Morris v. State , 47 Tex. 583 ( 1877 )

Moore, Associate Justice.

If there was any defect in the original petition which could have been reached by a general demurrer, it was unquestionably cured by the amendments filed by appellee before the case came to trial. The motion in arrest of judgment was, therefore, properly overruled.

The objection that the certified transcript from the books of the comptroller of public accounts, showing a statement of account between the State and appellant, W. H. Morris, was not admissible in evidence, because said accounts are not the character of accounts- contemplated in the statute under which said transcript was admitted in evidence, is untenable. But if the objection was well founded, as it was not made in the court below, appellants cannot insist upon it here. If the objection had been taken in the District Court, we cannot say that the facts sought to be established by said transcript would not have been proved by other competent and satisfactory evidence.

The appellants made no objection whatever to the introduction in', evidence of the statement from the comptroller’s office, but objected merely to the validity of some of the entries in the account. • These objections went rather to the effect of the statement than to its admissibility in evidence. The items of the account to which exception was taken were, first, to the item of $1,324.46, charged on the account of 1871 as collectable on the assessment for 1870, for frontier bond tax, because the levy of said tax was not authorized by any particular person or body, or for any particular amount or rate, and because the statute under which said tax was claimed to have been levied was void and inoperative by rear-son of its uncertainty; and, second, to the item of $1,687.50,-charged "in the statement of account for'1871 as justices’ fees and commissions collected by appellant Morris.

The validity of these items as charges against appellants aré presented for our determination, not only by the objections to the certified transcript from the books and records of the comptroller, but also by exceptions to the instructions given by the court to the jury, and to its refusal to give the several charges asked by appellants in reference to the same-matters.

If the validity of the frontier bond tax charged on the appellant Morris’s account for 1871,- as collectable on the assessment of property and occupations, as made under'the general laws' of the State for the year 1870, was in question between the collector and the tax-payer, the objections which appellants made to this tax would unquestionably be well taken, and should be sustained. But the question-before us is altogether different from that which wé would be called upon to decide if this was a suit to enforce the payment of the tax by-' the tax-payer, or involved the title of property sold by'the-sheriff for its payment.' We are not" called upon to' determin é whether the individual tax-payer can be coerced into the payment of this tax, but whether the collector can, as against the’ State, hold on to the money thus collected under color of law', admitting the levy to have been illegal, and the collection of the- tax,- as against the tax-payer; to have been altogether unwarranted. The proper answer to such a proposition, evidently, can admit of no controversy or dispute. Unquestionably, when an officer has collected taxes for the State, under color of legal authority, or under pretense that he is authorized to do so, he will not be heard to controvert the validity of the law or authority under which he has acted, or dispute the right of the State to money thus coming into his hands'. Hence, the court, did not err in instructing the jury that the legality or illegality of the tax was not a question for their determination in this case. Appellants were, unquestionably, liable for the full amount of taxes with which Morris was chargeable on the assessment rolls, or which he was in any way otherwise authorized to collect, and which he failed to pay into the treasury, or which he fails to show by the delinquent list, or by other satisfactory evidence, remained uncollected when he went out of office, and with which his successor is properly chargeable.

The objection to the amount charged on the account for 1871, for commissions and fees for justices is equally unfounded. If is not controverted that this tax was imposed by the 30th section of the tax law of April 22,1871; but appellants claim that, as it is shown that the assessment roll for the year 1871 was not lodged in the office of the comptroller until the 9tli of October, 1871, and as said 30th section of the act of April 22, 1871, was substituted and repealed by the act of the 29th of ¡November, of the same year, that it should be inferred that this tax was never collected. But the conclusion insisted upon certainly cannot be legitimately inferred from the premises from which it is sought to be deduced. The sheriff was not forbidden to collect the taxes, until a copy of the assessment roll had been lodged in the office of the comptroller. The time at which he should enter upon the discharge of this duty was fixed by law. The duty of making and transmitting a copy of the roll to the comptroller did not devolve upon him; but if it was conceded that he could not or did not commence the collection of taxes until after the return of the roll to the comptroller, certainly there was still ample time within which a large portion, if not the entire amount of the tax, might have been collected, between the deposit of the roll with the comptroller and the repeal of the law requiring the sheriff to collect the tax in question; and if the whole, or any part of it, was uncollected when the law was repealed, it devolved upon appelants to show it. And we may here remark, that appellants claimed and were allowed credit for so much of this tax, as well as the frontier bond tax, as had not been collected by Morris when he went of office.

The court did not err in refusing to charge the jury to allow appellants credit for commissions for collecting the additional amounts of taxes "which had been paid by Morris since .the account upon which the suit was brought had been made up by the comptroller. There was nothing in the answers of the defendants, or in the proof adduced on the trial, to call for or warrant the charge. If the sheriff was entitled to commissions on the additional amounts paid into the treasury, he should, and in all probability did, at the time such payments were made, get a warrant for the same, upon which his commissions have been, or may yet be paid him. He seems, however, by his failure to settle his accounts with the treasurer as prescribed by law, to have forfeited all claim to commissions. (Paschal’s Dig., art. 7694.) And certainly in an action of this Icind, before such credit can be allowed, it should have been presented to and passed upon by the comptroller. (Paschal’s Dig., art. 7695.) Evidently appellants have no cause to complain of a want of liberality on the part of appellee or the court, in giving them the benefit of all payments, credits, and offsets to which they showed themselves in any way entitled.

The court, of its own motion, gave judgment for ten per cent, upon, and in addition to, the amount of damages assessed by the jury. Ho judgment of this character is suggested or asked for by appellee, either in the original or amended petition. We have been cited by counsel to no statute authorizing it, and none such has come under our observation. The 2d section of the act of April 28,1878, authorizes a judgment of five per cent, per month against the sheriff and his sureties on the amount of indebtedness found to be due and owing in such actions from the time the same is found to have been due; and it insisted for appellee, as the judgment rendered is not so onerous as it might have been if this statute had been followed, appellant has no just cause of complaint. (Paschal’s Dig., art. 7694.) But it seems quite evident, that neither the verdict nor judgment conforms to the requirements of this statute, and we do not feel authorized to mould the judgment so as to fulfill them. The judgment of the court in this particular is not supported by the verdict, or warranted by law.

It is therefore ordered that the judgment be reversed, and that judgment be here rendered against appellants in favor of appellee for the amount found by the jury; and that all costs incurred in this court and in the court below, be taxed against appellee.

Reversed and remanded.