Texas Fidelity & Bonding Co. v. City of Austin

• Decision Date: 16 April 1919
• Docket Number: (No. 6199.)
• Citation: 211 S.W. 818
• Court: Texas Court of Appeals
• Parties: TEXAS FIDELITY & BONDING CO. v. CITY OF AUSTIN.

211 S.W. 818

TEXAS FIDELITY & BONDING CO. v. CITY OF AUSTIN.

(No. 6199.)

Court of Civil Appeals of Texas. San Antonio.

April 16, 1919.

Rehearing Denied May 14, 1919.

Appeal from District Court, Travis County; George Calhoun, Judge.

Suit by the city of Austin against the Texas Fidelity & Bonding Company. From judgment for plaintiff, defendant appeals. Affirmed.

Stribbling & Stribbling, of Waco, for appellant.

J. Bouldin Rector, J. W. Maxwell, and E. B. Robertson, all of Austin, for appellee.

COBBS, J.

The city of Austin, appellee, instituted this suit against the Texas Fidelity & Bonding Company, appellant, for the recovery of taxes, penalties, and interest alleged to be due appellee by appellant for the years and amounts as follows: 1911, the sum of $1,055.91; 1912, the sum of $1,123.48; 1913, the sum of $803.46; 1914, the sum of $803.13; 1915, the sum of $936; 1916, the sum of $720.85; and further prayed for the foreclosure of the tax lien on 23 "City of Midland, Texas," waterworks bonds, each for the sum of $2,000, and numbered 3 to 25, inclusive, aggregating the sum of $46,000, and 3 promissory notes, each for the sum of $1,500, executed by L. Migel, payable to the appellant, and aggregating the sum of $4,500 which bonds and notes were and are on deposit with the state treasurer in the state treasury of the state of Texas, having been so deposited there by appellant under and in accordance with the laws of the state, and on which securities it is alleged the taxes sued for are due to the appellee.

The appellant in its answer denied appellee's right to recover the taxes, or any part thereof, as sued for, and in substance averred that it is a private corporation organized under chapter 127, p. 197, of the Acts of the Legislature of Texas, passed at the regular session in 1903, which is the same as subdivision No. 37 of article 1121 of the Revised Statutes of Texas 1911, with its home office in the city of Waco, McLennan county, Tex., and that the securities deposited with the state treasurer, and on which the taxes sued for are sought to be collected, were so deposited in compliance with the provisions of the above act for the purpose of completing its incorporation, and to authorize it to transact business in the state of Texas, and that the situs of the securities for taxation was and has at all times been in the city of Waco, McLennan county, Tex., and not in the city of Austin.

It is further averred that on the 21st day of September, 1912, appellant's charter was amended under chapter 117 of the General Acts of the Legislature 1911, p. 237 (Vernon's Sayles' Ann. Civ. St. 1914, arts. 4942a-4842z), under which amendment to its charter it was authorized "to insure any person against bodily injury, disablement, or death resulting from accident and against disablement resulting from disease," and for other purposes stated in said amendment; that by reason of the amendment to its charter the provisions of article 4749, Revised Statute of Texas 1911, applied to the securities deposited with the state treasurer for the purpose of taxation, and that under said article the securities were taxable, not in the city of Austin, but in the city of Waco, the domicile of appellant.

The case was tried before the court without a jury upon an agreed statement of facts, and resulted in the court rendering judgment against appellant for the taxes sued for, with foreclosure of the appellee's tax lien on the securities found by the court to have been deposited with the state treasurer on the 1st day of January of each of the years mentioned, being the same securities for each of said years. The court, at the request of appellant, duly prepared and filed findings of fact and conclusions of law, which were excepted to by appellant. The case has been properly brought to this court by appeal.

The assignments of error, 1, 2, 3, and 4 raise the following questions: (a) Whether property sought to be taxed had its situs as of the several dates in Austin; (b) whether the city of Austin, under its charter, had power to make back assessments of omitted property for certain periods. The situs of the property was fixed by chapter 108, Acts of 1909, at Waco, Tex., the home office of the company. (d) Whether the city of Austin, under its charter, can make back assessments for a period of more than two years.

These seem to be the material questions for us to consider to reach a conclusion.

This case was tried upon a lengthy agreed statement of facts, in which is incorporated lengthy references to the pleading and charter of appellant and the city of Austin. We cannot see why the extracts from the latter's charter were incorporated, because it provides it is a "public act and may be read in evidence in all courts of law," etc.

There are similar agreements set out in the other case before us, in City of Austin v. Great Southern Life Insurance Co., 211 S. W. 482, and American Indemnity Co. v. City of Austin, 211 S. W. 812, on appeal in this court, and are being now considered and hence will not be copied at length herein.

"Under the agreed statement of facts upon which the case was tried, the trial court found that the appellant was incorporated on the 20th day of April, 1910, for the following purposes: `To act as trustee, assignee, executor, administrator, guardian, or receiver, when designated by any person, corporation, or court so to do, and to do a general fiduciary and depository business; to act as surety and guarantor of the fidelity of employés, trustees, executors, administrators, guardians, or others appointed to or assuming the performance of any trust, public or private, under appointment by any court or tribunal, or under contract between private individuals or corporations; also on any bond or bonds that may be required to be filed in any judicial proceeding; also to guarantee any contract or undertaking between individuals, or between private corporations, or between individuals or private corporations and the state and municipal corporations or counties, or between private corporations and individuals; to act as executor and testamentary guardian when designated as such by decedents; or to act as administrator or guardian when appointed by any court having jurisdiction.' And that its home office has been continuously since its incorporation, and still is, in the city of Waco, county of McLennan, Texas, where it has its principal office and place of business; that on or about the 11th day of June, 1910, it deposited with the state treasurer of the state, and in the state treasury, certain personal property consisting of municipal bonds of the city of Midland, Texas, of the reasonable cash value of fifty thousand ($50,000.00) dollars; that such deposits were made under the provisions of chapter 127, page 197, of the General Laws of the Legislature passed at its regular session and printed in the Acts of 1903 thereof, and that a portion of the capital stock of defendant was invested in said bonds; that the above securities were on deposit with the state treasurer on the 1st day of January, 1911; that on the 1st days of January of each of the years of 1911 to 1916, inclusive, defendant owned and had on deposit with the treasurer of the state in the city of Austin the securities consisting of bonds and promissory notes described in paragraphs IV to IX of plaintiff's petition, same having been deposited under the articles of the statutes...