Texas & Pacific R'y Co. v. Harrison County et al., 54 Tex. 119

Gould, Associate Justice. The T. & P. R’y Co. brought this suit, to enjoin the collection of a tax of one-sixth of one per cent., levied in 1878 by the commissioners’ court of Harrison county, under the act of August 7, 1876, to “ascertain the amount due teachers,” . . . to “provide for the payment of the same,” and to recover back other taxes for that year alleged to have been illegally exacted, and paid under protest. The tax of one-sixth of one per cent, and other county taxes levied were objected to as illegal, and the assessment was also objected to on various grounds.

Amongst other matters, the petition stated that the railway company had listed its property subject to taxation in Harris county, including about fifty-three miles of railroad, besides other property, at $532,648, and that the valuation had been raised ' by parties claiming to be deputies of the assessor, but holding other offices, and not legally competent to act as such deputies, to $700,618; and that the board of equalization, to whom, on the protest of the company, the matter was referred, had also adopted the raised valuation, and had added to the assessment of the company five and one twenty-fifth miles of road which said company did not own or possess, calling the same side track, and valuing it at $40,920.

The petition alleged this raised assessment to be excessive and without authority; complained also that the county had exceeded the maximum of taxation allowed by the constitution in its levy, and for other reasons complained of the one-sixth of one pgr cent. tax. There was a motion to dismiss the injunction, a general exception to the petition, and a sworn answer. The court sustained the motion and exception, and dismissed the petition, and the railway company appealed. ' Our conclusions are: 1st..

That the assessment was raised by de facto deputy assessors, and their acts, in raising the valuation of the property listed, were not invalid because they may have been legally disqualified for the position by holding other offices or otherwise. 2d. The question of valuation appears to have been regularly referred to the board of equalization, and when so referred, the valuation of that tribunal was final. Int. & G. N. R. R. Co. v. Smith County, Tyler Term, 1880.

The company appears to have listed its interest in the land over which it had the right of way, and on which its road-bed was constructed, as so many miles of road. The valuation appears to have been raised by the acting deputy assessors and by the board of equalization in the same way. As that valuation was final, it is not important to inquire as to the mode by which it was arrived at. 3d. It is objected that Floyd, who was acting as deputy assessor, was also county commissioner, and that he could not sit on the board of equalization to revise his own action.

It does not appear that appellant objected at the time to Floyd as a member of the board, or that there was not a quorum of the board without Floyd. We are of opinion that it was not made to appear that the action of the board was null, or that the valuation was raised to $700,618 without authority. 4th. The charge that the board added to the assessment five and one twenty-fifth miles of road not owned by the company must be taken in connection with the other averments of the petition.

From these it appears that the total assessment as raised by the acting deputies was $700,618, and that this remained the same after the action of the board, and was the amount on which the taxes were estimated. The alleged additional five and one twenty-fifth miles charged to have been valued at $40,920, does not appear to have increased the amount above what it was before. Taking these averments all into consideration, we think that notwithstanding the general charge just stated, the petition fails to show that the assessment embraced property not owned or possessed by the railway company. 5th.

Appellant claims that the constitution limits county taxation for the erection of public buildings, and for the payment of debts incurred prior to 1876, to one-half of one per cent. In our opinion, this limitation applies only to the erection of public buildings. For the purpose of paying the interest and providing a sinking fund to satisfy any indebtedness existing at the adoption of the constitution, counties are authorized to levy, assess and collect taxes to the necessary amount. Const., art. XI, sec. 6; art. XIH, sec. 9. 6th.

It is objected that the indebtedness to teachers was ■ by the school districts, not by the county, and that the tax authorized by the act to be levied was on the school districts separately, not on the county, and that the tax actually levied was on the county. Acts 15th Leg., ch. 80, pp. 89, 90. It appears, however, from the sworn answer, that the one-sixth of one per cent, levied on the county to pay indebtedness to teachers was in fact estimated as the amount necessary in each school district for that purpose, after comparing the indebtedness of -each school district with the amount of its taxable property.

We do not think the manner in which this tax was levied was that intended by the law; but under the averments of the sworn answer, we do not think that this irregularity entitled plaintiff to enjoin the collection of the tax.- The right amount appears to have been levied for each district, and the failure to designate it by districts is no such injury to plaintiff as will support an injunction. 7th.

Our general conclusion is that the petition did not show that the company had paid taxes illegally levied or assessed, and that from the petition and answer it does appear that the court erred in disregarding the injunction and dismissing the petition. The judgment is affirmed. Affirmed. [Opinion delivered December 17, 1880.]