors and approved by the boards of equalization and the taxes paid by, petitioner, concluded its liability for all taxes for the years included. During those jmars petitioner was claiming, as it is here, that the item now sought to be taxed were deductible from its renditions, and they were deducted. If they were not so deductible, it was beyond the power of the taxing officials thus to permit them to escape taxation. If they were illegally deducted, regardless of the manner or reason therefor, the result was exactly the same as if they had never been rendered at all. Republic, Insurance Co. v. Highland Park Independent School District, 129 Texas, 55, 102 S. W. (2d) 184; 26 R. C. L., p. 351, sec. 308. And they thereby fell into the category of “per
In State v. Chicago R. I. & G. Ry. Co. (Com. App.), 263 S. W. 249, cited by petitioner, it was held that when the duly constituted officers have performed all acts necessary to determine the amount of taxes to be paid by a citizen “and the citizen has paid the tax lexied * * * and has, in the form of a tax receipt, received a release of the lien on his property, then, in view of the law that provides that the value placed on the property of the citizen by the equalization board shall be final, and in the absence of any law authorizing a further assessment, we think that any attempt to require the citizen to pay additional tax on the same property on tvhich he has already paid is to deprive a citizen of his property without due process of law.” But petitioner apparently overlooks a statement in that opinion which clearly distinguishes that case from this. It is: “There*is no claim that the railway company * * did not render for taxes each year, all its property in said improvement district.” (Italics ours.) That was a case of all" property rendered but undervalued. This is a case of property omitted from rendition and, therefore, not valued at all.
Here, even if it be conceded that the assessor and board of equalization meant to conclude petitioner’s liability for taxes, the respondent received no benefit from the action of those officials in accepting petitioner’s renditions. Neither was petitioner hurt thereby. Therefore, on no theory can the doctrine of estoppel be invoked, since the tax officials were performing, for their principal, its governmental functions. See City of San Angelo v. Deutsch, 126 Texas, 532, 91 S. W. (2d) 308.
Petitioner insists that the Court of Civil Appeals erred in ‘holding that its debt and liabilities, deducted by it from its renditions as “reserves” were a part of its gross assets and were, therefore, property subject to taxation and assessable as money, to the amount thereof.
We do not here deal with the disputed reserves as “money” because the record indicates that part of them, at least, was in form other than money. We here regard them as property to be assessed by respondent’s assessor, whose valuations thereof are to be reviewed by its board of equalization, followed by proper judicial review, if invoked. These “reserves” have been classi
Of course, any amount claimed as a “reserve” for any year in suit which was actually paid out before that year, is not taxable because, obviously, it was not on hand during that year and, therefore, could not have been a reserve. For example, as pointed out by the Court of Civil Appeals, if the item of $139,-473 listed for the year 1928 as “real estate tax paid other counties” was paid before taxes were levied and made assessable for that year, then it certainly could not be regarded as property on hand, and it was not taxable.
Two other points of error present the tax liability of petitioner’s unearned premium reserve for the years 1923 to 1927, both inclusive. It is conceded by respondent that such reserve is not taxable for the years following 1927 because of the terms of Art. 5057a, R. S., 1925. We do not believe it was taxable even before the enactment of that statute. So long as they remain unearned, premiums paid fire insurance companies can on no theory be regarded as assets of the companies. That is the effect of a statutory declaration, first made in 1875, (1) that fire insurance companies cannot set up dividends except from profits; (2) that “in estimating such profits, there shall be reserved therefrom a sum equal to forty per cent of the amount received as premiums on unexpired fire risks and policies, * * * which amount so received is hereby declared to be unearned premiums.” (Italics ours.) Art. 5036, R. C. S. 1925. Until earned, they belong to the policyholders paying them in, for the future protection of the policies; when earned, they become tax-table as assets of the companies collecting them. See Republic Insurance Company v. Highland Park Independent School District, 129 Texas, 55, 102 S. W. (2d) 184, supra.
Another proposition, presented by two points of error, is that, because of the provisions of Art. 7208, R. S. 1925, the district could not “back” assess taxes in 1934 for the years 1923 to 1928, inclusive, same being then more than two years past due. Pertinent language of that article is: “If the assessor
It was said in Republic Ins. Co. v. Highland Park Indep. Sch. Dist., 123 S. W. (2d) 784, 792, supra, “The district tax assessor is given the -same powers and duties with reference to tax assessments as ‘are conferred by law upon the city marshal of incorporated towns or vilages,’ who, in turn, as to powers (Art. 1147, R. S.) is granted all of the authority that is prescribed in Ch. 5, Title 28, relating to cities, towns and villages.” In that holding the Court of Civil Appeals followed the cases of Blewett v._ Richardson Independent School District (Com. App.), 240 S. W., 529, and McPhail et al v. Tax Collector of Van Zandt County et al (Civ. App.), 280 S. W., 260 (er. ref.). In the former case Judge Gallagher said that the independent school district “was by statute vested with all the powers, rights, and duties in regard to establishing and maintaining- free schools, including the power and manner of taxation for free school purposes conferred by law on the council or board of aldermen of incorporated cities and towns. * * * The manner of taxation so provided for the board of trustees of independent school districts is set out in article 938 to 964, inclusive, of the Revised Statutes, and said articles furnish the rule of procedure except when
Without meaning to pass on its effect otherwise, we think there is some significance to be attached to the last paragraph of' Art. 7343, R. S. 1925. It reads, “All laws of this state for the purpose of collecting delinquent State and county taxes are by this law made available for, and when invoked shall be applied to, the collection of delinquent taxes of cities and towns and independent school districts in so far as such laws are applicable.” (Italics ours.) Thus it appears that the legislature recognized that independent school districts and cities and towns are governed generally on matters of taxation by one group of statutes while the State and the counties are governed by another.
To support its contention that Art. 7208, supra, rather than Art. 1047, supra, limits and defines the power of respondent in “back” assessing its property, petitioner cites the decision of this Court in Republic Ins. Co. v. Highland Park Indep. Sch. Dist., 129 Texas, 55, 102 S. W. (2d) 184, supra, and State v. Cage (Civ. App.), 176 S. W., 928 (er. ref.). In the opinion in the former case (102 S. W. (2d) 184, 187, 188), there are expressions to the effect that article 7208 furnishes the respondent the proper procedure in the back assessment of petitioner’s omitted property. However, a study of the case reveals that such was not the precise question that the court there had for decision, hence any expression there used as to the applicability of Art. 7208 was obiter dictum and is not to be accorded any force as a precedent. In State v. Cage, supra, the county tax assessor, in 1912, “back” assessed bank deposits of the taxpayer for a period of fourteen years. In this he was acting for the state, the county and the independent school district. The county attorney then brought suit in the name of the State for the amount of taxes thus determined to be due. Applying Art. 7208, the trial court held that recovery could be had only for the years 1910, 1911 and 1912, and gave judgment in favor of the
But it is contended that because the respondent had delegated to the county assessor and board of equalization of Dallas County the duty to assess and equalize its taxes for the years 1923 to 1928, inclusive, it could not, by its own assessor, “back” assess them in 1934 for more than two years because the county assessor could not then have “back” assessed them. We see no merit in this contention. We have said that Art. 2791, supra, gives the assessor and collector of an independent school district the same powers and duties with respect to assessing and collecting taxes as are vested in the tax officials of towns and villages. The very next article (2792, R. S. 1925), authorizes the school districts to have, their taxes assessed and collected by the county assessor and collector, or collected only by the county collector, and the only limitation placed upon the county official, when he thus oecomes ex officio assessor and collector for the school district, is that he cannot assess the taxable property in the district at a greater value than that assessed for county and state purposes. We think it is clear that if the legislature had meant that his powers and duties should otherwise be different from those given a duly constituted school district assessor and collector under Art. 2791, the limitation would appear in Art. 2792. Therefore, the county assessor and collector, in discharging his duty to assess and collect for respondent during the years in question, was governed by Art. 1047 and not by Art. 7208, in so far as his power to “back” assess for school taxes was concerned. And, as we have said, if he suffered taxable personal property to be omitted from the rolls during those years, his action was in no wise binding on the school district and did not affect the right and duty of some successor in office to “back” assess it, under Art. 1047.
The judgment of the Court of Civil Appeals is reversed. The judgment of the trial court is reformed as hereinabove stated and, as reformed, the same is affirmed.
Opinion adopted by the Supreme Court April 7, 1943.