Davis v. Santa Rosa Infirmary

• Decision Date: 10 March 1920
• Docket Number: (No. 6347.)
• Citation: 220 S.W. 125
• Parties: DAVIS et al. v. SANTA ROSA INFIRMARY.
• Court: Texas Court of Appeals

Page 125

220 S.W. 125

DAVIS et al. v. SANTA ROSA INFIRMARY.

(No. 6347.)

Court of Civil Appeals of Texas. San Antonio.

March 10, 1920.

Appeal from District Court, Bexar County; W. W. Walling, Special Judge.

Suit by the Santa Rosa Infirmary against J. R. Davis and others. From judgment for plaintiff, defendants appeal. Reversed, and cause remanded.

T. J. Newton, of San Antonio, for appellants.

Don A. Bliss and J. C. Sullivan, both of San Antonio, for appellee.

FLY, C. J.

This is an application for an injunction by appellee, which is a private corporation organized under the laws of Texas, with its domicile in the city of San Antonio, against J. R. Davis, county judge of Bexar county, Jacob Rubiola, J. S. McNeel, Frank Sommers, and J. N. Covington, members of the commissioners' court, Albert Huth, assessor of taxes for Bexar county, and John A. Bitter, collector of taxes of said county, to restrain them from "levying upon and selling" for the payment of certain taxes certain property "known as the Santa Rosa Hospital property or the Santa Rosa Infirmary property." Upon a hearing of the cause the claim of the state and county for $1,077.40 for 1918 was canceled, and appellants perpetually enjoined as prayed in the petition.

After alleging that the property had been acquired by the Sisters of Charity of the Incarnate Word in 1890, and that appellee, a charitable and benevolent corporation, acquired it from that organization, and that appellee had "used the same exclusively as an institution of purely public charity," and that its vendors had always so used it while the property was theirs, it was further alleged:

"Though said property was and is exempt from taxation under the Constitution and laws of this state, the said defendant Huth, in his capacity as assessor of taxes of said Bexar county, assessed the same for state and county taxes for the year 1918, which taxes, penalty, and interest now amount to the sum of, to wit, $1,077.40, and the said commissioners' court of said county approved the tax rolls including said assessment, and the said defendant Bitter, in his capacity as collector of taxes of said county, is attempting to collect said taxes, and is threatening to levy on said property and sell the same under the law for the payment of said taxes. The said defendants claim that there is a lien on said property securing the payment of said taxes, and they are threatening to bring suit for said taxes and for a foreclosure of said alleged lien on said property. And plaintiff avers that, unless restrained and prohibited by the writ of injunction hereinafter prayed for, the defendants will cause said property to be levied upon and sold for the amount of said taxes, interest, and penalty; and they will cause suit to be brought for the amount of said taxes, interest, and penalty, and for a foreclosure of said alleged lien. The said claim of defendants casts a cloud upon the title of plaintiff to said property."

Appellants answered by general demurrer and special exceptions, and by a denial that appellee was an institution of purely public charity. There was no general denial or denial of the truth of other allegations in the petition.

The first assignment of error complains of the court overruling the general demurrer. There is no allegation in the petition that appellee owned any personal property, but the suit is to restrain a levy upon and sale of the real property and the institution of a suit and remove a cloud from the title. If appellee had alleged that it owned personal property, and had asked that appellants be restrained from levying upon and selling the personal property to collect the taxes due on the land, it would have asked restraint of an act that appellants could have put into execution under the law, for it is provided that personal property may be seized for any and all taxes due. Articles 7630-7632, Rev. Stats. The application for injunction applies to real property alone.

The allegations of the petition show that the property had been assessed and the rolls placed in the hands of the tax collector and a suit threatened, but shows that no suit had been instituted. Without a suit and a foreclosure of the tax lien on the real property, no levy could be made and no sale take place, and if, as alleged in the petition, a suit was merely threatened, appellee, when that suit was instituted, could interpose its defense of exemption of its property from taxation and receive all the protection in a court of law that it seeks to obtain in a court of equity.

The law does not look with favor upon the issuance of injunctions to restrain the collection of taxes, and only permits such course when it is clear that the applicant has no adequate legal remedy. Beach on Inj. §§ 1189-1191, 1194. In the last section cited a Pennsylvania case is referred to, in which it was held that an injunction would be refused where the taxing powers refuse a claim for exemption. Clinton School Dist. App., 56 Pa. St. 315. In the case of Stephens v. Railway Company, 100 Tex. 177, 97 S. W. 309, appellee had obtained an injunction restraining the collection of certain taxes, and the court, in reversing the judgment, held:

"The allegation that the judgment, when rendered, would constitute a lien upon the property and a cloud upon the title thereof could furnish no ground for an injunction, for the judgment could only be rendered after notice to the taxpayer and a hearing in court upon a claim established according to law; therefore the lien which the judgment might hold, if any, and the cloud that might be cast upon the title of the property by failure to discharge the judgment, would be just such results as every defendant in a court who is subjected to a judgment must suffer as a consequence of his failure to discharge his obligation for which the judgment was rendered."

Again, in the case of Railway v. Shannon, 100 Tex. 379, 100 S. W. 138, 10 L. R. A. (N. S.) 681, the court, referring to the case of Stephens v. Railway, held:

"In that case the tax, which was a state tax, was enforceable only by a suit in behalf of the state; and the railroad company had a plain, adequate, and complete remedy at law, by showing in defense of the suit the invalidity of the tax as to it."

So in this case the taxes against appellee could be collected only through a suit to enforce a lien, and the invalidity of the tax could be urged in defense of the action. There could have been but one suit; against that appellee could have interposed its defenses. Cole v. Forto, 155 S. W. 350.

The only allegation as to a cloud on its title in the petition is:

"The said claim of defendants casts a cloud upon the title of plaintiff."

The only claim mentioned in the application is that —

The "defendants claim that there is a lien on said property securing the payment of said taxes."

Under the law...