State ex rel. Spalding v. Smith

• Decision Date: 09 December 1881
• Docket Number: Case No. 1101.
• Citation: 55 Tex. 447
• Parties: THE STATE EX REL. JOHN H. SPALDING v. JAMES E. SMITH.
• Court: Texas Supreme Court

55 Tex. 447

THE STATE EX REL. JOHN H. SPALDING

v.JAMES E. SMITH.

Case No. 1101.

Supreme Court of Texas.

Dec. 9, 1881.

APPEAL from Ellis. Tried below before the Hon. Geo. N. Aldridge.

Farris & Rainey, for appellant.

I. The jurisdiction is expressly conferred upon the district court by the act relating to this character of proceeding in quo warranto.R. S. App., pp. 47, 48.

II. The district court has the jurisdiction to try the right to an office. Sayles' Prac., sec. 128; Banton v. Wilson, 4 Tex., 400;Lindsey v. Luckett, 20 Tex., 516.

III. “The amount in controversy,” designated in the constitution as determining the jurisdiction, is the “amount claimed by either party to the suit.” Sayles' Prac., sec. 122; Graham v. Roder, 5 Tex., 141.

IV. In all doubtful cases the intendments will be in favor of the jurisdiction. Sayles' Prac., sec. 122 and cases cited.

V. If necessary to sustain the jurisdiction of the district court, this proceeding would be construed to be an action of the state to recover a forfeiture. State of Texas v. DeGress, 398.

VI. A proceeding to recover a fine is to recover a forfeiture, within the proper meaning and scope of the word. Webster's Dic.; Burrill's Law Dic.

VII. It is said that there is no such office as assessor and collector of said subsidy taxes, and that no allegation has been made that the appellee has intruded into the office of town constable. No such question was raised by the exceptions on the trial, when the appellant might have had an opportunity to amend; nor did the appellee except to the ruling of the court in overruling his exceptions. We maintain that, as the town constable was required to give a separate bond, conditioned that he would assess, collect and pay over the subsidy taxes, etc., it may properly be called an office of assessor and collector of the subsidy taxes; an office which is blended with that of constable. It is sufficiently charged and proven to show an intrusion into the office of constable held by the relator (if such it should be called), and that it is of the value of $500.

VIII. Our statute goes further than the old law, and authorizes the action when the defendant intrudes into the office claimed by the relator; and it is not required that the intruder should claim the right to perform all the duties of the office claimed by the relator. R. S. App., p. 47; Texas Pleas, by Green, vol. 1, sec. 1182.

Kendall & Anderson, for appellee.

GOULD, ASSOCIATE JUSTICE.

This is a proceeding by quo warranto under the act of 1879. R. S. Appendix, p. 47. The relator Spalding alleges that he, as town constable for the town of Waxahachie, had the right to assess and collect the railroad subsidy taxes of that town, amounting to $7,000, annually, and that the defendant James E. Smith had wrongfully usurped, intruded into, and taken possession of said office of assessor and collector of the railroad subsidy tax of the town of Waxahachie. By the answer of Smith, it appears that he, as assessor of the state and county taxes for Ellis county, claimed that it was his right and duty to assess said subsidy taxes, basing his claim on the provisions of the special act of January 28, 1875, authorizing the town of Waxahachie to aid in the construction of the Waxahachie Tap Railroad. Section 10 of this act enacts that “All taxes assessed and collected under this act shall be assessed and collected by the same officers whose duty it is, or may be, to assess and collect the state taxes, and they shall receive for their services one-fourth of the rates of commission allowed by law for assessing and collecting the state tax; said tax shall be assessed and collected in the same manner as the state tax, and the same remedies shall be used to enforce its collection that are provided by law to enforce the collection of the state tax.”

By section 11 it is provided that “The officer whose duty it is to collect the taxes levied under this act shall give a bond with two or more sufficient sureties, to be approved by the state comptroller, in a sum double the estimated annual amount of said tax, which bond shall be payable to the state, and shall be conditioned for the prompt collection and payment of said taxes into the treasury.” Special Laws of 1875, pp. 11 and 12.

Under the charter and ordinances of the town, the constable was authorized to assess and collect the...