City of Austin v. Great Southern Life Ins. Co.

• Decision Date: 16 April 1919
• Docket Number: (No. 6196.)
• Citation: 211 S.W. 482
• Parties: CITY OF AUSTIN v. GREAT SOUTHERN LIFE INS. CO.
• Court: Texas Court of Appeals

211 S.W. 482

CITY OF AUSTIN v. GREAT SOUTHERN LIFE INS. CO.

(No. 6196.)

Court of Civil Appeals of Texas. San Antonio.

April 16, 1919.

Rehearing Denied May 7, 1919.

Appeal from District Court, Travis County; George Calhoun, Judge.

Suit by the City of Austin against the Great Southern Life Insurance Company. Judgment for defendant, and plaintiff appeals. Reversed and rendered.

J. Bouldin Rector, J. W. Maxwell, and Lightfoot, Brady & Robertson, all of Austin, for appellant.

L. A. Carlton, of Houston, N. A. Stedman, of Austin, Williams & Neethe, of Galveston, J. N. Gallagher, of Waco, Brooks, Hart & Woodward, of Austin, A. J. Bell, of San Antonio, Seay & Seay, of Dallas, Oliver J. Todd, of Beaumont, and Charles L. Black, of Austin, for appellee.

FLY, C. J.

This is a suit for the recovery of taxes, alleged to be due for the years 1911 to 1916, inclusive, on certain notes and securities deposited by appellee with the state treasurer in Austin, instituted by appellant against appellee. The petition was answered by general and special exceptions, a general denial, and pleas denying the right of appellant to tax the property of appellee, alleging that its situs was in Houston, where the domicile of the company was situated, and where the taxes for the years named had been paid on the property. The assessment of the property by appellant was also assailed. The cause was tried without a jury, and judgment rendered against the claim of appellant.

The parties agreed on what is denominated "an agreed statement of facts," but which consists largely of agreements that certain allegations in the petition are true and others are not true, and to ascertain the allegations would require a painstaking perusal and sifting of the entire pleadings. So arranging the agreed statement of facts was undoubtedly a time and labor conservator, but not for the appellate court. If the matters agreed to were all necessary in arriving at a conclusion as to the law of this case, it would entail a vast amount of labor for the court, which might have been prevented by a proper arrangement of the facts in the lower court. The agreed statement was made the conclusions of fact of the lower court.

Only a few salient facts gleaned from the conclusions of facts are necessary to a full and comprehensive consideration of every point of law presented by the record. We ascertain by an inspection of the conclusions that the city of Austin assessed for taxation certain promissory notes deposited by appellee with the state treasurer, within the bounds of the city of Austin, and found by the latter within its bounds on the 1st day of January of the years 1911 to 1916, inclusive, that is for five years, and that such notes and securities were of the reasonable value for which they were taxed, and were on deposit with the state treasurer in Austin. Appellee had rendered for taxation, and had paid the taxes, on the securities deposited in Austin, in Houston, Harris county, Tex., which was its domicile in the state. The deposits were voluntarily made by appellee with the state treasurer, for advertising purposes. More than half of the agreed statement of facts consists of provisions of the charter of the city of Austin which was enacted in 1909, and was made a public act to be read in evidence without proof. In other words, the charter is law to be taken cognizance of in any court in Texas without proof, and which has no more place in a statement of facts than any other law of the state. It should be cited as a law, and not found as a fact.

Through the first assignment of error, the conclusion of the trial judge that the situs of the promissory notes for purposes of taxation was in the city of Houston, and not in the city of Austin, is assailed. The statement thereunder consists of a copy of the larger portion of the petition and of the findings of fact and conclusions of law of the trial judge. To the same effect as the first assignment of error are the third, fourth, and fifth assignments of error, and disposition of one disposes of the others.

The charter of the appellant clearly gives authority to it to levy taxes on all property values within its boundaries, and the city assessor and collector is given full authority to require any property discovered by him to have escaped taxation for any past year to be listed and assessed according to the rate of taxation levied for the year or years it was omitted. Miller's Mutual Fire Insurance Co. v. City of Austin, 210 S. W. 825, rendered by this court and not yet officially published. The facts show that the property was discovered and was properly listed and assessed for the years for which the taxes were claimed. The facts also show that the promissory notes, upon which taxes were assessed, were voluntarily deposited with the state treasurer in the city of Austin, and were so held by him on deposit on the 1st day of January of each year for which the taxes are claimed to be due.

It is probably unnecessary, and possibly unprofitable, for this court to discuss the situs for taxation purposes generally of promissory notes deposited under the circumstances of this case, except in so far as such situs may be affected by the provisions of article 4749, for the reason that the Supreme Court of Texas has definitely fixed the situs of such property, in City of Austin Guaranty Life Ins. Co. v. City of Austin, 108 Tex. 209, 190 S. W. 189. The decision in that case followed in all essentials a decision rendered in the same case by the Court of Civil Appeals of the Third District, 165 S. W. 53.

In the cited case, the domicile of the appellant was in Houston, as is the domicile of the appellee herein in Houston, and it had voluntarily deposited securities with the state treasurer, as in this case, and the city of Austin had assessed taxes against the insurance company, as in this case. It was held in both decisions that the promissory notes were personal property under the provisions of article 7505 of the Revised Statutes; that, being personal property, their situs for taxation was fixed by the state Constitution, § 11, art. 8, "in the county where situated"; and, being employed for business purposes in the city of Austin, they were situated there and could be taxed there. The Supreme Court held that article 7510 "clearly contemplates that any property classified as personal property by article 7505 and having a concrete form may acquire a situs distinct from the place of the owner's residence." The court further held:

"A temporary possession by the treasurer of the notes would not have afforded the benefit sought by the deposit, since under the law the facts of the deposit could be advertised and printed on the plaintiff in error's policies only while the notes were in the treasurer's possession. That the plaintiff in error had access to the notes and the right at any time to withdraw them does not alter the fact that while they were on deposit with the treasurer they were out of its possession. * * * Where a particular business purpose can be accomplished only by locating property at a certain place, and the property is so located and devoted to the purpose for more than a temporary period, it very clearly acquires a situs at that place."

The opinion is in line with Hall v. Miller, 102 Tex. 289, 115 S. W. 1168; Jesse French Piano Co. v. Dallas, 61 S. W. 942; State v. Fidelity Co., 35 Tex. Civ. App. 214, 80 S. W. 544; and Hall v. Miller, 110 S. W. 165.

In the case of Jesse French Piano Co. v. City of Dallas, herein cited, and which was decided by this court, it was first clearly held in Texas that notes were personal property, subject to taxation where situated irrespective of the domicile of the owner, and a writ of error was refused by the Supreme Court. The decision has been often cited with approval, even being cited in the case of State v. Fidelity Co., which is cited by the Supreme Court in Hall v. Miller, 102 Tex. 289, 115 S. W. 1168, as being the pioneer case in Texas on the subject. However, the Piano Co. v. Dallas Case was cited in the Hall v. Miller Case, with strong approbation by the Court of Civil Appeals. All those cases long ago established that promissory notes were personal property to be taxed, as other personal property, where situated, and it is no new doctrine announced in Guaranty Life Ins. Co. v. Austin, when it is said:

"When they are thus made to perform the functions of tangible personal property, they have all the character of that class of property, and are as fully capable of acquiring a situs apart from their owner's domicile as any property of that class."

Under that rule, promissory notes would be like cattle or horses, or stocks of merchandise, and would not depend on the domicile of the owner to fix their situs for taxation, but would "be assessed for taxation, and the taxes paid in the county where situated," as provided by the Constitution. The rule that personal property shall be taxed at the domicile of the owner is based upon the fiction that the owner keeps his personal property at his domicile; but it is a mere fiction. Certainly, wherever personal property is kept for business purposes, it has a fixed situs regardless of the domicile of the owner. As demonstrated in the Guaranty Life Ins. Co. Case, under facts almost identical with those in the case now being considered, the deposit was made in Austin "for a business purpose and for an evident business advantage, which could be accomplished only by placing the notes in the custody of the treasurer, namely, the privilege of advertising that securities representing the plaintiff in error's capital stock were in the hands of the treasurer of the state, and also having its policies of insurance attest that fact."

There would therefore, under the decisions of the Supreme Court and Courts of Civil Appeals, be no room for argument as to the taxability of the notes in Austin, were it not for the provisions of article...