Harrold v. Arrington

• Citation: 64 Tex. 233
• Decision Date: 19 May 1885
• Docket Number: Case No. 4982.
• Parties: E. B. HARROLD ET AL. v. G. W. ARRINGTON.
• Court: Supreme Court of Texas

64 Tex. 233

E. B. HARROLD ET AL.

v.G. W. ARRINGTON.

Case No. 4982.

Supreme Court of Texas.

May 19, 1885.

APPEAL from Wheeler. Tried below before the Hon. Frank Willis.

This suit was brought by appellants against appellee, as sheriff and ex officio tax collector of Wheeler county, to restrain appellee from enforcing the collection of certain state and county taxes assessed by Wheeler county upon certain horses and cattle of appellants, which horses and cattle were situated in Greer county at the time of the assessment and before and after the 1st day of January, 1882. Appellants claim in their petition that the taxes were illegally assessed against their property, upon two grounds, viz.: First. Because the territory known and called Greer county, and which, by act of the legislature, was attached to Wheeler county for judicial purposes, and in which territory the personal property was situated, never was a part of the state of Texas. Second. That they were non-residents, and their property in an unorganized county was not subject to such taxes.

A petition and bond for removal to the United States court was filed and the application refused. The case was tried before the court and judgment given for defendants, from which judgment plaintiff appealed.Ball & McCart, for appellants, cited: Dennis v. Alachua, 3 Woods, 683; Dillon on Removals, secs. 74-76, 77 and notes; Baker v. Peterson, 4 Dill., 362; Osgood v. Chicago, 7 Ch. Leg. N., 241; 2 Cent. L. J., 275-283;Parker v. Ornman, 18 How., 137-141;Gold W. & W. Co. v. Keyes, 96 U. S., 199; Trafton v. Nougues, 4 Saw., 178; Rowland v. Ins. Co., 2 C. L. B., 56; Cooley on Tax., 209-215; Burroughs on Tax., 271 et seq.; R. S., Appendix, p. 25.

Temple Houston and J. N. Browning, for appellee, cited: R. S., art. 1277; Green v. Crow, 17 Tex., 180;Arnold v. Hockney, 51 Tex., 46;Hagerty v. Scott, 10 Tex., 525;Fowler v. Buckner, 23 Tex., 84; 18 U. S. Stat. at Large, 470, sec. 3; Dill. on Rem. of Causes, sec. 74, note 1; Torrey v. Grant Works, 14 Blatch., 269.

WILLIE, CHIEF JUSTICE.

The assigned errors question the jurisdiction of the state of Texas over the territory known as Greer county; the right of the officers of Wheeler county to assess and collect taxes upon property situated in Greer county; and the correctness of the rulings of the court below refusing to remove this cause to the United States circuit court, or to continue the suit for a term for the purpose of allowing time to amend the bond and application as well as to procure the attendance of the plaintiffs in the cause.

In the printed argument of counsel for appellants, it seems to be admitted that two only of the questions raised by these assignments can have any influence upon the decision of this appeal. Those are stated to be: 1st. Were the petition and bond for removal sufficient under the act of 1875? 2d. Can the personal property of a non-resident of an unorganized county situated in such unorganized county be taxed by the county to which such unorganized county is attached for judicial purposes?

The second of these questions does not arise upon the record. It was alleged in the petition that the plaintiffs were not residents of Greer county, but this was denied by the answer. The defendant also averred that the object of the plaintiffs' suit was to evade the payment of the taxes legally assessed against them as citizens and property holders of Greer county. Thus their allegation of residence was put directly in issue, and yet no proof upon the subject was offered, and the allegations of the petition in this respect were not sustained.

The first question is of a more serious character. So far as we know, it has never been adjudicated by the supreme court of the United States. It has been expressly decided in the circuit courts of the United States for the northern and southern districts of New York, that a bond which does not contain a condition for the payment of costs is insufficient under the act of congress of March 3, 1875, providing for a removal of causes from the state to the federal courts. Webber v. Bishop, 13 Fed. Rep., 49; Torrey v. Grant Locomotive Works, 14 Blatch., 269.

It would seem, too, from decisions made by other United States circuit courts, upon questions raised as to the sufficiency of removal bonds, that they would hold in accordance with the above rulings, were the point presented to them for adjudication. They hold in effect that, unless the requirements of the act, which are jurisdictional prerequisites, are substantially complied with, the power of the state courts to hear and determine the cause remains undisturbed. Burdick v. Hale, 7 Biss., 96; McMundy v. Life Ins. Co., 4 Weekly Notes Cases, 18.

These cases treat the filing of a good bond, conditioned as the statute prescribes, as a condition precedent to the right of removal; and such is the conclusion reached by Field in his treatise on the jurisdiction of the federal courts, sec. 178.

There is also a line of decisions in the United States circuit courts to the effect that after a case has been removed to one of these courts it will not be remanded because of a defective bond or petition, but that either may be amended under the direction of the court. Deford v. Mehaffy, 13 Fed. Rep., 481; Harris v. Del., L. & W. R. Co., 18 Fed. Rep., 833; Beede v. Cheney, 5 Fed. Rep., 388.

That it is not the intention of these courts to hold that the state courts must accept a bond defective in substance, and leaving out a material condition, is apparent from the reasoning of the decisions. The extent of their ruling is that, if the state court has accepted the bond and ordered the removal, and the record has been filed in the United States court, the removal is complete, and the cause will be retained, though an amendment may be necessary in order to make the bond comply with the requisites of the act of congress. In Beede v. Cheney it is said that the jurisdiction of the United States court does not depend upon the form nor even the substance of the bond which is presented to and approved by the state court before removal.

In Harris v. Del., L. & W. R. Co. the court say: “It is conceded that the state courts may refuse to grant an order to remove a cause if the applicant has not strictly complied with the requirements of the act of congress respecting removals.” The learned judge then goes on to hold that as the defects, when discovered, may be supplied, the federal court will not remand for such defects, but allow them to be cured by amendment. But he holds that if the omission is not thus supplied the suit must be remanded, and quotes the language of the supreme court of the United States in Gold Washing & Water Co. v. Keyes, 96 U. S., 201, to that effect.

And to the same effect in the case of Deford v. Mehaffy; this case holding, in addition, that the amendment may be made in either the state or federal court, according to their practice, respectively.

So that the only difference between the two lines of decisions is, in the first the defective bond is held insufficient to retain jurisdiction in the federal court after the case is removed there, although it has been approved by the state court; in the other, it is held that the defects in a bond approved by the state court may be cured by amendment in the federal court, and for that reason jurisdiction of the cause will be retained, and its defects supplied by amendment.

In neither line of cases is it held that the state court is bound to accept a bond rendered substantially defective by the omission of an important condition. Indeed, such holding would seem to be against the letter and...