City of El Paso v. Howze

• Decision Date: 08 February 1923
• Docket Number: (No. 1411.)
• Citation: 248 S.W. 99
• Parties: CITY OF EL PASO et al. v. HOWZE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

248 S.W. 99

CITY OF EL PASO et al. v. HOWZE.^*

(No. 1411.)

Court of Civil Appeals of Texas. El Paso.

February 8, 1923.

Rehearing Denied February 21, 1923.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Mandamus by W. Y. Howze to compel the City of El Paso and its Assessor and Collector of Taxes to accept a tender of and issue a receipt for taxes. From a mandatory order so directing, defendants appeal. Affirmed.

Victor C. Moore, City Atty., and Royall G. Smith, Asst. City Atty., both of El Paso, for appellants.

S. J. Isaacks, of El Paso, for appellee.

Statement of Case.

HIGGINS, J.

This is an appeal by the city of El Paso and its assessor and collector of taxes, W. P. B. McSain, from a mandatory order directing the city and its collector to accept a tender of certain taxes made by appellee, and issue receipt therefor.

The facts out of which the litigation arose are as follows: The appellee, Howze, owned property in the city of El Paso, and on June 27, 1921, rendered the same to the assessor for taxation. The rendition reads as follows:

Inventory of Property,

Owned by W. Y. Howze, address, 1331 Wyoming, and rendered for assessment of taxes, for the year 1921, by self to Wm. P. B. McSain, assessor and collector of the city of El Paso, state of Texas.

Basis of assessment: 60% of actual or market value. NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

This rendition was duly verified by the oath of Howze. McSain testified that when Howze made the rendition he (McSain) as sessed the real estate at $4,500 and the automobile at $200; that for a long time it had been the custom of the city to assess property upon the basis of 60 per cent. of its actual market value, and the valuation placed by him upon the plaintiff's property was made upon that basis; that it was his purpose and intention to carry the valuations so placed upon the property of Howze into the permanent tax roll and to compute the tax against Howze upon those valuations and would have done so but for an order of the city council made on August 14, 1921, "that the 1921 tax valuation be raised from 60 per cent. to 70 per cent. on the $100 valuation." This order was made about two months before the session of the council sitting as a board of equalization. Acting upon this order, the assessor, without notice to Howze, changed the valuation of plaintiff's real estate to $5,250 and of the automobile to $230, and changed the grand total to $5,480. The same proportionate change was made by him in the other 15,000 property renditions in the city of El Paso for that year.

The permanent tax roll for the year 1921 was made up in accordance with the altered valuations. In due time Howze tendered the proper amount of tax computed on the basis of the original valuation, which being declined, he brought this suit to compel its acceptance and issuance of receipt. There is no pretense made that the change in valuation was made by the city council sitting as a board of equalization and in the manner prescribed in such cases.

Opinion.

Section 137 of the Charter of the City of El Paso provides that it shall be the duty of every person owning or holding property in the city to render under oath to the assessor and collector of taxes, or such other officer as may be designated by ordinance, a full and complete inventory of such property, all of which, except exemptions, is declared to be subject to taxation and shall be rendered and listed in the manner prescribed by the general laws of the state in regard to general taxation, unless otherwise specially provided in the charter.

The city ordinance of May 16, 1907 (section 1035, Penal Code of the City), makes it the duty of every such person to render to said officer, on or before the last Saturday in August of each year, a full and complete inventory of such property, describing the same, and state the value of each item of property; such value to be determined according to the state laws relating to taxation.

Article 7530, R. S., provides that real and personal property shall be valued at its true and full value in money.

Article 7569, R. S., in substance provides that when the assessor is satisfied that property rendered to him by the owner is properly valued according to its reasonable cash market value at the time, he shall list it accordingly; but if satisfied that it is too low, he shall value it and report his valuation to the commissioners' court, which body shall decide the issue if contested by the owner.

Under the Charter of the City of El Paso the mayor and aldermen constitute a board of equalization, whose duty it is to convene annually at the time fixed by the council "to receive all the assessment lists, or books of the assessor for examination, correction, equalization, appraisement and approval." Section 147.

Section 148 provides:

"The board of equalization shall cause the assessor to bring before it, at the time fixed for the convening of said board, all the assessment lists or books of the assessor of the city for its examination that it may see that each and every person has rendered his property at a fair market value; and said board shall have power to send for persons and papers, to swear and qualify persons to testify, to ascertain the value of such property; and if they are satisfied it is too high they shall lower it to its proper value, and if too low they shall raise the value of such property to a proper figure. Such board shall also have power to correct any errors that may appear on the assessor's lists or books."

Section 149 provides that the board of equalization shall equalize values and grants the right of hearing to persons complaining of the assessments made of their property.

Sections 151, 152, 156, prescribe the procedure of the board and provide for notice to the owner when the board undertakes to increase the valuation of any property appearing on the assessor's lists or books.

In his work on Taxation, Judge Cooley says:

"It is a fundamental rule that a judicial or quasi judicial proceedings affecting the rights of the citizen he shall have notice and be given an opportunity to be heard before any judgment, decree, order or demand shall be given and established against him. Tax proceedings are not in the strict sense judicial, but they are quasi judicial, and as they have the effect of a...