Int'l&g. N. R. R. Co. v. Smith Cnty.

• Decision Date: 22 October 1880
• Docket Number: Case No. 882.
• Court: Texas Supreme Court
• Parties: INTERNATIONAL & G. N. R. R. CO. v. SMITH COUNTY ET AL.

54 Tex. 1

INTERNATIONAL & G. N. R. R. CO.

v.SMITH COUNTY ET AL.

Case No. 882.

Supreme Court of Texas.

Oct. 22, 1880.

APPEAL from Smith. Tried below before the Hon. John C. Robertson.

The opinion states the case.

Tignal W. Jones, for appellant.

I. Under the pleadings and evidence in the case, the plaintiff has no adequate remedy at law unless it is afforded either by the act of the legislature of the 21st of August, 1876, or the Revised Statutes of Texas of 1879. George v. Deen, 47 Tex., 73; High on Injunctions, §§ 353, 354, 362, 367, 368; Ritter v. Patch, 12 Cal., 298; Missouri River, Fort Scott & Gulf R. R. Co. v. Morris, 1 American Railway Reports, 353; Kansas Pacific R. R. Co. v. Russell, 5 Id., 232; M., H. & O. R. R. Co. v. City of Marquette et al., 16 Id., 179; Connors v. Detroit (40 Mich., 1879), 8 Reporter, 335. See, also, Burroughs on Taxation, pp. 363-370.

II. The boards of equalization provided for by the constitution of Texas are courts, and not assessors of taxes. See art. 8, sec. 18 of the constitution of Texas, in which it is provided that the county commissioners' courts shall constitute boards of equalization. Burroughs on Taxation, secs. 101, 102, pp. 235-239.

III. So much of the act of the legislature of Texas, of the 21st of August, 1876, as refers to boards of equalization, is unconstitutional, because it contains more than one subject in the body of the bill, one of which is the subject of boards of equalization, and this subject is not expressed in the title to the act.

IV. The board of equalization of Smith county, that raised plaintiff's assessment of its property for the years 1877, 1878 and 1879, acted under the statute of the 21st of August, 1876, and that although their action was illegal and void, it was nevertheless under legal color and apparently authorized by law, and that, therefore, the remedy by bill of injunction was the proper remedy.

V. The act of the legislature of the 21st of August, 1876, under which the board of equalization of Smith county acted in raising the assessments of plaintiff's property, in said county, for 1877, 1878 and 1879, does not provide for the organization of county commissioners as boards of equalization, nor for the manner in which the taxes shall be equalized, and therefore that the action of the board of equalization of Smith county in raising plaintiff's assessment for those years, is null and void. See, also, State Const., art. 8, secs. 14, 18; Burroughs on Taxation, pp. 23, 238; Houghton v. Austin, 47 Cal., 646; People v. Placerville, 34 Cal., 636.

VI. A board of equalization, organized under the act of the 22d of March, 1879, which took effect July 24, 1879, has the power to correct any errors in an assessment, made by an assessor of taxes, any time before the tax is paid on the property, except in a case where a person listing property makes oath to it and presents it to the assessor, and the assessor is dissatisfied with the person's assessment, and lists the property at such value as he, as a sworn officer, deems just, and the person listing the property makes oath that the assessment, made by the assessor, is excessive, and the value of the property is decided by the board of equalization; or in a case where a board of equalization, in supervising the assessments of its county, is satisfied that the valuation of any property is not just and fair, and increases or diminishes the same, and fixes a proper valuation thereto, when the action of the board of equalization becomes final and cannot be reviewed, either by itself or any other tribunal. R. S., Appendix, p. 25, sec. 3 of the act of 22d of July, 1879, and arts. 4714, 4715, of R. S., p. 689.

VII. If the act of the legislature of the 21st of August, 1876, under which the board of equalization of Smith county acted, in raising plaintiff's assessments of its property in Smith county for the years 1877, 1878 and 1879, is constitutional, as to the boards of equalization mentioned in said acts, and the acts of the said board, in raising plaintiff's assessments, are not null and void, then the board of equalization of Smith county, organized under the law of 1879, can no more review the action of the board organized and acting under the act of 21st of August, 1876, in reference to plaintiff's assessments of its property in Smith county for 1877, 1878 and 1879, than it could its own action in similar cases, arising under the laws of 1879, and that, therefore, the law of 1879 affords no remedy for plaintiff's grievances. R. S., arts. 4714, 4715.

Newton & White, for appellees.

GOULD, ASSOCIATE JUSTICE.

The railroad company sought and obtained an injunction against the collection of that portion of the taxes on its property in Smith county for the years 1877, 1878 and 1879, in excess of the assessments rendered by the said company for those years, which were created by the board of equalization in its action during those years respectively on the said company's assessments.

On the final hearing of the case, a jury being waived, the court gave judgment against the railroad, refusing to perpetuate the injunction, and the company appeals.

The purport of the evidence, in so far as it is material to be stated, is thus given in the brief of appellant:

That the plaintiff listed and inventoried all of its property in Smith county in the years 1877, 1878 and 1879, previous to the first day of June of each of said years, said property consisting of 39 4-10 miles of railway, rolling stock and appurtenances, and valued the same for the years 1877 and 1878 at $290,161 each, and for 1879 at $279,240; that the inventories for 1877 and 1878 were duly sworn to before a notary public of Anderson county, Texas, by Ira H. Evans, plaintiff's secretary; and the inventory for 1879 was duly sworn to by R. S. Hayes, receiver of said plaintiff, before a notary public of Anderson county; and that each one of said inventories was sent by the plaintiff, by D. S. H. Smith, the treasurer of plaintiff, and delivered by him to the assessor of taxes for Smith county; that said assessor received the said inventories from said Smith, informing him that he would not accept the valuations made, but would take them and refer them to the board of equalization, as he believed the valuation in said inventories too low; that the assessor did not change the valuation, as made in said inventories by plaintiff, but said he was not a judge of the value of railroads, and would refer them to the board aforesaid; that the said Smith inquired when the board would sit, and the assessor told him he did not know, but, at Smith's request, promised to write to him and let him know; that plaintiff made no affidavit of dissatisfaction, and that the assessor, about the month of June of each of the years 1877, 1878 and 1879, turned over said inventories with all his other assessments to the commissioner's court of the county, sitting as a board of equalization; that the assessor, according to his promise, wrote to the said D. S. H. Smith, treasurer of plaintiff, informing him when the said board of equalization would meet, and that he attended two meetings of the board in 1877; that the said board took charge of said inventories, with all the others turned over to it, and acted on them without any process served on the plaintiff, or any notice served on it by said board; that in 1877, when the board met, it adopted as a rule, that it would not hear evidence introduced by parties concerned, nor allow issues to be formed or argument of counsel to be heard on the question of increasing the valuation of property already assessed; that plaintiff was before the board on two separate occasions in 1877 by its treasurer, D. S. H. Smith, as aforesaid, and one time by another officer of plaintiff; and that during the interval of the two occasions referred to when plaintiff was before said board, one of the members of the board went over plaintiff's said road and looked at the same with a view to the valuation thereof; that plaintiff was not represented before said board in 1878 or in 1879; that in 1877 and 1878, the board of equalization had no clerk, kept no written minutes or record of its proceedings, but when it made a change in the valuations, it was done by entry on the inventories; that the board raised the valuation fixed by plaintiff in 1877 from $290,161 to $591,000; in 1878, from $290,161 to $453,100; and in 1879, on the 23d day of July, the said board, by a written order on the minutes, raised the valuation fixed by plaintiff from $279,240 to $453,100; that at the time the assessor turned over the inventories, as made by plaintiff, of its property and others of their property, he turned over to said board a roll made out from said inventories, and that when the board had acted on the inventories and made changes in them, it directed the assessor to make out a new roll in accordance with the changes made by the board; that about this time the comptroller was writing to the assessor and urging him to send forward his rolls; that the comptroller was notified that new rolls would have to be made to conform them to the action of the board of equalization, and that the comptroller issued a circular letter to assessors, dated August 1, 1877, instructing them to withdraw the inventories from the board of equalization and to disregard what they had done; that said circular letter was based on an opinion of the attorney general, and is as follows:

Circular to County Judges, County Attorneys and Tax Assessors.

COMPTROLLER'S OFFICE,

AUSTIN, TEXAS, August 1, 1877.

Information has been received at this office that the boards of equalization in many counties in this state have increased the values of property on the inventories taken by assessors in cases where there was no appeal by taxpayers, as provided in section 17 of the act of August 21, 1876; and also in cases where the valuations of property, as rendered by the owners, were accepted by...