Cook v. Galveston, H. & S. A. Ry. Co.

• Decision Date: 20 December 1893
• Citation: 24 S.W. 544
• Parties: COOK, Tax Collector, v. GALVESTON, H. & S. A. RY. CO.
• Court: Texas Court of Appeals

24 S.W. 544

COOK, Tax Collector, v. GALVESTON, H. & S. A. RY. CO.

Court of Civil Appeals of Texas.

December 20, 1893.

Appeal from district court, Maverick county; Winchester Kelson, Judge.

Suit by the Galveston, Harrisburg & San Antonio Railway Company against W. N. Cook, tax collector, to restrain the sale of property for taxes. From a judgment for plaintiff, defendant appeals. Affirmed.

J. O. Nicholson and W. L. Evans, for appellant. Clark, Fuller & Garner, for appellee.

NEILL, J.

This suit was brought by appellee against appellant, as tax collector of Maverick county, to enjoin the sale of a tract of land which had been levied on and advertised for sale for certain taxes claimed to be due from appellee for the year 1890. The petition alleged, in substance, that appellee (plaintiff below) was the owner of 29.3 miles of railroad in Maverick county, which it had rendered to the assessor of taxes of Maverick county at a valuation of $6,500 per mile; that, after the rendition of said railroad for taxes, the commissioners' court, sitting as a board of equalization, without written notice to plaintiff raised the valuation of 29 miles of said railroad to $8,000 per mile, and deducted from the 29.3 miles of railroad, as rendered by appellee, (plaintiff below,) the three-tenths of a mile of railroad, and had it placed on the unrendered tax roll and assessed as "bridge," and fixed its value at $50,000; that said three-tenths of a mile so assessed as "bridge" was a part of its said railroad, and was included in the 29.3 miles of railroad rendered for taxation; that by reason of said illegal acts of said commissioners' court the tax on said three-tenths of a mile of railroad has been increased from the sum of $26.50 to the sum of $487.50; that plaintiff has paid to said W. N. Cook, defendant, all state and county taxes due on all of its property in Maverick county for the year 1890, except as hereafter mentioned, and has also paid all the tax due the state and Maverick county on the 29.3 miles of its railroad at said raised valuation of $8,000 per mile, except the sum of $26.50, which last sum it has always been willing and offered to pay, but which said defendant has refused to accept, and has demanded said sum of $487.50 as the tax due on said three-tenths of a mile of its said railroad; that it, (plaintiff,) by and through its proper agents, appeared before said commissioners' court while sitting as a board of equalization as aforesaid, and protested against the said three-tenths of a mile of its railroad being placed on the unrendered tax roll and assessed as "bridge," and valued at $50,000, but said court, sitting as aforesaid, refused to correct said error; that defendant, with full knowledge of all the facts, has levied on the said tract of land for the payment of said sum of $487.50 claimed by defendant to be due for said state and county taxes, as for the year 1890, on said three-tenths of a mile of said railroad, and is advertising the same for sale on the 3d day of February, 1891, and plaintiff here now tenders said sum of $26.50 to pay all taxes due said county and state for the year 1890 on said three-tenths of a mile of railroad, estimated at said raised valuation of $8,000 per mile for 29.3 miles, as fixed by board of equalization; that, if not prevented, defendant will sell such land for said sum of $487.50, which is illegal, except the said sum of $26.50, and, if said sale is made, plaintiff will receive great and irreparable injury, etc., — praying for a writ of injunction restraining defendant from making said sale, etc., and, on hearing, that said injunction be made perpetual, etc. February 3, 1891, the temporary writ was granted. Defendant's answer consists of a general and four special demurrers, and general denial and special answer. On June 22d cause was tried by court without a jury, and resulted in judgment overruling all of said demurrers, and perpetuating the injunction restraining defendant from selling the land, and also from collecting said tax.

There is no statement of facts in the record, and we adopt the conclusions of fact found by the district court as our own. They are as follows, to wit: "(1) The plaintiff owns, in Maverick county, twenty-nine and three-tenths miles of railroad, which mileage includes all its railroad in said county from the entry into said county at its (the county's) north line to the center of the Rio Grande river, and includes one-half of the railroad bridge across said river between Eagle Pass, in said county, and Ciudad Porfirio Diaz, Mexico. (2) Plaintiff, at the time and in the manner required by law, rendered to the assessor of taxes of Maverick county, for taxation for the year 1890, all the railroad owned by it in said county, at a valuation of $6,500 per mile, which assessment included one-half of the bridge aforesaid, the bridge being assessed as so much railroad, and not separately as bridge, and the assessment, as rendered, covering all the railroad and all the bridge in Maverick county. (3) After the rendition aforesaid, the county commissioners' court, sitting as a board of equalization, changed plaintiff's assessment from twenty-nine three-tenths miles of railroad to twenty-nine miles of railroad, and, in lieu of the...