142 S.W.2d 385 | Tex. App. | 1940
This was an action in the district court of Liberty County by appellee, The State of Texas, against appellants, Mr. and Mrs. B. H. Willis, as owners, and certain other parties as lienholders, to foreclose a tax lien on about 17,000 acres of land in Liberty county for the years 1935 and 1936. By their answer, appellants raised the following defensive issues: (1) In raising the values placed upon the land by them in their rendition, the Board of Equalization of Liberty county “employed and followed an arbitrary rule or scheme in arriving at such increased values” ; (2) The tax assessor of Liberty county received and accepted the renditions made by appellants, and the values placed by them upon the property, without noting on the rendition sheets a different value — because of that fact the Board of Equalization was without jurisdiction “to raise the values placed upon the property” by appellants; (3) The Board of Equalization, in its hearing on values, had no evidence before it except the testimony of appellant, B. H. Willis, in support of the rendition made by him, and, the action of the Board in raising the value was without support in the evidence; (4) The Board discriminated against appellants in raising their -valuation, which denied them the
On trial to the court without a jury, judgment was for appellee in the sum of $13,904.43, total amount sued for, from which appellants duly prosecuted their appeal to this court.
As their assignments of error, appellants have brought forward the propositions as numbered above, constituting their special defenses. They also assign that the delinquent tax record, as introduced in evidence, was insufficient to support the judgment, and there was “no proof that any tax was levied by the Commissioners’ Court of Liberty county for the years in issue in this suit.”
We pretermit a discussion of all assignments except that in raising appellants’ values, as evidenced by their rendition sheets, the Board of Equalization employed and followed “an arbitrary rule or scheme.” It was the contention of appellants that the Board of Equalization of Liberty county had an arbitrary rule t>r scheme “to the effect that acreage property was assessed at a maximum of Ten Dollars ($10.00) and a minimum of Five Dollars ($5.00) per acre without reference to whether or not it was improved land, without reference to its location, but agricultural land, grazing land, and commercial timber lands were assessed at Ten. Dollars ($10.00) an acre, marsh lands, cut-over timber lands, and sandy lands at Five Dollars ($5.00) per acre.” The evidence on that issue was as follows:
On the trial, the county judge of Liberty county, who was of counsel for appellee, made the following statement in open court as an incident of the trial, “We agree in so far as Ten Dollars ($10.00) being the maximum, Your Honor.”
W. W. Jett, tax collector of Liberty county, after identifying the renditions made by appellants for 1935 and 1936, testified that the Board of Equalization raised “practically all” of appellants’ renditions for the years 1935 and 1936; that he did not make any recommendation to the Board, and did not place any different value on the property; that the Board, in equalizing the value of the property for 1935 and 1936, followed an old set rule which had been in use for many years — that the maximum value placed on acreage was $10 per acre. We give his. testimony on this point (Q. & A. reduced to narrative) : “I know from my own knowledge and from my appearance before the Board of Equalization that they have an old set rule as to a maximum valuation for real estate in Liberty county, which was in effect in the years 1935 and 1936. Under this rule the agricultural part was not considered as much as prairie and timber — ■ prairie and timber land. The maximum valuation placed on timber land' was, as á rule, $10.00 p'er acre, regardless, and the minimum valuation- was $5.00 per acre. The Board tried to follow that rule regardless of whether it was $5.00 land; it made no difference. The Court’s idea was that anything that was prairie land was worth $10.00 per acre whether it was in the north, south, or east part of the county. The Board put a $10.00 valuation on the land if it was virgin timber, I mean that no property at all in the county was taken at a value — farm lands, lands outside of town — none was taken at a value of more than $10.00; if it was it was mighty little. All the land, irrespective of whether it was used for cultivation or grazing purposes, all was supposed to be taken at the uniform value of $10.00, but it was not always; where they knew it was prairie land; they took it for $10.00 — sometimes they would think it was in timber when it wasn’t.. I am not acquainted with Mr. Willis’ land and the land in that vicinity; I tried 'to go over that lower prairie, but that boggy pasture — impossible to go over that. I went behind them in sea marshes and bogged down.”
Mr. C. P. Jackson, one of the Commissioners and a member of the Board of Equalization for the years 1935 and 1936 testified (Q. & A. reduced to narrative) : “During the years 1935 and 1936, the Board of Equalization continued a previously adopted rule as to a maximum value to be placed on real estate in Liberty county outside of towns and cities; the maximum value was $10.00 per acre, the minimum value $5.00 per acre. After we arrived at a valuation, we took 60% of that valuation for the application of the. tax rate. The $10.00 maximum valuation applied to prairie lands, farm lands, and commercial timber land. The $10.00 maximum applied to all lands within the county coming within that classification- regardless of location, and regardless of im
We take from appellants’ brief the following summary of the testimony of Mr. Lewis Tanner, deputy tax collector of Liberty county: “He identified the record of assessments of property in Liberty County owned and rendered for taxation by the owners or agents for the year 1935, identified the Winnie Wickliffe tract in .the James Martin 140 acres, which was assessed by the Board of Equalization at Fourteen Hundred Dollars ($1400) ; valuation for the year 1935. That the Vera M. Slay 112 acres was assessed at Eleven Hundred Twenty Dollars ($1120.00) for the year 1935; that the Andrew Bell two hundred acres in the Coronado survey was assessed at Two Thousand Dollars ($2000) for the year 1935; that the Harrison and Mecom tracts of 167 acres in the B. C. Franklin Survey were assessed at Sixteen Hundred Seventy Dollars ($1670); that that property is located just this side of the Fair- Grounds just off of Highway 90; that Mrs. Slay’s land is a mile from Liberty on Highway No.. 146. And with reference to the same records for 1936, the Wickliffe 148 acres in the James Martin were assessed at Fourteen Hundred Dollars (1400); Mrs. Vera Slay’s 111 acres at Eleven Hundred Twenty Dollars ($1120); Andrew Bell 200 acres at Two Thousand Dollars ($2000); Harrison and Mecom 167 acres in the B. C. Franklin at Sixteen Hundred Seventy Dollars ($1670) ; A. C. Neyland 32 acres in the B. C. Franklin at Six Hundred Dollars ($600). That those were the final valuations upon which the property was accepted by the Board of Equalization, for taxation. That there are about sixteen thousand tracts of land in Liberty County. Lewis Tanner, being recalled as a witness for the State, identified an original map of a part of Liberty County and testified that he had gone through and identified some of the land on the valuation book; that the Meacham 320 acres were rendered at Sixteen Hundred Dollars ($1600) Five Dollars ($5.00) an acre; that this land was in the V. Barrow. The Davis tract of land of 805 acres was entered at Eight Thousand Fifty ($8050), Ten Dollars ($10.00) an acre, which is around or near some of Mr. Willis’ land; that the J. S. Cullinan in T & N O 15, of 639.46 acres was rendered at Six Thousand Three Hundred Ninety Dollars ($6390), Ten Dollars ($10.00) an acre. That it is in close proximity to Mr. Willis’ land. That some joins it above and some of it to the west. The Charley Welch 640 acres in T & N O 11 was rendered at Sixty-four Hundred Dollars ($6400); which is Ten Dollars ($10.00) an acre. That it is near some of Mr. Willis’ land, joins some of it. That the J. S. Cullinan 310 acres in T & N O 313 was assessed at Thirty-one Hundred Dollars ($3100) or Ten Dollars ($10.00) an acre, which is right near Mr. Willis’ land. The W. S. Swilley Railway Survey Ño. 17, 320 acres was assessed at Thirty-two Hundred Dollars ($3200), or Ten Dollars
We take from appellants’ brief the following summary of the testimony of J. M. Rich: “Mr. J. M. Rich, a witness for the defendants, testified that he had lived in Liberty County about all his life; that his business was real estate, farming and stock raising; that he had been in the real estate business for the last twenty or twenty-five years; that practically all of his activities had been in Liberty County, and that he had become familiar with the values of real estate in Liberty County during the last twenty years; that he had been to Hardin, Romayor, Cleveland, Dayton, Esperson Dome, and different places over the county; that he was familiar with the location of the tract of land owned by S. S. Wickliffe on Highway No. 3, east of Liberty in the James Martin Survey, commonly known as the golf course, and that he would certainly say it was worth Fifty Dollars ($50.00) an acre. That he was familiar with the class of land in the Coronado Survey, the Andrew Bill farm on Highway No. 146 containing over two hundred acres, and that the cultivated area of that particular tract was worth conservatively, Twenty-five Dollars ($25.00) an acre, maybe higher than that. That he was familiar with the tract of land known as the Mecom Subdivision located on the Wallisville Road in the Franklin Survey; that he would consider it almost city property, and that in 1935 and 1936 it was worth One Hundred Dollars ($100.00) an acre, some of it, not all of it. That he was also familiar with the Allen Neyland property where George’s Cafe is located, also in the B. C. Franklin Survey, and that he would say that it was about the same price, basing it entirely on its proximity to the city and highway. That he was acquainted with .the tract of land at the foot of the hill adjoining the town of Dayton on the eastern part of the South Liberty Town League, at one time known as the Fred Barton League, and that its value would be from Fifty Dollars ($50.00) to One Hundred Dollars ($100.00) an acre for the same reason, close to town. That in arriving at valuations, he takes into consideration the proximity of the property to settlements, churches, schools, and things like that, and that there is a great deal of property in Liberty County along Highway No. 3 and along Highway No. 146 and along the highway leading from Raywood to Hull, and other improved highways in the County, that have similar values; that for example the Allen Neyland property, which he has identified in the B. C. Franklin Survey, is more valuable than the tract of land located 'in approximately the southeast corner of Liberty County; that the Ney-land property in 1935 and 1936 was worth three or four times as much as land located down there in Mr. Willis’ tract of land; that he knows where Mr. Willis’ lands are and that he is familiar with them, and, while it will raise just as much rice, it is less valuable than similar lands located on Highway No. 61 between Dev-ers and Anahuac. That in fixing valuations he takes into consideration the character of improvements on the property, and, all other things being equal, stuff close to Devers and Raywood, would be worth more than stuff in the southeast corner; that all rice lands in Liberty County are not of uniform market value; that the availability of water would have a lot to do with the worth; that lands with the minerals reserved of a one-thirty-second to a one-sixteenth reserved would not be worth as much as lands of no reservations, but he did not know how to fix the value. That he knows the general character of the lands in the southeastern part of Liberty County, some of it is prairie and some
We take from appellants’ brief the following summary of the testimony of appellant, B. W. Willis: “Defendant B. H. Willis testified that he was acquainted with the values of the property he rendered for taxation for the years 1935 and 1936; that he had bought property in that vicinity; that the values he placed upon his property in his renditions represented the reasonable market value; that he had various types of land; about four-fifths to five-sixths of it being prairie and one-sixth scrubby timber and some of it fairly good timber, but all cut-over in the last twenty years; that five-sixths prairies land is possible agricultural land, some of it without drainage, some of it, back down next to Double Gum, low, wet, and boggy, hardly get in and out at all. That for two or three months in the winter can’t get in and out with the school bus at all, it being property where a road used to go through called Willis’ Lane and Devers’ Woods, where they had such bad places in the highway; that it isn’t all the same class of property but is all pretty close together, being in about the same neighborhood; that during the years 1935 and 1936 it was mostly impossible to get in and off the lands from the concrete highway; that the roads back_ through the property could be travelled in good weather but not in bad weather;- that about sixty to seventy percent of the time you could go most anywhere but about 25% of the time you could go only where you have hard surface roads, and that .25% of the time the lands are not accessible by trav-elled highways, and that such condition made the lands much less valuable. That most of his land lies south of the concrete highway and that the entire lands for the years 1935 and 1936 were in that condition. That the country is sparsely settled. That he has some improvements on his property and that the children living in that vicinity and on his property could not get to school during wet weather; that there were no schools in 1935 and 1936,
Mr. D. M. Kelly, one of the County Commissioners, testified (Q. & A. reduced to narrative):
“I know of no land in Liberty county that we valued for less than $5.00. It is pretty hard to say definitely whether we placed more than $10.00 on any farm land; probably might be some, taking into con*392 sideration the improvements, we put more on than $10.00. It was not the general policy of the Board to place a value of $10.00, or a value of $5.00 on all land. Where part of the land was worth $10.00 and a part was worth $5.00, we arrived at some intermediary value, some value between $10.00 and $5.00, in order to equalize the value of the whole tract. We have lots of land in Liberty county we valued I would say ranging from $5.50 to $8.00 on up to $10.00. In fixing the values we tried to place a reasonable value on all properties alike. We did not deliberately or maliciously discriminate against Mr..Willis’ land; we tried to treat him as we treated the other tax payers, and the final value placed on his property was arrived at in the exercise of our honest judgment. Well, most of the property — we accepted acreage where a man had his home if he had 60 acres or 100 acres the land was his farm, we taken that land generally at $10.00 an acre. As far as I remember, I do not believe we have raised any of the values along the highways any more than other places I know of, except in close to the city properties and lots, etc. We didn’t have an absolute rule that prairie land and farm lands went on the rolls at $10.00 an acre or that cut-over lands went on the rolls at $5.00 an acre.
“Q. You said there was an absolute rule that farm lands and prairie lands went on the rolls at Ten ($10.00) Dollars an acre. I am asking that question, now, with reference to tracts of land entirely farm land or entirely prairie land. In other words, if a man owned a tract of land a hundred (100) acres, all in cultivation, what was the rule of the Court with reference to valuation? A. We generally put that on at Ten ($10.00) Dollars.
“Q. You say you generally did it. Didn’t you always? A. I might say ‘yes’, and I might make a mistake. I don’t know all the tracts of land. Some man might bring in a hundred (100), and we might render it Seven ($7) Dollars or Five ($5) Dollars, not knowing it was all in cultivation.
“Q. How long were you on the Court? Four (4) years? A. Six (6) years.”
From the testimony in the record, we think it conclusively appears that the Board of Equalization of Liberty county, in assessing values on acreage land, operated under an old rule of a $10 maximum and a $5 minimum, and that regardless of improvements and of the location of the property. It appears that Liberty county has many miles of concrete roads, and that the acreage on these roads, even as far back as two miles, has a much greater value than land off the roads. But it appears that such land is assessed on the same basis of value as lands remote from the roads. It also appears that land near the towns and cities in Liberty county, having a high value of $100 per acre, was assessed under the general rule. Under the general rule, land not worth fifteen cents an acre was assessed at a minimum of $5 and land worth more than $100 was assessed at the maximum of $10. Article 8, § 1, of the Constitution, Vernon’s Ann. St., provides that “taxation shall be equal and uniform.” Our courts have uniformally condemned assessments made under a general rule or scheme whereby property, regardless of its location, or situation, or market value, is assessed at the same general valuation. In Rowland v. City of Tyler, Tex.Com.App., 5 S.W.2d 756, 757, 760, Judge Leddy said:
“If, as is held, the reasonable cash market value is the true criterion, then it follows that if a board of equalization adopts a plan or scheme which is fundamentally wrong by which values are arbitrarily determined, then the plain provision of the Constitution has been violated. * * * The courts have frequently, and we think properly, condemned the action of boards of equalization in taking any one particular element as a rigid standard by which values of real estate shall be determined. The true value of real estate cannot be arrived at unless equalization boards give consideration to all proper elements that are determinative of the market value thereof. The decision in the case of People ex rel. Fitchburg Ry. Co. v. Haren, 50 Hun 605, 3 N.Y.S. 86, clearly states the true rule that should guide such boards in valuing real estate for purposes of taxation, wherein it is said:
“ ‘Many considerations must have a share in determining this value. Among them are 'actual sales of the property, or of similar property, and the earning capacity of the property itself. No one consideration is conclusive. All may be properly taken into account. Sometimes houses of large cost will rent for only a small interest on the cost and on their value in the market. Other kinds of real*393 estate may bring a large income upon their cost and on their value in the market. So that to take the earning capacity as the sole measure would be incorrect, while yet it may properly have its influence.’ ”
See, also, Constitution of Texas, Art. 8, Sec. 18; R.S.1925, Art. 7206; Ogburn v. Ward County Irrigation Dist., Tex.Com.App., 280 S.W. 169; Rowland v. City of Tyler, Tex.Com.App., 5 S.W.2d 756; State v. Richardson, 126 Tex. 11, 84 S.W.2d 1076; Lively v. M. K. & T. Ry. Co., 102 Tex. 545, 120 S.W. 852; Nederland Independent School Dist. v. Carter, Tex. Civ.App., 93 S.W.2d 487; Poteet v. W. T. Waggoner Estate, Tex.Civ.App., 96 S.W.2d 405; Howth v. French Ind. School Dist., Tex.Civ.App., 115 S.W.2d 1036 (See also Opinion by Commission of Appeals this case, 134 S.W.2d 1036, not yet [Reported in State Reports]); Power v. Andrews, Tex.Civ.App., 253 S.W. 870; Garza Land & Cattle Co. v. Redwine Ind. School Dist., Tex.Civ.App., 282 S.W. 905; Brown et al. v. First National Bank of Corsicana et al., Tex.Civ.App., 175 S.W. 1122; Slaughter v. Sundown Ind. School Dist., Tex.Civ.App., 41 S.W.2d 478; Santa Rosa, Inc. v. Lyford Ind. School Dist., Tex.Civ.App., 78 S.W.2d 1061. On the authorities cited, it necessarily follows that the judgment of the Board of Equalization, raising the rendition values as fixed by appellants, on their property for the years 1935 and 1936, is void and must be set aside.
On our judgment declaring unlawful the action of the Board of Equalization in raising the assessment on appellants’ property, the law declares that the original assessment of the property made by appellants determines the amount of taxes due by them. On this proposition, speaking for the Supreme Court in State v. Richardson, 126 Tex. 11, 84 S.W.2d 1076, 1078, Judge German said: “It is well settled that if a rendition of property be made by the owner, and if the board of equalization by adopting some arbitrary standard, or by failing to hear evidence, or in some other respect fails to follow the provisions of the statute (see articles 7211 and 7212 of the Revised Statutes of 1925), fixes a value that is illegal and is afterwards set aside, the taxpayer’s original rendition prevails as a basis upon which taxes are to be paid. Brundrett v. Lucas (Tex.Civ.App.) 194 S.W. 613; Rowland v. City of Tyler (Tex.Com.App.) 5 S.W.(2d) 756; Ramey v. City of Tyler (Tex.Civ.App.) 45 S.W.(2d) 359. In such case, if the taxpayer has made timely tender upon the basis of his rendition, he cannot be required to pay interest and penalties. Ramey v. City of Tyler, supra.”
On the issue of “tender” by appellants, we quote as follows from their answer:
“The defendant, B. H. Willis, has repeatedly offered to pay his taxes based upon his re'nditions, but the plaintiff has always refused to accept same, though defendant has tendered payment thereof before they became delinquent, and the defendant here and now tenders into court the payment of the taxes due upon his said property in accordance with the renditions heretofore made by him and hereby referred to.
“Wherefore, defendants pray that the valuations placed upon defendants’ property, as alleged in plaintiff’s petition, be canceled, annulled, and held for naught; that the renditions as made by the defendant, B. H. Willis, be taken as a basis for calculating the taxes due thereon, which the defendant, B. H. Willis, here now offers to pay and tenders into Court, and defendants further pray for general and special relief, to which they may be entitled, for costs of suit, etc.”
Appellants have not brought forward in their brief any testimony to the effect that they made timely tender for the taxes due on their rendition. So, though appellants are due only the taxes on the rendition made by them, it must be held that they were delinquent in paying such taxes and judgment should be against them for the amount of the taxes, as per their rendition sheets, and on these taxes they should be charged interest and penalty. The clerk is directed to make the proper calculation as to the amount of taxes, interest, and penalty so adjudged against appellants, and to enter .judgment accordingly.
The judgment of the lower court will be reformed, and as reformed here rendered against appellants in favor of appellee for the amount of taxes due on the basis above stated.
Reformed and affirmed.