Smith v. State

• Decision Date: 31 December 1849
• Citation: 4 Tex. 297
• Parties: SMITH, ADM'R, v. THE STATE.
• Court: Texas Supreme Court

4 Tex. 297

SMITH, ADM'R,

v.THE STATE.

Supreme Court of Texas.

December Term, 1849.

A settler in Peters's colony, on a section of land that had been surveyed by the company, but who had no certificate of title, neither from Peters and his associates nor from the Republic or State of Texas, was not liable to pay taxes on the land so occupied by him.

The proper practice in case of a failure or refusal to render a list of taxable property is for the assessor to report the failure at the next term of the District Court, and for the district attorney to proceed to ascertain the fact whether the property was taxable or not by some proceeding in the nature of an information.

Appeal from Dallas. Action in name of appellee against appellant, for failing to render property for taxation, “to the damage of the plaintiff one hundred dollars, wherefore,” &c. The facts were agreed upon and submitted to the judge, as follows: “It is agreed that Bowles came to Texas in the winter of 1845, and settled in Dallas county and made an improvement upon uncultivated land within the limits of Peters's colony; that Bowles died in the spring of 1847; that the land upon which he died and upon which his family lived at the time of the demand by the assessor and collector in 1847 is unsurveyed by the State; and that Bowles had not, nor has the administrator, any certificate of title, neither from Peters and his associates nor from the State or Republic of Texas. And it is agreed that Smith did render a list of the personal property of the said Bowles, but refused to render said land, as required by the assessor. It is further agreed that the said Bowles settled on section thirty-five, in the fifteen-mile block surveyed by the direction of the agent of Peters's colony, for a solid settlement by said colony contract; and that said Bowles resided upon it at his death, and his family afterwards until the bringing of this suit; section thirty-five being in township No. two north, range one west, as surveyed by the agent of Peters's colony.”

The judge ordered a jury to be impaneled to assess the fine. The fine was assessed at $10.

Sneed & Oldham, for appellant. We will not stop to inquire whether the attorney for the State adopted the proper remedy for the recovery of the penalty, or whether the information filed shows such a violation of the act on the part of the appellant as to subject him to the fine prescribed. The facts agreed upon acquit him fully. The land which he refused to render to the assessor as taxable property belonging to his intestate's estate did not belong to the intestate in his life-time, nor had any title ever emanated from the State for it. The right of the intestate in his life-time was that of a mere occupant upon the public domain.

Hamilton, for appellee.

LIPSCOMB, J.

The proceedings in this case were intended to subject the appellant to a fine for failing to return to the assessor and collector some real estate for taxation supposed to belong to his intestate. The question of the liability of the appellant is believed not to have been presented in the mode authorized by law, and the course adopted, to say the least of it, is singularly awkward. A petition is filed...