Swenson v. McLaren

• Decision Date: 07 February 1893
• Citation: 21 S.W. 300
• Parties: SWENSON v. McLAREN, Tax Collector.
• Court: Texas Court of Appeals

21 S.W. 300

SWENSON v. McLAREN, Tax Collector.

Court of Civil Appeals of Texas.

February 7, 1893.

Appeal from district court, Stonewall county; J. V. Cockrell, Judge.

Petition by S. M. Swenson against J. C. McLaren, tax collector, to enjoin the collection of certain taxes. From the judgment, petitioner appeals. Reversed.

The other facts fully appear in the following statement by HEAD, J.:

On the 1st day of January, 1889, appellant was the owner of 22,893 acres of land situated in Stonewall county, which, through his agents, Thompson & Donnan, he rendered to the assessor for taxation, at the rate of one dollar per acre. This rendition was made out at Austin, and forwarded to the assessor by mail, who, upon receipt of same, notified appellant's said agents that this valuation was too low, and would be referred by him to the board of equalization. On the 27th of June the board of equalization of Stonewall county raised the valuation of this land from $1 to $3.50 per acre. Prior to this, on the 27th of May, 1889, the commissioners' court of said county met as a board of equalization, and ordered the clerk to give 10 days' notice of the sitting of the board, and the clerk, in obedience to said order, in person posted one notice at the courthouse door of Stonewall county, but did not post such notices in each justice's precinct in said county. Said clerk also mailed to Thompson & Donnan a written notice that the board of equalization desired to raise the valuation of said land so rendered by them for appellant, but he did not issue notices in the name of the state of Texas, directed to the sheriff or any constable of Travis county, Tex., or any other constable or sheriff of the state, citing Thompson & Donnan to appear before said board to show cause why the rendition of S. M. Swenson's property should not be raised, as, it is contended, is required by article 1531, 1 Sayles' Civil St. The board raised said valuation above set forth without hearing any evidence as to the value of said land, but acted upon their own knowledge in fixing its value. On the 13th day of February, 1889, the commissioners' court of Stonewall county, assuming to act under article 3731, 2 Sayles' Civil St., divided said county into a convenient number of school districts, and thereafter a petition, in form in compliance with the law, was presented to the commissioners' court of said county, praying for an election to be held in district No. 1 to determine whether or not a tax of 20 cents on the $100 should be levied for school purposes. To said petition were signed 32 names. In compliance with this petition, said court ordered an election as prayed for therein to be held on April 20, 1889, which is in words as follows: "It is ordered by the court that the application for an election on school tax in district No. 1 be accepted and approved, and that an election be held on the 20th day of April, A. D. 1889, for the purpose of voting 20 cents on the $100 for such purposes, and that B. C. Wray be appointed manager in election precinct No. 1 at Rayner, and that J. S. Orr be appointed manager in precinct No. 2, at J. S. Orr's, in school district No. 1." No order was entered by the commissioners' court directing the sheriff to give notice of such election, as required by article 3733; but on March 19, 1889, the county judge of Stonewall county issued the following notice: "School election notice. The state of Texas, county of Stonewall. To all whom this may concern: Notice is hereby given that there will be held an election on Saturday, the 20th day of April, 1889, in school district No. 1, at Rayner, Texas, and at the residence of J. S. Orr, in said county. The polls in said district will be opened at 10 o'clock on said day, for the purpose of determining whether or not there shall be levied an annual tax of 2-10 (two mills) cents on the dollar for school purposes, as provided for by the acts of the special session of the 18th legislature of the state. [Signed] F. C. Cook, County Judge. [Seal, County Court, Stonewall County.]" On the back of one of these notices was indorsed the following: "Came to hand March 19, 1889, and executed by posting, and causing to be posted, one copy of the within notice at the courthouse door, and one copy at two other places in said district. This 21st day of March, 1889. [Signed] J. C. McLaren, Sheriff." It does not appear what the result of this election was, but the commissioners' court levied the tax as indicated in the order; and, as no question is raised in the briefs as to this defect in the statement of facts, it will be assumed that the result of the election was in favor of making the levy. Appellant tendered the amount of taxes due from him upon his valuation in court, and sought to enjoin appellee, as tax collector, from collecting the remainder of the taxes complained of in his petition. This tender, however, did not include the 20-cent school tax in precinct No. 1. The court below refused the injunction as prayed for, and from this judgment this appeal is prosecuted.

Davis & Woodruff, for appellant.

HEAD, J., (after stating the facts.)

By the third paragraph of the act of March 22, 1879, (1 Sayles' Civil St. art. 1517a,) it is provided that "the board of equalization shall have power to correct any errors in the assessment of property at any time before the tax is paid on said property;" and in Duck v. Peeler, 74 Tex. 268, 11 S. W. Rep. 1111, it is held that, until a taxpayer has exhausted the legal remedy thus given, the courts should refuse him the equitable remedy by injunction; and in that opinion it is said: "This is a broad statute, and covers errors in valuation, as well as all others." And, again: "The petition failing to show that appellee had been denied this plain remedy existing when this suit was brought, or that, for some reason, it was inadequate, was...