State v. Kingham
| Decision Date | 03 January 1962 |
| Docket Number | No. 10907,10907 |
| Citation | 353 S.W.2d 915 |
| Parties | The STATE of Texas, Appellant, v. Glenn L. KINGHAM, D/B/A Kingham Conoco Station, Appellee. |
| Court | Texas Court of Appeals |
Will Wilson, Atty. Gen., Marvin Thomas, Asst. Atty. Gen., Sam Lane, Asst. Atty. Gen., for appellant.
Donald W. Callahan, Houston, for appellee.
This is a suit by the State of Texas against Glenn L. Kingham d/b/a Kingham Conoco Station to recover unemployment compensation taxes and penalties under the Texas Unemployment Compensation Act, Art. 5221b-1 et seq., Vernon's Civil Statutes, for the year 1958 and the first three quarters of 1959. The case was tried before the Court without a jury and resulted in a judgment in favor of Kingham, from which judgment the State of Texas has perfected this appeal.
At the outset we are confronted with the question of the jurisdiction of the Trial Court. It appears from the petition filed in the 98th District Court of Travis County, Texas, that the suit was brought under the provisions of Art. 5221b-12(b), the venue being laid in Travis County, Texas 'as this is a suit for taxes other than ad valorem' under the provisions of Arts. 1.04(1) and 1.04(2), Chap. 1, Title 122A, V.C.S.
Art. 5221b-12(b), V.C.S. is in part as follows:
'Collections: If, after due notice, any employer defaults in any payment of contributions, penalties or interest thereon, the amount due shall be collected by civil action in the name of the State and the Attorney General, and the employer adjudged in default shall pay the cost of such action; * * *.'
Article 1.04, Title 122A provides that all delinquent State taxes and penalties therefor due and owing to the State of Texas of every kind and character whatsoever, including all excise and all other State taxes which become delinquent, other than State ad valorem taxes on property, shall be recovered by the Attorney General in a suit brought by him in the name of the State of Texas and the venue and jurisdiction of all such suits is conferred upon the courts of Travis County.
The unemployment compensation taxes or contributions sought to be recovered by the State are in the nature of excise taxes and as such are State taxes other than ad valorem. Friedman v. American Surety Co., 137 Tex. 149, 151 S.W.2d 570, 576. As alleged in the petition, the State seeks to recover contribution or excise taxes in the sum of $305.94, together with statutory penalties which had accrued under Art. 5221b-12(a) in the amount of $56.00, together with additional penalties accruing before and after the entry of final judgment, which, under the provisions of Art. 5221b-12(c) cannot exceed 25% of the amount of the taxes due at the time suit is filed.
It is provided in Sec. 8, Art. V, Constitution of Texas, Vernon's Ann.St., that the District Court shall have original jurisdiction of all suits when the matter in controversy shall be valued at or amount to $500.00 exclusive of interest and by Sec. 16, Art. V the County Court is vested with exclusive original jurisdiction in all civil cases where the matter in controversy shall exceed $200.00 and not exceed $500.00, exclusive of interest. It is therefore clear from the face of the petition that the 98th District Court of Travis County was without jurisdiction of the subject matter of this suit when it was filed, since the total amount which could be recovered by the State is less than $500.00.
The question of jurisdiction was not assigned as error by either of the parties. However, the lack of jurdisdiction of the Trial Court over either the parties or the subject matter of the suit is a question of fundamental error which can be raised at any time by this Court of its own volition. This Court has both the authority and it is its duty to consider fundamental error apparent on the face of the record although not assigned, and the exercise by the Trial Court of jurisdiction where none existed is fundamental error. Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979, 983; Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890, 893; McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266; Murray v. Brisco, Tex.Civ.App., 209 S.W.2d 976, 977, no writ history.
The State of Texas has filed a supplemental brief contending that since section 8, Art. V, Constitution of Texas, provides that the District Court shall have original jurisdiction in 'all suits in behalf of the State to recover penalties, forfeitures and escheats' and in its petition the recovery of statutory penalties is sought, the 98th District Court of Travis County, Texas was vested with original jurisdiction of this cause under the opinion of this Court in Lally v. State, Tex.Civ.App., 138 S.W.2d 1111, no writ history.
The Lally case was a venue case as is shown by the following quotation from the opinion upon which the State of Texas relies:
'The question raised as to whether the District Court has jurisdiction of the suit because the amount of the contributions or taxes sued for is less than $500, is not determinable on this appeal from the interlocutory order determining only the venue issue. But if so, the contention is without merit because the suit is also one for penalties due the State, and Sec. 8, Art. 5, of the State Constitution, Vernon's Ann.St., provides that, 'the District Court shall have original jurisdiction * * * in all suits in behalf of the State to recover penalties, * * *."
It is manifest that the holding by Judge Blair was obiter dictum and therefore is not binding since the Supreme Court of Texas did not pass upon the question. The Lally case has been cited and approved in many opinions by the Supreme Court and the Courts of Civil Appeals of Texas but only upon the questions of venue and the holding that the contributions due under the Texas Unemployment Act are 'excise' taxes.
As stated above, this suit is brought for the recovery of contributions under the Unemployment law in the nature of excise taxes. The failure to pay the contributions when due causes the penalties sought to be recovered in this suit to accrue by operation of law. Art. 5221b-12(a), V.C.S.; Quick Pay Ins. Co. v. State et al., Tex.Civ.App., 225 S.W.2d 243, no writ history.
It is substantive law in Texas that a suit to collect delinquent taxes and penalties is a suit on debt and should be brought in the court having jurisdiction of the amount. State v. Trilling, Tex.Civ.App., 62 S.W. 788, no writ history; Delling v. Waddell, Tex.Civ.App., 64 S.W. 945, no writ history; Aquilla State Bank v. Knight, 60 Tex.Civ.App., 221, 126 S.W. 893, no writ history.
Since the amount here in controversy exceeds $200.00 and does not exceed $500.00, the County Court at Law of Travis County, Texas is vested with original jurisdiction of this suit and the 98th District Court of Travis County being without jurisdiction, the judgment of the Trial Court is reversed and the suit ordered dismissed.
Reversed and Dismissed.
On Motion for Rehearing.
In our original opinion it was stated that the opinion of this Court in Lally v. State, Tex.Civ.App., 138 S.W.2d 1111, no writ history, had been cited and approved in many opinions by the Supreme Court and the Courts of Civil Appeals of Texas 'but only upon the questions of venue and the holding that the contributions due under the Texas Unemployment Act are 'excise' taxes.' Such statement was erroneous in part since in the Motion for Rehearing filed by the State of Texas our attention is directed to the opinion by the El Paso Court of Civil Appeals in Harry Kestner v. State of Texas et al. in which application for writ of error was filed in the Supreme Court of Texas October 11, 1942 and was refused for want of merit. In this opinion, which was not reported at the request of the Court of Civil Appeals, the Lally case is cited and approved. Since the opinion in the Kestner case was not reported, reference thereto could not be found either in the Texas Writ of Error Tables or in Shepard's Citator, as a result of which the erroneous statement has at least some justification.
The opinion of the El Paso Court of Civil Appeals is in part as follows:
'The suit was...
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State v. Kingham, 10907
...Believing that the nature of the suit was as described by the State in its pleading, I concurred in the original opinion by this Court. 353 S.W.2d 915. I dissented on re-hearing only because I learned from an unreported opinion that the Supreme Court had passed on the question of the Trial ......
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Crawford v. Williams
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