Cherokee County v. Odom

• Decision Date: 20 March 1929
• Docket Number: (No. 4990.)
• Citation: 15 S.W.2d 538
• Parties: CHEROKEE COUNTY et al. v. ODOM, Tax Collector.
• Court: Texas Supreme Court

Page 538

15 S.W.2d 538

CHEROKEE COUNTY et al. v. ODOM, Tax Collector.

(No. 4990.)

Supreme Court of Texas.

March 20, 1929.

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

Action by Cherokee County and others against A. R. Odom, Tax Collector. Judgment for defendant was affirmed by the Court of Civil Appeals (297 S. W. 1055), and plaintiffs bring error. Reversed and rendered.

W. M. Harris, of Dallas, A. B. Chandler, of Rusk, and Lightfoot, Robertson & Scurlock, of Fort Worth, for plaintiffs in error.

Claude Pollard, Atty. Gen., and H. Grady Chandler and Galloway Calhoun, Asst. Attys. Gen., for defendant in error.

PIERSON, J.

On the 15th day of December, 1925, Cherokee county, acting by and through its commissioners' court, entered into a contract with the Standard Engineering & Plat Book Company, a copartnership, for the preparation by it for the county of an abstract of property and map and plat system of the different surveys and blocks of land in said county. On the 9th day of August, 1926, the parties entered into a supplemental agreement or contract, to make more specific and clear the understanding and agreements between the parties as based upon the original contract. The honorable Court of Civil Appeals for the Sixth District in part states the case as follows:

"The contracts referred to were attached as exhibits to the original petition. The first provided, in substance: (1) The Standard Engineering & Plat Book Company agreed to make a complete abstract of property assessed, or unknown and unrendered, for the purposes of taxation, upon which taxes were delinquent. The abstract was to cover all delinquent taxes of every character from 1908 to and including February 1st next preceding the completion of the abstract. As compensation for these services, and for furnishing to the officers of Cherokee county all necessary information to assist and aid them in the collection of delinquent taxes in the manner described, the county agreed to pay 33 1/3 per cent. of the delinquent taxes, penalties, and interest collected from and after the date of the contract. (2) The Standard Engineering & Plat Book Company agreed to prepare the abstract and make a complete map and plat system for Cherokee county showing each tract, lot, or parcel of land in the county. (3) It was further agreed that, in order to enable the Standard Engineering & Plat Book Company to finish the work of preparing the abstract and map and plat system, there should be issued to them from time to time, on the first day of each regular term of the commissioners' court of Cherokee county, such amount of warrants in the denomination of $500 each equal to 10 per cent. of the one-third payable out of the delinquent taxes that might be collected, not to exceed 20 per cent. of the total amount of taxes certified to be delinquent.

The material portions of the supplemental contract referred to are as follows: "`It is agreed by and between the said parties to said contract that the compensation to be paid said Standard Engineering & Plat Book Company for said services and work shall be as follows: For making and furnishing the plat book called for in said contract a sum equal to 33 1/3 per cent. of the county general fund delinquent taxes, penalties, and interest for the years 1908 to and including 1926, collected, and contingent upon the collection of the same, and for the services and work of making and furnishing the said abstract of property assessed, or unknown and unrendered, called for in said contract, a sum equal to 33 1/3 per cent. of all other delinquent state and county taxes, penalties, and interest collected for the years 1908 to 1926, inclusive, and contingent upon the collection of the same; said compensation in both cases to be paid out of the delinquent taxes, penalties, and interest collected, so that the said contract, as heretofore executed, be and the same is hereby ratified and altered accordingly, but is not in any way changed or executed except in the particulars stated.'

"For the purposes of this appeal it is admitted that the contract alleged was properly executed, and that the services contracted for had been performed. It is also admitted that delinquent taxes covered by the terms of the contract had been collected, and that the defendant in error, as tax collector, had declared his intention to pay over to the state treasurer the state's portion of those taxes.

"The sole question in this appeal is: Did the commissioners' court have the power to contract for the payment of the compensation agreed upon, or any part thereof, out of the state's portion of the delinquent taxes thereafter collected? As authorizing the making of contracts of this character the following provisions of law are referred to:

"`Art. 7335. Whenever the commissioners' court of any county after thirty days' written notice to the county attorney or district attorney to file delinquent tax suits and his failure to do so, shall deem it necessary or expedient, said court may contract with any competent attorney to enforce or assist in the enforcement of the collection of any delinquent state and county taxes for a per cent. on the taxes, penalty and interest actually collected, and said court is further authorized to pay for an abstract of property assessed or unknown and unrendered from the taxes, interest and penalty to be collected on such lands, but all such payment and expenses shall be contingent upon the collection of such taxes, penalty and interest. It shall be the duty of the county attorney, or of the district attorney, where there is no county attorney, to actively assist any person with whom such contract is made, by filing and pushing to a speedy conclusion all suits for collection of delinquent taxes, under any contract made as hereinabove specified: Provided that where any district or county attorney shall fail or refuse to file and prosecute such suits in good faith, he shall not be entitled to any fees therefrom, but such fees shall nevertheless be collected as a part of the costs of suit and applied on the payment of the compensation allowed the attorney prosecuting the suit, and the attorney with whom such contract has been made is hereby fully empowered and authorized to proceed in such suits without the joinder and assistance of said county or district attorneys. * * *

"`Art. 7344. In counties in which the subdivisions of surveys are not regularly...