Lubbock Hotel Co. v. Lubbock Independent School Dist.

• Decision Date: 29 April 1935
• Docket Number: No. 4287.,4287.
• Citation: 85 S.W.2d 776
• Parties: LUBBOCK HOTEL CO. et al. v. LUBBOCK INDEPENDENT SCHOOL DIST. et al.
• Court: Texas Court of Appeals

85 S.W.2d 776

LUBBOCK HOTEL CO. et al. v. LUBBOCK INDEPENDENT SCHOOL DIST. et al.

No. 4287.

Court of Civil Appeals of Texas. Amarillo.

April 29, 1935.

Rehearing Denied September 9, 1935.

Error from District Court, Lubbock County; Clark M. Mullican, Judge.

Suit by the Lubbock Independent School District and others against the Lubbock Hotel Company and others. Judgment for plaintiffs, and defendants bring error.

Affirmed.

Syrian E. Marbut and L. A. Howard, both of Lubbock, and Goggans & Keith, of Dallas, for plaintiffs in error.

Clyde F. Elkins and Bledsoe, Crenshaw & Dupree, all of Lubbock, for defendants in error.

MARTIN, Justice.

The parties here will be designated as in the trial court.

Plaintiff sued defendants for the collection of delinquent taxes for the years 1930, 1931, and 1932, and for foreclosure of its tax lien.

The answer of defendants is lengthy and the substance only of their contention will be here repeated. In the first count it is alleged that the assessment against defendants' property was void for each of said years because in violation of the constitutional provision guaranteeing and requiring uniformity and equality of taxation; that the plaintiff adopted and carried into effect an arbitrary zoning system for the city of Lubbock, which had the effect of arbitrarily fixing values in disregard of the true market value of such properties; that as to personal property the plaintiff arbitrarily fixed a value of $30 per head on all dairy cattle when their true market value was $100 per head, and arbitrarily refused to tax the notes and bills receivable of all banks and building and loan associations within the city of Lubbock; that plaintiff attempted to tax defendants on 75 per cent. of the market value of their property while other property similarly situated was taxed at less than such percentage of its true value, and particularly said dairy cattle. They rendered their property at $100,000 and claimed the right to pay on only such value, and tendered in their pleadings the amount necessary to pay on such value. Their prayer in the first count was: "Wherefore, premises considered, the defendants pray that the plaintiff take nothing by its suit; that the defendants be permitted to go hence without day and that they recover their costs in this behalf expended."

By way of cross-action defendants again pleaded the facts showing discrimination against them, alleged that the assessment was absolutely void and prayed: "Wherefore, premises considered, the defendants pray that the cloud cast on the title to the defendants' said property be removed and that said taxes lien claimed by the plaintiff be vacated and removed, and set aside and that the costs of these proceedings be taxed against the plaintiff."

The trial court submitted only the following issue: "Do you find by a preponderance of the evidence that in the matter of taxes the Lubbock Independent School District discriminated against the property of the defendant in this case?" to which the jury answered "No"; whereupon judgment was entered for plaintiff as prayed for.

Many of defendants' propositions assert merely that plaintiff adopted an arbitrary and fundamentally wrong system of fixing the values of real estate. It is not alleged in such propositions, nor attempted to be shown in supporting statements, that the effect or operation of such system resulted in any injury to appellants, nor in any discrimination against them. A mere theory may not be litigated. For aught that appears in and under many of defendants' propositions, the actual working of the allegedly wrong system may have actually resulted in equality and uniformity of taxation. There must be more than the mere adoption of a fundamentally wrong principle or method of taxation. The courts grant relief upon "the adoption of a fundamentally wrong principle or method, the application of which substantially injures the complainant." (Italics ours.) Rowland v. City of Tyler (Tex. Com. App.) 5 S.W.(2d) 756, 760. All these are overruled without further discussion.

Defendants vigorously contend that a peremptory instruction should have been given in their favor, and we dispose of this contention upon the assumption that sufficient propositions and supporting statements appear in the brief to challenge our attention and require us to consider and dispose of the question stated.

We preface our discussion with the following: Article 8, § 1, of the State Constitution provides, "Taxation shall be equal and uniform. All property in this State, whether owned by natural persons or corporations, other than municipal, shall be taxed in proportion to its value, which shall be ascertained as may be provided by law."

The good faith of tax officials is presumed, and the burden of proof is upon complainant to establish a violation of the constitutional guaranty of uniformity. Sunday Lake Iron Co. v. Wakefield Tp., 247 U. S. 350, 38 S. Ct. 495, 67 L. Ed. 1154.

Absolute or perfect equality and uniformity in taxation being impossible of attainment, is not required. 61 C. J. 105.

"The mere fact that the property of one party is assessed at its full value, and that of others at less than its full value, when the statute authorizes no such discrimination, raises no constitutional question, and for the courts to interfere in such a case on constitutional grounds it must appear that a rule or system of valuation had been adopted by those whose duty it was to make the assessment, which was designed to operate unequally and to violate a fundamental principle of the constitution, and that such rule had been applied, not solely to one individual, but to a large class of individuals or corporations." 26 R. C. L. p. 247.

See, also, Coulter v. Louisville, etc., R. Co., 196 U. S. 599, 25 S. Ct. 342, 49 L. Ed. page 615; Sunday Lake Iron Co., v. Wakefield Tp., supra.

"Mere omissions or errors of judgment of taxing officials in the exercise of an honest judgment, will not invalidate an assessment." 61 C. J. p. 120.

Fraud may be implied from the existence of a grossly excessive assessment. 61 C. J. 856. The existence of fraud on the part of taxing officials will, of course, vitiate an assessment, but "in order that there be fraud, there must exist on the part of the assessing officials, a conscious failure to exercise that fair and impartial judgment which the law requires of them." 61 C. J. 856. As indicating generally the views of the Texas courts, see: Druesdow v. Baker (Tex. Com. App.) 229 S. W. 493; Brundrett v. Lucas (Tex. Civ. App.) 194 S. W. 613 (writ ref.); Sparks v. State (Tex. Civ. App.) 27 S. W.(2d) 918, 919; Early v. City of Waco (Tex. Civ. App.) 3 S.W.(2d) 131; City of Wichita Falls v. J. J. & M. Taxman Ref. Co. (Tex. Civ. App.) 74 S.W.(2d) 524 (writ ref.).

We turn now to an application of these well-established legal principles to the facts of this case. The valuations for the years in controversy, placed by the equalization board acting for plaintiff on defendants' property, were as follows: For 1930, $439,920; for 1931, the same; for 1932, $351,940. Defendants introduced no testimony whatever as to its reasonable cash market value for either of said years. Nor do we find any evidence cited in defendants' brief of either the assessed or market value of property...