Austin v. Fox

• Decision Date: 18 January 1928
• Docket Number: (Nos. 1038-4950.)
• Citation: 1 S.W.2d 601
• Parties: AUSTIN, State Banking Com'r, v. FOX.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

1 S.W.2d 601

AUSTIN, State Banking Com'r, v. FOX.^*

(Nos. 1038-4950.)

Commission of Appeals of Texas, Section A.

January 18, 1928.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by J. J. Fox against Chas. O. Austin, Banking Commissioner of Texas, and others. Judgment for plaintiff was corrected and affirmed as corrected by the Court of Civil Appeals (297 S. W. 341), and defendant named brings error. Affirmed.

L. C. Sutton and John W. Goodwin, both of Austin, for plaintiff in error.

Seabury, George & Taylor, of Brownsville, for defendant in error.

NICKELS, J.

The opinion of the Court of Civil Appeals is reported at page 341 of 297 S. W. Writ of error was granted in respect to the question whether the deposits standing in the name of J. J. Fox on the records of the defunct bank were public funds. If they had that character, the security of the guaranty fund, of course, is unavailable. Article 447, R. S. 1925.

Some relevant formularies may be stated: (a) A tax collector has no authority to receive anything but cash in payment of taxes. Figures v. State (Tex. Civ. App.) 99 S. W. 412; Ward v. Marion County, 26 Tex. Civ. App. 361, 62 S. W. 557, 63 S. W. 155. (b) Private arrangements for payment (differing from the statutory method), made between the collector and taxpayers, and performance thereof are at the risk of the parties thereto, and not of the state or county. Ibid.; Orange County v. T. & N. O. R. Co., 35 Tex. Civ. App. 361, 80 S. W. 670 (writ refused); T. & N. O. R. Co. v. State, 43 Tex. Civ. App. 580, 97 S. W. 142. (c) The state or county may adopt or, through assertion of estoppel, get the benefits of such acts or arrangements (Ibid.; Morris v. State, 47 Tex. 592; Webb County v. Gonzales, 69 Tex. 456, 6 S. W. 781; Mast v. Nacogdoches County, 71 Tex. 384, 9 S. W. 267), or, in case of loss, a breach of the bond can be rested thereupon (Ibid.; Wilson v. Wichita County, 67 Tex. 647, 4 S. W. 67). It results that liability of the property owner persists until such acts are done as amount to payment of taxes in the statutory way, or until the state or county, etc., does some act, etc., which amounts to ratification of what had previously been done informally by the owner and collector with consequent release of the tax lien.

Fox, tax collector or otherwise, has never received money called for in the receipts issued, but, contrarily, has only received credits indorsed on the bank books. If the matter remained in that condition, the taxpayers would still be liable because of nonpayment, or the state could release them by pursuing Fox and his sureties, but this would require a new choice by the state, which was never made and which cannot yet be made.

Throughout the period intervening a date prior to the first credit given Fox by the bank...