City of Galveston v. Sydnor

• Decision Date: 01 January 1873
• Citation: 39 Tex. 236
• Parties: CITY OF GALVESTON v. J. B. SYDNOR.
• Court: Texas Supreme Court

39 Tex. 236

CITY OF GALVESTON

v.J. B. SYDNOR.

Supreme Court of Texas.

1873.

1. Money collected as taxes by the city of Galveston under an ordinance not authorized by its charter, may be recovered by suit at law, whether the tax was paid under compulsory process or not.

2. Otherwise, if the money had been collected by the state authority, for want of power to sue the state.

APPEAL from Galveston.

The case is clearly set out in the petition, which is set out below.

Defendant demurred and pleaded a general denial.

The statement of facts sustains the allegations in the petition but it did not appear that any protest was made by Sydnor on payment of the taxes, nor was any seizure of property or other compulsory process resorted to by the city authorities to collect the same.

The petition alleged that the said defendant is a municipal corporation, duly and legally chartered by the state of Texas, and having its principal office in the county of Galveston.

That on the first day of March, 1866, the said defendant, without any legal authority whatever, or right in law or equity, compelled the said firm of J. S. & J. B. Sydnor to pay said defendant the sum of $195, alleged by the said defendant to be the amount of city tax due said corporation by and from said firm to said corporation for goods, wares and merchandise bought or received for sale by said firm from the first day of March, 1866, to the first day of June, 1866; and that said firm did, under such compulsion, on the said first day of June, 1866, pay the said sum to said defendant.

That afterwards, to wit, on the first day of March, 1867, the said defendant, without any legal right or authority, did compel the said firm to pay said defendant, and the said firm did actually pay said defendant under such compulsion, the further sum of $440, being the amount of city taxes alleged by said defendant to be due from said firm to said corporation for goods, wares and merchandise bought or received for sale by said firm from the first day of December, 1866, to the first day of March, 1867. That afterwards, to wit, on the first day of September, 1867, the said defendants, without any legal right or authority, did compel the said firm to pay said defendant, and the said firm, under such compulsion, did actually on that day pay to said defendant the sum of $600, alleged by the said defendant to be the amount of city taxes due for goods, wares and merchandise bought or received by said firm, for sale by them, from the first day of March, 1867, to the first day of September, 1867. That afterwards, to wit, on the eleventh day of December, 1867, the said defendant, without any lawful authority or right in law or equity, did compel the firm aforesaid to pay, and they did, under such compulsion, actually pay said defendant the further sum of $348.50, which said defendant alleged to be the amount of city tax due from said firm for goods, wares and merchandise bought or received for sale by said firm from the first day of September, 1867, to the first day of December, 1867.

Petitioners aver that said several sums of money were imposed upon said firm and collected from them as taxes aforesaid, under and by virtue of an ordinance adopted by said corporation on the seventh day of May, 1866, the 5th section of which is substantially as follows:

“Sec. 5. That the tax on goods, wares and mechandise and property of every description, sales at auction and by commission merchants, real estate, produce and other brokers and agents, shall be on the total amount of invoice of purchase, consignment and sales for every quarter, commencing on the first day of March of the then current year; said returns to be made under oath to the assessor and collector, and taxes on the same shall be collected quarterly, or oftener. A list of the names of the merchants and others making said returns, together with the amounts returned and paid by each, shall be published in one of the city papers at the end of each and every quarter. Any person or persons refusing or failing to furnish the assessor and collector with a correct account of purchase, consignment, sale at auction, or as agent, broker or commission merchant, during the term for which the assessment is to be made, shall be liable to a fine of not less than five and not more than one hundred dollars and costs for each failure or neglect.”

That the right to pass the aforesaid ordinance, and to enforce and collect said...