Early v. City of Waco

• Decision Date: 02 February 1928
• Docket Number: (No. 589.)
• Citation: 3 S.W.2d 131
• Parties: EARLY et al. v. CITY OF WACO.
• Court: Texas Court of Appeals

3 S.W.2d 131

EARLY et al. v. CITY OF WACO.

(No. 589.)

Court of Civil Appeals of Texas. Waco.

February 2, 1928.

Appeal from District Court, McLennan County; Sam R. Scott, Judge.

Suit by W. W. Early and others against the City of Waco and others. From the judgment, plaintiffs appeal. Affirmed.

Trippett, Boggess & Sheehy, of Waco, for appellants.

John McGlasson, of Waco, for appellees.

STANFORD, J.

Appellants filed this suit against the city of Waco, its commissioners and its tax assessor and collector, to restrain said city and its taxing officers from collecting a part of the taxes assessed for the year 1926 against certain real estate and personal property owned by appellants, located in said city. On the conclusion of the evidence the court refused to submit any issue as to the tax levy upon appellants' real estate, and rendered judgment denying appellants any relief from the taxes so assessed for the year 1926. Appellants have duly appealed from the court's judgment and present the record here for review.

Under several assignments, appellant contends, in effect, that, in a suit to enjoin collection of taxes under an excessive assessment, where the evidence showed said city assessed property upon a basis of two-thirds of its value, and there was evidence showing plaintiff's property was assessed at more than two-thirds of its value, the court should submit to the jury issues to find the reasonable market value of plaintiff's property. Under other assignments appellants contend the court was in error in refusing to submit their specially requested issue to the jury to find whether or not appellants' property was assessed upon the same proportionate part of its value as other real estate in the city of Waco for the year 1926. We will consider all of these assignments together.

Appellants alleged, in substance:

That they rendered to the tax assessor for the city of Waco their property for the year 1926 at its reasonable taxable value, as follows:

                Lot A, block 9 (Exchange Hotel) at ....... $40,000 00
                Lot B 8, Fl. 8 (Neale Building) at .......  30,000 00
                Lots 5, 6 & 7, Blk. 20 (Behrens Drug Co
                 Building) at ............................  30,000 00
                Lots B, 8, 9, 10 & E, Blk. 19 (Early Gr. &amp
                 Seed Co. Bldg.) at ......................  40,000 00
                

That the regular policy and plan adopted by the city for 1926 and for a number of years prior thereto had been to assess property at two-thirds of its cash market value. That the board of equalization for said year 1926, over the protest of appellants, raised the rendition of the above-described property to more than two-thirds of its value, as follows:

                The first being raised from  $40,000.00 to $49,920.00
                The second being raised from $30,000.00 "  $36,510.00
                The third being raised from  $30,000.00 "  $40,320.00
                The fourth being raised from $40,000.00 "  $48,420.00
                

That said assessment increase was arbitrary, wrongful, fraudulent, and in violation of the Constitution of the state of Texas and of the United States, etc. Appellants introduced three witnesses as to the value of said property, to wit, Hubby, Moore, and Early, one of the appellants. Hubby testified that the first piece was worth $55,000; Moore and Early each testified it was worth $60,000. Hubby testified the second piece was worth $35,000; Moore and Early put it at $45,000. Hubby testified the third piece was worth $30,000; Moore said $40,000; and Early $35,000 to $40,000. Hubby did not testify as to the value of the fourth piece, but Moore and Early put it at $50,000. It will thus be seen appellants' own witnesses differed as much as $10,000 as to the value of some of said pieces of property.

The record discloses: That in 1925, in order that taxation might be as nearly equal as possible, the equalization board, with great care and considerable expense, revalued for taxation all real property in Waco, including appellants' property, and called to their assistance all available means in order to make said revaluation as nearly accurate as possible. That in 1926 the same valuation was taken as the basis for fixing the valuations throughout the city. That the equalization board for 1926, in fixing the value of appellants' property, did not just adopt the valuation for 1925, but only used it as a basis, as they did in arriving at the value of all other property for the year 1926. They notified appellants of their intention to raise their rendition. Appellants and their witnesses appeared before the board and were heard. The board in person examined said property, and the board heard evidence of the value of appellants' property and other lots fronting on the same street or streets and on the same side of the street and in the same block or blocks as appellants' property, and of other lots on the same street or streets further away in both directions from appellants' property. That said board fixed exactly the same value on appellants' lots as they did on all other lots adjoining appellants' property and fronting the same street or streets. All of said witnesses testified without contradiction that they assessed appellants' property on the same basis as they did all other property in the city; that they tried to fix the true taxable value, and did so as nearly as it was possible for them to do so.

It is true article 8, § 1, Constitution of Texas, provides: "Taxation shall be equal and uniform." It is also true articles 7211, 7212, and 1048 to 1052, of the Revised Statutes of 1925, and article 215 of the charter of the city of Waco in pursuance of article 8, § 18, of the Constitution of Texas, provide for boards of equalization, and provide that such boards shall have power to send for persons, books, and papers, subpœna and swear witnesses, to hear evidence of the value of property, and to thus ascertain the value of property for taxation, and, if they find it is necessary to raise the valuation, then to set a date for a hearing and to notify the owner the date for such hearing, and on said date to hear the evidence of the owner and such witnesses as he may produce and such other evidence as the board may think necessary to determine the fair taxable value of such property. Such proceeding is judicial in its nature, and our statute (article 1054), which applies to cities, towns, and villages, provides:

"The action of said board at said meeting shall be final, and shall not be subject to revision by said board or by any other tribunal." (Italics ours.)

The action of the board of equalization being judicial in its nature, our courts rightfully and very properly and wisely hold, as said in Johnson v. Holland, 17 Tex. Civ. App. 210, 43 S. W. 71:

"Because the law has devolved on the board of equalization, and not on the courts, the duty of making such valuations, we hold it is not the duty of the courts to exercise any supervisory care over its valuations, so long as it acts within the scope of the powers with which it is invested, and in obedience to what may reasonably be presumed to be an honest judgment, however much we may disagree with it."

And, as said in Druesdow v. Baker, 229 S. W. 493, by the Commission of Appeals, approved by our Supreme Court:

"The decisions of the tax board in the matter of valuations are quasi judicial in their nature. This action is therefore a collateral attack upon the judgment of a quasi judicial tribunal. Such an attack cannot be justified in the absence of fraud, or something equivalent thereto, lack of jurisdiction, an obvious violation of the law, or the adoption of a fundamentally wrong principle or method, the application of which substantially injures complainant. No mere difference of opinion, as to the reasonableness of its valuation, when such valuations, though deemed erroneous, are the result of honest judgment, will warrant interference by the courts. Pittsburgh, C., C. & St. L. R. Co. v. Backus, 154 U. S. 434, 14 S. Ct. 1114, 38 L. Ed. 1039; Western Union Telegraph Co. v. Taggart, 163 U. S. 30, 16 S. Ct. 1054, 41 L. Ed. 49."

In I. & G. N. Ry. Co. v. Smith County, 54 Tex. 1, our Supreme Court said:

"The expressed intention of the law is to make the decisions of the board of equalization final on the question of valuation. If that tribunal errs, and affixes an excessive valuation, that fact gives the taxpayer no right to resort to the courts for relief."

See, also, T. & P. R. Co. v. Harrison County, 54 Tex. 119, 123; 4 Cooley on Taxation, pp. 3221, 3222, § 1612, where the author says:

"Classification for the purpose of taxation cannot be interfered with, unless it is so clearly arbitrary or unreasonable as to invade some constitutional right. In regard to assessments, courts cannot interfere with the exercise of discretion by the assessor or board of equalization and ordinarily questions of excessive valuation are not reviewable. Courts cannot substitute their judgment as to the valuation of property for the judgment of the duly constituted tax authorities."

See, also, 37 Cyc. p. 1112.

Practically if not all the cases cited by appellant come within the exception mentioned in Druesdow v. Baker, supra, where a fundamentally wrong principle of method of assessment is adopted, the application of which results in substantial injury to the complainant. As coming under this exception, see Lively v. M., K. & T. R. Co., 102 Tex. 545, 120 S. W. 852; Power v. Andrews (Tex. Civ. App.) 253 S. W. 870; Brown v. Bank (Tex. Civ. App.) 175 S. W. 1122; Garza Land & Cattle Co. v. Redwine Independent School Dist. (Tex. Civ. App.) 282 S. W. 905; Porter v. Langley (Tex. Civ. App.) 155 S. W. 1042; Langlay v. Smith, 59 Tex. Civ. App. 584, 126 S. W. 660; City of Breckenridge v. Pierce (Tex. Civ. App.) 251 S. W. 316.

Appellants' pleading was sufficient, and, if there had been evidence tending to show that the board was guilty of fraud, or something equivalent thereto, then such issue should have been submitted. No mere difference of opinion as to the reasonableness of...