Porter v. Langley

• Decision Date: 29 March 1913
• Citation: 155 S.W. 1042
• Parties: PORTER et al. v. LANGLEY et al.
• Court: Texas Court of Appeals

155 S.W. 1042

PORTER et al. v. LANGLEY et al.

Court of Civil Appeals of Texas. Dallas.

March 29, 1913.

Rehearing Denied April 19, 1913.

Appeal from District Court, Hill County; J. C. Roberts, Judge.

Action by L. Langley and others against Horton B. Porter and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Wear & Frazier, N. J. Smith, and Thos. Ivy, all of Hillsboro, for appellants. Chas. L. Black and Morrow & Morrow, all of Hillsboro, for appellees.

RAINEY, C. J.

Appellees, stockholders of several banks in Hill county, united as plaintiffs and brought this suit against the county judge, the commissioners' courts of two administrations, W. H. Knight, a former tax collector of Hill county, and B. L. Hodge, who was then collector of taxes. The allegations, in substance, were that said commissioners' courts fraudulently and willfully set up and maintained a higher value for the purpose of taxation with reference to bank stock than was maintained with reference to property generally other than bank stock; that such a policy amounted to discrimination against bank stock and the holders thereof in favor of other species of property for the purpose of taxation; that assessments of bank stock were raised over that at which they were rendered, without giving due and proper notice of the intended raise by the board of equalization; that during the years of 1908-1911 bank stock was assessed by the board at from 85 to 100 per centum of its book value, including surplus and undivided profits, while other property was willfully, knowingly, and fraudulently assessed at from 41 to 50 per centum of its cash market value. An injunction was prayed for to restrain the collection of the amount of taxes assessed against bank stock under the rate mentioned, and requiring the tax collector to accept less than the tax fixed by the board of equalization.

Defendants answered by general demurrer, a series of special demurrers, a general denial, and specially that during all the years in question there was a custom prevailing with the banks in Hill county mentioned in plaintiff's petition and with the stockholders named as plaintiffs to permit the officers of the banks in question to act for them in the matter of rendering their bank stock for assessment for taxes, and in the matter of appearing before the board of equalization in Hill county in their behalf and as their representatives; that the officers of the banks in question had actually, as the agents of plaintiffs, rendered plaintiffs' bank stock for taxes during the years in question, and had actually appeared before the board of equalization as the agents of the plaintiffs; that the officers rendering said bank stock had due and proper notice of the intended raise as to the taxable values by the board of equalization; that the properties mentioned, together with all other properties in Hill county, were assessed and valued for taxation by the commissioners' court of Hill county while sitting as a board of equalization and as a judicial body as provided by law; that the value of plaintiffs' properties and all other properties were assessed in an equal and uniform manner in proportion to values as provided by law; that each and all of said assessments were regularly and legally made and represented the judgment of said commissioners' court and of said board of equalization; that in arriving at such values with reference to the properties of plaintiffs and all other properties in Hill county the commissioners' court as individuals and as a board of equalization honestly tried and endeavored to place just and equal values on all properties; that, in furtherance of this undertaking, they summoned a great number of witnesses before them, and inquired of such witnesses under oath as to the cash market values and as to the real and intrinsic values, as provided by law, of all such properties, and that the values so fixed by them as a board of equalization were done in the light of the testimony so had before them and in accordance with said testimony; that their judgment in this particular therefore is final and conclusive of the issues presented by plaintiffs." The general and special demurrers were overruled, the case was submitted to a jury on special issues, and upon return of the verdict the court entered a judgment for plaintiffs, and defendants appeal.

The first assignment of error is: "The court erred in overruling defendants' special exception No. 1, wherein it was alleged that for all the wrongs and threatened injuries complained of by the plaintiffs as to all of the defendants they had an adequate remedy at law." There is no error in the overruling of this demurrer. Plaintiffs may have an adequate remedy at law, still under our statute that alone does not preclude them from seeking relief through the writ of injunction. When a tax has been imposed on a number of persons owning the same kind of property which affects each in the same way, and by the same defendants, and the rights of plaintiffs are identical, there is no reason why they should not join in a suit for relief against the threatened injury to which they may be subjected. George v. Dean, 47 Tex. 73; Blessing v. Galveston, 42 Tex. 641; Acts Leg. 1909, p. 354, c. 34.

The second assignment is: "The court erred in overruling and in not sustaining defendants' second special exception, to the effect that the several causes consolidated herein are in fact suits against the state of Texas and against Hill county, a definite subdivision of the state, and as the state had not given its consent to be sued in this particular the court had no jurisdiction to entertain this cause of action." The court did not err in overruling this special exception. The state is not a party to this action, and it is not such a one as required the consent of the Legislature for it to be instituted as it is not in any sense a suit against the state.

The third assignment of error will not be considered by us. It is based upon the exclusion of the testimony of certain witnesses. The bill of exceptions states that "the plaintiffs objected, which said objections and all of them the court sustained," nor does it state the questions propounded to elicit the information sought. Our courts have held that it is a requisite of a bill when evidence is excluded that it show the objection made that the appellate court may determine whether or not error has been committed. Railway Co. v. Jarrell, 38 Tex. Civ. App. 425, 86 S. W. 632; Railway Co. v. Holzer, 127 S. W. 1062; Howard v. McBee, 138 S. W. 450; Grinnan v. Rousseaux, 20 Tex. Civ. App. 19, 48 S. W. 781.

The fourth assignment is as follows: "The court erred in admitting the testimony of H. H. Simmons in favor of the plaintiffs, and over the objection of the defendants, to the effect that lands in Hill county and the best quality of lands in Hill county in the year 1893 were worth from $20 to $25 per acre, as more fully appears from defendants' bill of exception No. 2." The bill of exceptions shows that for the years 1908-1911 bank stock had been assessed for taxation at 100 per cent. on the dollar book value, and that for the same years the best quality of black lands had been assessed for taxation at not more than $40 per acre, and during the same time the revenue producing qualities for both real estate and bank stock had been shown and after Simmons had testified that the bank stock at said time was worth its book value, and that real estate, best quality, was worth from $100 to $125 per acre, he was then asked what the market value of the best quality of black land in Hill county was worth in 1893, and was permitted to state that it was worth from $20 to $25 per acre, to which an objection was made...