George v. Dean

• Decision Date: 01 January 1877
• Court: Texas Supreme Court
• Parties: R. F. GEORGE ET AL. v. FRANK DEAN, COLLECTOR, &C.

47 Tex. 73

R. F. GEORGE ET AL.

v.FRANK DEAN, COLLECTOR, &C.

Supreme Court of Texas.

1877.

APPEAL from Galveston. Tried below before the Hon. William H. Stewart.

Robert F. George, H. J. Larsen, and others, brought suit against Frank Dean, collector of taxes for Galveston county, to enjoin the collection of the following taxes: A tax of one fourth of one per cent., levied by the Legislature in 1873, for the scholastic year ending September 1, 1874, for the purpose of building and repairing school houses; a special tax, levied by the County Court of Galveston county, to pay interest and sinking fund of Galveston county bonds, issued by said county under a special act of the Legislature, approved November 29, 1871. The facts upon which the case was tried are given substantially.

Plaintiff read the consolidated assessment roll of taxes, which was in possession of the defendant as collector. This roll sets forth the names of the tax-payers, in alphabetical order, the amount and value of property belonging to each, and the amount of the several taxes assessed against each tax-payer, except the school tax of one fourth of one per cent.

The property set forth and described on said roll did not appear by precincts or by school districts, but from the entire body of the county, and without reference to any boundaries of precincts or school district. The said schooltax did not appear on the roll. It was shown that the real and personal property of some of the plaintiffs was located in different precincts and districts.

The following instructions from the comptroller to assessors for 1874 were read:

“When the precinct assessments are completed, you should at once meet at the county seat of your county, and consolidate such assessments in one general roll, by precincts, so as to show the property assessed in each.

The names of the tax-payers should be arranged in alphabetical order on the roll of each precinct. All the columns on the roll should be correctly added up, and the footings recapitulated; also the justices of the peace, when through their precinct assessments, must meet and consolidate the precinct assessments into a general roll, alphabetically arranged. To illustrate: the names of the tax-payers for the whole county, beginning with the letter A, must be placed together, consolidated. No payment will be made for any other roll returned to this office.”

The tax-roll exhibited, was on the printed forms furnished by the comptroller, with no column for the school-tax. When a tax-payer pays the school tax, the collector marks in red ink on said roll the amount so paid as the school tax.

The said special act, approved November 29, 1871, was then read, and the order of the County Court of Galveston county, ordering the issuance of bonds on account of funded debt, and imposing a tax of one tenth of one per cent., for interest and sinking fund, to meet said bonds.

It was admitted, that defendant had seized property of some of the defendants, and was about to seize property of others, to make said taxes; all other taxes for that year, 1874, of the defendants, had been paid.

The defendant proved, by R. D. Johnson, the presiding justice, that “all the property situated in the county was assessed by the justices of the peace, in their respective precincts; each justice assessing the property in his precinct, in the manner prescribed by law, and in accordance with the instructions of the comptroller. The original assessment of defendants George and Larsen were produced on printed blanks, as furnished by the comptroller. The property of the other plaintiffs was assessed in the same manner. After the assessment by precincts was completed, the justices proceeded to compile a consolidated assessment roll, as required by the instructions of the comptroller; and for this purpose employed J. M. O. Menard, who, under the direction of the justices, prepared and compiled the consolidated assessment rolls for 1874. The roll was compiled from the assessments made of each person's property by the justices, in their respective precincts. The property of each tax-payer was assessed separately by the justice in whose precinct he lived. The names of all the tax-payers were arranged in alphabetical order on the consolidated roll. At the end of the roll there was a recapitulation of the entire assessment for the year, (1874,) showing the amount of the assessment of each precinct separately, and the amount of the commissions of each justice. After they were compiled, they were inspected and approved by the justices as the ‘consolidated assessment rolls of Galveston county, for the year 1874; by order of court, October 16, 1874.’

J. M. O. Menard, deputy sheriff and collector, presented the said tax-roll, as prepared by himself, with duplicates, and his bill. The work was received, and he was paid for it.

In order to put the tax-payer to as little trouble as possible, the justices adopted this rule in some cases: A tax-payer owning property in different precincts, could render his property to the justice of the precinct in which he lived, stating in what precinct his property was situated; the justice would assess the property in each precinct on a separate inventory, under the oath of the tax-payer. That property not in his precinct was certified to the proper justice, who, if the assessment was satisfactory to him, would adopt it as his own; otherwise, he would assess it himself. This was done for the convenience of the tax-payers. Property belonging to the same person, but in different precincts, does not appear all on the same inventory; there was a separate inventory for each precinct.”

The real estate of plaintiff George, as shown in the assessment exhibits, was in a different precinct from the personal property rendered in precinct No. 3, where rendered.

J. M. O. Menard testified: “I was employed to compile the consolidated tax-roll of Galveston county, for 1874; I compiled the roll from the inventories and assessments or valuation handed me by the justices of the peace. At the time I did so, I asked the justices for a list of all the taxes which had been levied, that I might compute the taxes on the assessed value of each person's property whose name and assessment appeared on the inventories handed me. A list was given me by the justices, and I made the computation on the consolidated rolls accordingly. The statement given me did not contain the rate per cent. for the school-tax, (viz., of one fourth of one per cent., levied for the purpose of building and repairing school-houses,) therefore I did not compute the school-tax upon the consolidated roll, and write it down in a separate column, as I did in the case of other taxes. When I presented the consolidated roll to the justices in County Court, for inspection and approval, they discovered the omission, viz., that the school-tax had not been computed like the other taxes, and set down in a separate column upon the consolidated assessment-roll. The justices in County Court discussed the question how this omission should be corrected, and concluded, in order to save the county further expense in compiling another roll, that the school-tax should be computed on the said roll, there being space on it for that purpose. I was instructed by the justices to do this, and there being space enough on the roll, I expressed my willingness to do this. The rolls were then approved by the County Court.

I was tax collector at that time, being deputy sheriff for the collection of taxes. When the consolidated rolls were delivered to me as collector, the said school-tax was not computed on said rolls. I was also the compiler of the rolls, and was instructed by the justices to compute said school-tax on said rolls, and to rule a column on the rolls for that purpose. I did not compute said school-tax at once; but being crowded with business, I computed said tax on the assessed value of a person's property as he came up to pay his taxes, in accordance with the rate levied, and then wrote it down in a column ruled for that purpose on the assessment-rolls, in red ink. Being both compiler and collector, I thought that the most convenient way. The largest portion of said school-tax has been collected. The fact that said tax was not calculated on said consolidated roll at once, occurred through the mistake either of the justices or of the board of school directors.”

The second supplemental tax-roll for 1874 had the school-tax carried out in its proper column. The first supplemental roll was defective, as in the original roll. Proper exceptions were taken by plaintiffs to the evidence of Johnson and Menard, and to the introduction of the other documents explanatory of the tax-roll.

Judgment was rendered for the defendant, and the plaintiffs appealed.

This case and the succeeding case were advanced under the rules of the Supreme Court, adopted at the Galveston Term, 1877.

L. E. Trezevant, for appellants.--Frank Dean, as collector of taxes for Galveston county, demands of appellants certain taxes for the year 1874, to wit:

1st. A tax of one fourth of one per cent., imposed by the act of April 30, 1873, for the purpose of building and repairing school-houses in the several school districts of the several counties.

2d. A special tax of one tenth, levied by the County Court of Galveston county, to pay county indebtedness, by authority of the special act set out in plaintiffs' petition. (See Special Laws, 12th Leg., 2d sess., p. 118.)

Plaintiffs refused to pay these two taxes, paying all the others.

The collector levied upon and seized the property of some of the complainants, and was proceeding to seize the property of the others, for the purpose of enforcing the payment of said taxes, when plaintiffs filed their petition, praying for the writ of injunction upon a final hearing.

The court below overruled defendant's demurrer to the plaintiffs' petition, and rendered judgment, dismissing plaint...