Welder v. Sinton Independent School Dist. , 218 S.W. 106 ( 1919 )

Appellant sought to enjoin appellee from collecting a certain sum of money claimed to be due for taxes for school purposes during the year 1918. Other parties — D. Odem, Mrs. Agnes Fleming et al., and B. F. Anderson et al. — filed separate suits against appellee of a like character as in this case, and, although each of the cases has been brought to this court on a separate appeal, it has been agreed that the same brief may be filed in each case, and a decision in this case will perforce decide the appeals in the other cases. In each of the cases the relief sought was denied.

The first, second, and third assignments of error assail the conclusion of the trial judge that G. L. Cellum was a de facto assessor and collector of taxes for the Sinton independent school district, on the grounds that the evidence showed that the attempted and purported action of the school trustees in selecting him to assess the taxes of 1918 was invalid, because he was not selected as assessor and collector of the district, and that Cellum did not act as assessor and collector of the district, but attempted to assess in a purely informal manner and without the color of authority. The proposition is that it is unconstitutional for a person to hold two offices of emolument, and that Cellum was endeavoring to hold the offices of city assessor and collector, as well as the district office of tax assessor and collector of the school district. The conclusion of the court was that, if it was unconstitutional to hold the two offices, the acceptance of the district office operated to vacate the office of city assessor and collector, and that the fact that Cellum held the city office offered no impediment to his taking the district office.

The conclusion reached by the trial court was undoubtedly correct. Cellum did not take the oath of office or give bond as assessor and collector of the school district, but tenaciously held to his office of city assessor and collector. The minutes of the school board showed that Cellum was appointed to assess and collect taxes at a per cent. to be agreed upon, not exceeding 4 per cent. In this connection it may be stated that the fact Cellum was a city assessor and collector could add no validity to, or in any manner affect, his employment to assess and collect taxes for the district; but the appointment must be considered as though Cellum was a private citizen and held no office of any kind, prior to undertaking the duties of assessor and collector of the school district. An acceptance of a second office would not have the effect of destroying the second office, but might destroy the right to hold the first. State v. Brinkerhoff, 66 Tex. 45, 17 S.W. 109.

If it be admitted that Cellum was informally and defectively appointed district assessor and collector, that would not prevent him from becoming the de facto officer, because it seems definitely settled that a person is a de facto officer where he enters into possession of an office and discharges its functions, under color of title or authority, which color of title or authority may be acquired from an election or appointment, however irregular or informal. Ruling Case Law, p. 593, § 313; State v. Oates, 86 Wis. 634, 57 N.W. 296, 39 Am. St. Rep. 912; Waterman v. Railway,139 Ill. 658, 29 N.E. 689, 15 L.R.A. 418, 32 Am. St. Rep. 228; Howard v. Burke, 248 Ill. 224, 93 N.E. 775, 140 Am. St. Rep. 159. Under the special law of March 2, 1917 (Acts 35th Leg. p. 151), the board of trustees of the Sinton independent school district was given authority to choose an assessor and collector of taxes; no method of choice being prescribed, any kind of appointment, evincing a choice of a certain individual for the office, would be sufficient. Cellum accepted the appointment, however informal it may have been, and proceeded to perform the duties appertaining thereto.

The office of assessor and collector of the district existed under the special or local law, and it is held that a person may be a de facto officer, although he fails to take the required oath or give the required bond. Ruling Case Law, p. 597, § 319; Railway Co. v. Bolding,69 Miss. 255, 13 So. 844; Weatherford v. State, 31 Tex. Crim. 530,21 S.W. 251, 37 Am. St. Rep. 828; Brown v. State, 42 Tex. Crim. 417,60 S.W. 548, 96 Am. St. Rep. 806. It cannot be claimed that the appointment of Cellum was void, because it was made by a board authorized to make it. It was merely irregular or informal, which did not affect its validity. Clegg v. State, 42 Tex. 605.

In the case of D. Odem and W. H. Bullard, two of the appellants, the assessment sheets were signed by them; in the case of Anderson, another appellant, the assessment sheet was presented to him, and he refused to sign it. All of the other appellants, consisting of John J. Welder, Frank A. Welder, Mrs. Dora Dunlap, Miss Adeline Welder, and Mrs. Agnes Fleming, were non-residents, and their assessments were copied from the county and city rolls, and they were to all intents and purposes put on the unrendered roll of the school district. After the property had been assessed against the nonresidents of San Patricio county, of which the Sinton independent school district is a part, all of them were notified to appear before the board of trustees, sitting as a board of equalization, to show cause why the assessment on their real estate should not be raised. All of the appellants appeared before the board and entered protests against the raise in the valuation of their land. The assessor, in effect, placed the property of the nonresidents on the roll as unrendered property, and when they were notified of the intention of the board of equalization to raise the value of their lands there was no objection made to the assessment, but only to the increased valuation by the board. The assessments made by Cellum were copies of the assessments made by the different appellants to the county tax assessor of San Patricio county. They have never made any objection to the valuation placed on their property in those assessments. It is admitted in the petitions of appellants that the property in the school district was rendered for taxation to the county assessor for the same values placed on it by the district assessor. The property could have been assessed by the county assessor, had the board so desired. All that could have been obtained by a notice of the assessment from the district assessor was obtained when the appellants were notified to appear before the board of equalization, and did so appear, and did not assail the assessment. This was a complete and full waiver of any irregularities or defects in the assessment of the property, and appellants are estopped to attack the validity of the assessment.

It is the contention of appellant that, as no ways and means are prescribed in the special act for the assessment and collection of taxes, the general laws as to taxation must be consulted; but a different provision from that is made in the act itself and it is provided (section 30) that as to all matters not provided for in the act the board of trustees should have the powers conferred on independent school districts. It is specially provided that the board of trustees of the Sinton independent school district shall be authorized to equalize and fix the valuation of all real and personal property assessed for school purposes, and that it shall not be governed by the valuations fixed for state and county and city purposes; but the county valuation may be adopted by the board, if it should be found desirable. If the county assessor had been appointed to assess the property for the district, his valuation for state and county purposes would have controlled the valuation for district purposes. Rev.Stat. 2862; Avery v. Cooper,107 Tex. 483, 180 S.W. 734. While the county assessor did not assess for the district, still his assessment for the county was adopted by the district assessor. It was the assessment of their property made by appellants to the county assessor to which no objection has been urged by them, and after going before the board of trustees, sitting as a board of equalization, and making no attack on the assessment, they cannot be heard to urge it now. The assessment was not void, but at the most only irregular, and its irregularities could be waived. Rosenberg v. Weekes,67 Tex. 587, 4 S.W. 899. If, as held in Galveston City Co. v. Galveston,56 Tex. 486, and Houston v. Feeser, 76 Tex. 367, 13 S.W. 266, payment of an illegal tax, with knowledge of the facts, will preclude any complaint of the tax or the recovery of the sum paid, it would seem that a party surrounded with the circumstances of this case could waive irregularities in an assessment which is admitted to have contained the proper valuation of the property; the valuation having been made by appellants themselves,

If appellants were entitled to notice that an assessment was to be made, they obtained every right that they claim by being accorded an opportunity to appear before the board of equalization and attack, not only the assessment, but the intended raise. They did not attack the assessment. If, as contended by appellants, the provisions of the law as to state and county taxation applies to this case, appellants being absent from the county, the assessor was authorized to assess the property, without notice to the owners. Articles 7550, 7551, and 7563.

The evidence failed to show any discrimination against appellants in the action of the board of equalization in raising the value of their property. All landowners of acreage property had their property valuation raised in the same ratio. The board was not guilty of discrimination in not raising the valuation of personal property, but only raising the valuation of all acreage property. The fact that the board may have acted "under a deliberately adopted policy and concerted scheme or plan" would not evince any discrimination in raising the valuation of the lands. The court, whose conclusions of fact are approved by this court, found that the raised valuation of the lands of appellants was not near the true value of the land, ranging from 25 to 40 per cent. of the true value.

The fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, and thirteenth assignments of error are overruled. All pertinent matters and things contained therein have been discussed herein.

The judgment is affirmed.