Brown County Water Improvement Dist. v. McIntosh

• Decision Date: 10 July 1942
• Docket Number: No. 2261.,2261.
• Citation: 164 S.W.2d 722
• Parties: BROWN COUNTY WATER IMPROVEMENT DIST. NO. 1 v. McINTOSH et al.
• Court: Texas Court of Appeals

164 S.W.2d 722

BROWN COUNTY WATER IMPROVEMENT DIST. NO. 1 v. McINTOSH et al.

No. 2261.

Court of Civil Appeals of Texas. Eastland.

July 10, 1942.

Rehearing Denied September 25, 1942.

Appeal from District Court, Brown County; A. O. Newman, Judge.

Suit by J. A. McIntosh and another against the Brown County Water Improvement District No. 1 to cancel and remove as clouds upon plaintiffs' title to certain lands, tax assessments for the years 1930 to 1940, inclusive. From a judgment for plaintiffs, defendant appeals.

Judgment affirmed.

McCartney, Darroch & McCartney, of Brownwood, for appellant.

E. J. Miller, of Brownwood, for appellees.

FUNDERBURK, Justice.

E. J. Miller and J. A. McIntosh — the former as grantor, and the latter grantee of lots 1, 2, 3, and 4, Block 1 Southmore Terrace in the city of Brownwood, Texas — brought this suit against Brown County Water Improvement District No. 1, to cancel and remove as clouds upon plaintiffs' title to said land, tax assessments for the years 1930 to 1940, inclusive, on the ground that each and all such assessments, as to the valuations of the property, was "unfair, unjust, arbitrary, unreasonable, confiscatory, and void"; but constituted "prima facie liens and charges upon the title to said property", rendering "said lots and block of land unsaleable" etc.

More specifically, it was, in effect, alleged that for said years said lots were assessed only on the roll of unrendered property and at a valuation of $2,000 for the year 1930; and $1,500 for each of the other years; but that, at all material times, the lots were of the actual market value of not exceeding $600; and that the valuation at which they were assessed "was placed there without investigation or knowledge of the fair market value thereof; and that by reason of the provisions of the Constitution of the State of Texas, Art. 8, secs. 1 and 20, Vernon's Ann.St., and the statutes of the State of Texas in such cases made and provided said assessments and levies [sic] of taxes by the defendant against said lots and block of land for each of said * * * years is void and of no force and effect."

In a nonjury trial, the court gave judgment for plaintiffs, from which the defendant has appealed.

The briefs indicate attempted compliance with the "Texas Rules of Civil Procedure." Appellant's brief, conforming to part of Rule 418, sets out the "points upon which the appeal is predicated, * * * so concisely stated that they may [and do] appear, separately numbered, on a single page of the brief." Such brief contains no brief of the argument, as provided in said Rule 418, or at least no subject heading so denominated. Under the heading of "Citation of Authorities and Discussion", appears what may have been intended as a "brief of the argument", relating to all the points, but if so, there is absent "a fair, condensed statement of the facts pertinent to such points, with references to the pages in the record where the same may be found." The Rule provides that the "brief of the argument" shall be one "presenting separately or grouped, if germane, the points relied upon for reversal, [same] to include (i) a fair, condensed statement of the facts pertinent to such points, with references to the pages in the record where the same may be found."

Five points are listed, of which it may be that Points 1, 2, and 3 are sufficiently germane to each other that a single statement for all would suffice; but certainly we think neither Point 4 nor Point 5 is germane to any other; hence, the "brief of the argument", if any, however designated relating as it does to all points, does not comply with said Rule. As to points not germane and therefore not subject to grouping, the Rule provides that the brief of the argument shall present the several points separately, including the required statement. A single statement for more than one point, not germane each to all, is not a compliance with the Rule.

Whether as provided in Rule 422 this be a "flagrant violation of the rules" so as to authorize us, or make it our duty, to "require the case to be rebriefed" may itself be a debatable question, discussion of which for reasons which presently appear we here pretermit.

It appears that each of appellant's five points may be answered categorically without reference "to the Citation of Authorities and Discussion" and without the necessity for any statement applicable to each, or to a group of germane points.¹

Appellant's Points Nos. 1, 2, and 3 are, in the order stated, as follows:

"The insufficiency of the pleading to show that the plaintiff is entitled to the relief prayed for, in that the petition fails to allege that there was any willful design or purpose of the defendant's boards of equalization to fraudulently over value the property in question.

"The insufficiency of the proof to show that there was any willful design and purpose on the part of the defendant's tax officers and boards of equalization to willfully and purposely and fraudulently over value the property in question for taxation during any of the years involved.

"Without allegations that the defendant's taxing officers and boards of equalization acted designedly and purposely and fraudulently in fixing the valuations complained of, any proof of over valuation of the property for taxes was immaterial and inadmissible."

To these points it may be answered that it was not necessary for the petition to show, or for the evidence to prove, that there was any willful design or purpose of the board of equalization fraudulently to overvalue the property in question; or that defendant's tax officers and board of equalization acted designedly, purposely or fraudulently in fixing the valuations they fixed. If, as contended by appellees, such taxing officers adopted an illegal plan or scheme of valuation calculated to result in a lack of equality or uniformity of taxation and which, as to the plaintiffs, in fact had such effect, then it was immaterial whether the taxing officers acted with willful design or purpose, or with conscious intention to assess plaintiffs' property at an excessive valuation. These points do not present any question of sufficiency of pleading or proof to show the adoption of any such scheme or plan of valuation; but, on the contrary, by their very statement exclude any such question. We are, therefore, not called upon to pass upon such question and only mention it because the "Citation of Authorities and Discussion", going beyond the subject matter of the points, do suggest that question. That willful design or purpose, or conscious fraudulent intent on the part of the taxing authorities is not an essential element of a cause of action for cancellation of tax assessments on the ground of discrimination is supported by the following authorities: Lively v. Missouri K. & T. Ry. Co., 102 Tex. 545, 559; 120 S.W. 852; Brown v. First Nat. Bank, Tex.Civ.App., 175 S.W. 1122; Hunt v. Throckmorton School Dist., Tex.Civ.App., 59 S.W.2d 470, 472.

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