Ferris v. Kemble

• Decision Date: 10 December 1889
• Citation: 12 S.W. 689
• Parties: FERRIS <I>v.</I> KEMBLE <I>et al.</I>
• Court: Texas Supreme Court

12 S.W. 689

FERRISv.

KEMBLE et al.

Supreme Court of Texas.

December 10, 1889.

Appeal from district court, Ellis county; ANSON RAINEY, Judge.

A. A. Kemble and J. W. Ferris, for appellant. Grace & Templeton, for appellees.

HENRY, J.

This is a suit brought by appellant, to enjoin the collection of $75 taxes by the city collector of Waxahachie, under a levy and sale, which sum is claimed to have been legally assessed against appellant. The petition avers that the plaintiff is a non-resident of the city, and that the said sum of $75 is for taxes on the credits of plaintiff, which were non-taxable within the city, and that it was otherwise illegally assessed against him. A preliminary injunction was ordered, and the sale enjoined. On the final hearing by the court, without a jury, judgment was rendered against the plaintiff, and the injunction dissolved, to which plaintiff excepted, and now prosecutes this appeal. An inventory of all property, real and personal, owned and held by appellant in the city on January 1, 1888, was made out by him under oath, and was agreed upon, and accepted by the assessor. Afterwards, Dechman and Pickett, acting as a board of equalization, directed said assessor to add to said inventory an item of credits, valued at $10,000, which he did; and upon the margin of appellant's inventory he made the following entry, viz.: "This amount of ten thousand dollars credits is put upon this inventory by order of A. M. Dechman and C. D. Pickett, of the board of equalization, made June 26th, '88." Appellant is a non-resident of the city of Waxahachie, and has been ever since 1880. His residence is just outside the city limits in Ellis county. He is and was a practicing attorney at law, and has been for many years, keeping his office in the city, which is his principal place of business. The item of credits here in question, valued at $10,000, consisted of notes against different persons, who were almost entirely non-residents of the city. They were taken, part for money loaned, part for sales of real estate, and some for attorney's fees. Some were real-estate notes, discounted. They were taken payable to his order at the bank of Waxahachie, using the printed forms of the bank; and they were unindorsed by appellant. He did not do a general loaning business, but kept an account in the bank, and made loans only as he had the means to spare. He kept his said notes in a portfolio, with other papers, in the bank vault, for protection against fire. No one was permitted to go to his papers but himself. Occasionally, he took said credits to his residence, and kept them there for a day or two; and he sometimes, though rarely, transacted business at his residence.

The first error assigned is that "the court erred in holding that it is immaterial that the assessor was induced to list the item of credits by order of the board of equalization, and, in effect, holding that the assessment of the same was legally made." Admitting that the board of equalization had no authority to add additional items of property to the inventory, we think that the court correctly held the assessment not invalid for that reason. When the property was listed by the assessor, it was valid, and became his own without regard to the fact that he listed it by direction of the board. Nor do we think that the court erred in holding that the acts of two members of the board of equalization were valid when they acted without the co-operation of a third member. Cooley v. O'Connor, 12 Wall. 398.

It is further urged that, appellant being a non-resident of the city, credits owned by him were not taxable by authority of the city. The rule is stated to be, in Cooley on Taxation: "A tax assessed against the person for personal estate is to be assessed to him at the place of his...