Richey v. Moor

• Decision Date: 28 February 1923
• Docket Number: (No.3584.)
• Citation: 249 S.W. 172
• Parties: RICHEY, Tax Collector, et al. v. MOOR.
• Court: Texas Supreme Court

Page 172

249 S.W. 172

RICHEY, Tax Collector, et al. v. MOOR.

(No.3584.)

Supreme Court of Texas.

February 28, 1923.

Certified Questions from Court of Civil Appeals of Eighth Supreme Judicial District.

Suit by Lee Moor against R. D. Richey, tax collector, and another. Judgment for plaintiff, and defendants appealed to the Court of Civil Appeals, which certified questions to the Supreme Court. Questions answered.

W. H. Pelphrey, Chas. H. Veale, and D. E. Mulcohy, all of El Paso, for plaintiff.

Jones, Jones, Hardie & Grambling, of El Paso, for defendants.

CURETON, C. J.

This case is before us on certified questions, and the facts stated are taken from the certificate. The suit was instituted by the appellee, Moor, against R. D. Richey and W. H. Pelphrey, appellants, tax collector and county attorney, respectively, of El Paso county.

On January 1, 1917, Moor owned eight separate and distinct tracts of land situated in said county, which, for convenience, are designated by numbers in this opinion. These tracts were listed on the same assessment sheet, but each tract was separately rendered and valued. For the year 1917, state and county taxes were levied against the lands, and which the tax collector was authorized to collect, as follows: Tract No. 1, $2.80; tract No. 2, $23.67; tract No. 3, $23.68; tract No. 4, $23.66; tract No. 5, $10.82; tract No. 6, $6.45; tract No. 7, $27.82; tract No. 8, $23.67; total, $142.57. In March, 1917, Moor conveyed tract No. 8, the purchaser assuming and agreeing to pay the taxes thereon for the year 1917. The total of the taxes levied against tracts Nos. 1 to 7, inclusive, was $118.90.

On January 28, 1918, Moor tendered to Richey, the collector, in fall payment of the taxes for the year 1917, on said tracts 1 to 7, the amount stated. This tender was made in due form, and was legally maintained at all times thereafter, and during the progress of this litigation, and the amount thereof paid into the registry of the court when this suit was instituted. No question is made as to the sufficiency of the tender, except as to the amount, and as to that only because it did not embrace the taxes due on tract No. 8. No tender was made of the taxes due on tract No. 8, Moor at the time advising the collector that he had sold said tract, and that the purchaser had assumed the payment of the taxes due thereon. The collector refused the tender, and demanded payment of the taxes due on all of the eight tracts as a condition precedent to acceptance. The collector has reported and listed the taxes as delinquent on the land, and is claiming that the land is now liable for penalties, interest, and costs as in the case of delinquent taxes.

On the day upon which this suit was filed, and prior to the filing thereof, the appellee again tendered to the tax collector the said sum of $118.90 in payment of the taxes due upon said tracts 1 to 7, which tender the collector refused to accept unless Moor would also pay the penalties, interest, and delinquent costs charged against said lands. Notice, as required by law, has been given by the tax collector to Moor that, unless the taxes, penalties, interest, and costs against the said seven tracts shall be paid, he will cause suit to be filed against said lands to recover said taxes, interest, penalties, and costs. The tax collector and Pelphrey are threatening to file against said Moor a separate suit upon each of said seven tracts for the amount claimed to be due by the said collector upon each of said seven tracts, and Moor will be called upon to defend said suits, and it will be necessary for him to incur the expense of employing attorneys to represent him therein.

On June 7, 1920, Moor filed this suit in the district court of El Paso county, setting up the facts indicated, and asking that the collector be required to accept the taxes so tendered, and to issue a receipt therefor as provided by law showing the payment of the taxes for the year 1917 against each of said tracts, Nos. 1 to 7, and requiring him to refrain from reporting said lands as delinquent for the 1917 taxes, and restraining the said Richey, collector, and Pelphrey, as county attorney, from taking any further steps towards the collection of said taxes and from filing the threatened suits. Upon hearing the court rendered judgment granting the relief sought, and the appellants, Richey, as tax collector, and Pelphrey, as county attorney, appealed, and the case is now pending in the Court of Civil Appeals for review. It is not shown that Moor has any homestead rights in any of the land.

Upon the foregoing statement of the case, the honorable Court of Civil Appeals certifies the following questions:

"First: Are tracts Nos. 1 to 7, inclusive, upon which Moor tendered the taxes for the year 1917, incumbered by a lien to secure the payment of the taxes for the year 1917 upon tract No. 8?

"Second: Was it the duty of the tax collector to accept the tender made and issue a statutory receipt showing payment of the taxes for the year 1917 upon said tracts 1 to 7, inclusive?

"Third: If the second question be answered in the affirmative, would such acceptance and issuance of receipt for the money tendered release the lien, if any, of the state and county, on tracts 1 to 7, to secure the payment of taxes due on No. 8?"

The questions will be answered in the order in which they are presented.

The first question involves the construction of section 15, art. 8, of the state Constitution, which reads:

"The annual assessment made upon landed property shall be a special lien thereon; and all property, both real and personal, belonging to any delinquent taxpayer shall be liable to seizure and sale for the payment of all the taxes and penalties due by such delinquent; and such property may be sold for the payment of the taxes and penalties due by such delinquent, under such regulations as the Legislature may provide." Harris' Constitution, p. 606.

The Constitution of 1869 contains provisions similar in purpose, reading as follows:

"Sec. 20. The annual assessments made upon landed property shall be a lien upon the property, and interest shall run thereon upon each year's assessment.

"Sec. 21. Landed property shall not be sold for the taxes due thereon, except under a decree of some court of competent jurisdiction.

"Sec. 22. Provisions shall be made by the first Legislature for the condemnation and sale of all lands for taxes due thereon; and every five years thereafter of all lands the taxes upon which have not been paid to that date."

7 Gammel's Laws, p. 423.

The difference between these two provisions is apparent, but, in so far as a lien is given on land for taxes, the language used is substantially identical, and in meaning precisely the same. Prior to the incorporation of the language used in section 20, just quoted, with reference to a lien on land for taxes, in the Constitution of 1876, its meaning had been definitely declared by this court. As used in the Constitution of 1869 it was held to mean that the lien provided for attached, not to the property of the taxpayer generally, but only to each separate tract or parcel of land for the taxes assessed against it. Jodon v. City of Brenham, 57 Tex. 655, 657; Edmonson v. City of Galveston, 53 Tex. 157, 161; State of Texas v. Baker, 49 Tex. 763; Clegg v. State, 42 Tex. 605, 609. By incorporating this language in the Constitution of 1876 without material change or modification, the people in adopting the Constitution necessarily adopted the construction previously given it by the highest court of the state, and the language of the present Constitution has the same meaning which it had in that of 1869 as declared by the Supreme Court. Taylor v. Boyd, 63 Tex. 533, 541; Trigg v. State, 49 Tex. 645, 673, 674; Carr v. Tucker, 42 Tex. 330, 337; Stallings v. Hullum, 89 Tex. 431, 434, 35 S. W. 2; Muench v. Oppenheimer, 86 Tex. 569, 570, 26 S. W. 496; Cooley's Const. Lim. (5th Ed.) p. 75.

We conclude that the lien provided by section 15 of article 8 of the Constitution attaches only to each separate tract or parcel of land for the taxes assessed against it. Article 7528, Revised Statutes, was enacted in 1876, is in substantially the same language as the Constitution, is merely declaratory of the latter, and necessarily means the same thing.

In comparatively recent cases, one by this court and one by the Court of Civil Appeals an interpretation has been given the Constitution consistent only with the construction here announced. State of Texas v. Farmer, 94 Tex. 232, 235, 59 S. W. 541; State v. Hunt (Tex. Civ. App.) 207 S. W. 636, 638. The conclusion stated is one consistent with the general rule as to taxation laws, which is that —

"The lien on real property attaches to each particular tract for the portion of the tax assessed against it." 26 R. C. L. p. 388, § 347; 37 Cyc. p. 1141.

The construction here given is one in harmony with the statutory enactments carrying into effect the constitutional provisions. Our entire scheme of taxation, from the initial proceeding of rendition to that of final payment, or of sale under seizure or by court process, provides for keeping separate the description of each tract of land, with the amount of taxes levied against it, from other taxes assessed against the taxpayer, or taxes levied against other tracts of...