Cattle and Land Co. v. Love , 2 Tex. Civ. App. 385 ( 1893 )

By this suit appellant, as the nonresident owner of a large body of land in Borden County, sought to enjoin the collection of the tax levied and assessed against said land for the year 1891, by the proper officers of Borden County. A preliminary injunction was granted, and afterward upon final hearing was dissolved; hence this appeal.

The case was tried before the court without a jury, on an agreed statement of facts, about which there is no controversy, and upon which the district judge filed separate conclusions of law and fact. From these conclusions and the agreed statement, it appears, that Borden County was duly organized on the 17th day of March, 1891, and that her duly elected officers qualified on April 1, 1891, at which last named date the tax assessor of Howard County, to which Borden had been up to that time attached for judicial purposes, had not begun to assess the taxable property of the latter county. That the assessor of Borden County, after the Commissioners Court had levied a tax, and prior to June 1, proceeded to assess all taxable property in said county for the year 1891, and to this end gave timely notice to the duly authorized agent of appellant, a nonresident of said county, to render these lands for taxation, which he refused to do. Thereupon the assessor placed these lands upon the un-rendered tax roll, valuing them at $2 per acre, which valuation was approved by the board of equalization. It appears that the acts of the different officers of Borden County in levying, assessing, and proceeding to collect these taxes were in all respects regular.

In January, 1891, the aforesaid agent of appellant handed to the Comptroller a list of said lands, without valuation and not under oath, with the statement that said list contained all of appellant's lands situated in Borden, Dawson, and Garza counties. The State Board of Equalization valued all lands in unorganized counties at $1.50 per acre.

On the 30th day of December thereafter, said agent offered, for the first time, to pay to the Comptroller the taxes claimed to be due on these lands, as per the rendition made to him as aforesaid; but the Comptroller declined to issue receipts for taxes on lands situated in Borden County, stating as his reason therefor that it was an organized county, and returned to said agent the money so refused.

Appellant offered to pay appellee as tax collector of Borden County the amount of taxes appearing to be due on said lands for said year, as the same was extended by the Comptroller upon the basis of paying taxes upon lands in unorganized counties by nonresidents, and refused to pay the amount as shown by the assessment rolls of Borden County.

Error is assigned upon the conclusion of law, upon which the judgment appealed from seems to be founded, that appellant had not made a valid rendition of its lands to the Comptroller prior to the organization of Borden County. We are not prepared to hold that the failure on the part of appellant to place the value upon its property or to swear to the list rendered the assessment invalid, provided the Comptroller accepted the rendition without objection on these grounds. Rev. Stats., art. 4706.

We are, however, of the opinion that the judgment must be sustained upon the broader ground, that upon the organization of Borden County and the levy and assessment of State and county taxes by the proper officers of that county within the time prescribed by law, the power of the Comptroller to proceed any further in the assessment and collection of taxes in Borden County was arrested. Const., art. 8, secs. 11, 12; Rev. Stats., arts. 4728, 4728a, secs. 1-6, 14-16; Folkerts v. Powers,42 Mich. 285.

It seems to us, that in making the rendition to the Comptroller, appellant must be held to have contemplated, that under the Constitution and laws of this State, Borden County might become an organized county and assess and collect taxes, both State and county, for the year 1891. The organization and assessment having been accomplished prior to the 1st day of June of that year, appellant was not justified in refusing, after receiving timely notice, to bear its proportion of the burden of taxation; and there is nothing in its case which appeals to the equity powers of the court. If it had paid the taxes to the Comptroller prior to the organization of the county, a different question might be presented; the mere acceptance by the Comptroller of the list tendered did not, we think, exhaust the taxing power for that year.

It follows that the judgment must be in all things affirmed.

Affirmed.