State v. Cage

• Decision Date: 24 April 1915
• Docket Number: (No. 8145.)
• Citation: 176 S.W. 928
• Parties: STATE v. CAGE.
• Court: Texas Court of Appeals

Page 928

176 S.W. 928

STATE v. CAGE.

(No. 8145.)

Court of Civil Appeals of Texas. Ft. Worth.

April 24, 1915.

Rehearing Denied May 22, 1915.

Appeal from District Court, Erath County; W. J. Oxford, Judge.

Action by the State of Texas against Mrs. Janie Cage, community survivor of the estate of J. H. Cage, deceased. From a judgment granting insufficient relief, the State appeals, and defendant presents a cross-assignment. Affirmed.

Keith & Johnson, of Stephenville, and E. E. Gaines, of Austin, for the State. Chandler & Pannill, of Stephenville, and Stephens & Miller, of Ft. Worth, for appellee.

DUNKLIN, J.

J. H. Cage, a resident citizen of Erath county, died intestate on August 18, 1912. He had resided in that county and in what is known as the "Stephenville independent school district" for 25 years next preceding the date of his death. His surviving wife, Mrs. Janie Cage, qualified as administratrix of the community estate of herself and her said husband. This suit was instituted by the county attorney of Erath county, in the name of the state of Texas, against Mrs. Cage, as such administratrix, to recover taxes alleged to have been due and owing by the deceased from the years 1899 to 1912, inclusive; the taxes so alleged being in favor of the state of Texas, Erath county, and the Stephenville independent school district. The items of property upon which taxes were claimed were amounts on deposit in bank in favor of the deceased on the 1st day of January of each of the years mentioned, which he was entitled to withdraw in money on demand. The trial was before a jury, who returned special findings showing the amount of money to the credit of the deceased in bank upon each of those dates. Judgment was rendered for taxes on the amounts of such deposits on the 1st days of January of the years 1910, 1911, and 1912; the judgment being in favor of the state, county, and independent school district in separate amounts, and denying a recovery for taxes claimed for the other years mentioned. From the judgment refusing the demands for taxes for other years, the state has appealed.

The evidence shows that the amount of bank deposits mentioned above was not assessed until in the year 1912, when the tax assessor assessed it as unrendered property for each and all of those years. It was agreed between the parties that the taxes were duly and legally levied by the proper authorities in favor of the state, county, and school district for each and every year as alleged in plaintiff's petition, and in the amounts and at the rates as therein alleged.

It is apparent that the trial court refused to allow a recovery for taxes claimed for the years preceding the year 1910, by reason of the conclusion reached that the tax assessor had no legal authority to make assessments for those years, and the contention that the court erred in that conclusion is the only question presented for our determination.

Article 7566 of Vernon's Sayles' Texas Civil Statutes reads as follows:

"If the assessor of taxes shall discover in his county * * * or, outside of his county but belonging to a resident of the county, any personal property which has not been assessed or rendered for taxation every year for two years past, he shall list and assess the same for each and every year thus omitted which it has belonged to said resident, in the manner prescribed for assessing other property; and such assessment shall be as valid and binding as though it had been rendered by the owner thereof."

Article 7661 reads:

"Hereafter it shall be the duty of the district or county attorney of the respective counties of this state, by order of the commissioners' court, to institute suit in the name of the state for the recovery of all money due the state and county as taxes due and unpaid on unrendered personal property; and, in all suits where judgments are obtained under this act, the person owning the property on which there are taxes due the state and county shall be liable for all costs; provided, such suits may be brought for all taxes * * * due and unpaid for which such delinquent taxpayer may be in arrears for and since the year 1886; and provided, further, the state and county shall be exempt from liability for any cost growing out of such action; provided, all suits brought under this article for the recovery of taxes due on personal property shall be brought against the person or persons who owned the property at the time such property should have been listed or assessed for taxation; provided, that no suit shall be brought until after demand is made by the collector for taxes due; and provided, further, that no suit shall be brought for an amount less than twenty-five dollars."

Article 7566 was enacted in 1887, while article 7661 was enacted in 1888.

Appellant presents, substantially, the following propositions:

First. By article 7566 two years prior to its enactment is fixed as the date to which all future assessments of omitted personal property can extend; and to so construe that article would harmonize it with article 7702, making real estate assessable for all delinquent taxes accruing thereon since the year 1884. And in this connection it is suggested that the latter article, enacted in 1905, by implication repeals article 7565 enacted in 1888, fixing the year 1870 as the date to which assessments of omitted real property could extend.

Second. As article 7661 makes it the duty of the district or county attorney of the respective counties of the state, by order of the commissioners' court, to institute suit for taxes due and unpaid on personal property unrendered since the year 1886, the right of action is there conferred without an assessment, or else contemplates an assessment to be then made, and thus by implication repeals article 7566 in so far as the latter article limits assessments for omitted personal property to two years next preceding the assessments. And in this connection appellant cites article 7662, passed in 1895, which reads:

"No delinquent taxpayer shall have the right to plead in any court or in any manner rely upon any statute of limitation by way of defense against the payment of any taxes due from him or her either to the state or any county, city or town."

Third. If article 7566 limits the period for which omitted personal property may be assessed to two years next preceding the assessment, and if that article is not repealed by the later acts referred to already, then the limitation so fixed by article 7566 would be in violation of section 1 of article 8 of the Constitution of the state, which provides that "taxation shall be equal and uniform," because it is a discrimination in favor of the owners of personal property and against the owners of real estate, in that by article 7702 omitted real property may be assessed for any year or years since 1884.

Fourth. If by article 7566 the period for which omitted personal property may be assessed is limited to the period of two years next preceding the assessment, then the same operates to release the owners of such property from the payment of taxes contrary to, and in violation of, the following provisions of our state Constitution:

Section 55, art. 3: "The Legislature shall have no power to release or extinguish, or to authorize the releasing or extinguishing, in whole or in part, the indebtedness, liability or obligation of any incorporation or individual, to this state, or to any county or other municipal corporation therein."

Section 2, art. 8: "And all laws exempting property from taxation, other than the property above mentioned, shall be void."

Section 5, art. 8: "All property of railroad companies, of whatever description, lying or being within the limits of any city or incorporated town within this state, shall bear its proportionate share of municipal taxation; and, if any such property shall not have been heretofore rendered, the...