P. P. Court Sheriff v. O'connor

• Decision Date: 22 January 1886
• Docket Number: Case No. 2138.
• Citation: 65 Tex. 334
• Court: Texas Supreme Court
• Parties: P. P. COURT SHERIFF, &C., v. THOS. O'CONNOR.

65 Tex. 334

P. P. COURT SHERIFF, &C.,

v.THOS. O'CONNOR.

Case No. 2138.

Supreme Court of Texas.

Jan. 22, 1886.

APPEAL from Aransas. Tried below before the Hon. H. Clay Pleasants.

On July 2, 1885, Thomas O'Connor, the appellee, filed his petition for injunction, in the district court of Aransas county, against P. P. Court, sheriff and tax-collector of the county, to restrain that officer from selling certain lands of O'Connor, situated in Aransas county, for taxes, for the year 1884, assessed against those lands and four thousand head of cattle. The petition alleged, that O'Connor was a resident of Refugio county; that he owned a pasture lying partly in the county of his residence and partly in Aransas, an adjoining county; that he also owned a large number (about thirty-one thousand) of neat cattle, which ranged in that pasture, but which were managed and controlled at and from his ranch in Refugio, the county of his residence, and that petitioner possessed no ranch in Aransas county. The petition further alleged that O'Connor, having been required so to do by the assessor of Refugio county, rendered for taxation, for the year 1884, in that county, his entire herd of cattle, and that he afterwards paid to the sheriff of the county the taxes on the same for that year; that petitioner renderedfor taxation for the same year, to the assessor of Aransas county, all his lands in the latter county, and noted upon his list so rendered, the fact that all the cattle had been rendered by him for taxation in Refugio county; but that, notwithstanding that fact, the county commissioners of Aransas county, added to petitioner's list, without his knowledge, four thousand head of cattle, at a valuation of $52,000.00, and assessed upon them taxes amounting to $338.00. The petition further alleged that, in March, 1885, petitioner tendered to the defendant, P. P. Court, sheriff and tax-collector of Aransas county, all the taxes assessed upon his lands in that county, amounting to $479.88; but that officer refused to receive and receipt for the amount as and for taxes upon petitioner's lands, and demanded payment, as well, upon the cattle, and had, shortly thereafter, levied upon, and advertised for sale, on the first Tuesday of July, following, all of petitioner's lands in Aransas county, to satisfy the taxes on both the land and the cattle, aggregating $817.86. The petition prayed an injunction perpetually restraining the sale, on petitioner's paying or tendering to the defendant the full amount of the taxes assessed upon the lands. Plaintiff paid these taxes and a preliminary injunction was granted. Defendant demurred to the petition, and also moved the court to dissolve the injunction and dismiss the cause, assigning the following grounds:

1. Because the petition shows no equity on its face.

2. Because the petition fails to show that plaintiff ever applied to the assessor, or to the commissioners' court, or board of equalization, of Aransas county, for a correction of his assessment.

2. Because the petition fails to allege when plaintiff paid the taxes assessed against him in Refugio county, on cattle, and fails to show that plaintiff paid the taxes before the levy on, and advertisement of the sale of, plaintiff's lands by the tax-collector of Aransas county.

4. Because the petition fails to allege that the four thousand cattle were not in Aransas county, on January 1, 1884.

5. Because the petition fails to allege when the assessor of Refugio county required plaintiff to render for taxation, for 1884, in that county, all the cattle in his pasture lying partly in Refugio and partly in Aransas counties.

6. Because the petition fails to allege any right or authority in the assessor of Refugio county to require plaintiff to render in that county all the cattle in his pasture lying in both counties.

The court overruled the demurrer and also the motion to dissolve. O'Connor's pasture lies partly in Aransas and partly in Refugio counties, but the larger portion of it is in the latter county. On January 1, 1884, he had in this pasture about thirty-one thousand cattle, and they could, it appears, graze at will in any part of it. They were, however, “handled” or controlled in that portion which lies in Refugio county. There was some conflict in the evidence as to whether or not O'Connor had a ranch in Aransas county, but he resided in Refugio county about twelve miles from the line separating the two counties.

Leisering, a witness for the plaintiff, testified, amongst other things, as follows: “I am assessor of taxes for Refugio county, and I assessed the property of Thomas O'Connor in 1884. When he rendered his personal property to me I required him to answer, under oath, whether or not he had a ranch in Aransas couty, and he said that he had none. I then required him to render all the cattle in his pasture, lying in both counties, to me, which he did. My authority was the instruction from the comptroller, which I now produce. This printed instruction was received by me in answer to a letter from me to that officer, asking for instructions.”

The instruction referred to by the witness is as follows: “Where personal property, such as cattle and horses, range in more than one county, the owner of the same living near the county line, shall render to the assessor of the county in which he resides, the entire number owned; but, in case he has a separate ranch in another county, he shall render this on a separate inventory, to be forwarded to this office, and the same will be sent to the assessor of the county in which that ranch is situated.”

The cause was tried, without a jury, upon the issue tendered by the plea of general denial, and the court rendered judgment in favor of the plaintiff, perpetuating the injunction. From that judgment the defendant prosecutes his appeal to this court.

The grounds relied on for reversal are substantially the same as those set forth in the demurrer to the petition and the motion to dissolve.

Stanley Welch and Delmas Givens, for appellant, on the proposition, that to support a petition for an injunction enjoining the collection of taxes, the applicant should set out specifically in his petition the precise equitable grounds relied on to perpetuate the injunction, and should show, affirmatively, therein the nature and character of the irreparable damage that will result to him, unless he be granted the equitable relief sought, cited: Hardesty v. Flemming, 57 Tex. 395;Blanc v. Meyer, 59 Tex. 90; T. & P. R'y Co. v. Harrison, 54 Tex. 119;Red v. Johnson, 53 Tex. 288; H. & T. C. R'y Co. v. County of Presidio, 53 Tex. 518; High on Inj., secs. 544, 545; R. G. R'y Co. v. Scanlan, 44 Tex. 650.

That the constitution and laws of this state require all real and personal property to be assessed for taxation and the taxes thereon paid in the county where situated, and the fact that the assessor of another county, or the comptroller of the state, required otherwise, is no cause for enjoining the...