Morris v. State

• Decision Date: 01 January 1877
• Citation: 47 Tex. 583
• Parties: W. H. MORRIS ET AL. v. THE STATE.
• Court: Texas Supreme Court

47 Tex. 583

W. H. MORRIS ET AL.

v.THE STATE.

Supreme Court of Texas.

1877.

APPEAL from Travis. Tried below before the Hon. J. P. Richardson.

July 23, 1873, the State brought suit, in the Travis District Court, against W. H. Morris, as sheriff and collector of McLennan county, and his sureties on his official bond, for certain balances alleged to be due from said Morris, as collector of taxes.

The breaches of the bond, as alleged in the petition, were as follows:

“1st. That after the execution thereof, as aforesaid, the said defendant Morris, as such sheriff, as aforesaid, became chargeable with, and received and collected of money due the plaintiff for the year 1870, the sum of $7,769.66, and has failed, refused, and neglected to pay over and account for a large sum thereof, to wit, the sum of $1,487.66, which last sum, with interest and ten per cent. damages, is due plaintiff from defendants.

2d. That after the execution of said bond, as aforesaid, the said defendant Morris, as such sheriff, became chargeable with, received, and collected of money due the plaintiff for the year 1871, the sum of $36,013.95, and has wholly failed, neglected, and refused to pay over and account for a large amount thereof, to wit, the sum of $14,384.85, which last-named sum, with interest and ten per cent. damages, is due from plaintiff to defendant.”

The defendants demurred, and, by amendment, plaintiff filed, as part of petition, a certified copy of the bond of the defendants, and corrected the statement of the amounts due for each year in which the alleged default occurred, and claimed $2,000, on account of taxes collected by Morris, for the year 1872.

The defendants pleaded payment, and insisted that so much of the account charged on account of frontier bond tax for 1870, being an illegal tax, could not be collected, and that as to so much as was charged on account of fees and commissions for justices for 1871, the tax having been repealed, the collector was relieved from its collection, and urged various objections to other items appearing on the comptroller's account.

The defendants proved payment of $4,309, after suit had been instituted. A delinquent list was allowed.

The jury found a verdict for the State, and the court rendered judgment for ten per cent. additional, as damages. The defendants appealed.

The discussion of the case and the opinion show all necessary facts.

Walton, Green & Hill, for appellants.--The principal errors complained of, are the rulings of the court and the refusal of charges asked by the defendant upon the trial; and, first, it was error in the court to refuse the charges asked by the defendants in relation to what was called the frontier tax.

To understand this subject, we must refer the court to the act of August 5, 1870, (Paschal's Dig., art. 7247, and following,) to provide for frontier defense. By the act, it appears authority was given for the issuance of $750,000 of bonds, bearing interest at seven per cent, payable semi-annually, and the 4th section provided that there should “be levied each year, with other taxes of the State,” an amount sufficient to pay the interest and two per cent. sinking fund; and, second, “that the taxes for this purpose shall be assessed on all property and occupations under the general laws of the State.” (Paschal's Dig., art. 7250.)

We believe the law was inoperative, because there was no rule fixed by which could be determined the proper amount to be levied, and we think, in matters of taxation, which involve the highest powers of the Government, the question of the rate of taxation cannot be left unprovided for; for this would be to place the property of the citizen into the hands of irresponsible persons, or at least into the hands of persons to whom the people had not delegated that power. The expression, therefore, that a sufficient amount shall be raised to pay the interest and sinking fund, is too uncertain, and, as shown in this case, was liable to the grossest abuse; for we find that the comptroller, in fixing the amount in his opinion necessary, directed the collection of five cents on the one hundred dollars, which, from a sense of its enormity, he was induced afterwards to change to five per cent. of the State tax. That the subsequent Legislature viewed the law as inoperative for the causes here named, we have only to cite the affirmative acts, not only recognizing the obligation of the bonds, but also providing for the levy of the tax necessary to pay the interest. (See the two acts of June 3, 1873, Session Acts, 199, 206.)

Independent, however, of this view, there is a fatal objection to the levy of this tax. It will be seen by the law that the amount of the tax is to be levied “each year with the other taxes of the State,” and as said in the second clause of the section, it shall be assessed on all property and occupations “under the general laws of the State;” and as the State taxes for the year 1870 had been already levied under the general law, (to wit, on the first day of January, 1870,) and the tax rolls for that year had already been made out, and were already in the hands of the collectors at the date of the passage of the act, it is impossible that the tax aforesaid should apply for that year, unless there had been some other law authorizing it; which there was not. We take it, therefore, as wholly gratuitous on the part of the comptroller to claim a collection for that year.

Again: The taxing power of the State had already been exercised by the proper officers, and their power was for that year exhausted, unless it obtained a new lease by some special law; which law we fail to find.

In a Government like ours, of forms and traditions, much depends upon the mode of enforcing laws, and especially with respect to taxation; therefore it is universal, not only with the States but the Federal Government, that the power to levy or determine the particular tax on property is left with some board or commission created for this purpose. In this State it is devolved on the County Court.

The tax thus laid is by the proper official assessed, and a copy of the assessment is returned to the office of the comptroller of public accounts, who takes charge thereof, proceeds to examine it, and if erroneous, to cause it to be corrected. When it is found correct, it is filed in the comptroller's office, and is made the basis of account against the collector, who, from the time of the receipt and acceptance of the rolls, is chargeable with the collection of the several amounts of taxes embraced therein.

This relates to real and personal property. The tax on occupations is specific, and the collector is chargeable with the collection thereof, and is required to make a report at stated times. When these reports are filed, they also constitute the basis of an account against the collector.

These are the only sources of account against a collector, provided for by law, except in certain cases penalties may be assessed for defalcation; and the comptroller cannot go beyond the sources the law furnishes him for the material out of which he shall make the account.

But this is not all. It will be seen that this charge of $1,324.46 is not placed on the account of 1870, because, as stated in the evidence, the comptroller did not bethink himself to levy the tax till the year 1870 had gone, or almost expired, (viz., twenty-seventh of December,) and the taxes for that year had been collected; but he then directed that the sum of five cents in the hundred dollars should be levied on all property and occupations of 1870, as shown by the roll of that year, and at once proceeded to put the sum thus ordered to be collected upon the account of the collector for 1871, stating it in this language: “Frontier tax collectable on rolls of 1870, $1,324.48,”””--thus showing on its face that the tax had never been collected, as the evidence also conclusively shows.

Certainly the action of the comptroller in respect to this frontier tax was without any authority of law, and the charges asked by the defendants and refused by the court were correct, and ought to have been given.

Another ground of error consists in refusing to charge the jury that the collector was not chargeable in his account with the sum of $1,687.57, which was placed to his debit as justices' fees and commissions, because the law under which they were assessed was expressly repealed before the collector was required to account.

To understand this, we refer the court to the act of April 22, 1871, by the thirtieth section of which (omitted in Paschal's Digest) it was provided that the justices of the counties should be the assessors, and that they should be entitled to certain fees, “which fee, together with the fee for making the assessment, shall be added to and collected with the direct State tax.”

Thus it will be seen the assessment was authorized when the tax roll was made; but before any collections had been made under that law, to wit, on the twenty-ninth of November of the same year, the said thirtieth section of the act of April 22, 1871, was amended and substituted by another, in which it is expressly provided that the commissions above described, “to which justices of the peace are entitled, together with the commissions of sheriffs for collecting taxes, shall be paid out of the general revenue.”

That this is an entire repeal of the former provision cannot be doubted; for it is an entire substitution of the whole section by name; and that it is so considered, we refer the court to the Digest, where it is totally omitted, and the substituted section is printed in place of it. (Paschal Dig., art. 7684; see The State v. Horan, 11 Tex., 144;Bryan v. Sundberg, 5 Tex., 418;Rogers v. Watrous, 8 Tex., 62;Stirman v. The State, 21 Tex., 734; and other authorities cited, Paschal's Dig., note, 1012.)

The history of these laws may be necessary for a clear understanding. The law of 1870 was very...