LIBRARY OF THE University of California. Class \ LAW OF TAXATION IN TEXAS BY JOHN S. STEWART, of the Bar of Harris County, Texas. CHICAGO: T. H. FLOOD & CO. 1911. COPYEIGHT 1911 BY JOHN S. STEWART x"^ W PREFACE. Necessarily to be useful, a law book must "stick to the prece- dents." Therefore I have not injected my personal opinions but have given reference to where the law may be found. In several instances where the courts seem to be in conflict, I have not given my personal opinion but considered it was only my province, in a book of this character, to give reference to where all the law on the subject may be had. The only claim that I make is that I have tried to arrange the law under the proper head so that it may be readily found. I considered that there was a need of this book, otherwise I would not have written it. The only book on this subject is a small collection of statutes by Messrs. Smith and Teague, which, while a splendid little book, is quite limited, and was never intended to cover the field but is a mere collection of late statutes' on the subject of Taxation. Taxation enters into all kinds of business, therefore this book will not be limited to any special attorneys but should be useful to all. The Land Attorney will need it, for in the examination of almost any title to real estate he will have to pass upon some tax sale. The Corporation Attorney will need it, for the question of taxation is one that he must handle con- stantly. The Criminal Attorney will need it in violations of license and occupation taxes. Every County Attorney, County Judge, Assessor and Collector will need it to assist him in the discharge of his official duties. There seems to my mind certainly a sufficient need for such a book. My misgivings is not that a book of this character is needed, but whether I have performed my duty in preparing a careful and complete book on this subject. My object in writing this book is that it may be of use to the members of my profession in Texas, and if I have succeeded, even in a limited degree, in lessening their labors I am satisfied. JOHN S. STEWART. Houston, Texas, July 27, 1910. 235477 To My Father^ the late Charles Stewart, of the Harris County Bar, TABLE OF CONTENTS. CHAPTER I. GENERAL PROVISIONS, DEFINITIONS, TERMS, ETC. Sec. 1. Taxes. (a) Refer to what. (b) Definition of. 2. Must be equal and uniform. 3. Nature and extent of power. 4. All property liable for taxes. 5. How levied and collected. 6. Legislative power and authority. 7. Legislature has no power to release taxes. 8. Real estate includes what. 9. Eminent domain, Taxation not. 10. Money. 11. Farm products. 12. State releases mineral right but not taxes. 13. Federal Const, not violated by Delinquent Tax Act. 14. Tax laws construed liberally. 15. Due course of law. , 16. Official duty can not be delegative. 17. Partition — Allowance for taxes paid. 18. Property bought in held in trust when. ' 19. Road and bridge a county tax. 20. Special fund not to be diverted. 21. Dedication. 22. Telegraph company — Constitutional law. 23. Deed of trust providing for payment of taxes. 24. Payment will be enforced. 25. Non-payment of taxes presumption that right has reverted to State. 26. Rights not affected by failure to pay taxes, when. 27. Where mortgagee pays, what rights does he have? 28. Sale of one tract to pay taxes on another. 29. Disqualification of judge. 30. Courts of equity should not, except on clearest grounds, inter- fere with collection of taxes. 31. Where no provision is made as to source from which revenue is to be derived. 32. Taxable when. o ' ' ■ Table of Contents. Sec. • . 33. Vested rights in taxes. 34. De facto oflBcers. 35. State shall have judgment, except when. 36. Tenant may purchase tax-title. 37. Timber on public land. 38. Where tax can be divided. 39. Detached territory, liability for taxes. CHAPTER II. LEVY. Sec. 40. State and county taxes, how levied. 41. Term of court, adjourned meeting. 42. Levy not full and explicit — How explained. 43. Levy valid if not suflScient, 44. Directory, when. 45. Must be a levy. 46. Levy by city or town. 47. Self-acting levy. 48. May compel levy by mandamus. 49. Levy must be made in the mode prescribed. 50. Levy based upon assessment roll when to be made. 51. Time and manner of levy. 52. Power of counties to levy under Act of 1848. 53. Annual. 54. Debts existing prior to Constitution of 1876. 55. Puri)ose of levy must be stated. 56. Levy at call term of County Court. 57. See order of Commissioners' Court held not to be general levy. 58. Road tax — Limitation of levy. 59. Partial illegality. 60. Levy of tax to provide for the payment of debts. 61. Not in excess when. 62. Cannot exceed limit — Excessive. 63. Mandamus will not lie when limit is reached. 64. Levy of city taxes for 15 months valid, when. 65. Commissioners' Court — ^Validity of tax levy — Collateral attack. 66. City of El Paso. 67. Sufficiency of levy. 68. Extra levy. 69. Levies for state and county taxes. 70. Certain tax rolls for 1905 validated. 71. Validating levies at special session of Commissioners' Court. 72. Act 30th Legislature creating a board to calculate state taxes. Table of Contents. CHAPTER III. ASSESSMENT. Sec, 73. Annual assessment a lien. 74. Assessment necessary. 75. Proceedings where lands can not be easily described. 76. What is an assessment. 77. Place of assessment. 78. Taxes not to be paid twice, etc' 79. Leasehold interests in public lands. 80. Should use forms of comptroller. 81. Irregularities free from fraud. 82. Manner of making out tax lists directory. 83. Tract or lot. 84. United States paper money taxable. 85. Assessed as money on hand. 86. Taxpayer to make oath. 87. When assessments to be made. 88. Irregular assessments valid. 89. Mistake In name of owner. 90. Failure to list for taxation. 91. Collector's roll not part of assessment. 92. Assessment not on proper roll. 93. No presumption as to regularity after lapse of time. 94. Void assessment — Remedies. 95. Property added to list valid. 96. Credits assessed where. 97. Showing rate of assessment by custom. 98. Refused to render list. 99. Tax rolls — ^When admitted in evidence. 100. Double assessment. CHAPTER IV. ASSESSMENT OF RENDERED PROPERTY. Sec. 101. When property to be rendered. 102. How to be rendered. 103. Where to be rendered. 104. To be rendered in but one county. 105. Live stock, when and how rendered. 106. Vessels, where listed. 107. Railroads — Telegraphs, etc. 108. Listing for others. 109. Shall list under oath. 110. The statement and its requisites. 10 Table of Contents. Sec. 111. Certain credits and stocks not to be listed. 112. Rendition of real estate. 113. Assessment of personal property by rendition by banker, broker, etc. 114. No deductions in certain cases. 115. Assessments and collections of corporate property. 116. Assessments in owner's name. 117. Relating to the list of property given in by property owners. 118. Act of May 16, 1907, relating to the listing and valuation of property. CHAPTER V. ASSESSMENT OF UNRENDERBD PROPERTY. Sec. 119. Unrendered, how rendered. 120. Back taxes on unrendered lands. 121. Assessor to make rolls of unrendered property. 122. Tax sale of unrendered property — How it should be assessed. 123. Unrendered property shall be ascertained, etc., by assessor. 124. Unrendered property list in cities to be examined by board. 125. Assessment of property not assessed for taxes. CHAPTER, VI. REASSESSMENT OF PROPERTY FOR TAXES, WHICH HAS NOT BEEN ASSESSED, OR WHICH HAS BEEN IMPROPERLY AS- SESSED. Sec. 126. State and county taxes. 127. Assessment of real property for previous years. 128. Back taxes on unrendered lands. 129. Comptroller to prepare list each year. 130. Comptroller to forward list. 131. The boards to value such lands. 132. Three rolls to be made. 133. Assessment of back taxes due cities and towns. 134. Reassessment. 135. Act of 1897 did not validate assessment for back years. CHAPTER VH. DELINQUENT TAX ACT OF 1905 PROVIDING FOR THE ASSESS- MENT AND COLLECTION OF TAXES IN CERTAIN CASES. Sec. 136. Taxes — Providing for the assessment and collection. 137. Act 29th Leg., ch. 130, Sec. 7, valid. 138. Mandamus to turn over percentage need not be set out in detail. . Table of Contents. 11 Sec. 139. Tax collector duties in regard to paying percentage. 140. Adequate remedy. 141. Parties — Joinder. 142. County attorney can not contract. (a) Who may be employed to make. (b) Can not transfer tax as compensation (c) Compensation — Quantum meruit. CHAPTER VIII. BULK ASSESSMENT. Sec. 143. Act of 1897, power to correct bulk assessments. 144. Tract or lot defined. 145. Where two lots belong to one owner and form one parcel of land, they may be assessed for taxation together. 146. If two lots are used as one assessment together good. 147. Assessment when approved by taxpayer is binding although ir- regular. 148. Requisites as to tax roll, do not apply to assessment. 149. Lot must be separately assessed except when rendered by owner. 150. Contiguous tracts held by one title. 151. Taxes lien on each separate tract of land — City property no exception. 152. Owner estopped where his rendition is adopted on unrendered roll. 153. Assessment to be corrected — Bulk. CHAPTER IX. ASSESSMENT— DESCRIPTION IN. Sec. 154. Sufficiency of description. (a) Sufficient against owner good as to purchaser. 155. Description — Literal compliance not required. 156. Sufficiency of description in rolls no variance where full de- scription is given in petition. .157. Rigid description not required where owner assesses. 158. Description — Failure to give abstract and survey number. 159. Description — Object and purpose of. 160. Omission of certificate or survey number. 161. Description, sufficiency of — Parol evidence to show property admissible. 12 Table of Contents. CHAPTER X. ASSESSOR AND HIS DUTIES. Sec. 162. Assessor — Election of. 163. Duty of assessor and collector of cities to make lists of prop- erty, etc. 164. Unrendered property in cities shall be ascertained, etc., by city assessor and collector. 165. Election and term of assessor, 166. Vacancies, how filled. 167. Oath and bond. 168. Purview of the bond. 169. New bond. 170. Bond for county taxes. 171. May appoint deputies. 172. May administer oaths. 173. The oath. 174. Where and how the list may be made. 175. Penalty for failure to attest oath, etc. 176. Fraud upon the public revenue. 177. Taxpayer to make oath. 178. When assessments to be made. 179. Irregular assessments valid. 180. If taxpayer is absent, etc. 181. Or refuses to list. 182. Duty of assessor. 183. Abstracts to be furnished. 184. Books to be furnished. 185. How to be filled. 186. Blocks and lots in cities. 187. Duties of assessor as to same. 188. To be kept in office. 189. Lands not on abstract. 190. Certificate from board of equalization. 191. Substitute to be employed. 192. Unorganized counties. 193. Manner and form of assessing. 194. Assessment of real estate for all previous years. 195. Assessor to follow instructions. 196. Duty to properly assess. 197. Assessor to furnish list of delinquents. 198. Assessor to furnish list to board of equalization. 199. Assessor shall make out rolls in triplicate. 200. Also rolls of unrendered property. 201. Assessor to add up columns. 202. Return and oaths. Table of Contents. 13 Sec. 203. All lists and statements to be filed with the county clerk. 204. Rolls to be distributed. 205. Compensation of assessor of state and county taxes. 206. How paid by the state. 207. By the county. 208. Penalties for neglect of duty. 209. Assessor of taxes. ^ 210. Fees less than maximum — Statements of fees collected — ^Excess to be paid into county treasury. 211. Deputies and assistants — ^Appointment and compensation. 212. Penalty for failure to charge up fees for remission of fees, etc. 213. Payment of ex-oflBcio services. 214. Oflacers to keep a correct statement — Accounts to be examined by grand jury. 215. Certain officers not required to make a report or keep a state- ment. 216. Statement of tax collector and assessor. 217. Fiscal year — At what time reports must be made, and by whom. 218. Commission on school district tax. 219. Compensation for funded indebtedness. 220. Duty of assessor as to unrendered property. CHAPTER XI. BOARD OF APPRAISERS. Sec. 221. Board of equalization — Their qualification and duties. 222. Equalization of assessments. 223. Boards may equalize without complaint. 224. Assessor to submit list to board of equalization. 225. Appointment and duties of board of equalization in cities or towns. 226. Annual meetings of said board. 227. Shall value property. 228. Values to be equalized by board. 229. Unrendered property list to be examined by board. 230. Notice to property owners. 231. Board to lower values, when. 232. Approval of lists and rolls by board. 233. Action of board final. 234. Compensation of board. 235. Oath to be taken. 236. Approval of board — ^Sufficient. 237. Excessive assessment — Fraud — Remedy. 238. Determining powers of board and assessor. 239. Deputy assessor sitting as member of board. 14 Table of Contents. Sec. 240. Fraud — Reduction — Failure to appear — Notice. 241. Appellate jurisdiction from city board valid. •242. De facto oflBcers. 243. No power to add property to list. 244. Excessive assessment from fraudulent motives. 245. County commissioners not liable in civil action. 246. Valuation must first be made by assessor. 247. Owner must have notice of increase. of valuation. 248. List must be presented to board. 249. Action of board final. 250. Acts of two members valid. 251. Meeting of board after time. 252. Not required to classify property on minutes. 253. Valuation. 254. No criterion of value in condemnation. 255. Const, Art. 8, Sec. 18, applies to state and county taxes. 256. Board of appeals not necessary where. CHAPTER XII. SUMMARY SALE OF PROPERTY FOR TAXES DUE. Sec. 257. Difference between sale of property under summary sale and sale under a regular judgment of foreclosure. 258. Constitutional provision. 259. Forced collection to begin when. 260. Personal property may be pointed out. 261. Tax lien superior to assignment — Attachment— Inheritance or devise except when. 262. All property liable for taxes. 263. Sales of personal property — How made. 264. If the property levied upon be insufficient. 265. Sale of real estate when personal property is insufficient. 266. Notice of the sale of real estate for taxes — How made. 267. List to be posted. 268. Sale of real estate may be continued from day to day. 269. Sales of land — How made. 270. The tax deed and its requisites. 271. Sales to be reported to the Commissioners' Court. 272. Redemption of land sold for taxes. 273. Redemption from private purchasers. 274. Receipt of collector's notice, when. 275. Relief, when. 276. Certificate of redemption from collector, 277. Lands to be bid in for state, when. 278. May redeem, how. 279. If not redeemed. Table of Contents. 15 Sec. 280. May redeem, in what manner. 281. Commissioners' Board to sit as a board of inquiry, wlien. 282. Sale for taxes due towns and cities. 283. Sheriff to execute deeds. 284. What must be proven. 285. Summary sale not nullified. 286. Summary sale prohibited by Constitution of 1869. CHAPTER Xni. SUIT TO FORECLOSE TAX LIENS. Sec. 287. Suits to foreclose liens for state and county taxes. 288. The particular property must have been sold or reported delin- quent before suit for tax on same will lie. 289. Right to sue for taxes. 290. Consolidation for suits. 291. Delinquent record. 292. Action in rem. CHAPTER XIV. PARTIES. Sec. 293. Parties. 294. Present owner of land proper party. 295. City of Houston. 296. Suit in name of city. 297. Bondholders necessary parties. 298. Heirs not necessary parties, when. 299. Husban'd necessary party. 300. County taxes delinquent collectible by state . ^ 301. Unknown owners, are not unknown where title is of record and residence shown. 302. Lien holders. 303. Cases in point only when party is in possession. 304. All persons claiming interest. 305. Action against state officer not against state. 306. State necessary party in action to restrain collection of taxes. 307. State officer's right to sue. 308. One in possession must be party. 309. Estate as defendant. 310. State and county not necessary parties, when. 311. Sale before death. 312. Community or separate property. 16 Table of Contents. CHAPTER XV. COURTS. Sec. 313. Jurisdiction of courts. 314. Limited jurisdiction of court;. 315. Jurisdiction of county court to issue injunction. 316. Foreclosing of lien on real estate — ^Amount does not control. CHAPTER XVI. PLEADINGS. Sec. 317. Must be verified. 318. Sufficiency of verification of petition. 319. Verification of answer, 320. Answer not verified must be specially excepted. 321. Several defendants. 322. Exhibits, 323. Lien. 324. Against owner. 325. City of Galveston. 326. Purpose of tax. 327. Not necessary to plead details, 328. City ordinances must be plead before they can be introduced in evidence. 329. Duly assessed sufficient. 330. Description of real estate, 331. Answer of defendant, 332. Petition must allege ownership in assessment against tmknown owner, 333. Allegations sufficient to arrive bulk assessment — Presumption of legality, 334. Amended petition must be verified. 335. Cross-bill asking relief invoice tax sale — ^Direct attack. 336. Fraud in assessment, 337. Allegations-i-What is necessary. 338. Pleading of ordinance sufficient, 339. Must state property within territory taxed. 340. Description of land. 341. Answer must deny specifically, 342. Petition need not allege existence of debt, when. 343. Need not plead city charter when a public act. 344. Allegation that property was duly assessed sufficient, 345. Petition not demurrable, when, 346. Averment assessed for taxes sufficient. 347. Must state year. Table of Contents. 17 Sec. 348. Allegations of petition — Land in another county. 349. Allegation to enjoin irregular assessments. 350. School tax. 351. To enjoin illegal excess must allege what. 352. Not defective not to allege collector's failure to collect. 353. Must state, purpose and amount of tax. CHAPTER XVII. SERVICE. Sec. 354. Service — How made. 355. Notice to non-residents — Unknown owners and other proceed- ings in suits for taxes. 356. Insufficient service — Judgment void. 357. What citation by publication should contain. 358. Personal judgment. 359. Jurisdiction of non-resident. 360. Citation by publication strictly construed. 361. Sufficiency of notice and publication against unknown owners. 362. Citation in tax cases different. 363. Date of filing. 364. Act 1897 repealed all other laws. 365. Where one is in possession and title of record. 366. Appointment of attorney and statement of facts. 367. Proof of publication. 368. Void service against unknown owner. 369. Must describe land. 370. May be addressed directly to defendants. 371. Citation against unknown owners governed by the special stat- utes. 372. Proper affidavit must be filed or judgment is invalid. 373. May be collaterally attacked, when. 374. When good against unknown owners. 375. Liability of county to pay for citation by publication. CHAPTER XVIII. EVIDENCE. Sec. 376. Lists and books prima facie evidence. 377. Lists — Assessment rolls or books prima facie evidence. 378. Inventories as evidence. 18 Table of Contents. Sec. 379. Plats and maps as evidence. 380. Copies of records of public officers and courts to be prima facie. 381. Tax deed of city prima facie evidence. 382. Delinquent tax list. 383. Authority to make sale must be shown before tax deed can be admissible in evidence. 384. Assessment roll not admissible when. 385. Admissions — Offer of compromise. ^ 386. Prima facie tax rolls. 387. City ordinance — ^Admissibility of pamphlet. 388. Sworn pleadings not offered by general denial — Proof. 389. Sufficiency. 390. Admission in record. 391. Burden of proof. 392. Tax list alone not prima facie evidence. 393. Tax deed not evidence of title when. 394. Tax deeds and rolls not evidence of levy. 395. Admission in pleadings. 396. To show valuation — Assessment. 397. Tax deed conclusive as to facts stated therein. 398. Sale for larger amount void. 399. Admission in pleadings. 400. Presumption of legality of levy. 401. Not necessary to show title when. 402. Levy, prima facie evidence of facts. 403. Deed of Tax Collector at summary sale not evidence of title when. 404. Parol testimony where tax rolls are lost. 405. Admission. 406. Competency, sufficiency of description. 407. List alone not evidence. 408. In prosecution for occupation tax, state must show amount of levy. 409. Tax receipts evidence of rendition. 410. Assessment lacking affidavit of Assessor not admissible. 411. Assessment and demand must be shown. 412. Payment of taxes as evidence of partition. 413. Allowed to prove notations on roll. 414. Copy of delinquent tax record admissible. 415. Owner's rendition admissible to show value of property in dam- age suit. 416. Payment of taxes to show extent of claim. 417. Payment of city tax no evidence of payment of state and county tax. 418. Tax rolls. Table of Contents. 19 CHAPTER XIX. JUDGMENT. Sec. 419. Conclusiveness as to all parties. 410. Judgment should be in favor of State and not its officers. 421. Res adjudicata. 422. Collateral attack. 423. Direct or collateral attack. (a) When direct attack. 424. Unknown owner — Not subject to collateral attack when. 425. Recital of service. 426. Tax judgment must be void before it can be attacked collat- erally. 427. Judgment against unknown defendants not valid when. 428. Several parcels of land. 429. Judgment on lots in bulk. 430. Must fix lien on each lot. 431. Description of land sufficient. 432. Description insufficient. 433. Erroneous description in rolls. 434. Conclusiveness of judgment. 435. Errors of procedure can not be looked into. 436. Suit to set aside where brought. 437. Judgment for license tax. 438. Suit against unknown owner void when. 439. Can not impeach judgment, when. 440. May compel levy to pay. 441. Pendente lite. 442. Personal judgment may be recovered. 443. Personal judgment — Levy of city taxes. 444. No personal judgment can be rendered on an invalid assessment. 445. City entitled to personal judgment. 446. Recitals of placing in possession — Surplusage. CHAPTER XX. SALE OF PROPERTY UNDER DECREE OF FORECLOSURE. Sec. 447. Sale of property for taxes under decree of foreclosure. 448. Notice of place of sale must be stated. (a) Inadequacy of price. 449. Will not set aside for inadequacy where right to redeem exists. 450. In gross. 451. Taxation — Sale for delinquent taxes — Bona fide purchaser. 452. What is necessary to pass title. 453. Against unknown heirs and unknown owners. 454. Citation by publication. 20 Table of Contents. Sec. 455. Effect of reversal of judgment. 456. Order of sale must be shown. 457. Homestead — Sale of part of land — Costs — Misappropriation — Ir- regularity and inadequacy of price. 458. Collateral attack when. 459. Failure to notify owner or attorney not error when. 460. Notice to defendant necessary under Art. 2366, R. S. 1895. 461. Notice only necessary to be mailed. 462. Bona fide purchaser — ^Want of service — Costs. 463. Sale other than summary constitutional. 464. State's right to waiver of title and to sue for taxes. 465. Sale to State does not defeat tax lien. 466. Possession by purchaser. 467. Tax sale unorganized counties. CHAPTER XXI. TAX LIEN. Sec. 468. Illegal tax sale — Res adjudicata — Interest. 469. Law of 1866 requirements as to sale. 470. Condemnation of land for taxes under Act June 2d, 1873, must first show that there is no personal property. 471. Omission in list of number of certificate — Sale void. 472. Indefinite description of land in assessment conveys no title. 473. Tax sale — Condition precedent — Burden of proof. CHAPTER XXn. TAX DEED. Sec. 474. Assessor and Collector shall make deed to purchaser to property sold for taxes — Effect of deed — Right of redemption, etc. 475. Collector's deed. 476. No evidence of title. 477. Prima facie evidence of what. 478. Description of property. 479. Sufliciency of description. 480. Description in deed. 481. Deed of summary sale of lots in gross void, when. 482. Description void, when. 483. Invalid, 484. Land not described. 485. All prerequisites must be proved. 486. Deed of Tax Collector strictly construed — Reasons for so doing. 487. Validity of tax deed — Burden of proof. Table of Contents. 21 Sec, 488. Uncertainty in receipts in deed. 489. Levy must be shown to substantiate deed. 490. Acknowledgment. 491. Effect of the deed made by the City Assessor and Collector to property sold for taxes. CHAPTER XXIII. PURCHASER AT TAX SALE. Sec. 492. Void sale — Conditions of relief, 493. Sale for taxes — Notice. 494. Burden of proof different where party is in court. 495. Possession pending redemption, 496. Purchase by owner. 497. Equitable lien for taxes paid. 498. Not entitled to refund under void judgment. 499. Not innocent purchaser when. 500. Acquired no title against one in possession not a party to suit. 501. Legality of partnership to purchase at tax sale. 502. Right to question title without payment of taxes, CHAPTER XXIV. PURCHASER IN GOOD FAITH, Sec. 503. Right to have amount paid refunded, 504. Purchaser in good faith. 505. Purchaser of property with taxes due. CHAPTER XXV, IMPROVEMENTS IN GOOD FAITH, Sec. 506. May claim improvements in good faith under tax title not void on its face. 507. Void tax. 508. Evidence of, not sufficient, 509. Under tax deed must prove prerequisites, CHAPTER XXVI. VENDOR AND VENDEE. Sec. 510. Purchaser under warranty deed, 511. Sale after January 1st. 512. Assumption of taxes by vendee, 513. Implied warranty against tax lien. 514. Cattle, sale of. '^'^ Table of Contents. CHAPTER XXVIL TAX LIEN. Sec. 515. Delinquent taxes lien on land. 516. Tax lien superior to assignment, attachment, inheritance or de- vise, except. 517. Foreclosure and sale for past releases all. 518. Purchaser under tax judgment. 519. Lien only on separate tracts. 520. Foreclosure of tax lien. 521. Priority of tax lien, ' 522. When lien attaches. 523. Tax lien — Public use. CHAPTER XXVIH. PAYMENT. Sec. 524. Taxes payable in money or scrip. 525. Payment — How proved. 526. Where made. 527. Penalty of failure to pay taxes. 528. Taxes, etc., of cities of less than 10,000 inhabitants collectible in current money only. 529. Action will not lie against Tax Collector, when, 530. What constitutes involuntary payment. 531. Not compulsory, payment. 532. Payment — How made. 533. Payment in coupons must be before suit. 534. Receipts evidence to show payment. 535. Receipt no positive evidence of payment. 536. Right to rebut receipt and show that taxes were not paid. 537. Scrip not receivable. 538. Certificate of Tax Collector not sufficient evidence of payment of taxes. 539. Payment in warrant. 540. May compromise by deed. 541. In money, not in services. 542. Reduction of tax after payment. 543. Tender of part, 544. Must show payment of taxes before validity of taxes can be ques- tioned. 545. Presumption of payment by one rendering. 546. Payment before taxes are due not binding on State, 547. Credit to Tax Collector not payment. Table of Contents. 23 CHAPTER XXIX. RIGHT TO RECOVER TAXES PAID. Sec. 548. Not authorized may be recovered. 549. Taxes assessed without authority of law are void and may be recovered back. 550. Illegal tax — Payment under protest. 551. Taxes paid to prevent sale are compulsory and can be recovered. 552. When taxes paid can be recovered. 553. Right to recover taxes paid. 554. Voluntary and involuntary payments. 555. Action to recover taxes. 556. Right to recover tax paid at void sale. CHAPTER XXX. REMEDIES OP TAXPAYER. Sec. 557. Can not mandamus Comptroller, when. 558. Injunction will not issue, when. 559. May enjoin, when. 560. Must pay amount before injunction will issue. 561. May inquire into validity of taxes after sale of land. 562. Payment, when necessary. 563. Lapse of time. 564. Want of levy. 565. Extension of new limits. 566. Valuation of property. 567. Relief granted where other property is assessed with owners. 568. Burden of proof. 569. Irregularities of a tax-roll. 570. Tax Collector's deed a cloud on title. 571. Must pay tax due, when. 572. Can not enjoin issue of bonds, when. 573. Taxes on void bonds. 574. Right of taxpayer to raise objections to legality of tax levy and bond issuance. 575. Certain defenses can not be raised in suit for taxes. 576. Not estopped by silence. 577. Taxpayer has interest to enjoin. 578. Relief from void sale. 579. Payment of taxes not a condition precedent to defense. 24 Table of Contents. CHAPTER XXXL REDEMPTION. Sec. 580. Redemption under summary sale. 581. Land sold to State. 582. Land sold for City or Town taxes. 583. An act to permit the owners of land or lots sold to the State or to any City or Town for taxes to redeem the same. 584. Who may redeem. 585. Land sold to State, or City — ^Act 30th Leg. 586. Land sold to State or to any City or Town. 587. Sec. 13, art. 8, of Const; refers to summary sales. 588. Right to hold possession until period of redemption has expired. 589. No right to redeem under City Charter containing no redemption provision. 590. Judgment — Writ of possession. 591. Property sold for taxes prior to 1895. 592. Persons entitled to redeem. 593. Under Charter City of Houston. 594. Right to refuse redemption of part of tract. 595. Owner may redeem by paying to the purchaser, even if he had sold to another. 596. Title remains until time of redemption. 597. Right to redeem for taxes before law of redemption. 598. Tender may be made through agents. 599. Effect of tender. 600. Collector entitled to what fees. 601. Property of infant, feme covert or lunatic. 602. Judgment does not affect right to redeem. 603. After two years title perfect. 604. Right of redemption before sale. 605. Redemption after sale. CHAPTER XXXH. EXEMPTIONS. Sec. 606. Constitutional provision. 607. $250.00 furniture exempt. 608. Farm products. 609. Property exempt. 610. Act 1906. 611. Act of 30th Leg. exempting certain properties from taxation. 612. Legislature may release, when. 613. Private schools — Buildings — ^What included in the terms. 614. City Council may provide for the exemption of property from taxation. Table of Contents. 25 Sec. 615. School property — ^What is exclusive use. 616. School house occupied by family not exempt. 617. Land connected with boarding school. 618. Aid in construction of railroad — Sale of same. 619. Lease-hold not taxable against tenant, when. 620. Timber on school land sold not exempt. 621. Church publication not exempt. 622. Buildings owned by Charitable Institutions — Rentmg portions of. 623. Public property. 624. Exemption by municipality void. 625. Vendee under executory contract not exempt from payment of tax, even when sold by County. 626. Property of municipal corporation. 627. Wharf Company, in which City owns interest, property of City. 628. Right of exemption passed by sale. 629. Leased State lands. 630. State lands under contract. 631. School land— Title in State. 632. Property exempt from the operation of the Act of 1897. 633. To be construed in favor of State. CHAPTER XXXIII. HOMESTEAD. Sec. 634. Liable only for taxes assessed against it. 635. Liable for taxes, costs and interest against it. 636. Not liable for special improvement assessments. 637. Court costs. 638. Void tax sale — Repurchase by owner — ^Vendee's lien. 639. Sale of. 640. Wife need not be made party. 641. May be sold separately. 642. Redemption. 643. Executions and administrations. 644. Proceeds from fire insurance. 645. Judgment against husband good. CHAPTER XXXIV. PERSONAL PROPERTY. Sec. 646. Personal estate includes what. 647. Credits and securities — ^National Bank stock — Non-residents. 648. Bonds and securities. 649. Duty of Assessor and Collector of Cities and Towns to make lists of personal property. 26 Table of Contents. / Sec. 650. Separate value of each piece not required in alssessment. 651. Assessment, description of property. 652. Cattle taxed in County where situated. 653. Non-residence of owner. 654. Sale of personal property. 655. Assessment of taxes of Telegraph Co. 656. Com and cotton — Division of tax. 657. Cattle ranging in two Counties. 658. Taxes on indebtedness of non-resident. 659. Fish— Act 29th Leg., p. 128. 660. Vessels — Taxable where owner resides. 661. Vendor's lien notes owned by non-residents, but within State CHAPTER XXXV. BANKS. Sec. 662. Sworn statement to be furnished by National Banks — Penalty. 663. Money and notes defined. 664. Assessment of real estate by banks. 665. Only real estate on National Banks subject to taxation. 666. Share of banking association liable -for taxes. 667. Liability of bank stock. 668. National Bank shares — Deducting indebtedness. 669. National Bank. 670. What is subject to taxation. 671. Bank deposits — How taxable. 672. National Bank stock. 673. Inequality of assessment of bank stock. 674. Assessment by City on stock. 675. President required to assess. 676. Deposits to be deducted as debts. 677. Not exempt, when, CHAPTER XXXVI. RAILROADS. Sec. 678. Assessment by railroads. 679. Railroads to return sworn statements, when, etc. 680. Property shall be assessed. 681. Mode of assessment. 682. Municipal taxes. 683. Gross receipts. 684. Exemption I. & G. N. R. R. Co. 685. Exemptions of property — Pleadings. 686. Assessment as to bridges as roadbed. 687. Improper rendition — Double assessment. 688. Evidence of payment. Table of Contents. 27 CHAPTER XXXVII. LICENSE AND OCCUPATION TAX. Sec. 689. One-half State tax. 690. Tax shall be equal and uniform. 691. Levy for 1900. 692. Cities of 1900 inhabitants or over incorporated under General Law shall have power to levy and collect occupation. 693. Occupations that are subject to taxation. 694. Occupation tax — Liabilities. 695. Power of City Council to provide for assessing, taxes, etc. 696. Collection of license tax, etc. 697. Act of 30th Leg. providing for the levy of occupation taxes on certain occupations. 698. Repealing taxes on certain occupations. 699. Act 30th Leg. providing occupation tax on dealers in malt liquors in Local Option Districts. 700. Act 30th Leg. in regard to license and regulating sale of intoxi- cating liquors. 701. Relating to the payment of certain occupation taxes for remain- der of 1907. 702. Occupation tax upon persons engaged in the business of dealing in unearned wages of another. . 703. Tax on dealers in non-intoxicating malt liquors. 704. Occupation tax on soliciting orders in Local Option Districts. 705. Refunding unearned liquor dealer's license. 706. Cannon crackers or toy pistols. 707. Levy — Sufficiency. 708. Must show levy of tax. 709. Not liable when. 710. Occupation not property. 711. Courts can not interfere, when. 712. Billiard table muft be kept for profit. 713. Temporary closing does not forfeit because, when. 714. Occupation and privileges. 715. Telegraph Company, Interstate Commerce. 716. State must first fix tax before City can tax. 717. Photograph gallery. 718. Lightning rod agents — Interstate Commerce. 719. Foreign corporation — Interstate Commerce. 720. Commercial travelers. 721. Keeping pool-table without license. 722. Fine for violating License Law. 723. Liquor property of firm no defense. 724. Vendor of medicine. 725. Barber. 28 Table of Contents. Sec. 726. Oil producers. 727. Indictment not bad for duplicity. 728. Letting wagon for hire. 729. Interstate Commerce. 730. City ordinance — Vehicle not taxed by state, void. 731. Social club. 732. Real estate agent can collect commission, when. 733. Wild West shows. 734. Local option — Sale of liquors. ' 735. Banks — Uniformity of taxation. 736. Occupation — Flying-Jenney. 737. Sufficiency of information. ^ CHAPTER JXXXVIII. CITIES AND TOWNS. Sec. 738. Cities and towns having a population of 10,000 or less. 739. Cities having more than 10,000 inhabitants. 740. Debts incurred prior to adoption of present constitution. 741. Counties and cities on the coast of the Gulf of Mexico. 742. School district. 743. Taxes due towns and cities. 744. Lands in cities and towns. 745. Power of city council to regulate tax lists — Assessment of taxes, etc. 746. Duty of taxpayers to render inventory of property, etc. 747. Abstract and survey not necessary, when. 748. May prescribe mode of assessment. 749. Burden of proof. 750. Limitation on power to tax. 751. No ordinances necessary to empower with authority to sue. 752. Cities incorporated under general law may license certain occu- pations. 753. May license, etc., peddlers, theatres, etc. 754. May license, etc., circuses, etc. 755. May license, etc., hackmen and prescribe their compensation, etc. 756. May license, etc., billiard tables, etc. 757. May authorize proper officer to grant license, etc. 758. May tax street railways. 759. Power over finances of city. 760. City bonds shall specify what. 761. Bonds form taxation and may be used to pay taxes. 762. Tax laws to remain in force. 763. Laws to enforce collection continued in force, and all defenses to bonds cut off. 764. Tax collector — Liability — Governor to appoint, when. Table of Contents, 29 Sec. 765. Gulf cities may issue bonds for harbors, etc. 766. Tax to be levied, interest paid and bonds sold, etc. 767. Ad valorem tax. 768. To levy and collect tax and issue bonds for improvements, build- ings, etc. 769. Cities of ten thousand inhabitants and over to levy and collect tax — ^Validating act. 770. Debt shall not be created unless provision be made to pay the same. 771. Power of city council to provide for collection of taxes. 772. Taxes for payment of indebtedness. 773. Board of aldermen may levy tax — How much — (Cities and vil- lages) . 774. Taxes by whom collected — Sale of property for. 775. Real estate may be redeemed. 776. When purchaser is a non-resident. 777. Where property is liable for taxes and owner is unknown. 778. Incorporations for school purposes. 779. Power of cities in general to levy taxes. 780. Tax can be collected when void portion ascertainable. 781. Duty of assessor and collector in regard to collection of taxes. 782. Property of taxpayer shall be levied and sold for taxes, when. 783. Assessor and collector shall make deed to purchaser to property sold for taxes — Effect of deed. 784. Sale may take place at another time than that first advertised, when. 785. Property shall be struck off to city, when. 786. Levy of taxes. 787. Record of levy. 788. Resolution sufficient basis for suit when. 789. Right to sue. 790. Mandamus — Purpose of tax may be shown. 791. Levy— Street. 792. Inquiry into legality of corporation of town. 793. Ordinance providing for the issuance of bonds — Sufficient, when. 794. Cities of over 10,000 may change rules of evidence. 795. Can not raise question of corporate existence in tax suits. 796. Reincorporation of abolishing municipality. 797. Rev. Statutes 1895, Art. 487. 798. Right of cities to sue under charter provisions not taken away by general law. 799. City of Houston. 800. Bonds for existing debts. 801. Tax on bonds sold to city. 802. Majority of aldermen sufficient to pass tax levying ordinance. 803. Interest. 804. Mandamus. 805. Ordinance not resolution, when. 30 Table of Contents. Sec. 806. Sufficiency of levy. ' 807. Right of town to maintain action. 808. Cities and towns may adopt general state law in regard to col- lecting taxes. 809. De facto corporation. 810. Bawdy house license. 811. Galveston. 812. Cities over 10,000 not within limit. 813. Tax for school purposes valid. 814. Implied authority to levy tax. 815. Limitations of power — ^Application of tax fupd. 816. Towns which may or have abolished their corporate existences. 817. Collection of taxes where corporation is abolished. 818. Relating to issuance of bonds and levy of taxes. CHAPTER XXXIX. SCHOOLS AND SCHOOL DISTRICTS. Sec. 819. Act of April 5th, 1907, fixing rate for free school purposes. 820. Local taxation for school purposes. 821. Levy for maintenance — Increase of levy — Hen. 822. Power to levy tax. 823. Levy once exercised is exhausted for years. 824. Levy of taxes vested in local boards. 825. Failure to designate levy by school districts only an irregularity. 826. Action on part of city required. 827. Qualification of voter. 828. Bondholders necessary parties, when. 829. Irregularities will not restrain the collection of tax. 830. Sufficiency of notice to impose tax. 831. Separate roll not necessary. 832. Can not establish lien, when. 833. Defense — ^Not available. 834. Limitations on rate. 835. Incorporated city or town — Limitation of tax. 836. Excessive levy curative act. 837. School tax — City council must levy. CHAPTER XL. INTEREST AND PENALTIES. Sec. 838. Constitution. 839. Banks. 840. Interest can not be charged before tax is due. Table of Contents. 31 Sec. 841. From date of judgment — Except. 842. Not usurious. 843. Contract to pay taxes not usurious. 844. Damages in dissolution of injunction. 845. No right to charge interest without authority. 846. State entitled to interest. , 847. Taxes improperly enjoined. 848. Penalty after January 31st. 849. Statute must provide for interest. 850. No interest without express provision. 851. Where part is illegal. CHAPTER XLI. RETROSPECTIVE AND EX-POST FACTO LAWS. Sec. 852. Omitted property. 853. Levy. 854. Mode of procedure. 855. Evidence. 856. Can not prescribe retroactive penalty. 857. Remedy pending litigation. CHAPTER XLII. EFFECT OF REPEAL OF TAX LAWS. Sec. 858. Whether taxes are to be collected by law enforced at the time of levy and if repealed and when by subsequent legislation. 859. City's rights under repealed charter. 860. Deed. 861. Retroactive law taking away any right unconstitutional. 862. Redemption. 863. Repeal of former law. CHAPTER XLHI. ADVERSE POSSESSION. Sec. 864. Statutory provision. 865. Tax deed. 866. Must pay taxes. 867. Payment of taxes not possession. 868. Presumptive possession. 869. Payment of taxes under forfeited survey. 870. Pleading possession. 32 Table of Contents. Sec. 871. Limitation. 872. Possession under void deed extends to what. 873. Payment of taxes by third person. 874. Void deed will not support limitation. 875. Tract inclosed with others and use of part. 876. Can not establish title by payment of taxes, when. 877. Invalid tax deed will not support limitation. 878. Must prove payment of taxes on all of tract claimed. 879. Tax roll evidence of payment. 880. Tax deed not good under three years statutes, when. 881. Tax deed must describe property. 882. Redemption period, not necessary to re-register after such period. 883. In whose name to be assessed. 884. Description of taxes — ^Failure to pay taxes. 885. Only title of owner at time of sale passed. 886. Payment shown without evidence of assessment. 887. Tax deed will not support limitation, when. 888. Not entitled to hold against purchaser at tax sale, when. 889. Not interrupted by tax suit. 890. Description in assessment. ^ 891. Land must be defined. 892. Must pay taxes to acquire title under five-years statute of lim- itation. 893. Presumption of, for whom paid. 894. Voidable judgment to show three-years limitation. 895. Tenant and landlord. 896. Payment of taxes no proof of possession. 897. Payment of taxes on land different from location in deed. 898. Failure to pay taxes weakens claim on land. 899. Possession not adverse during time allowed for redemptit ' 900. Undivided interest. 901. Tax deed will support statute of limitation. CHAPTER XLIV. LIMITATION. Sec. 902. State law. 903. State and county taxes not barred since 1876. 904. City of Houston, 905. A retroactive law of limitation. • 906. State and county taxes not barred. 907. Four-years limitation of actions. 908. Limitation against action for taxes — Applies to municipal cor- poration and purchaser. 909. Suit to recover land sold for taxes. 910. Repeal of act not a bar to limitation. Table of Contents. 33 Sec. 911. Constitutional law, releasing debt to city. 912. Constitutionality of revocation — ^Law of limitation. 913. Installments on bonds barred in four years. 914. Reasonable time allowed after passage of limitation act in which to file suit. 915. Time act repeal not to be computed. 916. Mere lapse of time no defense. 917. Limitation of action for money paid under protest. CHAPTER XLV. TAX UPON GROSS RECEIPTS. Sec. 918. Act providing for levying and collecting taxes upon the gross receipts of certain individuals, firms and corporations, 919. Gross receipts tax bill. 920. Injunction will not lie to restrain oflBcers. 921. Not applicable where road is incorporated under act of Congress. 922. Taxes on corporate privileges. 923. Oil companies. 924. Interstate commerce does not apply. CHAPTER XLVI. INSURANCE COMPANIES. Sec. 925. Act of 1905. 926. Occupation on gross premiums. 927. Insurance companies. 928. Gross receipts. CHAPTER XLVII. IMPROVEMENT DISTRICTS. Sec. 929. Law regulating the mode of establishing same and levying and collecting taxes In same. CHAPTER XLVin. DRAINAGE TAX. Sec. 930. Acts of 31st Leg., showing mode of levying and collecting. 34 Table of Contents. CHAPTER XLIX. TAX FOR CAUSEWAYS. Sec. 931. Tax for causeways. CHAPTER L. NAVIGATION DISTRICTS. Sec. 932. Act of the 31st Legislature providing for navigation district and prescribing mode and manner of collecting taxes in same. CHAPTER LI. INHERITANCE TAX. Sec. 933. An act to tax property passing by will or by descent or by grant or gift; taking effect on the death of the grantor or donor. CHAPTER LH. INTANGIBLE ASSETS. Sec. 934. Providing for taxing intangible assets of certain corporations. CHAPTER LHI. FRANCHISE TAX. Sec. 935. Act of 1905, amending articles of statutes in regard to franchise tax of corporations doing business in Texas. 936. An act to define the method of computing the franchise tax. 937. Franchise of corporation property. 938. Insufficient description. 939. Failure to pay does not forfeit charter. 940. Corporation proper defendant. 941. Wharf privileges. 942. Double taxation. 943. Street railroad. 944. Delinquent may be placed in hands of receiver. 945. Contract over foreign corporations. 946. Act of the 30th Legislature. Table of Contents. 35 CHAPTER LIV. UNORGANIZED COUNTIES. Sec. 947. Property in unorganized counties. 948. Lands of non-residents in unorganized counties. 949. Lands in unorganized counties. 950. Duties of comptroller in relation thereto. 951. May appeal from comptroller's assessment. 952. May levy upon and sell when. 953. Sale. 954. Redemption. 955. Tax deed. 956. List of purchasers to be kept in office. 957. Deed shall vest good title, when. 958. County taxes to be paid, when. 959. Comptroller to keep taxes of unorganized counties, etc. 960. Same subject. 961. Special deposit to be made by comptroller. 962. Taxes upon lands of non-residents in unorganized counties. 963. Personal property where taxable. 964. Newly organized county. CHAPTER LV. TAX COLLECTOR. Sec. 965. Collector to keep books. 966. Tax collector to be furnished books, etc. 967. Unlisted property — Supplemental roll. 968. Election and term of collector. 969. Vacancies, how filled. 970. Sheriff as collector, when. 971. Bonds and oaths of collector. 972. Liability of tax collector and evidence against. 973. New bond. 974. Bond for county taxes. 975. All bonds to be first approved. 976. May appoint deputies. 977. Rolls to be warrant. 978. Collector for all taxes. 979. Collections — When to begin. 980. Shall keep office at county seat. 981. Tax receipt and its requisites. 982. Quarterly reports — Requisites of — Duties of collector. 983. Make report to Commissioners' Court. S6 Table of Contents. Sec. 984. List of delinquents and insolvents to be made out. 985. Collector to endeavor to collect delinquent taxes. 986. Nou-residents. 987. Forced collections to begin, when. 988. Collector to file complaint, when. 989. Compensation. 990. For occupation tax. 991. Fees to be retained. 992. Fees less than maximum — Statements of fees collected — Excess to be paid into county treasury. 993. Deputies and assistants, appointment and compensation. 994. Collection of delinquent fees — Fees not to be remitted. 995. Penalty for failure to charge up fees, or for remission of fees, etc. 996. Payment for ex-officio services. 997. Officers to keep a correct statement — ^Accounts to be exam- ined by the grand jury. 998. Certain officers not required to make a report or keep a state- ment. 999. Statement by tax collector and assessor. 1000. Fiscal year — ^At what times reports must be made and by whom. 1001. Compensation for one levy only, etc. 1002. Payments of moneys. 1003. Notification to pay, etc. 1004. Tax collector to prepare delinquent tax record. 1005. Collector's fees under delinquent tax acts. 1006. Duty of the tax collector to collect and prepare lists each year under the delinquent tax act. 1007. Must account for taxes collected whether valid or not. 1008. Application of payment. 1009. Duty of tax collector when delinquent has no property in county out of which taxes can be collected. 1010. Receipts to creditors. 1011. City bonds. 1012. Rolls must be delivered. 1013. Parties to suit on bond. 1014. Evidence in suit on bond. 1015. Suit against defaulting — Pleadings — Interest. 1016. Collection by authorized party is collection by county. 1017. Suspension. 1018. Additional bond. 1019. Removal from office. 1020. Cities — Action on bond — Proof necessary. 1021. Successor of sheriff. 1022. No release of sureties, when. 1023. Practice in suit against what must be shown. 1024. Sureties not released until new bond approved. Table of Contents. 37 Sec. 1025. Suit on bond — Letter from comptroller admissible. 1026. No liability as to county or sureties on bond on taxes collected without authority. 1027. Suit on delinquent sheriff bond. 1028. Can not question validity of act to avoid payment of moneys collected. (a) Not entitled to fees from state when land is bid in by state unless redeemed by owner. 1029. Liability of surety not limited, when. 1030. Interest on amount in default. 1031. Suit against to recover tax on illegal valuation. 1032. Collection on municipal bonds. 1033. Entitled to one dollar for each correct assessment. 1034. Rights of surety. 1035. Limitation as to collecting. 1036. Not liable to county under bond to state. 1037. Can not deny officers' election. 1038. A trespasser, when. 1039. Right to emoluments. 1040. Authority to tax collector. 1041. Tax collector alone can collect. ' » • CHAPTER LVI. SHERIFF. Sec. 1042. Sheriff tax collector. 1043. Sheriff entitled to fee for selling and making deed, etc. 1044. Fees on notices. 1045. Commission on sales 1046. Right of sheriff to withhold his costs from proceeds of tax sales. CHAPTER LVn. DISTRICT AND COUNTY CLERK. Sec. 1047. Fees under delinquent tax act of the district clerk. 1048. Delinquent lists to be recorded by county clerk. 1049. Delinquent lists to be recorded by county clerk. 1050. County clerk shall furnish copies, etc. 1051. Fees under delinquent tax act. 1052. Not entitled to fee when list is not recorded. 1053. Entitled to fee under Act 1897. 38 Table of Contents. CHAPTER LVIII, ATTORNEY. Sec. 1054. District and county attorneys and attorneys employed. 1055. Attorney to represent the state — Fees. 1056. Lots separately assessed and owned by one person — One tract as to costs, 1057. Attorney general — Right to represent state in tax suits. 1058. Attorney's fees. 1059. Salary incident to office. 1060. Effect of want of authority on judgment. 1061. Right of city to employ counsel. 1062. Attorney's fees — When not authorized. 1063. Liable for reasonable amount for services. 1064. Failure to appoint attorney. 1065. County attorney may purchase land sold at tax sale. 1066. County attorney must assist in collecting taxes on contract. CHAPTER LIX. LOCAL IMPROVEMENTS BY ASSESSMENT. Sec. 1067. Act of 31st Legislature authorizing cities and towns to con- struct street improvements. 1068. Taxes for local improvements. 1069. Constitutional provisions as to taxation. 1070. Power of cities incorporated under general law to have street graded, etc. 1071. Estimate of cost of improvement shall be made. 1072. Property levied on and sold for taxes for improvements, when and how, etc. 1073. Suit against owner of property for improvement tax, when, etc. 1074. Constitutional. 1075. Valid street improvement assessments. 1076. According to benefits derived. 1077. Improvement districts. , 1078. Local improvements. 1079. Refunding paving certificates. 1080. Improvements of sidewalks under police power. 1081. Street railroads. 1082. Contractor to look to property owner. — ^Void assessment. CHAPTER LX. POLL TAX: JURORS' QUALIFICATION OF VOTERS. Sec. 1083. Who are qualified voters. 1084. Who are qualified to vote in city, town, etc., election. Table of Contents, 39 Sec. 1085. Collection of poll tax. 1086. What poll tax receipt must show — Candidate can not pay taxes for another. 1087. Persons exempt from payment of poll tax to obtain certificate of exemption — Form of. 1088. Persons not 21 years old to get certificate of exemption, 1089. When one swears falsely, duty of collector. 1090. Removing from one precinct to another county. 1091. Removing to another county. 1092. Collector to require proof of residence and of statement, when. 1093. Tax collector's fees. 1094. Tax collector giving receipt to fictitious persons. 1095. Tax collector giving receipt to wrong person. 1096. Failing to return tax receipt to owner. 1097. Selling poll tax receipt. 1098. Exemption. 1099. Delinquent may be compelled to work road. 1100. Manner of payment as to qualification to vote. 1101. Loaning money to pay poll tax. 1102. Equality and uniformity. 1103. Uniformity — ^Road law, 1104. Statutory provisions — Poll tax. 1105. Levy to pay jurors. 1106. Qualification of juror. 1107. County poll tax. 1108. City poll tax of cities of 10,000 inhabitants or over. 1109. Must pay to qualify as juror, if challenged. 1110. Must challenge as to disqualification. 1111. Qualification, poll tax. 1112. Court may dispense with requirement of payment of poll tax, when. 1113. Who are disqualified in general. 1114. Notice of election, 1115. Evidence as to who are taxpayers. 1116. Not necessary that taxpayer's name appear on roll. 1117. Must be taxpayer in school district. LAWS OF TAXATION IN TEXAS. CHAPTER I. GENERAL PROVISIONS, DEFINITIONS, TERMS, ETC. Sec. 1. Taxes. (a) Refer to what. (b) Definition of. 2. Must be equal and uniform. 3. Nature and extent of power. 4. All property liable for taxes. 5. How levied and collected. 6. Legislative power and au- thority. 7. Legislature has no power to release taxes, 8. Real estate includes what. 9. Eminent domain — Taxation not. 10. Money. 11. Farm products. 12. State releases mineral right but not taxes. 13. Federal Constitution not vio- lated by Delinquent Tax Act. L4. Tax laws construed liberally. 15. Due course of law. 16. Official duty can not be dele- gative. 17. Partition — Allowance for taxes paid. 18. Property bought in held in trust when. 19. Road and bridge a county tax. 20. Special fund not to be di- verted. 21. Dedication. Sec. 22. Telegraph company — Consti- tutional law. 23. Deed of Trust providing for payment of taxes. 24. Payment will be enforced. 25. Nonpayment of taxes — Pre- sumption that right has re- verted to State. 26. Rights not affected by failure to pay taxes when. 27. Where mortgagee pays, what rights does he have. 28. Sale of one tract to pay taxes on another. 29. Disqualification of judge. 30. Courts of equity should not, except on clearest grounds, interfere with collection of taxes. 31. Where no provision is made as to source from which revenue is to be derived. 32. Taxable when. 33. Vested rights in taxes. 34. De facto officers. 35. State shall have judgment, ex- cept when. 36. Tenant may purchase tax ti- tle. 37. Timber on public land. 38. Where tax can be divided. 39. Detached territory, liability for taxes. -Definition of. and "taxation,' as used in the § 1. "Taxes" refer to what- The words "tax," "taxes' constitution without some qualifying word in reference to property, apply to ad valorem taxes. Those words when 42 Taxation in Texas. found in article 2 refer to such taxation as the rule of equality and uniformity can, under well-settled and long-recognized rules, be applied to. Taxes for local improvements in a city, usually termed "assessments," are not required to the rule requiring equality and uniformity. (Following Roundtree v. City of Galveston, 42 Tex. 626.) Taylor v. Boyd, 62> Tex. 534. Taxes are defined to be burthens, or charges, imposed by "the legislative power of a state upon persons or property," to "raise money for public purposes." It is a power inherent in sovereignty, and without which constitutional government cannot exist. It is vested in the Legislature by the general grant of the legislative power whether specially enumerated in the Constitution among the powers to be exercised by it or not. The constitutional provisions in reference to it, there- fore, are more usually extended and understood as limitations and restrictions upon its exercise, than as the direct grant of the power to the Legislature. That a power so pervading in extent which may be made to bear upon any species of prop- erty, and affect every occupation and industry of society, should be guarded by just and reasonable constitutional re- strictions can not be doubted. And that the Legislature, in its exercise of this power, can not transcend these restrictions will be denied by no one. It is equally obvious, when taxes are levied, the citizen is liable for their payment at the time and in the manner required and provided by the law authoriz- ing their assessment and collection. An inspection of the Constitution of this State shows that the power of taxation, in its all-pervading and unlimited force, has not been committed to legislative discretion, without guid- ance or restriction. The subjects of taxation, as is manifest by these restrictive provisions, are, primarily, property and persons, and may embrace incomes, occupations and profes- sions, not including, however, either agricultural or mechan- ical pursuits. Taxes levied by the State on these subjects, for general revenue, however, must be equal and uniform throughout the State. All the property in the State, except such as may be exempt as provided in the Constitution, shall be taxed in proportion to its value, to be ascertained as di- rected by law. The annual assessment upon landed property General Provisions, Definitions^ Etc. 43 shall be a lien on the property, and interest shall run thereon upon each year's assessment. Such property shall be sold for the taxes thereon only under a decree of a court of competent jurisdiction. Provision for the condemnation and sale of all lands for the taxes due thereon was authorized to be made by the first Legislature, and every five years thereafter, of all lands, the taxes upon which shall not be paid to that date. (Constitution, Article 12, Sections 19-22.) We think it quite evident, from these constitutional pro- visions, that taxes on landed property were intended to be a specific charge upon the land upon which they are assessed, and that such property cannot be sold for their payment, ex- cept by proceeding in accordance with provisions made by the Legislature for their condemnation and sale for the taxes due thereon. To enforce the payment of taxes due on land, by its sale under execution on a judgment in personam, in- stead of by a proceeding in rem, subjecting it to condemnation and sale would be, plainly, in violation of the object and pur- poses for which these constitutional provisions were evidently intended. Clegg v. State, 42 Tex. pp. 608 and 609. The essentials of a valid tax are: (1) a levy by compe- tent legislative authority, and (2) a valid assessment of the property upon which such tax is levied by the officer or trib- unal to whom this duty is committed by law. George v. Dean, 47 T. 72,. "Taxes are burdens or charges imposed by the Legislature on persons or property to raise money for public purposes." City of Austin vs. Nalle, 120 S. W. 996. § 2. Must Be Equal and Uniform. Taxation and Revenue — Taxation shall be equal and uni- form. All property in this state, whether owned by natural persons or corporations, other, than municipal, shall be taxed in proportion to its value, which shall be ascertained as may be provided by law. The legislature may impose a poll tax. It may also impose occupation taxes, both upon natural per- sons and upon corporations, other than municipal, doing any business in this state. It may also tax incomes of both natural persons and corporations, other than municipal, except that persons engaged in mechanical and agricultural pursuits shall never be required to pay an occupation tax; provided, that 44 Taxation in Texas. two hundred and fifty dollars worth of household and kitchen furniture, belonging to each family in this state, shall be ex- empt from taxation, and provided further, that the occupation tax levied by any county, city or town, for any year, on per- sons or corporations pursuing any profession or business shall not exceed one-half of the tax levied by the state for the same period on such profession or business. St. Const., Sec. 1, Art. VIII. § 3. Nature and extent of power. The power of a state as to mode, form and extent of taxation of lands within its jurisdiction is limited only by the Federal Constitution. Hutchison v. Storrie, 48 S. W. 785. The State tax on property, exclusive of the tax necessary to pay the public debt and of the taxes provided for the benefit of the public schools, shall never exceed thirty-five cents on the one hundred dollars valuation, and no county, city or town shall levy more than twenty-five cents for city or county purposes, and not exceed fifteen cents for roads and bridges on the one hundred dollars valuation, except the payment of debts incurred prior to the adoption of the amendment, September 25, A. D. 1883; and for the erection of public buildings, streets, sewers, water-works and other permanent improvements, not to exceed twenty-five cents on the one hundred dollars valuation in any one year, and except as is in this constitution otherwise provided ; and the legislature may also authorize an additional annual ad valorem tax to be levied and collected for the further main- tenance of the public roads ; provided, that a majority of the qualified property tax paying voters of the county voting at an election to be held for that purpose, shall vote such tax not to exceed fifteen cents on the one hundred dollars valuation of the property subject to taxation in such county. And the legislature may pass local laws for the maintenance of public roads and highways without the local notice required for special or local laws. St. Const. Sec. 9, Art. VIII. § 4. All property liable for taxes. All real and personal property held or owned b(y any person in this state shall be liable for all state and county taxes due by the owner thereof, including taxes on real estate, personal prop- erty and poll tax; and the collector of taxes shall levy on any General Provisions, Definitions, Etc. 45 personal property or real property to be found in his county to satisfy all delinquent taxes, any law to the contrary notwith- standing. (Acts 1879, p. 46.) (1) As to the liability of exempt property to seizure and sale for delinquent poll tax, see Ring vs. Williams, 35 S. W. R. 733 ; 13 Tex. Civ. App. 609. A state may tax all property, real and personal, within its jurisdiction, irrespective of the domicile of the owner. State V. Fidelity and Deposit Co. of Maryland, 80 S. W. 54; 35 Tex. Civ. App. 214; McCullough v. Maryland, 4 Wheat. 316; Tappon V. Mer. Nat. Bank, 19 Wall. 490; Coe v. Errol, 116 U. S. 517; Pullman Car Co. v. Pennsylvania, 141 U. S. 18; Saznngs & Loan Asso. V. Multnomah Co., 169 U. S. 426 ; New Orleans v. Stemple, 175 U. S. 309; Bristol v. Washington Co., 177 U. S. 144; Piano and Organ Co. v. City of Dallas, 61 S. W. 942. § 5. How levied and collected. Taxes shall be levied and collected by general laws and for public purposes only. St. Const. Sec. 3, Article VIII. § 6. Legislative power and authority. The legislature, subject to the constitutional provision, has authority to grant power to a county to issue bonds for the con- struction of bridges, court house or jail, and to make provision for the taxes, to pay the interest and create the sinking fund required. Mitchell County v. Bank, 91 T. 361, 43 S. W. 880. The power to tax corporations and corporate property shall not be surrendered or suspended by act of the legislature, by any contract or grant to which the state shall be a party. Const. Sec. 4, Art. VIII. What property shall be embraced within a tax di'strict, and whether it shall be taxed for municipal purposes is a political question, to be determined by the legiislature. So long as the legislation in form and substance conforms to the constitution, and is not colorable merely, but is confined to the enactment of what is in its nature strictly a tax law, and so long as no con- stitutional limitations are exceeded, or the constitutional right of the citizen violated in the directions prescribed for enforcing the tax, the legislature is of supreme authority, and the courts as well as others must obey. Taxes must be, and often are, op- pressive to the persons and corporations taxed. They may ap- 46 Taxation in Texas. pear to the judicial mind unjust, and even unnecessary, but this can constitute no reason for judicial interference. Kettle v. City of Dallas, 80 S. W. 877; 35 Tex. Civ. App. 6Z2',Bmvk v. Fenno, 8 Wall. 533 ; Dazidson v. New Orleans, 96 U. S. 97 ; Merwether V. Garrett, 102 U. S. 472. In construing a legislative act which incorporated within city limits property used exclusively for rural purposes, it will be conclusively presumed, on a question of taxation, that the legis- lature in passing the act, determined with a view safely to the public good the benefits to accrue to the public and to the property owner. It would be a usurpation of power by the judiciary were it to assume the right to revise the legislative action because of the inequality of the benefits resulting from municipal taxation of such property. N orris z'. City of Waco, 57 Tex. 635. The specification of the objects and subjects of taxation shall not deprive the legislature of the power to require other subjects or objects to be taxed, in such manner as may be consistent with the principles of taxation fixed in this constitution. St. Const. Sec. 17, Art. VIII. § 7. LfCgislature hzis no power to release taxes. The legislature shall have no power to release the inhabitants of, or property in, any county, city or town, from the payment of taxes levied for state or county purposes, unless in case of great public calamity in any such county, city or town, when such re- lease may be made by a vote of two-thirds of each house of the legislature. Sec. 10, Art. VIII. St. Const. § 8. Real estate includes v^hat? The term "real estate" or property shall be construed to in- clude lots, lands and all buildings or machinery and structures of every kind erected upon and affixed to the same. Sayles R. S. 495. • For the purpose of taxation real property shall include all lands within the state and all buildings and fixtures thereon, and appertaining thereto except such as are expressly exempted by law. (Acts 1897, p. 132, Sec. 1.) See Hernandez v. City of Sam, Antonio, 39 S. W. R. 1022. § 9. Eminent domain — Taxation not. The Constitutional inhibition against taking private property for public use without compensation to the owner, has reference General Provisions, Definitions, Etc. 47 solely to the taking of private property for public use under the right of eminent domain. When private property is taken under the taxing power, the tax-payer receives his just com- pensation in the protection which the government affords to his life, liberty and property, and in the increased value of his possessions resulting from the use to which the government applies the money raised by the tax. Norris v. City of Waco, 57 Tex. 635. § 10. Money. The revised statutes of tax under the head of taxation con- tain the following definition of terms: The term "money" or "moneys" wherever used in this title shall besides money or moneys include every deposit which any person owning the same or holding in trust and residing in this state is entitled to withdraw in money on demand. R. S.. Art. 5064. §11. Farm products. Farm products in the hands of the producer and family sup- plies for home and farm use, are exempt from all taxation until otherwise directed by a two-thirds vote of all the members elect to both houses of the legislature. Sec. 19, Art. VIII, St. Const. § 12. State releases mineral right but not taxes. The State of Texas hereby releases to the owner or owners of the soil, all mines and minerals that may be on the same, sub- ject to taxation as other property. St, Const. Sec. 7, Art. 14. § 13. Federal constitution not violated by delinquent tax act. The provision of the statute for the addition of costs and penal- ties in case of a sale of land for delinquent taxes, applying to all citizens alike, does not violate the fourteenth amendment of the Federal Constitution, securing to every citizen equality before the law. Masterson vs. State, \7 T. C. A. 91 ; 42 S. W. 1003. § 14. Tax laws construed liberally. "Revenue Laws are always construed most liberally, to effect the end and aim of supplying the Government the means of sus- taining its existence. Aulanier v. The Governor, 1 Tex. 665. While the law does not countenance unlawful exaction in the names of taxes, nevertheless, when they are brought into litiga- 48 Taxation in Texas. tion, it will afford eviery lawful remedy to the government, or mu- nicipality necessary to enforce such taxes as are shown to be le- gally due. Lufkin v. City of Galveston, 73 Tex. 343. "Where lien for taxes is sought to be established by suit a more liberal rule applies than in a sale of the land under the tax rolls." Haynes v. State, 99 S. W. 405, 44 Tex. Civ. App. 492 ; Cooper Grocery Co. v. City of Waco, 71 S. W. 619; City of Rock- land V. Aimer, 24 Att. 949. § 15. Due course of law. While the enforcement of a valid tax, by whatever method, does not constitute a taking of property without due process of law in the sense of the constitution, and is not a taking of private propertjy for public use within the meaning of that instrument, it is not within the power of the state to collect under arbitrary and ex pvarte proceedings, as a tax, a sum of money which the statute declares shall be paid by the occupier of school lands as rent. McFadden v. Longhanv, 58 Tex. 579. "Where judgment confirming a tax on lands and foreclosing the state's lien thereon is obtained in pursuance of the statute for the purpose of foreclosing liens for taxes on lands of un- known owners, and the statutory notice to the owners is appro- priate to the nature of the case, the judgments will not be con- sidered to deprive the owners of their property without due pro- cess of law." Young v. Jackson, 110 S. W. 74. § 16. Official duty cannot be delegative. "Where the law imposes on an officer the performance of acts as a part of his official duties, the commissioners' court of the county is without authority to contract with any other i>erson to perform such services." Stringer v. Franklin County 123 S. W. 1168. § 17. Partition — Allowance for taxes paid. "Payment by one of the remaindermen of taxes imposed on the land during the life of the life tenant may be under such circum- stances that the interest of the other remaindermen may be charged with their proportion thereof on partition. Mateer v. Jones, 102 S. W. 734. § 18. Property bought in held in trust — When. "Where a city acquired title to plaintiff's property under a sale for taxes, and defendant, at the request of plaintiffs, paid the General Provisions, Definitions, Etc. 49 amount due and took a deed to the property from the city, where he had agreed with plaintiffs to have it deeded to them, he holds the property in trust for the plaintiffs, and they are entitled to have the title decreed in them upon payment to defendant of the amount paid by them to the city." Openshaw v. Rickmeyer, 102 S. W. 467 ; 45 Tex. Civ. App. 508. § 19. Road and bridge a county tax. The road and bridge tax authorized and provided for by Sec. 46, Art. 12 of the Constitution of 1869, and Sec. 5, act of April 22, 1871, is a County and not a State tax. Clegg v. Galves- ton Ca., 1 W. W. Civ. 62. § 20. Special fund not to be diverted. The Legislature shall not have ' power to borrow, or in any manner divert from its purpose, any special fund that may, or ought to, come into the treasury ; and shall make it penal for any person or persons to borrow, withhold or in any manner to divert from its purpose any special fund or any part thereof. St. Const. Sec. 7, Art. VIII. A fund raised for a specific purpose is priorily dedicated to that purpose. Pendleton v. Ferguson, 89 S. W. 761 ; 99 Tex. 296. § 21. Dedication. "Where there was a designation of a park on a plat of an addi- tion to a city and a sale of lots by reference to the plat, the fact that the one making the addition rendered the park property for taxes and paid taxes thereon did not interfere with the dedica- tion." Sanborn v. City of Atnarillo, 93 S. W. 473 ; 42 Tex. Civ. App. 115. § 22. Telegraph company — Constitutional law. Where the statute required a statement to be made by the chief manager of a telegraph company of the entire number of the full- rate and half-rate messages of the company, and that thus the amount of taxes due should be ascertained, and a tax upon cer- tain of the messages was held unconstitutional, but the law con- tained no direction requiring a discrimination in the report be- tween the messages that could be legally taxed and those that could not, the entire law was inoperative and void. W. U. T. Co. V. The State of Texas, 62 Tex. 630. 50 Taxation in Texas. § 23. Deed of trust providing for payment of taxes. "Where a deed of trust provided that if the grantor should fail to pay the State, county or city taxes on the property accord- ing to the tax rolls in the hands of the tax collectors, the whole of said indebtedness remaining unpaid, at the option of the hold- er, should become immediately payable, such clause referred to taxes which might remain unpaid at any time before the princi- pal debt became due, and was not limited to taxes due prior to the execution of the deed." Clark v. Elmendorf, 78 S. W. 538. § 24. Payment will be enforced. While the law does not countenance unlawful exactions in the name of taxes, nevertheless, when they are brought into litiga- tion, it will afford every lawful remedy to the Government or municipality necessary to enforce such taxes as are shown to be legally due. Liifkin v. City of Galveston. 11 S. W. 342; 73 Tex. 334. § 25. Non-payment of taxes presumption that right has re- verted to State. Non-payment of taxes on any claim of title to land dated prior to the 13th day of November, 1835, not recorded or archived, as provided iii Sec. 2, by the person or persons so claiming, or those under .whom he or they so claim, from that date up to the date of the adoption of this constitution, shall be held to be a presump- tion that the right thereto has reverted to the State, and that said claim is a stale demand, which presumption shall only be rebutted bv payment of all taxes on said lands, State, county or city or tow-n, to be assessed on the fair value of such lands by the comp- troller, and paid to him, without any commutation or deduction for any part of the above period. St. Const. Sec. 3, Art. 13. § 26. Rights not affected by failure to pay taxes — ^When. "The rights of one having the legal title to land not in the ad- verse possession of another, is not affected by his mere non-claim for many years, or failure to pay taxes, or the payment of taxes by another claiming under a void deed, though these facts suggest that the parties may have supposed that the deed disposed of the property." Hunter v. Hodgson, 95 S. W. 637. § 27. Where mortgagee pays, what rights does he have. "Where a mortgagee paid taxes on land in order to protect his security, he thereby acquired no right of action against the own- General Provisions, Definitions, Etc. 51 ers of the land to recover the amount so paid, but was only en- titled to add such amount to the mortgage debt and enforce his claim for reimbursement as a part of the foreclosure proceed- ings.'^ Stone V. Tilley, 101 _S. W. 201 ; 100 Tex. 487. § 28. Sale of one tract to pay taxes on another. "Under Acts 1876, p. 262, authorizing the collector to levy upon and seize an^y property of the taxpayer, for the purpose of collecting the taxes due, a levy and sale of one survey of land, not homestead or exempt, may be made, in order to satisfy the taxes due on another survey." Brymer v. Taylor, 23 S. W. 635 ; 5 Tex. Civ. App. 103. § 29. Disqualification of judge. "A judge of the court of civil appeals who is a resident tax- payer of the city, is 'interested in the question to be determined' in a suit brought by other taxpayers to restrain collection of a tax, etc., within acts April 13, 1892, p. 30, Sec. 27, and is therefore not eligible to sit in the case. "On rehearing." "Act Called Sess. Leg. 1892, p. 30, Sec. 27, declaring that, when the court of civil appeals or 'any two of its members' shall be disqualified to try a case, that fact shall be certified by the gov- ernor, who shall proceed to appoint special judges, does not con- flict with Const. Art. 5, Sec. 11, providing for such certification when 'any member' is disqualified, as under the liberal provis- ions of Art 5, Sec. 6, the Legislature is permitted to confer such jurisdiction on the court as it may deem best ; and the fact, there- fore, that one member is alone disqualified to try a case, does not prevent the other members from proceeding therewith." Nolle V. City of Austin, 21 S. W. 375. "Const. Art. 5, Sec. 11, and Rev. Stat. 1895, Art. 1068, dis- qualify a district judge in any case whereili he may be interested. Held, that where a district judge was not interested 'as a party' to a suit against a city to restrain the collection of city taxes, so that the judgment could not in any manner afifect him, he was not disqualified, though he was a taxpayer of the city, and was incidently interested in the question at issue." Nalle v. City of Austin, 93 S. W. 141 ; 41 Tex. Civ. App. 423. 52 Taxation in Texas. A district judge who is a taxpayer in a city is not so interested in an action to recover a judginent upon the obligation of a city as to disqualify him on the trial of the case. Thornburgh v. City of Tyler, 43 S. W. 1054; 16 Tex. Civ. App. 439, § 30. Courts of equity should not, except on clearest grounds, interfere with collection of taxes. A question of great importance is presented in the case, which we are not called on to decide, and simply call, the attention of the profession to it as a question which we believe to be open in this State. In Dodd et al. v. the City of Hartford, 25 Conn. 232, it was decided that a court of equity would not, except on the clear- est grounds, interfere with the speedy collection of public taxes. And in the case of Lezvis O. Wilson v. the Mayor, Aldermen, and Commonalty of the City of New York, et al., 4 N. Y., E. D. Smith 675, it was held that when no legal right exists to impose a tax, if the same be collected by distress and sale of goods, or if, upon the levying of a warrant, the tax is paid to save the prop- erty, the mone;y may be recovered back of the body who receives it from the collector. "Accordingly, held, that as a party ag- grieved has remedies at law, a court acting as a court of equity has no jurisdiction to restrain by injunction the collection of a tax unlawfully assessed upon personal estate." The same rule has been laid down in Ohio in a number of cases. Yet it js true that the Supreme Court of the United States have held a contrary doctrine in the case of Dows v. the City of Chicago, 11 Wallace 108. And other respectable authorities may be found to the same point ; yet a majority of the court believe that the doctrine as recognized in Connecticut, that courts of equity ought not, except upon the clearest grounds, to interfere with a speedy collection of public taxes, lays down the correct rule, and one which ought to be everywhere recognized, as great mischief to the public interest, and detriment to the public service, would doubtless grow out of a practice, if adopted by courts of equity, of interfering by injunction with the collection of the pub- lic revenue, if not governed by the strictest rules of equity prac- tice; and it is difficult to conceive why a court of equity should interfere to redress the real or supposed wrongs of an individual to whom the courts of law are open, and who has a clear legal remedy against an officer who enforces the collection of an un- constitutional or .illegal tax." Kinney v. Zimplenum, 36 Tex. 571. General Provisions, Definitions, Etc. 53 § 31. Where no provision is made as to source from which revenue is to be derived. Whenever a tax is authorized by law, and no special provision is made as to the source from which the revenue is to be derived, the law implies that the tax shall be levied upon all property sub- ject to general taxation, and collected as other taxes. State v. Bremond, 38 Tex. 116. § 32. Taxable when. One locating two surveys under a confederate land scrip can not demand a patent until the land commissioner has selected one of them for the school fund, and hence until then his survey is not taxable. Ahney v. State, 47 S. W. 1043 ; 20 Tex. Civ. App. 101. § 33. Vested rights in taxes. The repeal of former tax laws did not relinquish the right of the State to recover taxes previously levied but not collected. Clegg V. State, 42 Tex. 605 ; Meyer's Vested Rights, 1447-1448. § 34. De facto officers. Although the Constitution, by its adoption, 3d December, 1869 became operative, yet the de facto ministerial and executive offi- cers exercising authority and deriving color of authority from the pre-existing provisional government were not superseded un- til the organization of the State government ; and the assessment of taxes made for 1870 by the assessor and collector appointed by the provisional government was legal. Clegg v. State, 42 Tex. 605. § 35. State shall have judgment, except when. In all suits for taxes due the defendant shall be entitled to cred- its he can show due him for any year or number of years for which he may be able to produce receipts but the State shall have judgment and foreclosure of tax lien for any year or years sued for when the defendant can not offer receipts or other positive proof showing the payment of the claim for taxes. Act 1897, p. 139, Sec. 15. Sayles R. S., Art. 5232. § 36. Tenant may purchase tax-title. A tenant may purchase the land at tax sale and set up the title so acquired against his landlord without coming within the 54 Taxation in Texas. rule prohibiting a tenant from denying his landlord's title. Crosby V. Bonnozvsky, Vol. 69, S. W. Reporter, page 212; 29 Tex. Civ. App. 455. § 37. Timber on public land. An Act to amend Article 5087, of Chapter 2, Title 104, of the Revised Civil Statutes of 1895. Section 1. Be it enacted by> the Legislature of the State of Texas: That Article 5087 of the Revised Civil Statutes of 1895 be amended to read as follows : Article 5087. Property held under a lease for a term of three years or more, or held under a contract for the purchase thereof, belonging to this State, or that is exempt by law from taxation in the hands of the owner thereof, shall be considered for all the purposes of taxation as the property of the person so holding the same, except as otherwise specially provided by law. Timber held by persons or corporations heretofore or hereafter purchased from the State under the various laws for that purpose, shall likewise be subject to assessment for taxes, and the value thereof for taxa- tion shall be ascertained as the value of other property is ascer- tained. And should the owner of such timber fail or refuse to pay the taxes assessed against it, the same shall be sold for the taxes thereon, as provided in this title for the sale of personal property for taxes, provided the same can be found by the col- lector, but if the timber can not be found, then the collector shall collect the taxes due as the taxes on other personal property are collected ; provided further, that the Commissioner of the General Land Office shall furnish by the first of January each year here- after to the various commissioners courts and the tax assessors of the State of Texas a full and complete li'st of all timber sold by the State belonging to the school funds, giving the number of acres, price and to whom sold, in the respective counties where the timber so sold, is situated. In case of the sale of such timber for taxes as herein provided the purchaser shall take and hold the same under the same terms and conditions as the original pur- chaser thereof from the State. Act 1905, p. 72. § 38. Where tax can be divided. When the legal tax is clearly susceptible of being readily dis- tinguished from the illegal tax, recovery can be had for the legal tax. Davis zk Burney, 58 Tex. 569; Dean v. Lufkin, 54 Tex. 265. General Provisions, Definitions, Etc. 55 § 39. Detached territory, liability for taxes. The Legislature, by act of March 11, 1875, attached a portion of Trinity county to Polk county, and inserted in the act, the fol- lowing proviso: "Provided, the citizens in said detached portion of Trinity county shall pay their pro rata portion of the county indebtedness up to the date of the passage of this act." In a suit brought by Trinity county against Polk county to recover the pro rata portion of the indebtedness of Trinity county alleged to be owing to the citizens living in the detached territory, and in the alternative to recover the territory, held, (1) At the time of the passage of the act the control of the Legislature over county boundaries was absolute, though such power under the constitution no longer exists. (2) The act should be construed as it would be if the word provided were omitted from the act. (3) The detached territory became absolutely and uncondi- tionally a part of Polk county upon the approval of the act, and this without reference to whether the time by which the act desig- nated the detached territory was actually run upon the ground or not. ^ (4) Trinity county could not recover back the detached terri- tory nor the amount levied and collected by Polk county upon the subjects of taxation therein. (5) Nor could it recover, from Polk county a pro rata of the debt of Trinity county or cause Polk county to levy and collect a tax on the property in the detached territory to pay any portion of the debt of Trinity county. (6) The action could not be maintained, but the judgment awarding an execution against appellant for costs was error. Trinity County v. Polk County, 58 Tex. 321. CHAPTER II. LEVY. Sec. 40. State and county taxes — How levied. 41. Term of court — Adjourned meeting. 42. Levy not full and explicit — How explained. 43. Levy valid if not sufficient 44. Directory when. 45. Must be a levy. 46. Levy by city or town. 47. Self-acting levy. 48. May compel levy by manda- mus. 49. Levy must be made in the mode prescribed. 50. Levy based upon assessment roll when to be made. 51. Time and manner of levy. 52. Power of counties to levy un- der Act of 1848. 53. Annual. 54. Debts existing prior to Con- stitution of 1876. 55. Purpose of levy must be stated. 56. Levy at call term of county , court. 57. See order of commissioners' court held not to be general levy. Sec. 58. Road tax — Limitation of levy. 59. Partial illegality. Levy of tax to provide for the payment of debts. Not in excess — When. Cannot exceed limit — ^Exces- sive. 63. Mandamus will not lie when limit is reached. 64. Levy of city taxes for 15 months valid — ^When. 65. Commissioners' court — Valid- ity of tax levy — Collateral attack. City of El Paso. Sufficiency of levy. Extra levy. Levies for State and county taxes. 70. Certain tax rolls for 1905 vali- dated. 71. Validating levies at special session of commissioners' court. 72. Act 30th Legislature creating a board to calculate State taxes. 60. 61. 62. 66. 67. 68. 69. § 40. State and county taxes, how levied. State taxes are levi'ed by general law and are not required to be proved ; county taxes are levied by the Commissioners' Court, and the levy must be proved. Greer v. Howell, 64 Tex. 688. § 41. Term of court — Adjourned meeting. The objection was made that taxes had not been legally levied, because this had not been done at or during a regular term Levy, 57 of the county court, is untenable. The court convened and was duly organized at the time prescribed by law. When a court is or- ganized and opened for a regular term the term continues until it is ended by order of final adjournment, or until the efflux of the time fixed by law for its continuance. The sessions or settings of the court during the term are entirely within the discretion and control of the court. And its orders in respect thereto are intend- ed for its convenience and the convenience of parties interested in its proceedings. Hence they may be altered, revoked or an- nulled from time to time, as the exigency of the business to be transacted may require. The orders of adjournment of its ses- sions from day to day or to a particular hour of the day are mere announcements of its proposed or intended order of transacting the business to come before it during the term. But certainly the failure of the court to meet at the hour or on the day to which it had thus taken recess, can in no way afiFect or put an end to its term. Labadie v. Dean, 47 Tex. 100. § 42. Levy not full and explicit — How explained. When a special levy is not so clear and explicit as is appropriate in orders of the court of such character, the entire order can be taken to explain the levy, and if the amount and character of the tax, and of the property upon which it is levied can be sufficiently inferred and understood from the order to support the levy such levy is not void. Labadie v. Dean, 47 Tex. 101 § 43. Levy valid if not sufficient. A tax levy to pay interest on bonds and create a sinking fund for their payment is not invalidated by the fact that the levy is not sufficient to provide the fund necessary to pay the bonds at maturity. Conklin v. City of El Paso, 44 S. W. 879. § 44. Directory when. Statutes fixing the time of levying taxes will be deemed direc- tory, unless the taxpayer by reason thereof will sustain some sub- stantial injury. Pond v. Negus, 3 Amer. Dec. 131 ; 1 Desty on Taxation 520; Williams v. School Dist., 32 Am. Dec. 243; Gear- hart V. Dixon, 1 Pa. St. 224; Gale v. Mead, 2 Denio 160, Coogill V. Long, 15 111. 202; Hart v. Plum, 14 Cal. 155; State v. W. U. Tel. Co., 4 Nev. 338; French v. Edwards, 13 Wall. 506 ; People v. Allen, 6 Wend. 486; Easton v. Sauery, 44 Iowa 656; Hill v. Wolf, 28 Iowa 577 ; Stickney v. Higgins, 10 Ala. 106 ; St. Audi- tor V. Jackson Co., 65 Ala. 157; Limestone v. Rother, 48 Ala. 433. 58 Taxation in Texas. § 45. Must be a levy. The essential requisites of a valid tax are unquestionably: (1) A legal levy by competent Legislative authority. (2) A valid assessment of the property upon which such tax is levied by the officer or tribunal to whom this is committed by law. If these two requisites concur the citizen is justly liable for the amount of tax assessed upon his property. George v. Dean, 47 Tex. 73. § 46. Levy by city or town. The levying of taxes by the authority of a county, city or town for their support, is as much an exercise of the taxing power, as when levied directly by the State for its support. 1 Desty on Taxation, p. 465. City may levy ad valorem Tax. The city council shall have power within the city by ordinance to annually levy and collect taxes not exceeding one-fourth of one per cent, on the assessed value of all real and personal estate and property in the city not exempt from taxation by the constitution and laws of the State. Sayles R. S., Art. 484 ; Audrey v. City of Dallas, 35 S. W. 726, 13 Tex. Civ. App. 442. § 47. Self acting levy. When the charter of the city of San Antonio has provided that interest and sinking fund must be annually provided for on the bonded indebtedness of the city, authority is thereby given for the levy of the taxes to meet such debts, and no action on the part of the city council is necessary. Wright v. City of San Antonio, 50 S. W. 407; Mitchell Co. v. Bank of Paducah, 91 Tex. 372, 43 S. W. 880. § 48. May compel levy by mandamus. The requirement of the charter of the city of San Antonio that interest and a sinking fund must be annually provided for by the city for the city bonded debt, as required by the constitution, may be enforced by mandamus. Wright v. City of San Antonio, 50 S. W. 407. § 49. Levy must be made in the mode prescribed. By Article 484 of the Revised Statutes it is provided that the city council shall have power by ordinances to annually levy and collect taxes. The Legislature in granting the power has also Levy. 59 stipulated the manner of its performance. The tax must be levied by an ordinance passed by the city council. The levy is made by the adoption of a report of a finance committee of the city in which said committee recommended the amount of tax to be lev- ied, and how it should be apportioned. This levy is not in accord- ance with the mode pointed out in the power conferring authority upon the city to levy the tax. The levy is void and creates no personal liability against the taxpayer. Peoples Nat. Bank v. City of Ennis, 50 S. W. 633. § 50. Levy based upon assessment roll when to be made. Before a city ordinance was passed levying the taxes, the as- sessment rolls had been substantially completed b^y the assessor; and while left open for corrections and additions, the city council could form therefrom a substantially correct statement of the tax- able values of the city, upon which to make the levy ; and in each of said years before making the levy they caused the assessment rolls to be examined and based their levy upon such assessments. The charter provides that supplemental tax rolls shall be made out by the assessor when additions can be made to the original rolls and the fact that such rolls were not entirely perfected would not render the levy invalid. The object of the law is that, before the city council can make the levy, it must have before it, as a basis, the assessment roll. Guided by this official informa- tion, the council is empowered to make the levy. Without it the council should not act. The charter of the city of Dallas, how- ever, does not provide that the assessment rolls should be officially approved before the levy. The ordinances of the city levied the taxes, and the fact that the council, as a preliminary step, required its mayor and finance committee to make the estimates, calcula- tions, etc., could not invalidate their act. Scollard v. City of Dal- las, 42 S. W. 641, 16 Tex. Civ. App. 620. § 51. Time and manner of levy. Executive and ministerial officers can only levy and collect taxes in the manner prescribed by law, which should be their governing rule in all cases. 2 Desty on Taxation, 763. The levying of a tax is a matter solely of statutory creation and if specific means are prosecuted in the statutory law no other means can be resorted to to coerce payment. 2 Desty on Taxation, 762, 473 ; Cooper v. Savannah, 4 Ga. 68 ; Alexander v. Helber, 35 Mo. 334. 60 Taxation in Texas. Where the statutes of a State prescribe a certain time for the levy to be made a levy at any other time is invalid. Bryan v. Sandberg, 5 Tex. 423 ; Free v. Scarborough, 70 Tex. 672 ; Martin V. McDiarmid, 17 S. W. R. 877. The discretionary power vested by law in a board of school di- rectors, regarding the levying of taxes for school purposes, when once exercised is exhausted for the year in which the levy is made, and their successors in office can not levy a different school tax for that year. Oliver v. Carnsner, 39 Tex. 396, § 52. Power of counties to levy under Act of 1848. The fourth section of the Act of 16th of March, 1848, to or- ganize county courts limited the powers of the counties to tax to the subjects upon which a tax was levied by the State. Baker V. Panola Co., 30 Tex. 86. § 53. Annual. The word annual in an act of the Legislature is not necessary to continue it in force from year to year. John L. Peay, Sheriff, V. E. W. Talbot & Bro., 39 Tex. 335. § 54. Debts existing prior to Constitution of 1876. The limitation imposed by the Constitution of 1876, on the power of counties to levy taxes, 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 of 1876, counties are authorized to levy, assess and collect taxes to the necessary amount. Const. Art. XI, Sec. 6; Art. XIII, Sec. 9. Texas and Pacific Ry. Co. v. Harrison County et al, 54 Tex. 120; F. R. Dean v. A. P. Lufkin, et al., 54 Tex. 265. § 55. Purpose of levy must be stated. "Section 5 of the act to organize commissioners' courts (Laws of 15th Leg. p. 52) does not embrace or refer to taxes to pay the interest and provide a sinking fund for bonded indebtedness, in- curred in aiding internal improvements, which were in truth levied at the time the bonds were issued. That act refers to and limits to twenty-five cents on the hundred dollars those taxes for the payment of debts incurred prior to April 18, 1876, the levying of which is discretionary with the commissioners' court." The commissioners' court of Galveston county in February, 1879, levied a coimty tax of seven cents to create a sinking fund Levy. 61 to pay registered county warrants issued for indebtedness subse- quent to April 18, 1876, and for an indebtedness incurred before that date and also to create a sinking fund to pay warrants issued since April 18, 1876; on application to enjoin the collection of the tax, held: The county court having already exhausted the limit allowed to pay ordinary debts the levy of seven cents, so far as it was made to pay ordinary debts, was unauthorized and it being illegal for that purpose the entire levy was thereby infected and was illegal. An order of the Commissioners' Court made one year after- wards, declaring that so much of the levy was void as applied to warrants issued after the 18th day of April, 1879, did not cure the illegality of the levy nor was it affected by the fact that the entire tax levied was needed to pay debts contracted before the adoption of the Constitution. The Constitution requires the purpose for which such taxes are levied to be specified and gives the taxpayer the privilege of paying the tax in the coupons, bonds and other indebtedness for the payment of which such tax may have been levied. The specification of the purpose of the tax was essential, for without such specification the tax was invalid, and to allow the subsequent order explaining the levy to cure its illegality, would be to disregard the constitutional requirement that the purpose of the tax be specified. F. R. Dean v. A. P. Lufkin et al, 54 Tex. R. 265. § 56. Levy at call term of county court. Under Rev. St. Tex., Art. 1517, providing that "no county tax shall be levied except at a regular term of the (county) court" a tax levied at a called term of the court is illegal. Free v. Scar- borough, 8 S. W. 490; 70 Tex. 672. § 57. See order of commissioners' court held not to be gen- eral levy. The following order of a commissioners' court does not levy a general county tax : 'Tt is ordered and decreed by the court that the assessor be, and he is hereby instructed to assess all taxes that he is authorized to assess for the county at one-half the amount he assesses for the State, and the sheriff is hereby authorized to collect the same according to the roll of the assessor." Dawson V. Ward, 9 S. W. 106 ; 71 Tex. 72. 62 Taxation in Texas. § 58. Road tax — Limitation of levy. Under Const, Art. 8, Sec. 9, as amended in 1883, counties were authorized to levy a road and bridge tax of 15 cents on each $100 worth oi property ; and an act was passed authorizing the county commissioners' court to make the levy. Const. 1890, Art. 8, Sec. 9, provided that the Legislature might authorize an addi- tional annual ad valorem tax for the further maintenance of the public roads, provided that a majority of the taxpayers of the county at an election vote such tax, not exceeding 15 cents on the $100 worth of property, an authority was given to put this ar- ticle into effect by Rev. St. 1895, Art. 4786. Held, that an elec- tion need not precede a single levy of 15 cents on each $100 worth of property authorized by the constitutional amendment 1883, the amendment 1890 relating solely to an additional levy, above that amount. Const., Art. 8, Sec. 9, expressly limiting a levy of taxes for general county purposes to 25 cents on $100 of valuation, can not be evaded by making an unnecessary levy for public buildings and other permanent improvements authorized by the same sec- tion, with the intent to transfer the levy so made, when collected, to the fund for county purposes, already swelled to its full con- stitutional limit. Jefferson Iron Co. v. Hart, 45 S. W. 321 ; 18 Tex. Civ. App. 525. § 59. Partial illegality. A tax levied in part for a lawful and in part for an unlawful purpose, but within the legal limits of the power of the city to make such levy, is not necessarily void in toto. Where it was found in a suit instituted by a city for the recov- ery of a tax due to it that such tax was in part lawful and in part unlawful, and that the legal and illegal parts were capable of definite ascertainment apportionment, the court should apportion such tax, and give judgment for that part thereof which might lawfully have been levied. Nolle v. City of Austin, 44 S. W. 66 ; 91 Tex. 424. § 60. Levy of tax to provide for the payment of debts. "No debt shall ever be created by any city unless at the same time provision be made to assess and collect annually a sufficient sum to pay the interest thereon and create a sinking fund of at least two per cent, thereon." St. Const. Art. 11, Sec. 5; McNeal V. City of Waco, 89 Tex. 83 ; 33 S. W. 322. Levy. 63 "The Constitution requiring that cities creating debts shall at the same time make provision for the payment of the same by assessing tax to pay interest and provide a sinking fund does not apply to current expenses." Biddle v. City of Terrel, 82 Tex. 335 ; 18 S. W. 691 ; City of Corpus Christi v. Woessner, 58 Tex. 462; Dyer v. City of Brenham, 65 Tex. 526 ; City of Terrel v. Des- sdnt, 71 Tex. 770; 9 S. W. 593. "Counties, cities and towns are authorized in such mode as may now; or may hereafter be provided by law, to levy, assess and collect the taxes necessary to pay the interest and provide a sinking fund to satisfy any indebtedness heretofore legally made and undertaken ; but all such taxes shall be assessed and collected separately from that levied, assessed and collected for current ex- penses of municipal government, and shall, when levied, specify in the act of levying the purpose thereof, and such taxes may be paid in the coupons, bonds or other indebtedness for the payment of which such tax may have been levied." St. Const., Sec. 6, Art. 11. "All counties and cities bordering on the coast of the Gulf of Mexico are hereby authorized, upon a vote of two-thirds of the taxpayers therein (to be ascertained as may be provided by law), to levy and collect such tax for construction of sea walls, break- waters or sanitary purposes, as may be authorized by law, and may create a debt for such works and issue bonds in evidence thereof. But no debt for any purpose shall ever be incurred in any manner by any city or county unless provision is made at the time of creating the same, for levying and collecting a sufficient tax to pay the interest thereon and provide at least two per cent, as a sinking fund ; and the condemnation of the right of way for the erection of such works shall be fully provided for." St. Const., Sec. 7, Art. 11, § 61. Not in excess when. "A levy of city taxes, not in excess of the limit prescribed by statute, is not rendered invalid by the making of a subsequent levy, which, together with the original levy, exceeds such limit." Basset v. City of El Paso, 30 S. W. 893 ; 88 Tex. 168. § 62. Cannot exceed limit. "In an action by a city to recover delinquent taxes, plaintiff offered in evidence an ordinance providing that there should be 64 Taxation in Texas. levied for general purposes, "for the fiscal year ending May 31," a tax, "$1.05 on every $100 valuation,", and offered to show that the tax so levied was in fact for the 15 months ending on said date. Under the constitution, a greater tax than $1 on each $100 valuation for the year could not be levied. Held, that both offers were properly refused." "Statutes limiting the amount of taxes which may be levied are mandatory, and, when such amount is exceeded by a sum which is spread on the whole assessment roll, the entire levy is void." City of San Antonio v. Raley, 32 S. W. 180. § 62a. Excessive. "An assessment of taxes by a county for road and bridge pur- poses greater than 15 cents on the $100 is in violation of the constitution." State v. Fulmore, 71 S. W. 418. § 63. Mandamus will not lie when limit is reached. "When a city has levied taxes for general purposes to the full constitutional limit, and all the taxes so levied are required to meet current expenses, mandamus will not lie to compel an additional levy for the purpose of discharging a judgment against the citv." City of Sherman v. Smith, 35 S. W. 294 ; 12 Tex. Civ. App. 580. § 64. Levy of city taxes for 15 months valid, when. "The San Antonio city charter authorized the levy of a tax for general purposes, not exceeding one per cent, during any fiscal year. By charter amendment the fisqal year was made to end May 31st, instead of March 1st, commencing in 1892, thereby in- cluding for any fiscal year the interim from March 1st to May 31st. In February, 1892, an ordinance levying a tax exceeding one per cent, was passed, which described the period for which the levy was made as the 'municipal' and the 'fiscal' year ending May 31, 1892, and as 'the municipal year 1891-92.' Held, that the levy was not for the old fiscal year ending March 1, 1892, and the interim to May 31, 1892, but for one year only, and hence was invalid as to the excess." City of San Antonio v. Berry, 48 S.W. 496; 92 Tex. 319. § 65. Commissioners' court — Validity of tax levy — Collateral attack. "An order of the commissioners' court levying a tax 'for court house and jail' sufficiently indicates the purpose for which the tax is levied." Levy. 65 "The commissioners' court may levy a tax for the erection or repair of the court house or jail without providing for the is- suance of bonds for that purpose." "Whether there is a necessity for the erection or repair of a court house or jail, so as to authorize the levy of a tax for such purpose, is within the discretion of the commissioners' court." "In an action to recover taxes paid under protest, it can not be shown that the tax, which was ordered to be levied for a certain purpose, was in fact levied with intent to divert it to general county purposes, thereby escaping the limitation of the general taxing power, as this would be a collateral attack on the record of the commissioners' court." Cresswell Ranch & Cattle Co. v. Roberts County, 27 S. W. 737. § 66. City of El Paso. (1) "Charter of El Paso (Sp. Laws 1873, p. 442, Sec. 22), which provides that provision shall be made for a levy of two per cent to create a sinking fund to pay bonds, is not amended, in respect to the amount of levy for a sinking fund, by Const. Art. 11, Sec. 7, which provides for at least two per cent, to create a sinking fund for the payment of the debts of cities." (2) "The 'existing debt' referred to in charter of El Paso (Sp. Laws 1889, p. 49, Sec. 87), providing that necessary or- dinances may be passed to provide for funding an 'existing debt' is not the 'debt' referred to in Const., Art. 11, Sec. 5-7, providing that no debt shall be created by a city without making certain provisions for its payment by a tax levy." (3) "Taxes levied by El Paso to redeem the funded indebted- ness bonds which appear to have been issued to settle an outstand- ing indebtedness for past expenses, are valid, where the bonds were issued under provision of charter of El Paso (Sp. Laws 1889, p. 49, Sec. 87), providing that necessary ordinances may be passed to provide for funding an existing debt." Conklin v. City of El Paso, 44 S. W. 880. § 67. Sufficiency of levy. "A tax levy to pay interest on bonds and create a sinking fund for their payment is not invalidated by the fact that the levy is not sufficient to provide the fund necessary to pay the bonds at their maturity." Conklin v. City of El Paso, 44 S. W. 880. (5) 66 Taxation in Texas. § 68. Extra levy. "A city council held there was no power to levy an extra tax for the payment of a pre-existing debt." City of Denison v. Fos- ter, 36 S. W. 401 ; 90 Tex. 22. § 69. Levies for state and county taxes. The following statutes levy the ad valorem tax for general purposes and for schools. General purposes and school tax, 1879 to 1885 — By the act of April 2, 1879 (16 Leg. p. 143), the ad valorem State tax was one-half of one per cent, one-fourth of the amount being for the benefit of public schools and the remainder for gen- eral purposes. By the act of May 4, 1882 (17 Leg. S. S., p. 18), the ad valorem state tax for all purposes was three-tenths of one per cent. By the act of February 7, 1884 (18 Leg. S. S. p. 67) the ad valorem tax was seventeen and one-half cents on $100 for general revenue purposes, and twelve and one-half cents on the $100 for the maintenance of public schools. General purposes and school tax, 1885 to 1895 — Art. 4662. Direct ad valorem tax. There shall be levied and collected an annual ad valorem state tax of 25 cents on the $100 for general revenue purposes, and twelve and one-half cents on the $100 for the maintenance of the public free schools of the cash value thereof estimated in lawful currency of the United States on all real property situated, and all movable property owned in the state on the first day of January in each and every year and all property sent out of the state for the purpose of avoiding the payment of taxes thereon, if owned on the said first day of Jan- uary, except so much thereof as may be exempted by the con- stitution and laws of this state, which cash value shall be es- timated under oath by the person, firm, company or association assessed or by his or their agent or attorney, making assessment for said person, firm, company or association. (Amendment March 31, 1885, June 30, 1885, 19 Leg. p. 105) Sayles R. S. 4662. General purposes 1895 to 1900 — Art. 5046. Ad valorem tax for general purposes. " There shall be levied and collected for the year 1895 an ad valorem tax of 25 cents and annually thereafter an ad valorem tax of 20 cents on the $100 cash value thereof estimated in lawful currency of the United States on all real property situated and on all property Levy. 67 owned in the state on the first day of January in each and every year, and on all property sent out of the state prior to the first day of January for the purpose of evading the payment of taxes thereon, and afterwards returned to the state, except so much thereof as may be exempted by the constitution and laws of this state or the United States, which cash value shall be estimated in the manner prescribed by law. For schools, 1895 to date. There shall be levied and collected an annual ad valorem state school tax of 20 cents for the year 1895 and of 18 cents for the years thereafter on the $100 of the cash value thereof es- timated in lawful currency of the United States, on all real prop- erty situated and on all personal property owned in the state on the first day of January of each year and all personal property sent out of the state for the purpose of avoiding the payment of taxes thereon and afterwards returned to the state, except so much thereof as may be exempted by the constitution and laws of this state or the United States, which cash value shall be es- timated in the manner prescribed by law. (Acts 1895, p. 95) Sayles R. S. 5047. General purposes, 1900 to 1905— There shall be levied and collected for the year A. D. 1900 and annually thereafter, an ad valorem tax of sixteen and two- thirds cents on the $100 cash value thereof estimated in lawful currency of the United States on all real property situated and on all property owned in the state on the first day of January in each and every year and on all property sent out of the state prior to the first day of January for the purpose of evading the payment of taxes thereon, and afterwards returned to the state, except so much thereof as may be exempted by the Constitution and laws of this state or the United States ; which cash value shall be estimated in the manner prescribed by law. (Acts 1900, p. 14) Sayles Sup. R. S., Art. 5046. ^ . General purposes, 1905 to date — • That there shall be levied and collected, for general revenue purposes, annually for the years 1905 and 1906 an ad valorem tax of twenty cents and annually thereafter an ad valorem tax of sixteen and two-thirds cents on the $100 of the cash value there- of, estimated in the lawful currency of the United States on all 68 Taxation in Texas. real property situated and on all real property owned in the state on the first day of January in each and every year, and on all sent out of the state prior to the first day of January for the purpose of evading the payment of the taxes thereon and after- wards returned to the state, except so much thereof as may be exempted by the Constitution and laws of this state or the United States, which cash value shall be estimated in the manner pre- scribed by law. (Act. 1905, p. 436 and 437) . County ad valorem and occupation taxes, 1885 to date — The commissioners' courts of the several counties of this state shall have the power to levy, for county revenue purposes, a tax of one- fourth of one per cent, and for roads and bridges 15 cents on the $100 valuation of all property subject to a state tax by the provisions of' this title and for the payment of debts incurred prior to September, 1883, and for the erection of public buildings and other permanent improvements they shall have power to levy a tax not to exceed 25 cents on the $100 valuation in any one year ; and for the improvement of public roads a tax not to exceed 15 cents on the $100 valuation imder the restrictions provided in chapter seven of title 97, and shall have power to levy a special tax for the further maintenance of public free schools and the erection within each school district of school buildings therein in counties not exempt from the district school system ; provided that two-thirds of the qualified property taxpaying voters of the district voting at an election to be held for that purpose, shall vote such tax not to exceed in any one year 20 cents on the $100 valuation of the property subject to taxation in such district, and shall have the right to levy one-half of the occupation tax levied by the state upon all occupations not herein otherwise specially exempted ; provided, any one wishing to pursue any of the vocations named in this chapter upon which a county occupation tax may be levied, may do so by paying the same quarterly; and provided further, the receipt of the proper officer under seal shall be prima facie evi- dence of the payment of such taxes as are herein named ; and pro- vided further, the provisions of this law shall not be deemed to efifect (aflfect) the provisions of any law specially authorizing any commissioners' court to levy a diflferent rate of tax ; and provided further, no person shall be allowed license for selling intoxicating or spirituous liquors, or for keeping any nine or ten pin alley, or billiard, bagatelle, pigeon-hole, jenny-lind, devil-among-the- Levy. 69 tailors table or anything of the kind used for profit, for a period of less than 12 months ; and provided further, the mayor and board of aldermen of any incorporated town or city shall in no case levy a greater tax on any occupation than that authorized by this chapter to be levied by the county commissioners' court; and be it further provided that in all cases where any dealer in merchandise, wares or goods of any kind, subject to ad valorem or occupation taxes, or both, under the provisions of this law, who shall after the rendition of said merchandise, wares or goods for taxation, or after becoming liable for any occupation tax, become bankrupt or make assignment of said merchandise, wares or goods, then the collector of taxes shall at once present to the re- ceiver or assignee of said dealer for payment of the amount due for said taxes by said dealer, and in case of failure of said re- ceiver or assignee to at once pay the amount of said taxes, the said collector shall levy upon, seize and sell from the said mer- chandise, wares or goods enough to satisfy the amount of said taxes, and said taxes until paid shall constitute a prior lien on said merchandise, goods and wares in defavilt of said taxes. Art. 5050, Sayles New Revised Statutes. ( 1 ) An order to levy a specified tax "for court house and jail" sufficiently indicates its purpose. Cresswell Ranch & Cattle Co. v. Roberts County, 27 S. W. 72)7. (2) A tax can not be levied at a called session of the county court or without the full membership of the court. Ante Art. \SAO;Free v. Scarborough, 70 Tex. 672; 8 S. W. 490. (3) Where the order of the county court imposing the tax within its authority, states the amount of the tax and of the prop- erty upon which it is levied, such order is sufficient. Labadie v. Dean, 47 Tex. 90. (4) The limitation imposed by the constitution of 1876 on the power of counties to levy taxes, applies only to the erection of public buildings. For the purpose of paying the interest and providing a sinking fund to satisfy an indebtedness existing at the adoption of the constitution of 1876, counties are authorized to levy, assess and collect taxes to the necessary amount. Const. Art XI, Sec. 6; Art. XIII, Sec. 9; T. & P. Ry. Co. v. Harrison County, 54 Tex. 119. (5) The limitation of taxes to 50 cents on the $100 valuation contained in Sec. 9, Art. VIII of the Constitution of 1876, as ap- 70 Taxation in Texas. plied to cities, counties and towns, has reference to taxation for the erection of public buildings, not to taxation to pay debts in- curred prior to the adoption of the constitution. Dean v. Lufkin, 54 Tex. 265. (6) Under the constitution of 1876 the question as to how much tax should be levied to pay the former indebtedness of a county was left without limit to the discretion of the legislature and the county commissioners' court. Dean v. Lufkin, 54 Tex. 265. (7) The commissioners' court of Galveston county in Feb- ruary, 1879, levied a county tax of seven cents to create a sink- ing fund to pay registered county warrants issued for indebted- ness subsequent to April 18, 1876, and for an indebtedness in- curred before that date and also to create a sinking fund to pay warrants issued since April 18, 1876. On application to enjoin the collection of the tax held (1) the county court having al- ready exhausted the limit allowed to pay ordinary debts, the levy of seven cents so far as it was made to pay ordinary debts was unauthorized, and it being illegal for that purpose the entire levy was thereby infected and was illegal. (2) An order of the com- missioners' court made one year afterwards, declaring that so much of the levy was void as applied to warrants issued after the 18th day of April, 1879, did not cure the illegality of the levy, nor was it affected by the fact that the entire tax levied was needed to pay the debt contracted before the adoption of the Constitu- tion. (3) The Constitution requires the purpose for which such taxes are levied to be specified and gives the taxpayer the privi- lege of paying the tax "in the coupons, bonds and other indebted- ness for the payment of which such tax may have been levied." (4) The specification of the purpose of the tax was essential, for without such specification the tax was invalid and to allow the subsequent order explaining the levy to cure its illegality would be to disregard the constitutional requirement that the purpose of the tax be specified. Dean v. Lufkin, 54 Tex. 265. (8) A tax can not be levied at a called session of the county court or without the full membership of the court is present. Free v. Scarborough, 70 Tex. 672 ; 8 S. W. 490. Ad valorem levy for 1900 — "There shall be levied and collected, for the year A. D. 1900, and annually thereafter, an ad valorem tax of sixteen and two- Levy. 71 thirds cents on the $100 cash value thereof, estimated in lawful currency of the United States, on all real property situated and on all property owned in the state on the first day of January in each and every year, and on all property sent out of the state prior to the first day of January for the purpose of evading the payment of taxes thereon, and afterwards returned to the state, except so much thereof as may be exempted by the Constitution and Jaws of this state or the United States ; which cash value shall be estimated in the manner prescribed by law. (Acts 1900, p. 14.) Sayles St. (Sup.) Art. 5046. Ad valorem taxes for 1905 and 1906 and thereafter — Tliat there shall be levied and collected, for general revenue purposes, annually for the years 1905 and 1906 an ad valorem tax of twenty cents, and annually thereafter an ad valorem tax of sixteen and two-thirds cents on the $100 of the cash value there- of, ■estimated in lawful currency of the United States, on all real property situated and on all property owned in the state on the first day of January in each and every year, and on all property sent out of the state prior to the first day of January for the purpose of evading the payment of the taxes thereon, and after- wards returned to the state, except so much thereof as may be exempted by the Constitution and laws of this state or the United States, which cash value shall be estimated in the manner pre- scribed by law. Act 29 Leg., p. 436. § 70. Certain tax rolls for 1905 validated. Sec. 2. All tax rolls for the year 1905 upon which the state ad valorem tax rate for general purposes has been calculated and extended at the rate prescribed in Sec. 1 of this Act, before this Act takes effect, and whether said rolls were returned to the county board of equalization on, before or after August 1, 1905, and whether such rolls were examined, corrected and approved by said board before or after this Act takes effect, are hereby validated, and all such rolls shall have the same force and effect, and in every respect be as valid as would be had this Act been in force at the time said rolls were made up and returned to said board of equalization, and said rolls been returned to said board on or before August 1, 1905, and all tax collectors are required to collect said tax at the rate provided by Sec. 1 of this Act. Sec. 3. If, when this Act takes effect, the tax rolls for any county for the year 1905, have been returned to the county board 72 Taxation in Texas. of equalization, upon which tax rolls the state ad valorem tax for general revenue purposes is calculated and extended at a rate other than as prescribed by Sec. 1 of this Act, said board, if they have not already examined, corrected and approved said rolls, shall not do so, but shall return the same to the tax assessor for (Correction of the calculation and extension of said tax to con- form to Sec. 1 of this Act. If any tax rolls have, when this Act takes effect, been approved by the county board of equalization, upon which said tax is calculated and extended at a rate other than is prescribed by Sec. 1 of this Act, then it is hereby made the duty of the tax assessor, if said rolls are still in his possession, to immediately return them to said board. If the tax assessor has sent said rolls to the Comptroller of Public Accounts, the col- lector and county clerk of his county respectively, then the Comptroller of Public Accounts and the said tax collector and county clerk, shall, and it is hereby made their duty, immediately to return to said tax assessor the rolls received from him, and said tax assessor shall immediately upon receipt of all said rolls return them to said county board of equalization. The county board of equalization at the regular August, 1905, term of the commissioners' court, if said rolls have been returned, or if not then returned, then at a special meeting of said court, to be called and held as soon as practicable after said rolls are returned, shall rescind and revoke its action approving said rolls and return them to the tax assessor for correction of the calculation and ex- tension of said tax to conform to Sec. 1 of this Act. The tax collector shall, within ten days from the date of the return to him by said board of said rolls, correct the same by calculating and extending thereon the state ad valorem tax for general rev- enue purposes at the rate prescribed in Sec. 1 of this Act, and on or before the eleventh day after the day upon which said rolls were returned to him by said board, the tax assessor shall again deliver to said board said rolls verified by his aflSdavit as required by Art. 5130 of the Revised Statutes, together with all data re- quired by Art. 5131 of the Revised Statutes, and said county board of equalization shall, as soon as practicable thereafter, meet and act upon said rolls as directed by Art. 5132 of the Revised Statutes. After said rolls have been approved by said board, the tax assessor shall send one copy of each to the Comptroller of Levy. 73 Public Accounts, one copy of each to the collector of his county, and he shall file the other copies in the county clerk's office until the next assessment, when the assessor shall have the right to withdraw them and use as provided in Title 104 of the Revised Statutes. Sec. 4. It shall be unlawful for the Comptroller of Public Ac- counts to give any assessor an order for the amount due him by the state for assessing the state taxes for 1905, as provided by Art. 5134 of the Revised Statutes, unless and until said Comp- troller shall have received one copy of each of said assessor's rolls duly approved, upon which said state ad valorem tax for general revenue purposes for 1905 is calculated and extended at the rate prescribed in Sec. 1 of this Act. Provided, that no tax assessor shall be entitled to or be paid any compensation what- soever for making the corrections required by Sec. 3 of this Act. Act. of 29 Leg., p. 437. § 71. Validating levies at special session of commissioners' court. Sec. 1. The levy of county ad valorem taxes for any year by the commissioners' court of any county in this state heretofore made at a special term of said commissioners' court instead of at a regular term thereof, be and the said levies are hereby validated in so far as any contest of or attack on same on account of being levied at a special term is concerned, and the renditions, equali- zation, tax rolls, advertisements, sales and all other lawful acts and proceedings of the proper officers and of said commis- sioners' courts had and done in reference to the taxes levied as aforesaid be and the same are hereby validated in so far as any contest of or attack on same as being made at any such special term or under orders made at any such special term is concerned, and no action shall be maintained or defense interposed in any court of this state, the effect of which would be to prevent or de- feat the collection of said taxes, or any part thereof, on account of or arising out of the levies made as aforesaid and otherwise regular and legal, and said action and orders of said special terms are by this act validated, in .so far as being made at a special term instead of a regular term of such commissioners' court ; provided, that nothing herein contained shall be construed to validate the title to any lands sold for taxes under judgments rendered prior to the taking effect of this act. Acts 30th Leg., p. 489. 74 Taxation in Texas. § 72. Act 30th Leg., creating a board to calculate state taxes. Sec. 1, That the Governor, Comptroller of Public Accounts and Treasurer of this state, be and the same are hereby constituted a Board to calculate the ad valorem tax to be levied and collected each year for state and public free school purposes. Sec. 2. It shall be the duty of the tax assessor of each county in this state to make to the Comptroller of Public Accounts a state- ment as near as can be ascertained from the inventories or as- sessments showing the total amount of property in such county subject to taxation on or before the 15th day of August of the year 1907, and each year thereafter; provided, that the taxes for state and public free school purposes shall not be calculated and carried out upon said rolls. Sec. 3. Within five days after the Comptroller of Public Ac- counts has received such certified statements from every assessor within this state, said Board shall meet for the purpose of cal- culating the ad valorem rate for taxes to be collected for the state and public free school purposes. In calculating said rates the Board shall calculate the same by the following rules and upon the following basis : They shall find by adding together all the property subject to taxation in all the counties as shown by the certified statements returned by the assessors the total valuation of all property within this state subject to ad valorem taxes. They shall find by adding together the sums appropriated by the Legislature, which will or whidi fnay become due by the state during the following fiscal year, the total sum which will or which may become due by the state, during the following fiscal year. They shall find by adding all sums paid into the state treasury as taxes for state purposes from all sources other than as ad valorem taxes during the first half of the current calendar year and the latter half of the last preceding calendar year the total sum paid into the state treasury from said sources during said time. They shall find by subtracting from the total sum which will or which may become due by the state during the next suc- ceeding fiscal year the total sum which was paid into the state treasury as taxes for state purposes during the first half of the current calendar year and the latter half of the last preceding calendar year, the total sum for state purposes which must be col- lected by ad valorem taxes. They shall add to such remainder, 20 Levy. 75 per cent, of said remainder. They shall divide the total sum for state purposes which must be collected by ad valorem taxes added to 20 per cent of such total sum by the quotient of the total valuation of all property within this state divided by one hundred. The quotient shall be the number of cents on the $100 valuation to be collected for the current year for state purposes ; provided that said quotient shall not be nm to more than three decimals, and provided that the rate for state purposes shall never exceed the rate fixed by law on the $100 valuation of property. In calculating- the rate to be collected for public free school purposes the said board shall take into consideration the number of children in the state within the scholastic age to be determined from the most recent official sichool census; and shall fix a rate that will yield and produce for such fiscal year four dollars per capita for all the children within the scholastic age, as shown by said scholastic census, provided the rate so fixed for any year shall never exceed the rate fixed by law. Sec. 4. It shall be the duty of the Comptroller of Public Ac- counts to certify to the assessor of taxes of each county in this state, through registered letter, the rate of taxes for state pur- poses and for public free school purposes for the current year, and shall also publish immediately such rate for thirty days in some newspaper published in the state and having a general cir- culation therein, and as soon as such tax assessor has received notice of such rate he shall calculate the taxes due the state for state purposes, and also the taxes due for public free school pur- poses, on all taxable property within his county, as set out in Sec. 3 of this act, and shall carry the same out upon the copies of the tax rolls of the county to be delivered to the tax collector and to the clerk of the county court and to be returned to the Comp- troller of Public Accountsi, as provided by law. After he has so completed the said copies of the tax rolls he shall return to the Comptroller of Public Accounts a copy of same. Sec. 5. The commissioners' courts of the several couties of this state, all the members thereof being present, at either a regular or special session, may at any time after the tax assessor of their re- spective counties have forwarded to the Comptroller of Public Accounts the certificate required in Sec. 2 of this Act, and prior 76 Taxation in Texas, to the time when the tax collector of such county shall have be- gun to make out his receipts, calculate the rate and adjust the taxes levied in their respective counties for general purposes to the taxable values shown by the assessment rolls. Act 30 Leg., pp. 464-465. CHAPTER III. ASSESSMENTS. Sec. Sec. 73. Annual assessment a lien. 87. 74. Assessment necessary. 75. Proceedings where lands can- 88. not be easily described. 89. 76. What is an assessment. 90. 77. Place of assessment. 91. 78. Taxes not to be paid twice, etc. 92. 79. Leasehold interests in public lands. 93. 80. Should use forms of comp- troller. 94. 81. Irregularities free from 95. fraud. 96. 82. Manner of making out tax 97. lists directory. 83. Tract or lot. 98. 84. United States paper money 99. taxable. 85. Assessed as money on hand. 100. 86. Taxpayer to make oath. When assessments to be made. Irregular assessments valid. Mistake in name of owner. Failure to list for taxation. Collectors roll not part of assessment. Assessment not on proper roll. No presumption as to regular- ity after lapse of time. Void assessment — Remedies. Property added to list valid. Credits assessed — Where. Showing rate of assessment by custom. Refused to render list. Tax rolls — When admitted in evidence. Double assessment. § 73. Annual assessment a lien. Constitution of 1870 — "The annual assessment made upon landed property shall be a lien upon the property." Art. XII, Sec. 20. Constitution of 1876 — "The annual assessment made upon landed property shall be a special lien thereon, and all property, both real and personal, be- longing to any delinquent taxpayer shall be liable to seizure and sale for the payment of all taxes due by such delinquent." Art. VIII, Sec. 15. General provision of Const, of 1870. Special provision of Const, of 1876. Constitution contemplates two things — 1. A lien upon the particular tract of land assessed, and, 2. Liability of other tracts, belonging to the delinquent, to seizure and sale. 78 Taxation in Texas. Constitution itself makes this distinction and division. Liability to seizure and sale of other property than that taxed, arises only upon delinquency, whereas the lien on the tract assessed is created eo instanti with making of the assessment and accrual of the tax. Justice Brown recognizes this in City of Henrietta v. Eustis, 87 Tex. 16, at 18. All taxes upon real property shall be a lien upon such property until the same shall have been paid. And should the assessor fail to assess any real estate for any one or more years, the lien shall be good for every year that he should fail to assess for, and he may, in listing property for taxes any year thereafter, assess all the back taxes due thereon, according to the provisions of this title. (lb., Sec. 22.) S. R. S. Art. 5086. Where there were two surveys in the same county in name of same grantee and for the same number of acres, an assess- ment as unrendered land as follows : "Owner unknown, ab- stract number 560, original grantee, Thomas Hamilton, number of acres 1067, unrendered 1067 acres," was insufficient to determine which of the two was the land assessed or to fix the lien of the state for taxes on either. Art. 7, Sec. 15, of the Constitution, reads as follows: "The annual assessfnent made upon landed property shall be a special lien thereon, and all property, both real and personal, belonging to any delinquent taxpayer shall be liable to seizure and sale for the payment of all taxes and penalties due by such delinquent ; and such property may be sold for the payment of the taxes and penalties due by such delinquent, under such regulations as the Legislature rnay provide." The lien of the state, under the pro- visions of the Constitution, arises out of the assessment of the property and does not exist until that assessment is made. It is the assessment made annually by the officers of the state under and in accordance with the law which holds a lien upon the land. The word "assessment" as here used evidently means the sum which has been ascertained as the apportioned part of the tax to be charged against the particular piece of property, but under our Constitution and the provisions of our statute, the word em- braces more than simply the amount and includes the proce4ure on the part of the officials by which the property is listed, valued, Assessments. 79 and finally the pro rata declared. Clegg v. State, 42 Tex. 610; Welty on Assessment, p. 6. It was held in the case of Clegg v. State, 42 Tex. 610, that the state could not maintain an action against the property. Under the Constitution and the provisions of our statute, no lien attached to the land in question unless the assessments made in 1884, 1885 and 1886 were valid and binding under the terms of Art. 4711, Revised Statutes of 1879, which was then in force, and is in this language: "If the assessor of taxes discover any real property in his county subject to taxation which has not been listed to him, he shall list and assess such property in the manner following, to-wit: 1. The name of the owner; if unknown, say 'unknown.' 2. Abstract number and number of certificate. 3. Number of the survey. 4. Name of the original grantee. 5. Number of acres. 6. The true and full value thereof." The construction of the law most favorable to the state is that a substantial compliance with the statute would be sufficient to fix the lien for the taxes, and for the purposes of this opinion only, we adopt that as the rule by which the case is to be decided. If the description given in the assessment is such that by applying it to the land it can be identified, it is a substantial compliance with the requirements of the statute and the lien attached. If ■there has been but one tract of land in Parker county located under the Thomas Hamilton certificate, or if the two tracts had differed in the number of acres contained therein, then the ab- stract number would be sufficient to identify the particular tract of land sought to be designated by number 560, but it was shown by the evidence that there was another tract of land in the county located by virtue of the same certificate, and containing the same number of acres of land, valued at the same sumi, and in no way distinguished from the other except by the abstract numbers. The question arises, could any one determine to which of the two surveys abstract number 560 was affixed? A careful con- sideration of the matter has satisfied us that there is no way of applying the description given in the assessment of the tracts of land which would distinguish one from the other, which fact renders the description uncertain, and the assessment invalid ; hence no lien attached. State v. Farmer, 94 Tex. 232; 57 S. W 84; 59 S. W. 541. 80 Taxation in Texas. § 74. Assessment necessary. All property of private corporations except in cases where some other provision is made by law, shall be assessed in the name of the corporation and in collecting the taxes on the same all the personal property of such corporation shall be liable to be seized wherever the same may be found in the county, and sold in the same manner as the property of individuals may be sold for taxes. All statements and lists made by corporations that are required to be sworn to shall be verified by the affidavit and sig- nature of the secretary of said corporation and if they have no secretary, the officer who discharges the duties of secretary of said corporations. R. S. 5084. All real property subject to taxation shall be assessed to the owners thereof in the manner herein provided, but no assess- ment of real property shall be considered illegal by reason of the same not being listed and assessed in the name of the owner or owners thereof. R. S. 5085. All taxes upon real property shall be a lien upon such prop- erty until the same shall have been paid. And should the as- sessor fail to assess any real estate for any or more years the lien shall be good for every year that he should fail to assess for and he may, in listing property for taxes any year thereafter assess for all the back taxes due thereon, according to the pro- visions of this title. R. S. 5086. "It has been repeatedly decided, that no right of action ex- ists for the non-payment of an ad valorem property-tax, until an assessment has been made as provided by law." (R. R. Co. v. ComifionwealtJi, 1 Burch 250; Shozmlter v. Brozvn, 35 Miss. 423; People v. Hastings, 29 Cal. 449; Mid diet on v. Biilin, 18 Conn. 189; Woodbridge v. Detroit, 8 Mich. 301.) This proposition is a necessary conclusion, easily deducible from the essential nature of taxation (Cooley, 501), as well as from the constitutional provisions relating to taxes which we have just cited, and others which may be considered in connec- tion with them, viz: Sec. 28 and 40 of Art. 12 (the last, as originally adopted.) "It is the very essence of taxation," says Judge Cooley, in his most admirable and able treatise on constitutional limitations (p. 495), "that it be levied with equality and uniformity, and, to this Assessments. 81 end, that there should be some system of apportionment. When the burthen is common, there should be common contribution to discharge it. Taxation is the equivalent for the protection which the government affords to the persons and property of its citi- zens ; and as all are alike protected, so all alike should bear the burthen, in proportion to the interests secured. When taxes are levied upon property there must be an apportionment with refer- ence to a uniform standard or they degenerate into mere arbitrary exactions." And though equality and uniformity of all property taxes may be, and are generally very specifically provided for in our state Constitutions, little more is done thereby, as this pro- found jurist says, "than to state in concise language a principle of constitutional law, which, whether declared or not, would inhere in the power to tax." The levy and assessment of a property tax involves the ex- ercise of separate and distinct powers and duties; the first is strictly legislative in its character, while the latter, to a great ex- tent, at least in this state, is judicial. By its levy the Legislature requires a specific sum, deemed necessary for the demands of the government, to be apportioned pro rata by assessment upon all the property chargeable with it, or as is usual with us, and less com- plex, the levy is made by a charge of a definite per cent, upon the value of the property liable, and then the amount to be paid by the citizen is ascertained by the assessment of the given per cent, on the property subject to it, by the officer, at the time and in the manner provided for its assessment. If suit could be brought before assessment, or the pro rata value of the property as levied could be collected on other evidence of its value than that furnished by its assessment, as directed in the Constitution (Art. 12, Sec. 28), there would be a manifest disregard of "the essential nature" of a property tax, and a plain violation of the constitutional provision for its assessment." CI egg v. State, 42 Tex. 609-610-611. One of the essentials of a valid tax is a valid assessment of the property upon which said tax is levied, by the officer, or tribunal to whom this duty is committed by law. George v. Dean, 47 Tex. 73. § 75. Proceedings where lands cannot be easily described. In counties in which the subdivisions of surveys are not reg- ularly numbered, and in cities or towns in which the blocks or (6) 82 Taxation in Texas. subdivisions are not numbered, or are so irregularly numbered as to make it difficult or impossible for the assessor to list the same, the commissioners' court of such counties may have all the blocks and subdivisions of surveys platted and numbered so as to identify each lot or tract, and to furnish the assessor with maps, or a certified copy of same or any part thereof, shall be admis- sible evidence in all courts, provided that the cost of making said survey and plats shall be defrayed by the county in which said property is situated and of which the said commissioners' court ordered the said surveys and plats made ; provided, that the oost of any map of a town or city shall be paid by such town. or city when ordered by the town or city. Act 1895, p. 139, Sec. 17; S. R. S., Art. 5232q. § 76. What is an assessment. "The amount of tax with which a party is justly chargeable by reason of the levy of an ad valorem tax can be properly ascer- tained only by an assessment in the manner and by the officer or tribunal to whom this duty is committed by law. Until his prop- erty has been thus assessed the taxpayer can not be called upon for its payment. No liability attaches either to him or to his prop- erty. An assessment, however, is an altogether different thing from the tax roll. By the assessment, the liability of the taxpayer is fixed. It ascertains the facts, and furnishes the data for the proper preparation of the rolls. To make an assessment the officer or tribunal to whom the duty is committed, is required to ascer- tain and make an inventory or list of the property upon which the tax has been levied, and to estimate or determine its value. When the property is listed and valued, the amount of tax for which the owner is liable is merely a matter of arithmetical cal- culation. While this amount should be shown and exhibited by the tax roll if properly prepared, it is not an essential part or req- uisite of the assessment." George v. Dean, 47 Tex. 86; Cooley on Taxation, p. 258. "An assessment of property for taxation includes a list of property to be taxed in some form of an estimate of the sums which are to guide in apportioning the tax." Sullivan v. Bitter, 113 S. W. 193. Assessments. 83 § 77. Place of assessment — How assessed. All property, whether owned by persons or corporations, shall be assessed for taxation and the taxes paid in the county where situated, but the Legislature may, by a two-thirds vote, au- thorize the payment of taxes of non-residents of counties to be made at the office of the Comptroller of Public Accounts. State Const., Art 8, Sec. 2. No person, company or corporation shall be entitled to any de- duction on account of any bond, note or obligation of any kind given to any mutual insurance company, nor on account of any unpaid subscription to any religious, literary, scientific or chari- table institution or society, nor on account of any subscription to or. installment payable on the capital stock of any company, whether incorporated or unincorporated. R. S., Art. 5081. Property held under a lease for a term of three years or more, or held under a contract for the purchase thereof, belonging to this state or that is exempt by law from^ taxation in the hands of the owner thereof shall be considered for all purposes of taxa- tion as the property of the person so holding the same, except as otherwise specially provided for by law. The general rule is that the owner of the real estate leased is taxed upon the entire value of the property. This satisfies the constitutional requirement that all property in this state whether owned by natural persons or corporations other than municipal shall be taxed. R. S. 5087. Each parcel of real property shall be taxed at its true and full value in money, excluding the value of crops growing or un- gathered thereon. 2. In determining the full and true value of real and personal property the assessor shall not adopt a lower or different standard of value, because the same is to serve as a basis of taxation, nor shall he adopt as a criterion of value the price for which such property would sell at auction or a forced sale or in the ag- gregate with all the property in his county; but he shall value each tract or lot by itself arid at such sum and price as he be- lieves the same to be fairly worth in money at the time such as- sessment is made. (3.) In valuing any real property in which there is a coal or other mine or stone or other quarry or springs possessing me- 84 Taxation in Texas. dicinal properties the same shall be valued at such a price as such property including a mine or quarry or spring would prob- ably sell for at a fair voluntary sale for cash. (4.) Taxable leasehold estates shall be valued at such a price as they would bring at a fair voluntary sale for cash. (5.) Personal property of every description shall be valued at its true and full value in money. (6.) Money, whether in possession or on deposit or in the hands of any member of the family or any other person whatso- ever, shall be entered in the statement at the full amount thereof. (7.) Every credit for a sum certain payable either in money or property of any kind shall be valued at the full value of the same so payable. If for a specified article or specified number or quantity of property of any kind it shall be valued at the cur- rent price of such property at the place where payable. An- nuities or moneys payable at stated period shall be valued at the price that the person listing the same believes them to be worth in money. (1.) The legality of an assessment of a tax on the property of a national bank which does not exceed its true value is not af- fected by the custom of an assessor to assess other property at a uniform valuation less than its true value. Engelke v. Schlenker, 75 Tex. 559; 12 S. W. 999. (2.) A bank may accumulate United States treasury notes over its counter and such sum be exempt from taxation ; otherwise if the treasury notes had been procured for the special purpose of avoiding taxation by the exchange of taxable money or prop- erty. Grimn v. Heard, 78 Tex. 607 ; 14 S. W. 892. See Arts. 5079 and 5088a. Art. 5088a. — Circulating notes of national banking associations and United States legal tender notes and other notes and cer- tificates of the United States payable in demand and circulating or intended to circulate as currency and gold, silver and other coin shall hereafter be subject to taxation as money on hand or on de- posit under the laws of this state. R. S., Art 5088. Art. 5088b. — The assessor of taxes shall assess the same in the same manner as money on hand or on deposit or other per- sonal property as provided for in the general assessment laws of this state. See Arts. 5079b, 5088, Sec. 6. Assessments. 85 § 78. Taxes not to be paid twice, etc. Any lands which may have been assessed in county according to the abstract of land titles, and the taxes paid thereon according to law, shall not be afterwards subject to the payment of taxes for the same period in a different county, although a subsequent survey and determination of the county boundaries may show said lands to be in a different county from that in which they were originally assessed ; and any sales of such lands for al- leged delinquency shall be illegal and void. Acts 1879, p. 153, Sec. 2.) 5. R. S. Art. 5071. ^ § 79. Leasehold interests in public lands. Property held under a lease for a term of three years or more, or held under a contract for the purchase thereof, belonging to this state, or that is exempt by law from taxation in the hands of the owner thereof, shall be considered for all purposes of taxation as the property of the person so holding the same, ex- cept as otherwise specially provided by law. (lb., p. 281, Sec. 23.) (1) The general rule is that the owner of real estate leased is taxed upon the entire value of the property. This satisfies the constitutional requirement that all property in this state, whether owned by natural persons or corporations other than municipal, shall be taxed according to its value. It would seem where the leasehold is taxed that its value should be deducted from the taxable interest of the owner, otherwise double taxation would be imposed, not to be presumed when the law can be otherwise construed. Sec. 9, Art. 11, and Sec. 6, Art. 7, of the constitu- tion, exempt from taxation lands held by counties for public free school purposes, and such exemption limits the power of the legislature. The constitution forbidding the taxation of the lands, it forbids the taxation of an estate therein less then the fee, whether imposed upon the county or its lessee. County school lands are not subject to taxation while owned >by counties, whether the lands be leased or not. Daiighcrty r. Thompson, 71 T. 192 ; 9 S. W. R. 99. (2.) A lease in which the state reserves the right to sell and thereby terminate the lease at any time is not such title a?, con- templated in this article. See. Art. 5061. Trammel v. Taught, 74 T. 557; 12 S. W. R. 317. 86 Taxation in Texas. (3.) When a leasehold is taxed its value should be deducted from the taxable interest of the owner. Daugherty v. Thompson, 71 T. 192;9 S. W. R. 99. § 80. Should use forms of comptroller. "The various statutes on the subject of the assessment and col- lection of taxes have each contained a provision that the as- sessor and collector should use the form and pursue the instruc- tions of the Comptroller of Public Accounts." Albright v. The Governor, 25 Tex. 687. § 81. Irregularities free from fraud. "Irregularities in assessments, when not resulting from fraud, will not render the taxes founded upon such assessments void." State V. Bremond, 38 Tex. 116. § 82. Manner of making out tax lists directory. "The statute regulating the manner in which list of delin- quent taxpayers shall be made out, is directory ; and if its es- sential requirements be complied with, it is sufficient."//. & T. C. Ry. Co., V. The State, 39 Tex. 148. §83. Tract or lot. The term "tract or lot" and "piece or parcel" of real property and piece and parcel of land, whenever used in this title, shall each be held to mean any quality of land in possession of, owned by or recorded as the property of the same claimant, person, company or corporation. Acts 1876, p. 275, Sec. 4, S. R. S. Art. 5064. § 84. United States paper money taxable. Circulating notes of national banking associations and United States legal tender notes and other notes and certificates of the United States, payable on demand and circulating or intended to circulate as currency, and gold, silver and other coin, shall be hereafter subject to taxation as money on hand or on deposit, under the laws of this state. (Acts 1895, p. 49.) S. R. S. Art. 5088a. § 85. Assessed as money on hand. The assessor of taxes shall assess the same in the manner as money on hand or on deposit or other personal property, as pro- Assessments. 87 vided for in the general assessment laws of this state. (lb.) See Arts. 5064, 5079b, 5088, Sec. 6. S. R. S. Art. 5088b. § 86. Taxpayer to make oath. All assessors of taxes in this state shall require all taxpayers when assessed by them to make oath as to any such sale, ex- change or transfer made by them on the first day of January or within sixty days before said first day of January of any year for which any such assessment is made, as to the good faith and bona fide business transaction of any such sale, exchange or transfer, as above set forth, if any such should have been made by them, and if it should be disclosed that any such pretended sale, exchange or transfer has been made for the purpose of evading taxation, then and in that event the assessor shall list and render against such person the coin, bank notes or other notes or bonds subject to taxation under the laws of this state; provided, that if any person shall make a false affidavit as to any of the foregoing facts he shall be deemed guilty of perjury and be punished as is now provided by law. (lb., Sec. 3.) S. R- S., Art. 5102. § 87. When assessments to be made. Asisessors of taxes shall, between the first of January and the first day of June of each year, proceed to take a list of taxable property, real and personal, in his county, and assess the value thereof in the manner following, to-wit : By calling upon the person, or by calling at the office, place of business or the resi- dence of the person and listing the property required by law in his name and requiring the person to make a statement under oath, as prescribed in article 5098, of such property in the form hereinafter prescribed. (Acts 1876, p. 265, Sec. 9.) ' (1.) When a pasture lies partly in two counties the owner may render the stock in the county of his residence. Court v. O'Connor, 65 Tex. 334. S. R. S., Art. 5103. § 88. Irregular assessments valid. "Should any property be listed or assessed for taxation after the first day of June of any year, or should the assessor of taxes or his deputy fail to administer the requisite oath or attest the same in the mode prescribed by law, or should the party rendering property for taxation fail to subscribe to the list, yet 88 ■ Taxation in Texas. the assessment shall nevertheless be as valid and binding to all intents and purposes as if made in strict pursuance of law." Sayles R. S., Art. 5104. When an assessment roll has been substantially completed be- fore passage of an ordinance levying a city tax, the fact that property not reported by owners is afterward added to the roll does not invalidate the tax. Scollard v. City of Dallas, 42 S. W. Rep. 640; 16 Tex. Civ. App. 620. Irregulartities in assessments, when not resulting from fraud, will not render the taxes founded upon such assessments void. State V. Bremond, 38 Tex. 116. If an assessment of taxes be valid, the fact that the assess- ment was not placed on the proper roll in a proper manner does not vitiate it, the obligation to pay and the resulting duty to en- force payment by the state remains. Rosenberg et at. v. Weekes, 67 Tex. 578; City of San Antonio v. Raley, 32 S. W. 180. § 89. Mistake in name of owner. "Under Rev. St. 1895, Art. 5085, providing that 'no assess- ment of real property shall be considered illegal by reason of the same not being listed or assessed in the name of the owner or owners thereof,' an assessment is not void for a mistake in the name of the owner." Taher v. State, 85 S. W. R., 836; 38 Tex. Civ. App. 235. § 90. Failure to list for taxation. "Failure of a tax assessor to list certain property assessed by him and present the list to the commissioners' court for approval did not render the assessment void in the absence of a showing of injury resulting from such failure and where no objection was made before the board because of such failure." Haynes v. State, 99 S. W. 405 ; 44 Tex. Civ. App. 492. § 91. Collector's roll no part of assessment. "Under the ordinance and charter of the City of San Antonio the assessor is not required to assess the amount of taxes. After the board of revision passes upon the assessments, the ordinance provides that a list shall be prepared by the assessor, and he shall enter therein the arnount of taxes due by each person, and give the same to the collector, who should receipt for it. Assessments. 89 The collector's roll is no part of the assessment. It is the warrant of authority of the collector for the collection of taxes, and has nothing- to do with a suit for taxes and to foreclose the constitutional lien. If the assessor failed to make out the tax roll for the collector, that did not release the person who owed the taxes from his liability for the same. Hernandez v. City of San Antonio, 39 S. W. 1024; 15 Tex. Civ. App. 299. § 92. Assessment not on proper roll. If an assessment of taxes be valid, the fact that the assessment was not placed on the proper roll in a proper manner does not vitiate it ; the obligation to pay, and the resulting duty to enforce payment by the state, remain. Rosenberg v. Weekes, 67 Tex. 580. § 93. No presumption as to regularity after lapse of time. "The mere lapse of forty years is not sufficient to raise a pre- sumption that the laws regulating assessment and sale for taxes have been complied with so as to supply the missing proof of the power of the sheriff to convey the legal title by tax deed ; no proof being offered of such facts as would be presumed to be in the custody of the proper officers and departments, nor any evidence of their loss." Telfener v. Dilliard, 7 S. W. 847; 70 Tex. 139. § 94. Void assessment — Remedies. "The property of a corporation was assessed by justices of the peace as provided by statute, the assessment approved by the county commissioners' court, and the tax paid. After that as- sessment the county assessor made what purported to be a sup- plemental assessment, under directions fromi the comptroller, on property not assessed by the justices, but in fact the corpora- tion owned no property which had not been assessed by them, and the assessor obtained the amount of his assessment by fixing a value on the same property, and deducting therefrom the jus- tices' valuation. The county commissioners' court approved his assessment. Afterwards the corporation applied to that court to be relieved from the assessment, which was refused, but a re- duction was made. The tax on this reduced assessment was levied on the corporation's property, and paid to the collector 90 Taxation in Texas. under protest. HELD, that whether or not the corporation had notice that the assessor's assessment would be and was made, was immaterial, the assessment being utterly void, and there being no address from, the board of equalization, whose jurisdiction ex- tended only to questions of valuation." Galveston County v. Galveston Gas Company, 10 S. W. 583 ; 72 Tex. 509. § 95. Property added to list valid. "An assessment is not invalidated by the fact that the property w^as added by the assessor to the inventory of the taxpayer's estate at the direction of the board of equalization." Ferris v. Kemble, 12 S. W. 689; 75 Tex. 476; Connor v. City of Waxa- hachie, 13 S. W. 30. § 96. Credits assessed where. "Credits are taxable at the place of residence of the owner, and not at the place where they may be deposited." Ferris v. Kemble, 12 S. W. 689; 75 Tex. 476; Connor v. City of Waxa- hachie, 13 S. W. 30. § 97. Showing rate of assessment by custom. In an action to restrain collection of taxes on national bank shares, as being higher than those on other moneyed capital, a custom, to assess property at fifty per cent, of its value is not established by evidence of the assessment of a few parties at that rate. Engelke v. Schlender, 12 S. W. 999; 75 Tex. 559. § 98. Refused to render list. "A prosecution under Pen. Code, Art. 113, for refusal to render to the assessor on demand a list of taxable property, is prema- ture where Article 4716, requiring the assessor to furnish the board of equalization with a list of such persons, etc., has not been pursued. Mock v. State, 11 Tex. App. 56, followed." Gal- hraith v. State, 26 S. W. 502; 33 Tex. Crim. App. 331. § 99. Tax rolls — When admitted in evidence. "Where there is nothing on the face of tax rolls to indicate what the figures denote in the columns set apart for the value of property and the amount of taxes, the meaning of the figures may be shown by testimony, and the rolls admitted in evidence, in an action to enforce a tax lien." Assessments. 91 "The primary meaning of such figures would be dollars." Conklin v. City of El Pasa, S. W. Reporter, Vol. 44, p. 880. § 100. Double assessment. "Rev. St. 1895, Art 5076, requires that in listing real estate for taxation the statement shall show the name of the owner, the abstract number, the number of the survey, the name of the original grantee of the certificate, the number of acres, and the value of the land ; the number of the lot or lots, the number of the block, and the name of the city or town, and the value of the lots. Held, that the three essential requirements were the name of the owner, if known, the description of the property, and its value, and hence, where an <:/wner of city lots listed them for as- sessment as fifteen acres of the J. survey, valued at $3,000, and this assessment was not objected to either by the assessor or the board of equalization, and the owner paid taxes levied on such assessment, a subsequent assessment of the property by lots and blocks to unknown owners constituted a double assessment, in violation of article 5232L, which the city had no right to make." McMickle V. Rochelle, US S. W. 74. CHAPTER IV. ASSESSMENT OE RENDERED PROPERTY. Sec. Sec. 101. When property to oe ren- 112. Rendition of real estate. dered. 113. Assessment of personal prop- 102. How to be rendered. erty by rendition by banker, 103. Where to be rendered. broker, etc. 104. To be rendered in but one 114. No deductions in certain county. cases. 105. Live stock — When and how 115. Assessments and collections rendered. of corporate property. 106. Vessels — Where listed. 116. Assessments in owner's name. 107. Railroads — Telegraphs, etc. 117. Relating to the list of prop- 108. Listing for others. erty given in by property 109. Shall list under oath. owners. 110. The statement and its re- 118. Act of May 16, 1907, relat- quisites. ing to the listing and valua- 111. Certain credits and stocks not tion of property. to be listed. § 101. When property to be rendered. All property shall be listed for taxation between January 1 and June 1 of each year, when required by the assessor, with reference to the quantity held or owned on the first day of January in the year for which the property is required to be listed or rendered. Any property purchased or acquired on the first day of January shall be listed by or for the person purchas- ing or acquiring it. R. S. 5066. § 102. How to be rendered. All property shall be listed or rendered in the manner follow- ing: (1) By the owner — Every person of full age and sound mind, being a resident of this state, shall list all of his real estate, moneys, credits, bonds or stock of joint stock or other companies (when the property of such company is not assessed in this state), moneys loaned or invested, annuities, franchises, royalties, and all other property. (2) As agent-— He shall also list all lands or other real estate, all moneys and other personal property invested, loaned or other- Assessment of Rendered Property. 93 wise controlled by him as agent or attorney, or on account of any other person, company or corporation whatsoever, and all moneys deposited subject to his order, check, or drafts and credits due from or owing by any person, body corporate or politic. (3) Minor — The property of a minor child shall be listed by his guardian, or by the person having such property in charge. (4) Wife — The property of a wife, by her husband, if of sound mind ; if not, by herself. (5) Idiots — The property of an idiot or lunatic, by the per- son having charge of such property. (6) Cestui que trust — The property of a person for whose benefits it is held in trust, by the trustee of the estate, of a deceased person, by the executor or administrator. (7) Receivers — The property of corporations whose assets are in the hands of receivers, by such rteceivers. (8) Corporations — The property of a body politic or cor- porate, by the president or proper agent or officer thereof. (9) Copartnership — The property of a firm or company, b^ the president or proper agent or officer thereof. (10) Manufactories — The property of manufacturers and others in the hands of an agent, by such agent, in the name of his principal, as real, personal and merchandise. (11) Nurseries — The stock of nurseries, growing and other- wise, in the hands of nurserymen, shall be listed and assessed as merchandise. Acts 1876, p. 2751 ; Art. 5067, Sayles R. S. § 103. Where to be rendered. All property, real and personal, except such as is required to be listed and assessed otherwise, shall be listed and assessed in the county where it is situated, and all personal property subject to taxation and temporarily removed from the state or county, shall be listed and assessed in the county of the resi- dence of the owner thereof, or in the county where the principal office of such owner is situated. (1) There is no special provision excepting from the re- quirement of the statute cattle ranging near the line of two counties ; yet the statute does not intend to impose impossibilities or to work injustice, and a substantial compliance with its terms is all that is necessary. If, therefore, one whose pasture lies 94 Taxation in Texas. partly in the county of his residence and partly in an adjoining county renders for taxation his cattle feeding upon such pas- ture, and pays the tax thereon, in the county where he resides and where the entire herd feeding in his pasture is controlled, he complies with the substantial requirements of the statute, the state receives from the property all the revenue to which she is entitled, and the owner is not overtaxed. It is not necessary in such cases, before applying for an injunction, to seek relief from the board of equalization, or other officers having control in matters of taxation. That it was unimportant whether the taxes in Refugio county were paid before or after the levy which was sought to be enjoined. It was sufficient if the right to the taxes had fully accrued to that county, and this was effected by the previous assessment made thereon. Court v. O'Connor, 65 Tex. 334; Hardesty v. Fleming, 57 Tex. 400. (2) Personal property, belonging either to a corporation or a natural person, must be assessed and the taxes thereon paid in the county where it is situated, unless such county has not been organized, in which event the assessment must be made and the taxes collected in the county to which it is attached for judicial purposes. Cattle Co. v. Faught, 69 Tex. 402; 5 S. W. 494. (3) Personal property, except when it is otherwise provided, 's situated where its owner resides, and is taxable only there. Tangible personal property situated in any town or city of this state is subject to taxation at the place where it is situated. In- tangible personal property, such as credits, are taxable only at the place of residence of the owner, without regard to where they are kept or deposited, and equally without regard to where they are deposited, and equally without regard to show they were earned or to the place of residence of the debtor. Ferris v. Kimble, 75 T. 476; 12 S. W. R. 689. Styles R. S., Art. 5068. § 104. To be rendered in but one county. Lands lying on county boundaries, which have not been ac- curately and legally surveyed, determined or fixed, shall not be assessed or taxed in more than one county. (Acts 1879, p. 153 ; Amend. 1895, No. 104, Sen. Jour., p. 485.) (1) As to the remedy to prevent a double assessment, see Rosenberg v. Weeks, 67 T. 578; 4 S. W. R. 899; Chisholm v. Adams, 71 Tex. 678; 10 S. W. 336; S. R. S., Art. 5069. Assessment of Rendered Property. 95 § 105. Live-stock — When and how rendered. All persons, companies and corporations owning pastures in this state which lie on county boundaries shall be required to list for assessment all liye stock of every kind owned by them in said pastures in the several counties in which such pastures are situated, listing in each county such portion of said stock as the land in such county is of the whole pasture. All persons, com- panies and corporations owning any kind of live stock in pas- tures not their own shall list said live stock in the several counties in which such pastures are situated in the same manner ; and in both cases the tax upon such live stock shall be paid to the tax collectors of the several counties in which such live stock is listed and assessed. (Acts 1889, p. 29.) S. R. S., Art. 5070. § 106. Vessels — Where listed. All persons, companies and corporations in this state owning steamboats, sailing vessels, wharf-boats, and other water craft shall be required to list the same for assessment and taxation in the county in which the same may be enrolled, registered or licensed. (Acts 1876, p. 277.) S. R. S., Art. 5072. § 107. Railroads, Telegraphs, etc. All railroad, telegraph, plank-road and turnpike companies shall list all of their real and personal property, giving the num- ber of miles of roadbed and line in the county where such road- bed and line is situated, at the full and true value, except when such company may own personal property or real estate in an unorganized county or district, when they shall list such property to the comptroller. (lb., Sec. II.) S. R. S., Art 5073. § 108. Listing for others. Persons required to list property on behalf of others shall list it in the same manner in which they are required to list their own, but they shall list it separately from their own, speci- fying in each case the name of the person, estate, company or corporation to whom it belongs. (lb., p. 278, Sec. 12.) S. R. S., Art. 5074. ' § 109. Shall list under oath. Each person required by law to list property shall make and sign a statement, verified by his oath, as required by law, of all property, both real and personal, in his possession, or under his 96 Taxation in Texas. control, and which he is required to list for taxation, either as owner or holder thereof, or as guardian, parent, husband, trustee, executor, administrator, receiver, accounting officer, partner, agent or factor. (lb.. Sec. 13.) S. R. S., Art 5075. § 110. The statement and its requisites. Such statement shall truly and distinctly set forth : (1) The name of the owTier. (2) The abstract number. (3) The number of the survey. (4) The name of the original grantee and the certificate. (5) The number of acres and the value of the land. (6) The number of the lot or lots, the number of the block, and the name of the city or town, and the value of the lots. (7) The number of miles of railroad in the county, and the value of the railroads and appurtenances. (8) Number of miles of telegraph in the county, and the value of telegraph and appurtenances in the county. (9) Number and amount of - land certificates, and value thereof. ( 10) Number of horses and mules, and the value thereof, (11) Number of cattle, and value thereof. (12) Number of jacks and jennets, and value thereof. (13) Number of sheep, and value thereof. (14) Number of goats, and value thereof. (15) Number of hogs and dogs, and value thereof. (16) Number of carriages, buggies, wagons, or bicycles, of whatever kind, and value thereof. (17) Number of sewing machines and knitting machines, and value thereof. (18) Number of clocks and watches, and value thereof. (19) Number of organs, melodeons, pianofortes, and all other musical instruments of whatever kind, and value thereof. (20) The value of household and kitchen furniture over and above the amount of two hundred and fifty dollars. (21) Office furniture, and the value thereof. (22) The value of gold and silver plate. (23) The value of diamonds and jewelry. (24) Every annuity or royalty, the description and value thereof. Assessment of Rendered Property, 97 (25) Number of steamboats, sailing vessels, wharf boats, barge, or other water-craft, and value thereof. (26) The value of goods, wares and merchandise of every description which such person is required to list as a merchant, on hand on the first day of January of each year. (27) Value of materials and manufactured articles which such person is required to list as a manufacturer. (28) Value of manufacturers' tools, implements and ma- chinery other than boilers and engines, which shall be listed as such. (29) Number of steam engines, including boilers, and value thereof. (30) Amount of money, of bank, banker, broker or stock jobber. (31) Amount of moneys other than of bank, banker, broker, or stock jobber. (32) Amount of credits other than bank, banker, broker, or stock jobber. (33) Amount and value of bonds and stocks other than United States bonds. (34) Amount and value of shares of capital stock (of) com- panies and associations not incorporated by the laws of this state. (35) Value of all property of companies and corporations other than property hereinbefore enumerated. (36) Value of stock and furniture of saloons, hotels and eat- ing houses. (37) Value of every billiard, pigeon-hole, bagatelle, or other similar tables, together with the number thereof. (38) Every franchise, the description and value thereof. (39) Value of all other property not enumerated above; and all property enumerated in this article shall be taxable, whether in this state on the first day of January or temporarily removed therefrom. See Art. 5118. (lb., Sec. 14; 1897, p. 203.) (1) Deposit in bank subject to sight check regarded as cash. Campbell v. Wigghu, 20 S. W. 730 ; 2 C. A. 1. (2) This article, in prescribing the requisites of an assess- ment for state and county taxes, does not apply to assessments for city taxes. Eitstis v. City of Henrietta, 39 S. W, 567 ; S. R. S., Art. 5076. 7 98 ' Taxation in Texas. § 111. Certain credits and stocks not to be listed. No person shall be required to list or render a greater portion of his credits than he believes will be received or can be collected,' or to include in his statement as a part of his personal property which is required to be listed any share or portion of the capital stock or property of any company or corporation which is re- quired to Hst or return its capital and property for taxation. (lb., Sec. 14.) S. R. S., Art. 5077. § 112. Rendition of real estate. Persons listing or rendering real estate shall make a statement, duly signed and under oath, which shall truly and distinctly set forth : (1) The name of the owner, abstract number, number of survey, the number of certificate, the name of the original grantee, the number of acres, and the true and full value thereof. (2) The number of the lot and block and the true and full value thereof, together with the name of the town or city. (3) When the name of the original grantee, or abstract num- ber, or number of certificate, or number of survey is unknown, say "unknown," and give such description so that land or lot can be identified and the true and full value thereof can be determined, (lb., p. 279, Sec. 15.) S. R. S., Art. 5078. § 113. Assessment of personal property by rendition by banker, broker, etc. Every bank, whether of issue or deposit, banker, broker, dealer in exchange, or stock jobber, shall at the time fixed by this chap- ter for listing personal property, make out and furnish the as- sessor of taxes a sworn statement, showing : (1) If a national bank, the president or some other officer of such bank shall furnish to the assessor of the county in which such bank is located a list of the names of all the shareholders of the stock, together with the number and amount of the shares of each stockholders of the stock in said bank, and the share- holders of the stock in national banks shall render to the tax assessor of the county in which said bank is located the number of their shares and the true and full value thereof. All shares of stocks in national banks not rendered to the assessor of taxes in the county where such bank is located within the time pre- scribed by law for listing property for taxes, shall be assessed Assessment of Rendered Property. <99 by the assessor against the owner or owners thereof as unren- dered property is assessed ; but the tax roll shall show the name of the owner or owners thereof as per statement furnished by the president or other officers of said bank. (2) National banks shall render all other bonds and stocks of every kind, except United States bonds, and all shares of capi- tal stocks or joint stock or stocks of other companies or corpora- tions held as an investment or in any way representing assets, together with all other personal property belonging or pertaining to said bank, except such personal property as is specially ex- empted from taxation by the laws of the United States. (3) National banks shall be required to render all of their real estate as other real estate is rendered, and all the personal property of said national banks herein taxed shall be valued as other personal property is valued. (4) All other banks, bankers, brokers or dealers in exchange, or stock jobbers shall render their list in the following manner: (1) The amount of money on hand or in transit or in the hands of other banks, bankers, brokers or others subject to draft, whether the same be in or out of the state. (2) The amount of bills receivable, discounted or purchased and other credits due or to become due, including accounts re- ceivable, interest accrued but not due, and interest due and un- paid. (3) From the aggregate amount of the items named in the first and second of the last two subdivisions shall be deducted the amount of money on deposit. (4) The amount of bonds and stocks of every kind, except United States bonds, and all shares of capital stocks or joint stocks of other companies or corporations held as an investment or in any way representing assets. (5) All other property belonging or appertaining to said bank or business, including both personal property and real estate, shall be listed as other personal and real estate, (Acts 1895, p. 37.) ( 1 ) All the property, both real and personal, of a bank char- tered under the laws of Texas is subject to taxation. To tax the shares of such a bank, which are but evidence of an interest in property already taxed, would be in effect to impose a double taxation. The fact that the bank fails to render its property for 100 Taxation in Texas. taxation will not authorize an assessor to list for taxation its shares of stock. Gillespie z: Gaston, 67 T. 599; 12 S. W. 248. (2) The real estate of a bank is to be taken in its own name, and its personal property in the names of its shareholders. En- gelke V. Schlenker, 75 Tex. 559; 12 S. W. 999. (3) As "to mode of rendering property for taxes, see Art. 5080. (4) By "the amount of money on deposit" is meant the amount of debt due depositors, and not money belonging to others and held by the bank as bailee. The words "except United States treasury notes" refer to money on hand or in transit, and not to "money in the hands of other banks, bankers or brokers, or others, subject to draft." Griifin v. Heard, 78 T. 607 ; 14 S. W. 892 ; S. R. S., Art. 5079. § 114. No deductions in certain cases. No person, company or corporation shall be entitled to any deduction on account of any bond, note or obligation of any kind given to any mutual insurance company, nor on account of any unpaid subscription to any religious, literary, scientific or chari- table institution or society, nor on account of any subscription to or installment payable on the capital stock of any company, whether incorporated or unincorporated. (Act 1876, p. 280, Sec. 17.) S. R. S., Art. 5081. § 115. Assessments and collections of corporate property. All property of private corporations, except in cases where some other provision is made by law, shall be assessed in the name of the corporation, and in collecting the taxes on the same all the personal property of such corporation shall be liable to be seized whenever the same may be found in the county, and sold in the same manner as the property of individuals may be sold for taxes. All statements and lists made by corporations that are required to be sworn to shall be verified by the affidavit and sig- nature of the secretary of said corporation, and if they have no secretary, the officer, who discharges the duties of secretary of said corporation. (Acts 1876, p. 280, Sees. 20, 21.) S. R. S., Art. 5084. « § 116. Assessments in owner's name. All real property subject to taxation shall be assessed to the owners thereof in the manner herein provided, but no assess- Assessment of Rendered Proper'!''?^.'"''' >" ' ' '101'' ment of real property shall be considered illegal by reason of the same not being listed or assessed in the name of the owners thereof. (lb., Sec. 21.) S. R. S., Art. 5085. § 117. Relating to the list of property given by property owners. An act to amend Article 5076, Title CIV, Chapter 2, of the Revised Civil Statutes of the State of Texas, relating to the list of property subject to taxation required to be given by property owners. Section 1. Be it enacted by the Legislature of the State of Texas, That Article 5076,Title CIV, Chapter 2, of the Re- vised Civil Statutes of the State of Texas, be so amended as to hereafter read as follows : Article 5076 (4681). Such statement shall truly and dis- tinctly set forth: (I) The name of the owner, and a description sufficient for the identification of any real estate belonging to such owner. (2) The number of acres. (3) The value of the land. (4) The number of the lot or lots. (5) The number of the block. (6) The value of town lots. (7) The name of the city or town. (8) The number of miles of railroad in the county. (9) The value of railroads and appurtenances. (10) Number of miles of telegraph in the county. (II) Value of telegraph and appurtenances in the county. (12) Number and amount of land certificates and value thereof. (13) Number of horses and mules and the value thereof. (14) Number of cattle and the value thereof. (15) Number of jacks and jennets and value thereof. (16) Number of sheep and value thereof. (17) Number of goats and value thereof. (18) Number of hogs and dogs and value thereof. (19) Number of carriages, buggies, wagons, automobiles, bicycles, motor cycles, or other vehicles of whatsoever kind and the value of each one thereof. «1C&' ''""''< Taxation IN Texas. (20) Number of sewing machines and knitting machines and value thereof. (21) Number of clocks and watches and value thereof. (22) Number of organs, melodeons, piano fortes, and all other musical instruments of whatsoever kind, and value thereof. (23) The value of household and kitchen furniture over and above the amount of two hundred and fifty dollars. (24) Office furniture and the value thereof. (25) The value of gold and silver plate. (26) The value of diamonds and jewelry. (27) Every annuity or royalty, the description and value thereof. (28) Number of steam boats, sailing vessels, wharf boats, barges or other water craft, and the value thereof. (29) The value of goods, wares and merchandise of every description which such person is required to list as a merchant (in hand on the first day of January of each year). (30) Value of materials and manufactured articles which such person is required to list as a manufacturer. (31) Value of manufacturers' tools, implements and ma- chinery other than boilers and engines, which shall be listed as such. (32) Number of steam engines, including boilers, and the value thereof. (33) Amount of moneys of bank, banker, broker or stock jobber. (34) Amount of credits of bank, banker, broker or stock jobber. (35) Money on hand or on deposit, in or out of the State, with banks, trust companies, corporations, firms or individu- als, and subject to order, check or draft, including certificates of deposit. (36) Amount of credits other than of bank, banker, Droker or stock jobber. (37) Amount and value of bonds and stocks (other than United States bonds). (38) Amount and value of shares of capital stock compa- nies and associations not incorporated by the laws of this State. Assessment of Rendered Property. 103 (39) Value of all property of companies and corporations other than property hereinbefore enumerated. (40) Value of stock and furniture of saloons, hotels and eating houses. (41) Value of every billiard, pigeon hole, bagatelle or other similar tables, together with the number thereof. (42) Every franchise, the description and value thereof. (43) Value of all other property not enumerated above. Act of 1905, p. 357. § 118. Act of May 16, 1907, relating to the listing and valua- tion of property. Section 1. That Chapter 3, Title 104, Articles 5123 and 5124, Revised Civil Statutes of the State of Texas, be, and the same are hereby amended so as to read as follows : (and adding there- to articles 5124-a, 5124-b, 5124-c, 5124-d, 5124-e, 5124-f and Article 5124-g). Article 5123. That hereafter when any person, firm or cor- poration renders his, their or its property in this state for taxa- tion to any tax assessor, and makes oath as to the kind, char- acter, quality and quantity of such property ; and the said ofificer accepting said rendition from such person, firm or corporation of such property is satisfied that it is correctly and properly valued according to the reasonable cash market value of such property on the market at the time of its rendition, he shall list the same accordingly but if the assessor is satisfied that the value is below the reasonable cash market value of such property, he shall at once place on said rendition opposite each piece of prop- erty so rendered an amount equal to the reasonable cash market value of such property at the time of its rendition and if such property shall be found to have no market value by such officer, then at such sum as said officer shall deem the real or intrinsic value of the property; and if the person listing such property or the owner thereof is not satisfied with the value placed on th§ property by the assessor, he shall so notify the assessor and if desiring so to do may make oath before the assessor that the valuation so fixed by said officer on said property is excessive, then it shall be the duty of such officer to furnish such rendition, together with his valuation thereon and the oath of such person, firm or officer of any corporation if any such oath has been made, to the commissioners' court of the county in which said rendition 104 Taxation in Texas. was made, which court shall hear evidence arid determine the true value of such property as is hereinafter provided ; and in this connection it is provided that such officer or court shall take into consideration what said property could have been sold for any time within six months next before the rendition of said property. Article 5124. The Boards of Equalization shall have power and it is made their official duty to supervise the assessment of their respective counties and if satisfied that the valuation of any property is not^in accordance with the laws of the State, to increase or diminish the same and to affix a proper valuation thereto, as provided for in Art. 5123 of this Act, and when any assessor in this State shall have furnished said court with the ren- dition as provided for in Article 5123 of this Act, it shall be the duty of such court to call before it such persons as in its judg- ment may know the market value or true value of such property, as the case may be, by proper process, who shall testify under oath the character, quality and quantity of such property, as well as the value thereof ; said court after hearing the evidence shall fix the value of such property in accordance with the evidence so introduced and as provided for in Art. 5123 of this Act; and their action in such case or cases shall be final. Art. 5124-a. If any tax assessor in this State shall fail, refuse or neglect to place upon any rendition as provided for in Art. 5123 of this Act, the true value or market value in accordance with the method of fixing such value as provided for herein or shall fail, refuse or neglect to return to the Commissioners' Court such rendition together with the oath of the owner or person list- ing such property for taxes when such oath has been made, as provided for in this Act or if the assessor accepts the rendition from any person rendering property for taxation without reading to such person the oath and having it signed and sworn to as provided by law such failure, refusal or neglect shall be deemed malfeasance on the part of such officer and shall be cause for his removal from office. Art. 5124-b. Every tax assessor and deputy tax assessor in this State in addition to the oath prescribed by the Constitution of this State shall, before entering upon the duties of his office take and subscribe to the following oath : "I, , tax assessor (or deputy tax assessor as the case may be) in and for County, Texas, do solemnly swear that I will person- Assessment of Rendered Property. 105 ally view and "inspect all the real estate and improvements thereon subject to taxation lying in said county that may be rendered to me for taxation by any corporation or individual, or by their agent or representative as fully as may be practicable and that I will as fully as is practicable view and inspect all other taxable property in said County rendered to me as aforesaid, that I will to the best of my ability make a true estimate of the cash valuer the market value of such property if such property has a market value, and if it has no market value, then the real value of all such property, both the real and personal, on the first day of January, next preceding and that I will make up and attach to each assess- ment sheet made up and sworn to by the said property owners, their agents or representatives, a true assessment and valuation of said property, together with a memoranda of all facts which I may learn bearing upon the value of said taxable property, and that I will make all possible inquiry relative to the true value of such property and that I will attach said memoranda and state- ment of facts that I may ascertain as aforesaid to the said assess- ment sheets of the respective property owners. That I have read and understand the several provisions of the constitution and laws of this State relative to the valuation of taxable property, and that I will faithfully do and perform every duty required of me as tax assessor (or deputy tax assessor) by the constitution and laws of this State, so help me God." This oath shall be administered by the County Clerk and shall be in duplicate ; the original shall be by the Clerk filed and recorded in the records of the County and the duplicate shall be retained by the assessor or deputy as the case may be. Art. 5124-c. When a Commissioners' Court in this State con- venes as a board of equalization, before considering the subject of equalization of property values for the purposes of taxation, each member of the Court, including the County Judge, shall take and subscribe to the following oath : "I, , a member of the board of equalization of County, for the year A. D. , hereby solemnly swear that in the performance of my duties as a member of such board for said year, I will not vote to allow any taxable property to stand assessed on the tax rolls of said County for said year at any sum which I believe to be less than its true market value, or if it has no market value, then its real value; that I will faithfully endeavor and as mem- 106 Taxation in Texas. ber of said board will move to have each item of taxable property which I believe to be assessed for said year at less than its true market value or real value, raised on the tax rolls to what I believe to be its true cash market value, if it has a market value, if not, then to its real value, and that I will faithfully endeavor to have the assessed valuation of all property subject to taxation within said County stand upon the tax rolls of said County for said year at its true cash market value or, if it has no market value, then its real value, I further solemnly swear that I have read and understand the provisions contained in the constitution and laws of this State relative to the valuation of taxable prop- erty and that I will faithfully perform all the duties required of me under the constitution and laws of this State, so help me God." Said oath shall be filed and recorded in the Commissioners' Court record as a part of the proceedings of that term of Court. Art. 5124-d. If in passing upon the value of any property by a Commissioners' Court sitting as a board of equalization in this State, the Court shall fix a value upon any property for the pur- pose of taxation and a minority of said Court do not concur in the judgment of the Court the Clerk shall record in the minutes of the Court the names of the members, including the County Judge, who do not concur in fixing such values (if the County Judge shall cast the deciding vote in such matter), and if any tax assessor or members of any Commissioners' Court in this State shall knowingly fail or refuse to fix the value of property rendered for taxes in compliance with this Act, and • all other laws of this State, such failure, neglect or refusal shall consti- tute malfeasance in office on the part of such assessor or mem- ber pr members of said Court, and such failure, neglect or refusal shall be cause for his or their removal from office. Art. S124-e. Whenever the fact is brought to the knowledge of the Attorney General of this State that any tax assessor, dep- uty tax assessor, county judge or member of the Commissioners' Court has failed, refused or neglected to comply with the provi- sions of this Act, he shall at once file suit for the removal from office of such officer or officers thus oflfending. Such proceed- ings for the removal of such officer or officers herein provided for shall be brought in the district court of the county of such officer's residence, and such suit shall be brought by the Attorney General of the State or under his direction. Act. 30 Leg. 459. CHAPTER V. ASSESSMENT OF UNRENDERED PROPERTY. Sec. Sec. 119. Unrendered— How rendered. 123. Unrendered property shall be 120. Back taxes on unrendered ascertained, etc., by asses- lands, sor. 121. Assessor to make rolls of un- 124. Unrendered property list in rendered property. cities to be examined by 122. Tax sale of unrendered prop- board. erty— How it should be as- 125. Assessment of property not sessed. assessed for taxes. §119. Unrendered — How rendered. "And all lands and other property not rendered for taxation by the owner thereof shall be assessed at its fair value by the proper officer." Constitution of Tex., Art. 8, Sec. 11. The proper officer referred to in the above cited constitutional provision (Sec. 5, Art. 8, St. Const.) is the one authorized by law to make the assessment, and under the charter and ordinances of the City of Houston the only proper officer prior to 1882 was the Board of Appraisement and since 1882 the City Assessor and Collector of Taxes of the City of Houston. See above cited Charter and Ordinance provisions. San Antonio St. Ry. Co. v. City of San Antonio, 54 S. W. 907, 22 Tex. Civ. App. 341. Each assessment must be for one year only where the law pro- vides for an annual assessment. Copying the roll of a former year does not make one ; there is no provision in the Constitution requiring an assessment to be made on the roll of a preceding year .and a tax based upon the valuation of a year other than that of the year for which it was originally assessed is invalid. 1 Desty on Taxation, p. 460, and cases cited ; Cooley on Taxation, p. 352. If the assessor of taxes discovers any real property in his county subject to taxation which has not been listed to him, he shall list and assess such property in the manner following, to-wit : 1. The name of the owner; if unknown say "unknown." 2. Abstract number and number of certificate. 3. Number of the survey. 4. Name of the original grantee. 108 Taxation in Texas, 5. Number of acres. 6. The true and full value thereof. 7. The number of lot or lots. 8. The number of the block. 9. The true and full value thereof. 10. The name of the city or town, and give such other de- scription of the lot or lots or parcels of land as may be necessary to better describe the same ; and such assessment shall be as valid as if rendered by the owner thereof. Art. 5119, R. S. § 120. Back taxes on unrendered lands. In all cases where lands or real estate have not been assessed for taxation for any year since the year one thousand eight hun- dred and seventy, the same shall be assessed and the taxes thereon collected in the mode prescribed in this chapter. (Act. Aug. 19, 1876, p. 214, Sec. 1.) R. S. Art. 5213. § 121. Assessor to make rolls of unrendered property. The assessor of taxes shall, after his list of unrendered real and personal property shall have been examined, corrected and approved by the board of equalization as provided by law, prepare and make out his rolls or books of all unrendered real and per- sonal property listed by him in the manner and form prescribed by the comptroller of the State. (Act 1876, p. 271.) R. S., Art. 5128. § 122. Tax sale of unrendered property — How it should be assessed. In order to constitute a valid tax sale of unrendered property subject to taxation, it is essential that the proper officer shall sub- stantially comply with Section 14 of "An act to define the duties, powers, qualifications of assessors of taxes, and to regulate their compensation." Acts of 1876, p. 269, R. S., Art. 4711. That section provides as follows : "If the assessor of taxes discover any real property in his county, subject to taxation, which has not been listed to him, he shall list and assess such property in the manner following, to-wit: (I), the name of the owner; if unknown, say "unknown" (of) the number of lot or lots (8), the number of the block (9), the name of the city or town ; and give such other description of the lot or lots, or parcels of land, as may be necessary to better describe the same, and such assess- Assessment of Unrendered Property. 109 ment shall be as valid as if rendered by the owner thereof." Where an assessment was made in a blank book, which failed to comply with the requirements of the statute above quoted, it does not aflford such evidence of a valid assessment of the prop- erty as will support a sale of it for taxes. Our Supreme Court in the case of House v. Stone, 64 Tex. 680, commenting on this assessment, says : "It contains no recitals which show that the assessor did, as such officer, make the assessment which the sched- ule and plat indicates he may have designed to make. The stat- ute contemplates the performlance by him of a formal, solemn act which is to constitute the basis for enforcing, if necessary for the collection of the taxes due on property, the divestiture of the owner's title to it ; and act should clearly manifest upon its face its character and intention by appropriate recitals and state- ments, if its validity as an assessment is left to stand alone upon such schedule disconnected from any other evidence than its ex- istence in a blank book in which the assessor assessed the prop- erty in question. Whether such assessments are made by the officer and entered in books kept as records in his office or otherwise, the evidence of the act of assessment of the property must be made clearly to appear. If entered by the assessor in a blank book kept in his office, the mere use of such a book for such a purpose in no wise dispenses with the necessity of his showing in his entries that he officially and solemnly acted in the premises by a recital of the doing of all such acts as were necessary to be done in order to subject the property thus assessed by him to sale for taxes on it. The authority for the officer's making the assessment is that the property has not been listed to him, as declared in Section 14, Acts 1876, supra (R. S., Art. 4711), and we think the assess- ment made by the assessor should show, in some appropriate man- ner, that it was done by him in accordance with such authority, and that the assessment thus made was of property falling within the category of such that was thus subject to taxation, and had accordingly been assessed by him. The tabular schedule in evidence failed to show that it was the result of an assessment of real property subject to taxation, made by the assessor, nor did it otherwise identify the property assessed, unless by mere inference that the diagram represented a 110 Taxation in Texas. block of lots, and that the columns represented the owners of them, with the assessor's valuation thereof. There is nothing on the face of the paper which refers the matter contained in it to any character of transaction, or which connects the various items of names and figures with any particular kind of property. Con- sidered abstractly, by itself, it might as well refer to matters wholly disconnected with the subject of assessment of real prop- erty for unpaid taxes, or unrendered taxable property. The statute itself establishes and prescribes the rule of cer- tainty in respect to the identification of the property to be as- sessed, and requires the assessor to list and assess it in accord- ance therewith. This requirement contemplates a written list and assessment, and it must be sufificient to afford a basis for the further proceedings which the law contemplates may result in a sale of the property thus listed and assessed. On this branch of the subject. Burroughs in his treatise on taxation. Section 96, says : "It must not be supposed that because, in the class of cases we are considering, the land is proceeded against and the name of the owner is not essential, there is any less necessity for a de- scription of the land by which it can be readily identified. There must be something more than parol proof to show that a partic- ular tract was meant to be assessed. This may consist of a name connected with a title of some kind once existing in connection with the land, or a number, or a known designation, and ad- joinder, a settlement, or some circumstance to lead to a knowledge of the land assessed. It does not help the matter to call it a pro- ceeding in rem. A thing to be the subject of a legal proceeding must have some means of ascertainment. Parol evidence can not be used to show that a tract on the list was intended for a par- ticular tract. Titles which should rest in the breast of the officer making the levy would be of all things most transitory. The lots of land must be definitely and distinctly described, and parol proof can not supply the deficiency in the description or bound- aries. These must be ascertained from what is written. The question is not one of intention, but one of fact — what did the assessors do? Which is the specific lot on which the tax is laid? These questions must be answered from the record." The list and assessment fails to identify with any degree of certainty the lot in question, nor does it with the required certainty indicate "the number of the lot" — nor "the number of the block" Assessment of Unrendered Property. Ill — nor "the true and full value" of the lot — nor does it indicate "the name of the city or town," nor "give such other description of the lot * * * as may be necessary to better describe the same." The instrument of writing does not contain in it anything which affords upon its face the particulars of designation as to the above named matters, which the law contemplates shall be shown. A compliance with the requirements of the statute was one of the prerequisites of a valid sale of the property, and a noncom- pliance with which, and the statutes regulating sales of property for taxes, miust be deemed fatal to the defendants' title. House v. Stone, 64 Tex. 677 ; Moss v. Shear, 85 Amer. Dec. 97. § 123. Unrendered property shall be ascertained, etc., by assessor. "It shall be the duty of the assessor and collector, at the expira- tion of the time fixed by ordinance for the rendition of property, to ascertain such property in the city subject to taxation as has not been rendered, and the same shall be by him presented to the board of equalization for valuation by said board, and the same shall be by him entered in a supplement to the assessment roll as unknown, specifying the year for which said tax is not paid within the time prescribed by law; said property shall be sold at the same time and with like effect as other property. Sayles R. S., Art. 503. § 124. Unrendered property list in cities to be examined by board. The city assessor at the same time that he delivers to the board of equalization his lists and books as provided in Article 507 (see Sayles Revised Statutes) shall also furnish to said board a certified list of the names of all persons who either refuse to swear or qualify or to sign the oath or affirmation as required by law, together with a list of the property of such persons situated within the corporate limits of their city, as made by him through other information, and said board shall examine said lists and appraise the property so listed by the assessor. Sayles R. S., Art. 509. § 125. Assessment of property not assessed for taxes. An act to authorize and require the Comptroller, whenever it shall appear that any lands subject to taxation in any county have not been assessed for taxes for any year since, and including the 112 Taxation in Texas. year 1900, to make a list thereof and deliver the same to the county tax assessor, and to require the tax assessor to assess the same for taxes for such years ; to provide for the collection of such taxes, making it a misdemeanor upon the part of the tax assessor, county judge and members of the Commissioners' Court to intentionally or willfully fail or refuse to perform any of the acts herein required ; and providing for prosecutions of such of- fenses upon information in any county of the judicial district to which such county belongs other than the county in which the offense is committed. Section 1. Be it enacted by the Legislature of the State of Texas : That whenever it shall appear to the Comptroller of Public Accounts of the State from an inspection of the tax rolls of any county of the State, or otherwise, that any lands in such county subject to taxation have not been assessed for taxation for any year since, and including the year 1900, it shall be his duty, and he is hereby required to make a list of such lands and send the same to the tax collector of such county by registered letter, properly addressed, accompanying such list with instruc- tions to such tax assessor to assess such lands for taxes for the years for which they have not been assessed as shown by said list. Sec. 2. Upon receipt of such list the tax assessor shall immedi- ately post a copy of such notice and list at the courthouse door of his county, noting upon such copy the date of such posting; and the owners of the lands embraced in such list shall have the right at any time within twenty days of such posting to render the same to the tax assessor for the taxes for the years for which they have not been assessed for taxes, or for any of such years as shown by such notice, in the same manner as is provided for the rendition of other property for taxes under the provisions of the General Laws for that purpose. Sec. 3. Should any of the said lands remain unrendered by the owners or owner thereof, under the provisions of Section 2 of this Act, for any of the years for which the same have not been assessed according to said notice and lists, for twenty days after the date of the posting of such notice, it shall be the duty of the tax assessor, and he is hereby required, immediately upon the expiration of such time, to assess for taxes at their true value such lands so remaining unrendered and unassessed for each of Assessment of Unrendered Property. 113 the years since and including the year 1900, and including the year such lists are made up by the Comptroller, listing the same in the name of "Unknown Owners," and charging up to said lands the taxes, State and county, for which they are liable for each of such years, valuing such lands at their true and full value as provided in Article 5088, Revised Civil Statutes. If any of said lands are lands purchased from the State as belonging to the school fund, the university, or any of the asylums of the State, and held under such contract of purchase upon which a part of the purchase money is still due, such lands being unpatented, no deduction shall be made in the value of said lands for, or on account of, such unpaid purchase money, but they shall be val- ued at their full and true value as though paid out and patented. Sec. 4. The tax assessor shall make up lists showing such assessments and deliver the same to the county judge, who shall at once, unless a regular session is held within ten days there- after, call a meeting of the Commissioners' Court in special ses- sion, as a board of equalization for the purpose of passing upon said assessment lists in the manner provided in case of regular assessments in so far as the provisions of the statute with regard thereto are applicable. It shall be the duty of the Commis- sioners' Court without delay to act upon said supplemental as- sessment lists as to the value of the property embraced, and when said values have been equalized as required by law, to approve the same, and to approve the rolls made up by the tax assessor in accordance therewith ; provided, that the Commissioners' Court shall have no authority to alter said assessment lists, or in any way interfere with such assessments, except as to the values of property embraced therein, in equalizing the same as provided by law, and to strike therefrom any lands that have been already assessed for taxes at their true market value for the years for which they are assessed on said supplemental rolls and such taxes paid. Sec. 5. After such supplemental assessment lists as are herein provided for have been passed upon by the board of equalization as herein provided, supplemental tax rolls shall be prepared by the tax assessor and approved by the Commissioners' Court as is required by law in case of the regular assessment for taxes, and thereafter the taxes due according to such supplemental rolls 114 Taxation in Texas.. shall be collected as in case of other taxes, and if not paid, such proceedings shall be had for their collection as in case of other taxes. Sec. 6. If any tax assessor, or the county judge, or any mem- ber of the Commissioners' Court shall intentionally or willfully neglect, fail or refuse to perform any of the acts herein required to be done by such officers, he shall be guilty of a misdemeanor, and on conviction thereof shall be punished by fine of not less than one hundred, nor more than five hundred dollars, or by im- prisonment in the county jail for not less than one month nor more than one year, or by both such fine arid imprisonment. Such offenses may be prosecuted upon indictment or information in any county of the judicial district to which such county belongs other than the county in which the offense is committed. Sec. 7. For making the supplemental assessments provided herein the tax assessor shall be entitled to the same fees to be paid in the same manner as is provided by law in case of regu- lar assessments. This act is cumulative of all other laws upon the same subject. Act 29 Leg., p. 321. CHAPTER VI. RE-ASSESSMENT OF PROPERTY FOR TAXES, WHICH HAS NOT BEEN ASSESSED, OR WHICH HAS BEEN IMPROPERLY ASSESSED. Sec. Sec. 126. State and county taxes. 131. The boards to value such 127. Assessment of real property lands. for previous years. 132. Three rolls to be made. 128. Back taxes on unrendered 133. Assessment of back taxes due lands. cities and towns. 129. Comptroller to prepare list 134. Re-assessment. each year. 135. Act of 1897 did not validate 130. Comptroller to forward list. assessment for back years. § 126. State and county taxes — Assessment of property not rendered. If the assessor of taxes discovers any real property in his county subject to taxation which has not been Hsted to him, he shall list and assess such property in the manner following, to- wit : 1. The name of the owner; if unknown, say "unknown." 2. Abstract number and number of certificate. 3. Number of the survey. 4. Name of the original grantee. 5. Number of acres. 6. The true and full value thereof. 7. The number of lot or lots. 8. The number of the block. 9. The true and full value thereof. 10. The name of the city or town, and give such other de- scription of the lot or lots or parcels of land as may be necessary to better describe the same ; and such assessment shall be as valid as if rendered by the owner thereof. R, S. 5119. § 127. Assessment of real property for previous years. If the assessor of taxes shall discover in his county any real property which has not been assessed or rendered for taxation for any year since 1870, he shall list and assess the same for 116 Taxation in Texas. each and every year for which it has not been assessed, in the manner prescribed in the preceding article, and such assessment shall be as valid and binding as though it had been rendered by the owner thereof; but no such real property shall be assessed by the assessor unless he has ascertained by the certificate of the comptroller of public accounts the fact that the records of his office do not show that the property has been rendered or assessed for the year in which he assesses it. R. S., Art. 5120. § 128. Back taxes on unrendered lands. In all cases where lands or real estate have not been assessed for taxation for any year since the year one thousand eight hun- dred and seventy, the same shall be assessed and the taxes thereon collected in the mode prescribed in this chapter. R, S., Art. 5213. § 129. Comptroller to prepare list each year. On the first day of July of each year the comptroller of public accounts shall cause to be prepared a list of all unrendered lands in each county subject to taxation and not assessed, in which shall be specified the name of the original grantee, the abstract number, the number of acres, the year for which such lands were unrendered, and the rate of State and county taxes for such year. R. S., Art. 5214. § 130. Comptroller to forward list Upon completion of such lists the comptroller shall forward the same to the board of equalization of the respective counties, with the verification that the said list is a true and correct state- ment of all the unrendered land and real estate in county for the year , as shown by the records of his office. R. S., Art. 5215. § 131. The boards to value such lands. Upon receipt of such list or lists by the' board of equalization of such county, it shall be their duty to value each and every tract of land or parcel of real estate so mentioned and described in the said lists at their true and full value, as near as can be ascertained, for the year it was omitted to have been rendered. R. S., Art. 5216. § 132. Three rolls to be made. When the board of equalization shall have completed the val- uation they shall cause to be made out three separate rolls, in Re-assessment of Property, Etc. 117 such manner as may be prescribed by the comptroller; they shall place one in the hands of the collector of taxes, forward one to the comptroller of the State, and file one in the office of the county clerk for the inspection of the public. R. S., Art. 5217. § 133. Assessment of back taxes due cities and towns. Whenever the assessor and collector shall ascertain that any taxable property, real or personal, has not been assessed for the past year, he shall assess the same in a supplement to his next assessment for such year, stating the year for which such prop- erty should have been assessed, and the taxes thereon shall be collected in the same manner as other assessments. In all cases where any party has omitted to render property for taxation for any former year or years, and such taxes have not been paid, such party shall give such property in for assessment for the years thus omitted and pay such taxes, and the assessor and col- lector shall enter all such property in a supplement to his next assessment roll, under the head of payments for former years. Sayles R. S., Art. 504; Acts 1875, p. 113, Sec. 97. § 134. Re-assessment. Sec. 138 of the charter of the city of Dallas reads as follows: "If the assessor shall discover any real or personal property which was subject to taxation for any previous year, and which from any cause has escaped taxation for that year, he shall assess the same in a supplement to his next assessment roll at the same rate under which such property should have been assessed for such year, and the taxes thereon shall be collected in the same manner as other assessments." Under this section property which was thus assessed on a supplemental roll was held to be a valid assessment. Scollard v. City of Dallas, 42 S. W. R. 640, 16 Tex. Civ. App. 620. § 135. Act of 1897 did not validate- assessment for back years. "It was not competent for the Legislature by the act of 1897 to make valid assessment for back years when said assessments were invalid at the time they were made." Conklin v. El Paso, 44 S. W. 883; Railway v. Poindexter, 7 S. W. 317, 70 Tex. 98 ; Henderson v. White, 69 Tex. 103 ; Morgan v. Smith, 70 Tex. 637; St. Const., Art. — , Sec. 16; Sayles Stats., Art. 5119 (4711) ; Const., Art. 8, Sees. 11, 15 ; Clegg v. State, 42 Tex. 605 ; Labadie V. Dean, 47 Tex. 90. CHAPTER VII. DELINQUENT TAX ACT OF 1905, PROVIDING FOR THE ASSESSMENT AND COLLECTION OF TAXES IN CERTAIN CASES. Sec. Sec. 136. Taxes — Providing for the as- 141. Parties — Joinder. sessment and collection. 142. County attorney cannot con- 137. Act 29th Legislature, Ch, 130, tract. Sec. 7, valid. 142a. Who may be employed to 138. Mandamus to turn over per- make. centage need not be set out 142b. Cannot transefer tax as in detail. compensation. 139. Tax collector duties in regard 142c. Compensation — Quantum to paying percentage. meruit. 140. Adequate remedy. § 136. Taxes — Providing for the assessment and collection of in certain cases. Acts 1905, pp. 318-319-320. Chapter 130. An act to provide a method for the assessment and collection of taxes on real properties omitted from the tax rolls for any year or years since the year 1884, and a method of re-assessing and collecting the tax on real properties on which former assess- ments are found to be invalid, or which have been declared in- valid by any district court for any reason in any suit to enforce the collection of taxes on said properties. To validate certain described assessments made under various methods, and to pro- mote generally the collection of all delinquent taxes. Section 1. That whenever the Commissioners' Court of any county in this State shall discover, through notice from the tax collector or otherwise, that any real property has been omitted from the tax rolls for any year or years since 1884, or shall find that any previous assessment on any real property for the years mentioned are invalid, or have been declared invalid for any rea- son by any district court in a suit to enforce the collection of taxes on said properties, they may, at any meeting of the court, order a list of such properties to be made in triplicate and fix a compensation therefor. Delinquent Tax of 1905, Etc. 119 The said list to show a complete description of such properties and for what years such properties were omitted from the 'tax rolls, or for what years the assessments are found to be invalid and should be cancelled and re-assessed; or have been declared invalid and thereby cancelled by any district court in a suit to enforce the collection of taxes ; provided, that no re-assessment of any property shall be held against any innocent purchaser of the same, if the tax records of any county fail to show any assess- ment (for any year so re-assessed) by which said property can be identified and that the taxes are unpaid. The above excep- tion, with the same limitation, shall also apply as to all past judg- ments of district courts cancelling invalid assessments. Sec. 2. When said list has been made up in the manner pre- scribed in Section 1, the Commissioners' Court may, at any meet- ing, order a cancellation of such properties in said list that are shown to have been previously assessed, but which assessments are found to be invalid and have not been cancelled by any former order of the Commissioners' Court, or by decree of any district court, and shall then refer such list of properties to be assessed or re-assessed to the tax assessor, who shall proceed at once to make an assessment of all said properties, from the data given by said list (the certificate of the State Comptroller as to assessments or re-assessments made by the tax assessor shall not be necessary as required under Article 5120-a, Revised Statutes, but he shall furnish all blank forms needed, that uniformity may be had in all counties), and when completed shall submit the same to the Commissioners' Court, who shall pass upon the valuations fixed by him, and when approved as to the values, shall cause the taxes to be computed and extended at the tax rate in effect for each separate year mentioned in said list and in addition thereto, shall cause to be added a penalty equal in amount to what would be six per cent interest to the date of making said list from the date such properties would have been delinquent had same been properly rendered by the owner thereof at the time and for the years stated in said list; provided, that the certificate of any tax collector of this State, given during his term of office, that all taxes have been paid to the date of such certificate on any certain piece of property, which is fully described in such certificate, or if the tax rolls of any county fail to show any assessments against such property sufficient to identify it and that the same 120 Taxation in Texas. was unpaid at the dates such rolls may have been examined to as- certain the condition of any property as to taxes unpaid, this shall be a bar to any re-assessment of such property under this Act for any years prior to the date of such certificate or such examinations; provided that the property referred to, when re- assessed, shall be held by an innocent purchaser, who has relied upon the correctness of such certificate or the tax rolls heretofore referred to. Sec. 3, The said list, when complete in all respects, as di- rected in the preceding sections, and filed with the tax collector, shall constitute a valid lien against all the properties mentioned in said list for the full amount of taxes, penalties, officers' costs, advertising and six per cent interest from the date of said list to the date of the payment of the full sum due on each separate piece of property. A copy of said list and all cancellation orders shall be furnished to the State Comptroller and a copy filed with the county clerk. Sec. 4. The Commissioners' Court shall proceed to have such list of properties advertised in the manner provided in Article 5232-e, Revised Statutes, as amended by Section 5, Chapter 103, Acts of the Regular Session of the Twenty-fifth Legislature, after which suit may be filed in the same manner as provided by law for the enforced collection of delinquent taxes. Sec. 5. In all cases of delinquent taxes of unrendered and un- known property where there appears to be an assessment of the same at a valuation excessive and unreasonable, the Commis- sioners' Court of any county shall be authorized to correct or reduce such values on the request of the tax collector with a full statement of the facts in each case, which statement and the action had thereon and the name of each commissioner voting for or against the reduction in valuation asked for shall be entered upon the minutes of the court and a certified copy of. the action had thereon shall be furnished to the Comptroller of the State, and when the values are so corrected or reduced, payment of taxes shall be accepted in accordance with such reduction, to which shall be added interest, penalty, advertising and costs, as provided by law. Sec. 6. If the Commissioners' Court of any county in this State shall deem it expedient to contract with any person to en- force the collection of any delinquent State and county taxes, Delinquent Tax of 1905, Etc. 121 or to make up a list of properties referred to in this Act, and to enforce the collection of taxes thereon for a per cent of the taxes, penalty and interest actually collected and paid to the collector of taxes, the State Comptroller shall be authorized to join in said contract and allow the same per cent for State taxes that is contracted to be paid by the Commissioners' Court for the col- lection of county taxes, which shall not exceed ten per cent, except in case of absolute necessity to employ an attorney to push the filing and prosecution of tax suits, and to pay for report of an abstract company as to the owner of property assessed as unknown or unrendered, and as to the holder of any liens against the same, in which case fifteen per cent additional may be allowed. It shall be the duty of the county attorneys of the several coun- ties (or of the district attorney where there is no county attorney) to actively assist the person with whom the contract is made, by filing and pushing to a speedy conclusion all necessary suits for the collection of delinquent taxes under any contract; provided, that where any district or county attorney shall fail or refuse and in good faith to prosecute such suits, he shall not be entitled to any fees from such suits; provided, that where any district or county attorney fails or refuses to bring these suits when re- quested to do so by the Commissioners' Court or by the person having a contract herein provided for, then the contractor shall be authorized to employ some other attorney to file these suits in the name of the State, in the same manner provided by law now to enforce the collection of delinquent taxes. Sec. 7. In all suits to enforce the collection of delinquent taxes where the assessment of any property for any year is invalid by reason of the failure of the assessor to comply with the pro- visions of law for the description of any lot, block or tract of land, or to give a separate value on each lot, block or tract of land, known as "bulk assessments," or to enter upon the lists (similar to that used for the listing of rendered property, to be signed by the owner) all items of property assessed to unknown owners, all such assessments are hereby validated and given the same force and effect as if the descriptions, the separate valua- tions, and the listing, were in all respects strictly in compliance with the law; provided, as to description, that the descriptions given are sufiicient to identify the property ; as to separate values, that the valuations and the taxes shown upon the tax rolls (in 122 Taxation in Texas. what are called "bulk assessments") can be fairly prorated to each separate lot, block or tract of land; and as to listing, that the valuation given on the tax rolls upon properties assessed as unknown are found to have been entered upon the assessor's block book as the original assessment, instead of listing as in rendered assessments, and then entering upon the tax rolls. Sec. 8. The various counties of this State which have not heretofore made and published a delinquent tax record under the provisions of Chapter 103, Acts of the Regular Session of the Twenty-fifth Legislature, are hereby authorized and it shall be their duty to make and publish the same to date hereof, and when so done it shall have the same force and effect as if made and published under that Act, and any county which has here- tofore made a delinquent tax record for any number of years is hereby authorized and empowered to re-compile the same to date hereof and may compile each year thereafter under the pro- visions of said Act. Acts 1905, pp. 318-319-320. § 137. Acts 29th Leg., Chap. 130, Sec. 1, valid. "Acts 29th Legislature, Chap. 130, Sec. 7 (Gen. Laws 1905, p. 320), purporting to validate certain tax assessments defective for insufficient description of the property, or for failure of as- sessor to list the property for the approval of the commissioners, was not invalid as being retroactive where the matters omitted in both the description and listing were formalities not essential to the protection of the taxpayer, and could be dispensed with by the Legislature either in advance of the assessment or by an act validating the same." Haynes v. State, 99 S. W. 405 ; 44 Tex. Civ. App. 492. § 138. Mandamus to turn over percentage need not be set out in detail. ''The petition for mandamus to compel the tax collector of a county to pay B. 10 per cent of all moneys collected by B. on de- linquent tax rolls, alleging a contract of the county with B. to so pay him, and an order of the Commissioners' Court directing de- fendant to make such payment, need not set out in detail the con- tract, but only its substance, to show the interest of plaintiffs, B,, and the county in the order of the Commissioners' Court, compliance with which is sought." Bailey v. Aransas County, 102 S. W. 1159, 46 Tex. Civ. App. 547. Delinquent Tax of 1905, Etc. 123 § 139. Tax collector duties in regard to paying percentage. "The fact that the tax collector of a county is not a party to a contract of the county with B. to pay him a certain per cent of all moneys collected by him on delinquent tax rolls does not affect the duty of the tax collector to obey an order of the Commis- sioners' Court to make payment to B. according to such con- tract." "The Commissioners' Court, under its general powers to man- age the county finances, and direct how the county funds shall be paid out, is authorized to order the tax collector of the county to pay B., according to a contract of the county with him, a cer- .tain per cent on all moneys collected by B. on delinquent. tax rolls, such commissions being costs of collection, which the tax collector, under Rev. St. 1895, Art. 828, authorizing him to retain the commission due himself and the assessor, and to make such payments as he 'may be required to pay out of any money on hand,' is not bound to pay to the treasurer." "The fact that B. may be authorized under the contract of a county with him to pay him 10 per cent of the moneys collected by him does not justify the county tax collector in refusing to obey the order of the Commissioners' Court requiring him to pay B. 10 per cent of the moneys received by the tax collector from collections procured by B. in the performance of his contract ; B. not having retained anything therefrom." Bailey v. Aransas County, 102 S. W. 1159, 46 Tex. Civ. App. 547. § 140. Adequate remedy. "An exception that there is an adequate remedy at law to a pe- tition for mandamus to the tax collector of a county to pay B., according to a contract of the county with him and an order of the Commissioners' Court to such tax collector, a certain per cent of all moneys collected by B. on delinquent tax rolls, is prop- erly overruled, as, though B. would not lose his right to' com- pensation for services under his contract by failure of the tax col- lector to obey the order, his right under the contract to have his commissions paid out of the collections as made could be en- forced only by mandamus to the collector." Bailey v. Aransas County, 102 S. W. 1159, 46 Tex. Civ. App. 547. § 141. Parties — Joinder. "Where a county contracts to pay B. 10 per cent of the moneys collected by him on delinquent tax rolls, and the Commissioners'- 124 Taxation in Texas. Court orders the county tax collector to make such payments to B., the interest of B. and the county is such as to authorize them to join in a petition to compel the collector to comply with such order." Bailey v. Aransas County, 102 S. W. 1159, 46 Tex. Civ. App. 547. Parties holding contract not authorized to receive taxes and injunction will not lie to restrain them from so receiving. String- er V. Holley, 105 S. W. 1146. § 142. County attorney cannot contract. "Under Acts 29th Leg., p. 318, Chap. 130, authorizing the Commissioners' Court to contract with any person for the en- forcement of delinquent taxes, or to make up delinquent tax lists, and requiring the county attorney to assist the person with whom the county may contract to enforce the collection of the delin- quent taxes, for a percentage thereof, the county attorney can not contract to prepare delinquent tax lists and collect delinquent taxes." Stringer V. Franklin County, 123 S. W. 1168. § 142a. Who may be employed to make "The purpose of Delinquent Tax Act (Acts 25th Leg., p. 132, Chap. 103), requiring the Commissioners' Court of each county to cause to be prepared a delinquent tax list, and to have the same recorded in a delinquent tax record, is to empower the Com- missioners' Court to require the tax collector to prepare the list; but, as such duty is not one of the governmental functions annexed to the office, the Commissioners' Court may employ an- other to do the work." Stringer v. FKanklin County, 123 S. W. 1168. § 142b. Cannot transfer tax as compensation. "The Commissioners' Court of a county has not authority, under Delinquent Tax Act (Acts 25th Leg., p. 132, Chap. 103), requiring the Commissioners' Court to cause a delinquent tax list to be prepared, to allow an individual, as compensation for pre- paring delinquent tax lists, the right to collect and retain all that portion of the taxes shown on the delinquent lists to belong to the county, since such a contract attempts to transfer the official duty of the tax collector in collecting delinquent taxes, and since it is an effort to barter to private individuals the county sources of revenue." Delinquent Tax of 1905, Etc. 125 "A contract employing an individual to prepare delinquent tax lists, as authorized by the Delinquent Tax Act (Acts 25th Leg., p. 132, Chap. 103), in consideration of the right to collect and retain all of the delinquent taxes shown by the delinquent lists to be due to the county, if valid at all, operates as ah assignment to the individual of the claims and liens which the county had against the property included in the delinquent lists ; and a subse- quent attempt by the Commissioners' Court to rescind after the individual had performed the services is ineffectual, and the county is not liable on account thereof, and if the collector of taxes interferes and asserts his legal right to collect the delin- quent taxes, the county is not liable for more than the sum appro- priated by it." Stringer v. Franklin County, 123 S. W. 1168. § 142c. Compensation — Quantum meruit. "The fact that the consideration agreed on in a contract em- ploying an individual to prepare delinquent tax lists, under De- linquent Tax Acts (Acts 25th Leg., p. 132, Chap. 103), empow- ering the Commissioners' Court to cause delinquent tax list to be prepared, is in excess of the authority of the Commissioners' Court, and for that reason unenforceable, does not preclude a recovery of the reasonable value of the services, on the Com- missioners' Court failing to exercise the statutory authority to fix the compensation." "The statement of the amount which one employed to prepare delinquent tax lists might have realized under his contract, if he had been permitted to collect delinquent taxes, as authorized thereby, is not a statement of the value of the services in an action for a quantum meruit." Stringer vs. Framklin County, 123 S. W. 1168. CHAPTER VIII. BULK ASSESSMENT. Sec. Sec. 143. Act of 1897 power to correct 149. Lot must be separately as- bulk assessments. sessed except when ren- 144. Tract or lot defined. dered by owner. 145. Where two lots belong to one 150. Contiguous tracts held by one owner and form one parcel title. of land, they may be as- 151. Taxes lien on each separate sessed for taxation together. tract of land — City property 146. If two lots are used as one no exception. assessment together good. 152. Owner estopped where his 147. Assessment when approved rendition is adopted on un- by taxpayer is binding al- rendered roll. though irregular. 153. Assessment to be corrected — 148. Requisites as to tax roll, do Bulk. not apply to assessment. § 143. Act of 1897 — Power to collect bulk assessments. Under the Act of 1897 it is provided that the tax collector, in preparing the delinquent tax record, shall be required in bulk as- sessments to apportion to each tract or lot of land separately its pro rata share of the entire tax, penalty and cost. Act 1897, p. 133, Sec. 3. § 144. Tract or lot defined. The State statutes under the head of Taxation defines the term "tract or lot" and "piece or parcel" of real property, and "piece of land" and says that wherever used in reference to tax- ation shall be held to mean any quantity of land in possession of, owned by, or recorded as the property of the same claimant, per- son, company or corporation. (Act 1876, p. 275, Sec. C.) S. R. S., Art. 5064. § 145. Where two lots belong to one owner, and form one parcel of land, they may be assessed for taxation together. Generally, it is required by statute that separate and distinct parcels of land shall be separately assessed ; and, when so re- quired, it is imperative that the requirement should meet with Bulk Assessment. 127 strict compliance on the part of the assessor. No difficulty arises in the formulation of the rule, but when an application of the rule, and a determination of what may constitute a separate piece or parcel of land, are to be reached, the assessor may meet with embarrassment and much difficulty. In the case of Jennings v. Collins, 99 Mass. 29, several lots were assessed together to one Packard, and the court said : "If the lots had all been the prop- erty of Packard at the time the tax was laid, the mere fact that he had divided the land into small lots for the purpose of sale would not require the assessors to make a separate valuation of each lot. But where lands are separated either by the use or pur- pose to which they are devoted, or by the mode of their occupa- tion, or are disconnected in location, a tax laid generally upon an entire valuation can not be made a lien upon each separate parcel, even when they are all owned and occupied by the same person." The soundness of the rule enunciated has never, so far as we know, been questioned, and, unless in conflict with our Constitution and statutes on the subject, should receive consid- eration at the hands of our courts. Under the^ Constitution of 1869, each lot or separate tract of land was liable only for its own taxes, and it was in view of the constitutional provision that the decisions were rendered in Clegg v. State, 42 Tex. 605 ; State V. Baker, 49 Tex. 763 ; and Edmonson v. City of Galveston, 53 Tex. 157. There is no such provision in the present Constitu- tion, but in that instrument it is provided that the annual assess- ment on landed property shall be special lien thereon, and that all property, real and personal, belonging to any delinquent tax- payer, shall be liable to seizure and sale for the payment of all the taxes and penalties due by such delinquent. Const., Art. 8, Sec. 15. There is a provision, however, to the effect that a homestead shall not be subject to forced sale, except for the purchase money or taxes assessed thereon, or for labor and material expended thereon ; and it was in view of that provision that an assessment was held invalid that assessed other lots with the homestead, no separate value being given. Jodon v. City of Brenham, 57 Tex. 655. In the case of Masterson v. Staie, 42 S. W. 1003 (decided by this court), it was, in effect, held that the lien for taxes at- tached to all the land owned by a delinquent; and it was said, "We know of no provision that the taxes due on one tract in an assessment are a lien on that tract only." In that case a lien was 128 Taxation in Texas. foreclose on 81 tracts of land to pay a lump sum of $684.27. The decision was passed upon, and a writ of error refused by the Supreme Court ; and, the point referred to being the central one in the case, it must necessarily have met the approval of that court. It would seem that what has been said would dispose of whatever potency or effect there might be in the decisions made under the old Constitution. Guerguin v. City of San Antonio, 50 S. W. 141, 19 Tex. Civ. App. 98. In the last cited case of Guerguin v. City of San Antonio a writ of error was denied by the Supreme Court. § 146. If two lots are used as one, assessment together good. If two town lots are occupied and used as one lot, the buildings thereon being partly on each they may be sold for taxes together as one lot ; their use and nature determining that they are to be regarded as one lot. Guerguin v. City of San Antonio, 50 S. W. R. 142, 19 Tex. Civ. App. 98; Weofver v. Grant, 39 Iowa 294. § 147. Assessment when approved by tax-paying is binding although irregular. "Under Art. 439 of the Revised Statutes the city of Oak Cliff passed an ordinance requiring all persons owning property with- in the city, under penalty, to file a complete inventory of all property possessed or controlled by them within said city limits, not exempt from taxation, and required that the list should be verified by affidavit, and furnished to the assessor and collector. Court of Civil Appeals says : 'The property, as described in the original petition and in the judgment, was assessed by the asses- sor and collector upon an inventory of said property made by plaintiffs in error and delivered to said assessor and collector, as required by law, and the assessment was made upon said prop- erty, describing it as it was described in said inventory. In most instances where there are two or more lots in the same block they are unimproved and of equal value, and where two or more lots are assessed in the same block and the aggregate amount of taxes on the same is sought to be enforced, the aggregate amount of taxes on same is ascertained by adding up the assessed value of each of said lots. Where two or more lots are assessed together they are not contiguous and joining, unless their num- bers will so indicate; where the numbers are consecutive they are joining; when not consecutive they are not adjoining.' " Bulk Assessment. 129 It has been held, where separate and distinct tracts or parcels of land are assessed together as one tract, and the aggregate tax is sought to be enforced against the several parcels, that such assessments were void. Clegg v. The State, 42 Tex. 607; The State V. Baker, 49 Tex. 763 ; Edmonson v. The City of Galves- ton, 53 Tex. 157; Schleicher v. Gatlin, 85 Tex. 273. In none of these cases is it made to appear that the assessment was made in accordance with the inventory rendered by the taxpayer. The cases seem to discuss the question of the validity of the assess- ment upon the theory that it is alone the act of the assessor. In the case of The State v. Baker, supra, it is said : "We are not to be understood, however, by anything which we now or have heretofore said, as either holding or intimating that either lot^ or blocks in a town or city, or originally distinct and separate surveys or grants in the country, if listed and assessed by the owner, or with his knowledge and approbation, as a single tract or parcel or land, may not be subject to a lien for the aggregate tax thus assessed; or that two or more originally separate tracts or parcels' of land, either in town or the country, may not be so used and occupied by the owner as to warrant their assessment as a single tract. This question is not presented for our de- termination by this record, and it will be time enough to con- sider it when we are called upon to do so." All of the cases above referred to upon this point have related to State and not city taxes, with the exception of the case of Edmonson v. Galveston, supra. This case holds that the same rule will apply to the assessment of city taxes as that which ap- plies to State taxes. Under the authorities above quoted, it would appear that the assessment made in this case was illegal, unless the fact that the assessment was in accordance with the inventory furnished by plaintiffs in error should affect the question. It would seem to be more in harmony with justice and sound reason, that an assess- ment made in the manner requested or approved by the taxpayer would be a valid assessment. There might be reasons which would render it more convenient and to the interest of the tax- payer to have it so assessed than to have the assessments made against the various parcels. At any rate, the tax assessor as- sessed the property in the manner in which the taxpayer presented it to him for assessment, and we do not think that plaintiffs 9 130 Taxation in Texas. in error should now have the privilege of raising objection to the manner in which the taxes were assessed against the property. I Blackwell on Tax Titles, Sec. 279; Trust Co. v. City of Oak Cliff, 8 T. C. A., p. 221. § 148. Requisites as to tax roll — Do not apply to assessment. Ordinances of the city of San Antonio requiring the tax roll furnished to the collector to describe the property by lot and block, and state the value of each parcel separately, does not apply to the assessment. Guerguin v. City of San Antonio, 50 S. W. 141, 19 Tex. Civ. App. 98. § 149. Lot must be separately assessed except when ren- dered by owner. A tax can not be recovered upon a lot or block of land situ- ated in a city, when such lot or block has been assessed jointly with some other lot or block unless the property had been ren- dered by its owner to be assessed jointly. Without such rendi- tion by the owner, each lot or block must have its value sepa- rately assessed before there can be any tax levied on it. Mc- Combs V. City of Rockport, 141 T. C. A. 561 ; State v. Baker, 49 Tex. 763. The lots into which town or city blocks are subdivided are gen- erally regarded as separate and distinct tracts or parcels of land, as much so as separate and distinct, though adjoining, surveys or grants in the country ; and each lot should be separately assessed, but if listed or assessed by the owner, or with knowledge and approbation as a single tract, is subject to a lien for the aggre- gate tax assessed. State v. Baker, 49 Tex. 76Z ; McCombs v. City of Rockport, 37 S. W. 988, 14 Tex. Civ. App. 560. "Where the statute requires the taxpayer to render an inven- tory of his property, it will be presumed that he furnished the description on the roll, and that the assessment of several lots together as one parcel is proper." Turner v. City of Houston, S. W. Reporter, Vol. 51, p. 642, 21 Tex. Civ. App. 214. Where lots were assessed according to the description and grouping in the owner's inventory, furnished by the assessor, as required by law, although such assessment was irregular, be- cause several lots were assessed together, the owner can not ques- tion its regularity. Bulk Assessment. 131 Where property taxed for city purposes is otherwise sufficient- ly described on the assessment rolls according to the description furnished by the owner, and as required by a city ordinance, the failure to state the abstract and survey numbers does not invali- date the assessment." Dallas Title and Trust Co. v. City of Oak Cliff, 27 S. W., p. 1036, 8 Tex. Civ. App. 217. Certain realty was assessed by the owner as six separate par- cels, and though these were divided into lots, the lots in each were contiguous, and comprised six tracts of unimproved land. Held, that since the owner, instead of giving the value of each lot, gave the aggregate value of the lots in each of the six tracts, and as the Constitution provides that a lien for taxes shall at- tach to all the property, one who purchased such land for taxes could not object that the assessment was void because it did not fix the value of each lot separately." City of San Antonio v. Raley, 32 S. W. Rep. 181. An assessment is not void because the property is not accurately described on the tax rolls, where the description is in accord- ance with the list furnished by the owner himself, and is suffi- cient for the identification of the property." Eustis v. City of Henrietta, 37 S. W. Rep. 632 ; McCombs v. City of Rockport, 37 S. W. Rep. 988, 14 Tex. Civ. App. 560. "Where lots were assessed according to the description and grouping in the owner's inventory furnished the assessor, as re- quired by law, although such assessment was irregular because several lots were assessed together, the owner can not question its regularity." Dallas Title & Trust Co. v. Oak Cliff, 27 S. W. 1036, 8 Tex. Civ. App. 217; 1 Blackwell on Tax Titles, Sec. 279. "If a taxpayer lists and values several parcels as one, and they are so assessed, he can not, nor can his grantee, afterwards ob- ject to such assessment." Cooley on Taxation, p. 403, note; Al- bany Brewing Co. v. Meriden, 48 Conn. 243 ; Lane v. Succession of March, 33 La. 554; Carter v. New Orleans, 33 La. An, 816; Black on Tax Titles, Sec, 103, note 91. Separate Assessment of Tracts. — "Under Rev. St. 1895, Art. 5088, providing that each separate parcel of realty shall be at its true value, the several tracts owned by a property owner should be assessed separately, and not as a whole." Lufkin Land & Lumber Co. v. Noble, 127 S. W. 1093. 132 Taxation in Texas. § 150. Contiguous tracts held by one title. "As a general principle, where contiguous tracts of land are conveyed and held by one title as one tract, and are used and occupied as a single tract, they are to be assessed together as one tract even though they may lie in different municipal divisions, and though they may be separated by a natural boundary such as a river," Black on Tax Titles, Sec. 103 ; Hairston v. Stinson, 13 Ared. 479; Edwards v. Sims, 40 Kan. 235, 19 Pac. R. 710; Dodge V. Emmons, 34 Kan. 732, 9 Pac. R. 951. § 151. Taxes lien on each separate tract of land — City prop- erty no exception. "It has been heretofore decided by this court {Clegg v. The State, 42 Tex. 605; The State v. Baker, 49 Tfx. 763), in cases involving State taxes, that the lien given by the Constitution of 1869 for the taxes assessed against land (Art. 12, Sees, 19-22) is a charge merely upon each separate tract of land for the taxes assessed thereon. Unless, therefore, there is a distinction between city and State taxes which renders this constitutional restriction applicable to the latter and not to the former, the judgment in this case was unwarranted, and must be reversed." There is certainly nothing in the language of the Constitution from which we can infer that a different or more enlarged lien should be had by towns and cities to secure and enforce the pay- ment of municipal taxes than exists for those assessed in favor of the State. The Constitution in the sections referred to seems to be deal- ing with the general subject of taxation; and we can see no reason why it is not equally applicable to assessments by coun- ties, cities and towns, as by the State, nor has any been pointed out or attempted to be shown by defendant in error." Edmonson V. City of Galveston, 53 Tex. 161 ; Clegg v. State, 42 Tex. 605 ; State V. Baker, 49 Tex. 764; McCoinbs v. City of Rockport, 37 S. W. R. 988, 14 Tex. Court Civ. App. 560; Maddox v. City of Rockport, 38 S. W. R. 397 ; Jordan vs. City of Brenham, 57 Tex. 657 ] Schleicher, Admr., v. Gatlin, 85 Tex. 273-274. Each lot into which town or city blocks are subdivided, is gen- erally regarded as a separate and distinct tract or parcel of land, as much so as separate and distinct, though adjoining, surveys* or grants in the country, and should ordinarily be separately Bulk Assessment. 133 assessed for the taxes with which it is properly chargeable, — as was, in effect, held by us in the case of Clegg v. The State, 42 Tex. 605; and the lien given by the Constitution (Constitution 1869, Art. 12, Sees. 19-22) is a charge merely upon each separate tract for the tax assessed against it. The decision in that case we regard as decisive of this one, and requires an affirmance of the judgment. We are not to be understood, however, by anything which we now or have heretofore said, as either holding or intimating that either lots or blocks in a town or city, or originally distinct and separate surveys or grants in the country, if listed and assessed by the owner, or with his knowledge and approbation, as a single tract or parcel of land, may not be subject to a lien for the aggre- gate tax thus assessed; or that tvvo or more originally separate tracts or parcels of land, either in town or country, may not be so used and occupied by the owner as to warrant their assess- ment as a single tract. The State v. Baker, A9 Tex. 764. The difference between our present Constitution and the Con- stitution of 1869 and the case of State v. Baker is commented on in the case of Guerguin v. City of San Antonio, 50 S. W. 141, cited and quoted. § 152. Owner estopped where his rendition is adopted on unrendered roll. Owner estopped by his acts in assessing. Unless the several lots of the taxpayer are used together for one purpose and as one piece of property, he is entitled to have each lot assessed separately; but it has been uniformly held that, if the owner renders the property in bulk, he is estopped from claiming that such assessment was illegal. Harris v. City of Houston, 21 Tex. Civ. App. 432, 52 S. W. 653 ; Turner v. City of Houston, 21 Tex. Civ. App. 214, 51 S. W. 642; McCombs v. City of Rockport, 14 Tex. Civ. App. 560, 37 S. W. 988; Guerguin v. City of San Antonio, 19 Tex. Civ. App. 98, SO S. W. 140. In the cases cited the bulk assignment complained of was for years in which the property was rendered by the owner, but we think the same principle should apply when the city in assessing un- rendered property adopts the rendition previously made by the owner, and we so held in the case of Railway Co. v. City of Gal- veston, 77 S. W. 269, 8 Tex. 372. City of Houston v. Stewart, 90 S..W. 53. 134 Taxation in Texas. § 153. Assessment to be corrected — Bulk. Under the Acts of 1897, p. 133, Sec. 3, it is provided that the tax collector, in preparing the delinquent tax record, cor- rections and omissions, in the description of any real estate em- braced in such list or lists shall be made so that, when the corrections are made and the omissions are supplied, the de- scription will be such as is given in the abstracts of all the titled and patented lands in the State of Texas, and it shall be re- quired in bulk assessments to apportion to each tract or lot of land separately its pro rata share of the entire tax, penalty and cost. CHAPTER IX. ASSESSMENT— DESCRIPTION IN. Sec. Sec. 154. Sufllciency of description. sesses. (a) Sufficient against owner 158. Description— Failure to give good as to purchaser. abstract and survey num- 155. Description — Literal compli- ber. ance not required. 159. Description — Object and 156. Sufficiency of description in purpose of. rolls no variance where full 160. Omission of certificate or sur- description is given in peti- vey number. tion. 161. Description sufficiency of — 157. Rigid description not re- Parol evidence to show quired where owner as- property admissible. § 154. Sufficiency of description. "An assessment for taxation of property described as follows : 'Name of owner, unknown. No of acres, . No of lots, 25x100. No. of block, 61,' etc., was invalid; the number of the lot not being given, and there being other lots of the same di- mensions in the block." "An assessment for taxation of property .described as follows : 'Name of owner, G. G. Wright. No. lots, 25x100. No. block, 61/ was valid, since by ascertaining what lot Wright owned in the block it could be definitely ascertained what particular lot was meant." "No more particularity of description of property is required in a tax assessment than in a conveyance or a partition decree." Slmighter v. City of Dallas, 107 S. W. 48. Sufficient against owner, good as to purchaser. "An assessment of real estate, which sufficiently describes the property as against the owner, is sufficient as against a subse- quent purchaser." Slaughter v. City of Dallas, 103 S. W. 218. § 155. Description — Literal compliance not required. It is required by the city ordinances of the city of San An- tonio that the assessor shall make out a roll of the assessable property, giving "the name or names of the owners of property when known, the description of property assessed sufficient to 136 Taxation in Texas. identify, stating the lot, block or part thereof, when the same is real property." In passing upon this ordinance the Court of Civil Appeals, in the case of Hernandez v. City of San Antonio, 39 S. W. 1024, says : "In assessing the lands of appellants, the assessor did not give the lot or block numbers, but each parcel of land is described, so that there can be no question as to its identity, and the separate valuation of each is given. It is the contention of appellants that, the assessments not following strictly the terms of the ordinance, they are illegal and void. In other wjDrds, it is insisted that unless there is a- literal compli- ance with the requirements of the ordinance as to description, the assessment was not binding upon appellant. "The purpose of the ordinance was, doubtless, to require such description as would enable the owner of the land or other in- terested party to know what property is burdened with the tax, and any description that would supply that knowledge, we be- lieve, would meet the spirit of the requirements of the ordinance. "The description of the property undoubtedly fixes its iden- tity, and such description would be held sufficient in a deed con- veying the property. We are not disposed to hold that an eva- sion of the payment of taxes can be predicated upon any such technicality." Hernandez v. City of San Antonio, 39 S. W. 1024; 15 Tex. Civ. App. 299. Where the whole of a tract of land is assessed for taxes by number and grant, the fact that the survey is stated to contain 640 acres, when it really contains 706 acres, does not invalidate the assessment as to any part of the tract. Kenson v. Gage, 79 S. W. 607. The Supreme Court has given it as a general rule which gov- erns in determining the sufficiency of the description of property embraced in an assessment for taxes is that such description is sufficient when it furnishes the means by which the property can be identified from the description itself, or by the use of extrinsic evidence to apply that description to the property. Eu-stis v. City of Henrietta, 39 S. W. 567; 90 Tex. 468. In order to know what property is assessed, resort may be had to extraneous evidence so as to apply the description given in the assessment to the property as found on the ground, and thus arrive at a satisfactory identification of the property. Eustis V. City of Henrietta, 39 S. W. 568. , Assessment — Description In. 137 "Description of property, as contained in an assessment, as: 'Store S. 4th and Mary Sts.,' owned by 'Moore Bros.,' is suf- ficient for the purpose of an action to enforce a Hen for the taxes, there being no difference between the several lots as to their liability for taxes, though the ordinance provides for giv- ing the numbers of the block and lots." Cooper Grocery Co. v. City of Waco, 71 S. W. 619; 30 Tex. Civ. App. 623. § 156. Sufficiency of description in rolls no variance where full description is given in petition. "The description of the property as found in the tax rolls was as follows: 'Abstract No. 112. Original grantee, H. Burk- hardt. Chas. D. Grace, owner. Situated in city of Bonham,' fol- lowed by valuation for each year, and 'Acres rendered, 27}^.' It is insisted that the description is not in compliance with law, and does not form a sufficient basis for the foreclosure of a lien and is different from the description of the land set out in the petition. The description of the land in the assessment of 1898 was made by the plaintiff in error, and is the same as that in the assessment of the other years, which presumably were made by him. The main object in giving a description of the property against which taxes are assessed is to give the owner notice of such charge against his property. The rule as to description in an assessment is held in Pennsylvania to be that 'it affords the means of identification, and does not positively mislead the owner.' Woodside v. Wilson, 32 Pa. St. 52. In New York it is said: 'An assessment of nonresident land is fatally defective and void if it contain such a falsity in the designation or descrip- tion of the parcel assessed as might probably mislead the owner, and prevent him from ascertaining by the notices that his land was to be sold or redeemed.' Tallman v. White, 2 N. Y. 66. The description of the land in the assessment rolls could not possi- bly have had any tendency to mislead the owner, because he ren- dered it as all the real property possessed by him in Bonham, and he testified in the case that he did not own any land in the Burkhardt survey except the land described in the petition. Dal- las Title & Trust Co. v. City of Oak Cliff, 8 Tex. Civ. App. 217, 27 S. W. l036;Scollard v. City of Dallas, (Tex. Civ. App.) 42 S. W. 640. In the case of State v. Farmer, (Tex. Sup.) 59 S. W. 541, it was said: 'If the description given in the assessment is 138 Taxation in Texas. such that, by applying it to the land, it can be identified, it is a substantial compliance with the requirements of the statute, and the lien attached.' See, also, Eustis v. City of Henrietta, 90 Tex, 468, 39 S. W. 567. The description in this case was al- most a literal compliance with the ordinance, which required, when persons rendered their property, that they should state the name of the owner, the abstract number of survey, number of certificate, original grantee, the number of acres, and the full and true valuation thereof. Article 499, Rev. St., gives cities and towns full authority to pass such ordinances as may be deemed proper to the levying, laying, imposing, assessing, and collecting taxes. The land was described in the petition by field notes, and it is alleged that it is the same land described in the tax rolls, and is the only land owned by plaintiflF in error in Bonham off the Burkhardt survey. There was no doubt about the land de- scribed in the petition and that described in the assessment rolls being one and the same. Eustis v. City of Henrietta, (Tex. Civ. App.) 37 S. W. 632. The introduction of the ordinance which permitted the pleader in suits for delinquent taxes to give a perfect description of land not fully described in the assessment roll, and to identify the property aliunde the roll, was not errone- ous. It conferred no right that was not possessed without it, and in no event could its admission have affected plaintiff in error injuriously." Grace v. City of Bonham, 63 S. W. 158; 26 Tex. Civ. App. 161. § 157. Rigid description not required where owner assesses. "The rigid observance of statutory requirements, with refer- ence to the description of property listed for taxation by an assessor, does not apply where the owner has himself listed the property, in which case an insufficient description would not con- stitute a defense to proceedings to enforce the taxes." McMickle V. Rochelle, 125 S. W. 74. The authorities are plain that a taxpayer cannot complain of description given by himself, but is bound by it. Jeffries v. Clark, 22 Kan. 448 ; Etistis v. Henrietta, 37 S. W. 632. "In an action to foreclose a tax lien, the defendant can not de- feat the tax on the ground that the property was not sufficiently described in the assessment when such description was furnished to the assessor by the defendant himself." Scollard v. City of Dallas, 42 S. W. 640; 16 Tex. Civ. App. 620. Assessment — Description In. 139 "An assessment is not void because the property is not accu- rately described in the tax rolls, where the description is in accord- ance with the list furnished by the owner himself and is sufficient for the identification of the property." Eustis v. City of Hen- rietta, Z7 S. W. 632. "Rev. St. 1895, Art. 5098, requires persons rendering a list of taxable property to swear to the same; Article 5103 directs as- sessors to make a list of taxable property belonging to each per- son; Article 5126 directs assessors to submit all such lists to the board of equalization; and Article 5127 directs assessors to make out tax rolls from the list as corrected by the board of equaliza- tion. Held, that the tax rolls are to be made. out from such list made up from information furnished by property owners." Lofton V. Miller, 118 S. W. 911. § 158. Description — Failure to give abstract and survey num- ber. "In a suit to foreclose certain tax Hens against a person un- known, a description of the property in the petition as 'Lot No. 4, of Block L. of Cockrell's Fairland addition to the city of Dal- las' and giving the name of the book and page of the record where a map could be found, showing the location of the lot, was sufficient, though it did not give the name of the survey of which the property was a part, abstract number, certificate number, survey number, and number of acres in the survey.'' "Rev. St. 1895, Art. 5119, provides that the assessor shall list the realty in his county subject to taxation, giving the name of the owner; if unknown, say 'unknown'; abstract number and number of certificate, number of survey, name of the original grantee, number of acres, value thereof, number of lot or lots, number of the block, value thereof, and the name of the city or town. Article 5111 requires the assessor to make an abstract of all blocks or subdivisions of each of the cities or towns or villages of his county in a book in which there shall be blank spaces for diagrams of the several blocks or subdivisions. Held, that a description in the tax rolls of certain city property assessed as 'Owner unknown, abstract No. , certificate No. , survey No. , original grantee , acres in grant , city or town, Dallas ; number of lot, 4 ; number of block, L ; value, $100, Cockrell's Fairland Addition,' was sufficient, since, with 140 Taxation in Texas. the aid of the acts required of the assessor by Article 5111, the owner or other persons interested would be enabled to know upon what particular parcel of land the taxes were demanded." Haynes V. State, 99 S. W. 405, 44 Tex. Civ. App. 492. § 159. Description — Object and purpose of , The main objects to be attained in the description are (1) that the owner may know what land is assessed; (2) that the public may know what land is to be sold; and (3) that the pur- chaser may know what land he buys. Mr. Cooley, in discussing the question of description in assessment, says: "The owner, if it has been prepared by himself, will read it in connection with his own knowledge of those surrounding circumstances in the light of which he has framed it; but an equally imperfect de- scription prepared by another, and unaccompanied by such cir- cumstances, would fail to convey to his mind any idea that his own land was intended." (Cooley on Taxation, 405.) Again, the same learned writer, after discussing the various rules, says : "A more satisfactory rule would seem to be that 'the designation of the land will be sufficient if it affords the means of identifica- tion, and does not positively mislead the owner, or be calculated to mislead him.' " Scollard v. City of Dallas, 42 S. W. 640, 16 Tex. Civ. App. 620 ; Cooley on Taxation, pp. 405 and 407. § 160. Omission of certificate or survey number. "Where the land is sufficiently identified therein, the assess- ment for taxation is valid, though it contains no certificate or sur- vey number." Taber v. State, 85 S. W. 836, 38 Tex. Civ. App. 235. § 161. Description — Sufficiency of — Parol evidence to show property admissible. Mr. S. informs me that he has a contract to make a compiled delinquent tax record for Washington County and has requested me to prepare and submit to you an opinion relative to the valid- ity of certain assessments appearing delinquent in that county. The statement he submits is in part as follows : "There is a lot of misdescribed city property which can be more perfectly described. This goes into the record. "The remaining city property is divided into three classes, or considered under three heads, which may be illustrated by the following examples : Assessment — ^Description In. 141 "First Class : Mose Williams, one lot in Washington. "Second Class : Louisa Radford, Brenham, one lot in Barbee's Addition. "Second Class: Geo. Ousley, one lot. Burton. "Are these valued assessments, and if not, and no better de- scription can be had, what disposition of them should be made?" Assuming that the tax levies were legal and that the procedure in listing and assessing the property was regular, the question presented as to the validity of the assessments depends entirely upon the description of the property assessed. "The general rule which governs in determining the sufficiency of the description of property embraced in an assessment for taxes is that such description is sufficient when it furnished that means by which the property can be identified by the description itself or by the use of extrinsic evidence to apply that description to the property." Eitstis et al. v. City of Henrietta, 90 Tex. 471, and authorities cited. In the Eustis case the property in the assessment involved was described by giving the name of the owner, the year for which the assessment was made, name of the addition and number of the block, being the entire block. There was no addition in the city by the name given. In sustaining this assessment the Su- preme Court said : "If we test the sufficiency of the description given in the assess- ment made in the present case, we find that the entire block is assessed as the property of W. G. Eustis ; that it is situated in the city of Henrietta and is Block 31 in that city on land granted to McKinney and Williams or in an addition made by them to the city of Henrietta. By examination of the records we learn that the city was located in whole or in part, as the case may be, upon the McKinney and Williams Survey ; that there was a block number 31 in the city of Henrietta upon that survey claimed by W. G. Eustis, and also that there is no addition to the city of Henrietta known as the McKinney and Williams addition. Thus, by resorting to extraneous evidence, which is frequentlv neces- sary, we can apply the description given in the assessment to the block of land as found upon the ground and thus arrive at a sat- isfactory identification of the property." In the case of Slaughter v. The City of Dallas, 107 S. W. 48, an assessment was sustained in which the property was described 142 Taxation in Texas. as follows : "Name of owner, G. G. Wright. No. of acres . No. lots, 25x100. No. block, 61. Value ground, $7,875. Value of improvements, $2,000. Description, Main Street." After holding the assessment of this property invalid for the year 1892 under the same description set out above, except that the name of the owner was not given (the reason for holding the assess- ment invalid being solely that the name of the owner was not given), the Supreme Court said : "But with regard to the assessments for the other years the case is different. In each of them it is stated, in effect, that G. G. Wright is the owner of the lot, which is the same as if it had been added, 'which lot is owned by G. G. Wright.' By ascertain- ing what lot Wright owned in the block, it can be definitely as- certained what particular lot is meant, and the rule, 'That is cer- tain which can be made certain,' applies." After referring to and discussing two other cases on the suffi- ciency of the description of land and lots in a probate sale and a partition decree, the court goes on to say: "Now, can any more particularity be required in a tax assess- ment than in a conveyance or a decree of partition? We think not. There are no degrees in certainty. What is certain in the one case must be certain in the other, and what can be made cer- tain in the one case can be made certain in the other. If any dis- tinction should be made, it would seem to be in favor of more generality in tax assessments." In the case of Taffinder v. Merrell, 95 Tex. 95, to which the Supreme Court refers in the Slaughter case, the property involved was described in the partition decree merely as "Two lots in the town of Hamilton. Valued at $40 each." It was shown by testimony that the lots in controversy were owned by Taffinder and wife and that they owned no other lots in that town. In passing upon the sufficiency of this description the court says in part: "We are of the opinion that the description of the two lots in Hamilton in the decree of partition in estate of Mrs. Bivens was sufficient. "Under the decisions of this court, it is proper to look not only to the order itself but to the inventory and to the report of the commissioners. By these documents and by the order taken to- gether, the property referred to, not merely as two lots in the Assessment — Description In. 143 town of Hamilton, but as the two lots in that town owned by Taffinder and wife as community property. All that it was neces- sary to do in order to identify the property was to ascertain the lots which were thus owned, and the evidence shows that this was easily done. The stated ownership of the lots was in itself a circumstance of description which led to the identification." The cases to which I have referred are not all the authorities on this question, but they establish the proposition that any de- scription is sufficient when it furnishes the means by which the property can be identified from the description itself, or by the use of extrinsic evidence to apply that description to the prop- erty. In the assessment of Louisa Radford, if it can be affirmatively shown that she owned a definitely described lot in Barbee's addi- tion to Brenham in the year for which the assessment was made ; that she owned no other lot in that addition during that year and that she rendered the property embraced in said assessment, it would seem that this would bring the case within the rule an- nounced by the Supreme Court in the Slaughter case. In that case, the name of the owner and the block number only were given, and the court said: "By ascertaining what lot Wright owned in the block, it can be definitely ascertained what partic- ular lot is meant, and the rule, 'That is certain which can be certain,' applies." The holding in the Taffinder case would cer- tainly make this description sufficient. The description in illustrations under the second and third classes submitted by Mr. Goodlett, are hardly as good as the one in the first class, but they are equally as definite as were those in the Taffinder v, Merrell case, and as was said by the court in the Slaughter case, "If any distinction should be made, it would seem to be in favor of more generality in tax assessments." I think the description in each of the cases submitted is a suffi- cient basis for a suit to foreclose the tax lien. I take it, that the lots owned by each of the persons named in the assessments can be definitely identified from the county records and city maps. If this is so, and proof can be made by oral testimony or otherwise that these were the only lots owned by such persons in that town during the year for which the assessment was made, I think the State's case will be fully made out. 144 Taxation in Texas. A correct description of the property — such as will identify it — as well as the description as shown in the assessment, should be set out in the State's petition, and then such other appropri- ate allegations should be made as would show, or that would admit proof, that the lot described in the assessment is the same lot covered by the definite description. If the point should be made that the provisions of the statutes with reference to the description of city property for the purpose of assessment or the listing thereof have not been complied with, I refer you to Section 7, Chapter 130, page 320, Acts of the 29th Legislature, which validates assessments defective in these re- spects. This act was passed upon and sustained by the Court of Civil Appeals at Dallas, in the case of Haynes v. State, 99 S. W. 405. In sustaining the act, the court said : "The matters omitted in both the description and listing were formalities not in any way essential to protect the taxpayer, and could have been dispensed with by the Legislature in advance, and may be dispensed with by an act validating such assess- ments," The second question is, if the assessments are invalid and no better description can be had, what disposition of them should be made? Sections 1 and 2 of Chapter 130 of the Acts of the 29th Leg- islature authorize the Commissioners' Court to cancel invalid as- sessments and cause the property to be re-assessed for the years for which the assessments are cancelled. If the property upon which the invalid assessments stand still belong to the persons against whom it is assessed, I am of the opinion that you would have no difficulty in enforcing collection upon a re-assessment, but if it has changed hands, the case will be different. Section 1 of said act contains the following provision: "Provided, that no re-assessment of any property shall be held against any innocent purchaser of the ^same, if the tax records of any county fail to show any assessment (for any year so re- assessed) by which said property can be identified, and that the taxes are unpaid. The above exception, with the same limitation, shall also apply as to all past judgments of district courts, can- celing invalid assessments." Assessment — Description In, 145 I think the holding of the Supreme Court in the case of Farmer V. State, 94 Tex. 232, would preclude a recovery upon a re-assess- ment of property in the hands of a purchaser who acquired the same subsequent to the year for which the assessment was made, eveij in the absence of the act above referred to. In that case it is said: "It does not matter that the purchaser knew that the taxes had not been paid, for until the assessment was made, the land was not incumbered by the State's demand ; and when the title passed to Farmer, Stephens and Lanham, it passed free of any claim of the State for taxes which had not theretofore been assessed." Opinion of B. F. Teague, Tax Attorney, Comptroller's Depart- ment. 10 CHAPTER X. ASSESSOR AND HIS DUTIES. Sec. 162. 163. 164. 165. 166. 167. 168. 169. 170. 171. 172. 173. 174. 175. 176. 177. 178. 179. 180. 181. 182. 183. 184. 185. 186. 187. 188. 189. 190. Sec. Assessor — Election of. 191. Duty of assessor and collector 192. of cities to make lists of 193. property, etc. Unrendered property in cities 194. shall be ascertained, etc., by city assessor and collector. 195. Election and term of asses- sor. 196. Vacancies — How filled. 197. Oath and bond. Purview of the bond. 198. New bond. Bond for county taxes. 199. May appoint deputies. May administer oaths. 200. The oath. Where and how the list may 201. be made. 202. Penalty for failure to attest 203. oath, etc. Fraud upon the public rev- enue. 204. Taxpayer to make oath. 205. When assessments to be made. 206. Irregular assessments valid. 207. If taxpayer is absent, etc. 208. Or refuses to list. Duty of assessor. 209. Abstracts to be furnished. 210. Books to be furnished. How to be filled. Blocks and lots in cities. Duties of assessor as to 211. same. To be kept in office. Lands not on abstract. 212. Certificate from board of equalization. Substitute to be employed. Unorganized counties. Manner and form of assess- ing. Assessment of real estate for all previous years. Assessor to follow instruc- tions. Duty to properly assess. Assessor to furnish list of delinquents. Assessor to furnish list to board of equalization. Assessor shall make out rolls in triplicate. Also rolls of unrendered property. Assessor to add up columns. Return and oaths. All lists and statements to be filed with the county clerk. Rolls to be distributed. Compensation of assessor of State and county taxes. How paid by the State. By the county. Penalties for neglect of duty. Assessor of taxes. Fees less than maximum' — Statements of fees collect- ed — Excess to be paid into county treasury. Deputies and assistants- Appointment and compen- sation. Penalty for failure to charge up fees for remis- sion of fees, etc. Assessor and His Duties. 147 Sec. Sec. 213. Payment of ex-officio serv- 217. Fiscal year — At what time ices. reports must be made, and 214. Officers to keep a correct by whom. statement — Accounts to be 218. Commission in school dis- examined by grand jury. ^ trict tax. 215. Certain officers not required 219. Compensation for funded in- to make a report or keep a debtedness, statement. 220. Duty of assessor as to un- 216. Statement of tax collector rendered property. and assessor, § 162. Assessor — Election of There shall be elected by the qualified electors of each county, at the same time and under the same law regulating the election of State and county officers, an assessor of taxes, who shall hold, his office for two years and until his successor is elected and qual- ified. State Const., Sec. 14, Art. 8. § 163. Duty of assessor and collector of cities to make lists of property, etc. It shall be the duty of the assessor and collector to make out a list of all personal property which has not been given in for assessment according to the provisions of this title, and assess the same in the name of the owner, if he be known ; if not, then it shall be assessed by description of the property, and as un- known owner, and the value of such property shall be determined by the board of equalization, and the same may be sold as in other cases, if the tax be not paid in the time prescribed by law. Sayles R. S., Art. 502. § 164. Unrendered property in cities shall be ascertained, etc., by city assessor and collector. It shall be the duty of the assessor and collector, at the ex- piration of the time fixed by ordinance for the rendition of prop- erty, to ascertain such property in the city subject to taxation as has not been rendered, and the same shall be by him presented to the board of equalization for valuation by said board, and the same shall be by him entered in a supplement to the assessment roll as unknown, specifying the year for which said tax is not paid within the time prescribed by law; said property shall be sold at the same time and with like effects as other property. Sayles R. S., Art. 503. 148 Taxation in Texas. § 165. Election and term of assessor. There shall be elected by the qualified electors of each county within this state, at the same time and under the same law regu- lating the election of State and county officers, an assessor of taxes, who shall hold his office for two years, and until his suc- cessor is elected and qualified. (Const., Arts. 8, 14 ; Acts Aug. 21, 1876, p. 265, 1.) Art. 5089, R. S. § 166. Vacancies — How filled. In case of a vacancy in the office of assessor of taxes, the same shall be filled by the County Commissioners' Court for the unex- pired term only and until the election and qualification of an as- sessor at the succeeding general election ; and the person ap- pointed to fill such vacancy shall qualify in the same manner as is prescribed by law for assessors of taxes and shall have all the rights and shall perform all the duties required by law of the assessor elected. R. S., Art. 5090. § 167. Oath and bond. Every assessor of taxes within twenty days after he shall have received notice of his election or appointment and before enter- ing upon the duties of his office, shall execute a bond, payable to the Governor and his successors in office in a sum which shall be equal to one-fourth the amount of the State tax of the county, as shown by the last preceding assessment, but not to exceed ten thousand dollars, with at least three good and sufficient sureties, to be approved by the Commissioners' Court of his county, condi- tioned that he will faithfully discharge all the duties of said office; and shall take and subscribe the oath prescribed by the Constitution, which oath, together with said bond, shall be re- corded in the office of the clerk of the County Court of said county, and be forwarded by the county judge of the county to the comptroller to be deposited in his office. (lb., p. 266, 2.) R. S., Art. 5091. § 168. Purview of the bond. Said bond shall be deemed to extend to the faithful perform- ance of the duties of his office as assessor of taxes for and dur- ing the full term for which he was elected or appointed, and shall not become void upon his first recovery, but suit may be main- tained thereon until the whole amount thereof be recovered. (lb.) R. S., Art. 5092. Assessor and His Duties. 149 § 169. New bond. Assessors of taxes may be required to furnish a new bond and an additional security whenever, in the opinion of the Commis- sioners' Court, it may be advisable; and should any assessor of taxes fail to give a new bond and additional security when re- quired, he shall be suspended from the further discharge of his duties by the Commissioners' Court of his county and be removed from office in the mode prescribed by law for the removal of county officers. (lb.) R. S., Art. 5093.' § 170. Bond for county taxes. The assessor of taxes shall give a like bond with like conditions to the county judges of their respective counties and their suc- cessors in office in a sum not less than one-fourth of the amount of the county tax of the county as shown by the last preced- ing assessment, but not to exceed five thousand dollars, with at least three good and sufficient sureties, to be approved by the Commissioners' Court of his county, which bond shall be re- corded and deposited in the county clerk's office of the county. A new bond and an additional security may be required, and the assessor of taxes may be removed from office for a failure to furnish a new bond or additional security in the manner pre- scribed by law. (lb. 3.) R. S., Art. 5094. § 171. May appoint deputies. Each assessor of taxes may appoint one or more deputies to assist him in the assessment of taxes, and may require such bond and security from the person so appointed as he deems neces- sary for his indemnity ; and the assessor of taxes shall in all cases be liable and accountable for the proceedings and misconduct of his deputies. (lb., p. 267, 7.) R. S., Art. 5095. Authority of deputies. The deputies appointed in accordance with the provisions of the preceding article shall do and perform all the duties imposed and required by law of assessors of taxes and all acts of such deputies done in conformity with law shall be as binding and valid as if done by the assessor of taxes in person. (lb., 8.) R. S., Art. 5096. The acts of de facto deputy assessors, in raising the valuation of property listed for taxes, are not rendered invalid because they may have been legally disqualified from acting as deputies 150 Taxation in Texas. by reason of their holding other offices. T. & P. R. R. Co. v. Harrison County, 54 Tex. 1 19. "Under Acts 25th Gen. Assem., p. 10, Chap. 5, Sec. 12, provid- ing that the county judge, on issuing his order granting author- ity to appoint deputy assessors, shall state in such order the number of deputies authorized, and the amount to be paid each, a proviso in such an order that the office shall yield revenue suf- ficient to pay the same, is mere surplusage, and does not vitiate the order. McLennan County Co. v. Frost, 7S S. W. 876, 32 Tex. Civ. App. 617. § 172. May administer oaths. Assessors of taxes are hereby authorized and empowered to administer all oaths necessary to obtain a full, complete and cor- rect assessment of all taxable property situated in their respective counties. (lb., 266, 4.) R. S., Art. 5097. § 173. The oath. The assessor of taxes shall also require each person rendering a list of taxable property to him for taxation under the assess- ment laws to subscribe to the following oath or affirmation, which shall be written or printed at the bottom of each inventory, to- wit : "I, (filling the blank with the name of the person subscribing), do solemnly swear (or affirm) that the above in- ventory rendered by me contains a full, true and complete list of all taxable property owned or held by me in my own name (or for others, as the case may be, naming the person or firm for whom he rendered the list) in this county, subject to taxation in this county, and personal property not in this county, subject to taxation in this county by the laws of this State on the first day of January, A. D. 18 (filling the blank with the year), and that I have true answers made to all questions propounded to me touching the same, so help me God." (lb., p. 267, 5; 1897, p. 203.) R. S., Art. 5098. § 174. Where and how the list may be made. The owner or agent who is required under the laws of this State to render any property for taxation, may render the same in the county where the same in (is) situated by listing the same and making oath thereto as required in this title, before any offi- cer authorized to administer oaths in this State, or any officer out Assessor and His Duties. 151 of this State that is authorized by law to take acknowledgments of instruments for record in this State and may forward the same to the assessor of the county by mail or otherwise, and the as- sessor shall enter the said property on his tax rolls. If the as- sessor is satisfied with the valuation as rendered in said list he shall so enter the same; if he is not satisfied with the valuation he shall refer the same to the board of equalization of the county for their action, and shall immediately notify, by mail or other- wise, the person from whom he received said list that he has referred said valuation to the board of equalization. (lb.) R. S., Art. 5099. § 175. Penalty for failure to attest oath etc. The assessor of taxes, for every failure or neglect to administer the oath or affirmation prescribed in Article 5098 to each person rendering a list of taxable property to him, unless the person re- fuses to qualify, shall forfeit fifty dollars, to be deducted out of his commissions, upon full and satisfactory information furnished the county judge; and for each and every failure or neglect to attest the oath subscribed to as provided in said article, shall for- feit the sum of fifty dollars upon satisfactory information fur- nished the county judge. The forfeitures imposed by this article shall be deducted from the assessor's commissions on the assess- ment for county taxes. (lb., 6.) R. S., Art. 5100. § 176. Fraud upon the public revenue. Any evasion by means of artifice or temporary or fictitious sale, exchange or pretended transfer upon any bank books or gold and silver coin, bank notes or other notes or bonds subject to taxation under the laws of this State for United States non- taxable treasury notes or any notes or bonds not so subject to •taxation, and any such pretended sale, exchange or transfer not made in good faith, and by actual exchange and delivery of the funds so sold, exchanged or transferred and made only by entry on bank books, or by any express or implied understanding not to immediately make a bona fide and permanent sale, shall be deemed prima facie to be a fraud upon the public revenue of this State. (Acts 1891, p. 39, 1.) R. S., Art. 5101. § 177. Taxpayer to make oath. All assessors of taxes in this State shall require all taxpayers when assessed by them to make oath as to any such sale, ex- 152 Taxation in Texas. change or transfer made by them on the first day of January or within sixty days before said first day of January of any year for which any such assessment is made, as to the good faith and bona fide business transaction of any such sale, exchange or transfer, as above set forth, if any such should have been made by them, and if it should be disclosed that any such pretended sale, exchange or transfer has been made for the purpose of evad- ing taxation, then and in that event the assessor shall list and render against such person the coin, banknotes or other notes or bonds subject to taxation under the laws of this State; pro- vided that if any person shall make a false affidavit as to and of the foregoing facts he shall be deemed guilty of perjury and be punished as is now provided by law. (lb., 3.) R. S., Art. 5102. § 178. When assessments to be made. The assessor of taxes shall, between the first day of January and the first day of June of each year, proceed to take a list of taxable property, real and personal, in his county, and assess the value thereof in the manner following, to-wit: By calling upon the person, or by calling at the office, place of business or the residence of the person and listing the property required by law in his name and requiring the person to make a statement under oath, as prescribed in Article 5098, of such property in the form hereinafter prescribed. (Acts 1876, p. 265, 9.) R. S., Art. 5103. (1) When a pasture lies partly in two counties the owner may render the stock in the county of his residence. Court v. O'Connor, 65 Tex. 334. § 179. Irregular assessments valid. Should any property be listed or assessed for taxation after the first day of June of .any year, or should the assessor of taxes or his deputy fail to administer the requisite oath or attest the same in the mode prescribed by law, or should the party rendering property for taxation fail to subscribe to the list, yet the assess- ment shall, nevertheless, be as valid and binding to all intents and purposes as if made in strict pursuance of law. (lb.) R. S., Art. 5104. The tax roll is the warrant by which the collector is authorized to demand taxes, and to seize and sell property in default of their Assessor and His Duties. 153 payment, it should exhibit not only the list and valuation of the property of each individual taxpayer as shown by the assess- ment, but it should show in its appropriate column the amount of each specific tax for which he is liable. The imperfect col- lection into the tax roll of the facts ascertained by the assess- ment would not affect the liability of the tax. The omission to set out in the tax roll the amount of each tax levied would, at most, be an irregularity affecting the power of the collector to seize and sell property, in no wise, however, affecting the liability of the taxpayer. Hence the failure to exhibit the amount of a school tax, legally levied, upon the tax roll is no cause for in- junction restraining its collection. George v. Dean, 47 Tex. 72). Mere defects in the form and manner of making the consoli- dated assessment roll do not afford grounds for the interposi- tion of a court. of equity to enjoin the collection of taxes legally levied, where, from the different statutes on the subject, the meaning of such tax rolls can be ascertained. Lahadie v. Dean, 47 Tex. 101. "The failure of an assessor to carry the description of the land assessed into the rolls which he delivers to the collector precludes the latter, after the taxes have become delinquent, from levying and making a valid sale by virtue of the rolls, but does not re- lease the land from the tax legally assessed against it, nor ab- solve the owner from its payment." City of San Antonio v. Raley, 32 S. W. 181. § 180. If taxpayer is absent, etc. If any person who is required by this title to list property, shall be sick or absent when the assessor calls for a list of his property, the assessor shall leave at the office or place of resi- dence or business of such person, a written or printed notice re- quiring such person to meet him and render a list of his property at such time and place as the assessor of taxes may designate in said notice. The assessor of taxes shall carefully note in a book the date of leaving such notice. (lb., 268, 10.) R. S., Art. 5105. § 181. Or refuses to list. In every case where any person whose duty it is to list any property for taxation has refused or neglected to list the same when called on for that purpose by the assessor of taxes, or has refused to subscribe to the oath in regard to the truth of his 154 Taxation in Texas. statement of the property or any part thereof, when required by the assessor of taxes, the assessor shall note in a book the name of such person who refused to list or to swear ; and in every case where any person required to list property for taxation has been absent or unable from sickness to list the same, the assessor of taxes shall note in a book such fact, together with name of such person. R. S., Art. 5106. § 182. Duty of assessor. In all cases of failure to obtain a statement of real and personal property from any cause, it shall be the duty of the assessor of taxes to ascertain the amount and value of such property and assess the same as he believes to be the true and full value thereof and such assessment shall be as valid and as binding as if such property had been rendered by the proper owner thereof. (lb., § 12.) R. S., Art. 5107. § 183. Abstracts to be furnished. The commissioner of the general land office shall furnish to each assessor of taxes in this State a correct abstract of all the surveys of land and number of acres therein in their respective counties and on the first day of January of each year said com- missioner of the general land office shall furnish said assessors an additional list of all new valid surveys in his coiinty during the year; provided, that in case the records of the land office do not show the quantity of acres in a survey, the surveyor of the district shall furnish said assessor a certified statement of the number of acres therein. (Acts 1879, p. 24.) R. S., Art. 5108. § 184. Books to be furnished. The Commissioners' Court of each county in this State shall procure and furnish the assessor of said county three well-bound books of not less than six hundred and forty pages each and an index book for same and such other stationery as may be neces- sary; said books to be of the best material and make, and shall have printed headings as per following form': Assessor and His Duties. 155 Patent' Ccriil'ualii Vol, To Wlioni Issued Dat« 1 Acres iJo.. Class' .Character To Wliom 1 »ucd Month Day. Y<:ar Rendered tor Taxation \ear By Whom Rendered Acres Vjlue Vwr By Whom Rendered Acres. Value S. R. S., Art. 5109. § 185. How to be filled. The blanks to be filled by the assessor with the abstract num- ber, name of party to whom the certificate was issued, the num- ber, class, and character of the certificate, the name of the party to whom the patent issued, number of volume of patent, the month, day and year it was issued, and the number of acres each survey contains ; which whole survey shall stand as a debit against the assessor. (lb.. Sec. 2.) R. S., Art. 5110. § 186. Blocks and lots in cities. Each assessor shall be required to make an abstract of all the blocks of each of the cities or towns or villages of his county in a book or books of at least four hundred and eighty pages each, to be furnished him by the Commissioners' Court of his county for that purpose, with an index book to the same, which said book or books shall have a blank space for a diagram or plot of each block or subdivision, giving the number of the lots as per form following: 156 Taxation in Texas. Year Owner's Name No. Lot Value ^^^^^ \ \ \ \ ^-\^ Year Owner s Name No. Lot V'alue And the said assessor shall draw a plot of each block in the blank space left for that purpose, giving the number of each lot. And the whole of said block or subdivision shall be a debit against the assessor. R. S., 5111. (lb., § 3.) § 187. Duties of assessors as to same. Each assessor in this State, when he shall have made the assess- ment of his county for each year, shall, on the first day of June of each year, or as soon thereafter as practicable, carry from each person's assessment the number of acres and its value on each survey of lands, lots or blocks to that particular survey, lot or block found on the abstract books provided in Articles 5110, 5111 and 5119; and that all the parts of each survey or block placed on said abstract books shall be a credit to the assessor on that particular survey. And said assessor shall deduct the total num- ber of acres rendered on each survey or block from the total number of acres of the whole survey or block, as is shown by said abstract, and if any part is left unrendered then he shall assess the same to the owner or owners thereof, if known, and if unknown, then to "unknown owners" and the value thereof shall be affixed by him, sanctioned by the board of equalization ; pro- vided, that the OAvner or owners of any survey or grant of land may show by a survey, to be made by the county surveyor of Assessor and His Duties. 157 the county, that the survey and grant in which they are inter- ested does not contain the full complement of acres, showing how many acres are in fact embraced within the calls of the par- ticular survey and grant. (lb., §4.) R. S., Art. 5112. The act reads: "Sections 1, 2 and 3 of this act." Section 1 of the act is 5108; Section 2 is Articles 5109 and 5110; Section 3 is 5111. § 188. To be kept in office. The assessor's abstracts shall be kept in his office at the county seat of his county, as records of his office, and shall be at all times subject to the inspection of the public. The index book shall show the original grantee, the number of acres, the abstract number and the volume and page in which survey is placed. R. S., Art. 5113. § 189. Lands not on abstract. Should there be any survey of lands, lots or blocks not on the abstract book or books which are by law subject to taxation, the assessor shall enter such lands or lots or blocks on the assess- ment list as though the same appeared on said abstract books. R. S., Art. 5114. § 190. Certificate from books of equalization. Each assessor of taxes shall procure from the board of equal- ization of his county a certificate that all the surveys and parts of surveys of lands in his county, and all the lots and blocks of the cities and towns of his county are rendered for taxation, which certificate shall be forwarded to the comptroller of this State before he shall issue to said assessor a draft on the tax collector of his county. And the same rule shall apply to the Commissioners' Court before they issue drafts on the county treasurer for his pay for assessing the county taxes. R. S., Art. 5115. § 191. Substitute to be employed. The board of equalization of the County Commissioners' Court shall, if the assessor fails to perform the duties required by this chapter within a reasonable time, employ some other competent person to have the requirements of this law carried out, and the compensation therefor shall be deducted from the assessor's pav for that year. R. S., Art. 5116. 158 Taxation in Texas. § 192. Unorganized counties. The comptroller of this State shall be required to have this law carried out in the unorganized counties of this State, where lands are located. R. S., Art. 5117. § 193. Manner and form of assessing. The manner and form for assessing property for taxation shall be substantially as follows, to-wit : (1) The name of the owner. (2) Abstract number. (3) From whom and how acquired. (4) The name of the original grantee. (5) The number of acres. (6) The value of the land. (7) The number of the lot or lots. (8) The number of the block. (9) The value of town lots. (10) The name of the city or town. (11) Number of miles of railroad in the county. (12) The value of railroads and appurtenances, including the proportionate amount of rolling stock to the county after the as- sessment of such rolling stock and its apportionment among the several counties by the comptroller, as hereinafter provided. (13) Number of miles of telegraph in the county. (14) Value of telegraph and appurtenances in the county. (15) Number of amount of land certificates and value thereof. (16) Number of horses and mules and value thereof. (17) Number of cattle and value thereof. (18) Number of jacks and jennets and value thereof. ( 19) Number of sheep and value thereof. (20) Number of goats and value thereof. (21) Number of hogs and value thereof. (22) Number of carriages, bicycles or tricycles, buggies or wagons of whatsoever kind and value thereof. (23) Number of sewing machines and knitting machines and the value thereof, (24) Number of clocks and watches and value thereof. (25) Number of organs, melodeons, pianofortes and all other musical instruments of whatsoever kind and value thereof. (26) The value of household and kitchen furniture over and above the amount of two hundred and fifty dollars. Assessor and His Duties. 159 (27) Office furniture and the value thereof. (28) The value of gold and silver plate. (29) The value of diamonds and jewelry. (30) ' Every annuity or royalty, the description and value thereof. (31) Number of steamboats, sailing vessels, v^harves, boats, barges or other water-craft and the value thereof. (32) The value of goods and merchandise of every descrip- tion which such person is required to list as a merchant in band on the first day of January of each year. (33) The value of material and manufactured articles which such person is required to list as a manufacturer. (34) The value of manufactures, tools, implements and ma- chinery other than boilers and engines, which shall be listed as such. (35) Number of steam engines and boilers and value thereof. (36) The amount of moneys of bank, banker, broker, stocker, jobber or any other person. (37) The amount of solvent credits of bank, banker, broker, stocker, jobber or any other person. (38) The amount or value of bonds and stocks (other than United States bonds). (39) The amount and value of shares of capital stock (of) companies and associations not incorporated by the laws of this State. (40) The value of property of companies and corporations other than property hereinbefore enumerated. (41) The value of stock and furniture of saloons, hotels and eating houses. (42) The value of every billiard, pigeon-hole, bagatelle and other similar table, together with, the number thereof. (43) Every franchise, the description and value thereof. (44) The value of all other property not enumerated as above. (Acts 1895, p. 37.) R. S., Art. 5118. (1) A misdescription of the property of a taxpayer by the assessor or a mere irregularity in his entry of it upon the assess- ment list or roll, furnishes no sufficient ground for enjoining the collection of a tax for which the plaintiff was justly liable, and with which his property had been legally assessed by the proper officer charged with this duty. George v. Dean, 47 Tex. 72). 160 Taxation in Texas. If the assessor of taxes discovers any real property in his county subject to taxation which has not been listed to him, he shall list and assess such property in the manner following, to- wit: (1) The name of the owner; if unknown, say "unknown." (2) Abstract number and number of certificate. (3) Number of the survey. (4) Name of the original grantee. (5) Number of acres. (6) The true and full value thereof. (7) The number of lot or lots. (8) The number of the block. (9) The true and full value thereof. (10) The name of the city or town, and give such other de- scription of the lot or lots or parcels of land as may be neces- sary to better describe the same ; and such assessment shall be as valid as if rendered by the owner thereof. (Acts 1876, p. 269, Sec. 14.) R. S., Art. 5119. (1) The failure of an assessor in listing property for taxa- tion to give the survey number of the grant as required by this article renders subsequent proceedings to enforce collection of the tax illegal unless good cause can be shown why the require- ment of the statute in this regard was not complied with. It would be a sufficient description when an entire survey is as- sessed, to give the owner's name, if known, or to state that it is unknown, together with the abstract number, certificate number, survey number and name of original grantee and number of acres, but when only a portion of a survey is assessed, some further description is necessary in order to identify the particular portion assessed. Morgan v. Smith, 70 Tex. 637; 8 S. W. 528. (2) The lots into which town or city blocks are subdivided are generally regarded as separate and distinct parcels of land, as much so as separate and distinct, though adjoining, surveys or grants in the country, and each lot should be separately assessed. State V. Baker, 49 Tex. 762). § 194. Assessment of real estate for all previous years. If the assessor of taxes shall discover in his county any real property which has not been assessed or rendered for taxation for any year since 1870 he shall list and assess the same for each Assessor and His Duties. 161 and every year for which it has not been assessed, in the man- ner prescribed in the preceding article, and such assessment shall be as valid and binding as though it had been rendered by the owner thereof ; but no such real property shall be assessed by the assessor unless he has ascertained by the certificate of the comp- troller of public accounts the fact that the records of his office do not show that the property has been rendered or assessed for the year in which he assesses it. (Acts 1888, p. 4; lb., 1895; Sen. Jour., p. 486.) § 195. Assessor to follow instructions. The assessors of taxes in the execution of their duties shall use the forms and follow the instructions which shall from time to time be prescribed by the comptroller of public accounts and furnished to them by the county judge in pursuance of law. (Acts 1876, p. 265.) R. S., Art. 5122. § 196. Duty to properly assess. In case the person listing property makes oath, and the assess- ment officer is satisfied that it is correctly valued, he shall list the same accordingly ; but if the assessor is satisfied that the value is too low he shall list the same at such value as he, as a sworn officer, deems just, and if the person listing makes oath that the assessment is excessive the value shall be decided by the board of equalization, whose valuation shall be final. (lb., p. 270, Sec. 17.) R. S., Art. 5123. § 197. Assessor to furnish list of delinquents. The assessor of taxes shall furnish the board of equalization on the first Monday of June in each year, or as soon thereafter as practicable a certified list of names of all persons who either re- fuse to swear or to qualify or to sign the oath or affirmation as prescribed in this title ; also the list of the names of those per- sons who refused to render a list of taxable property as required by this title ; and should any person so failing or refusing to take the oath prescribed or to render a list of their property or to subscribe to the oath as required by the provisions of this title, fail to give satisfactory reasons for such failure or refusal to the board of equalization within one month from the date of the filing of said notice by the assessor as required by this article, the board of equalization shall return a list of all persons who have 11 162 Taxation in Texas. failed to give satisfactory reasons for such failure or refusal to render, qualify or subscribe to the oath or affirmation, as the case may be, to the assessor of taxes, who shall present the said list to the grand jury of his county next empaneled after the board of equalization has furnished him with the list above required. Art. 5125, R. S. § 198. Assessor to furnish list to board of equalization. The assessor of taxes shall submit all of the lists of property rendered to him prior to the first Monday in June to the board of equalization of his county on the first Monday in June or as soon thereafter as practicable for their inspection, approval, cor- rection or equalization ; and after the board of equalization shall have returned the corrected and approved lists of taxable prop- erty, the assessor of taxes shall proceed to assess all the unren- dered property of his county as provided for in this title, and shall proceed to make out and prepare his rolls or books of all the real and personal property listed to him, in the form and man- ner prescribed by the comptroller of the state. R. S., Art. 5126. § 199. Assessor shall make out rolls in triplicate. As soon as the board of equalization shall have examined, cor- rected and approved the assessor's list, the assessor of taxes shall prepare and make out a roll or book as may be required by the comptroller from the list so corrected and approved and three exact copies of same, the original to be furnished to the col- lector of taxes, the second to the comptroller of public accounts and the third to be filed in the county clerk's office for the inspection of the public. He shall also prepare a roll or book, and two exact copies thereof, to be distributed, the first to the col- lector of taxes, the second to the comptroller, and the third to be filed in the county clerk's office, of all the real and personal property which has not been listed to him. R. S., Art. 5127. § 200. Also rolls of unrendered property. The assessor of taxes shall, after his list of unrendered real and personal property shall have been examined, corrected and approved by the board of equalization as provided by law, pre- pare and make out his rolls of all unrendered real and personal property listed by him in the manner and form prescribed by the comptroller of the state. R. S., Art. 5128. Assessor and Hi;, Duties. 163 § 2001. Assessor to add up columiiw. The assessor of taxes shall add up and note the aggregate of each column on his roll or book, and he shall also make in each book or roll, under proper headings, a tabular statement showing the footings of the several columns up6n each page, and he shall add up and set down under the respective headings the total of the several columns. R. S., Art. 5129. § 202. Return and oaths. The assessor of taxes shall, on or before the first day of Au- gust of each year for which the assessment is made, return his rolls or assessment books of the taxable property rendered by him for that year after they have been niade in accordance with the provisions of this title to the county board of equalization, verified by this affidavit, substantially on (in) the following form: The State of Texas, County. I, , Assessor of . County, do sol- emnly swear that the rolls or books to which this is attached con- tain a correct and full list of the real and personal property sub- ject to taxation in (fill the blank-with the name of the county) County, so far as I have been able to ascertain the same; that I have sworn every person listing property to me in the county, or caused the same to be done in manner a'nd form as provided by law, and that the assessed value set down in the proper column opposite the several kinds and descriptions of property is the true and correct valuation thereof as ascertained by law, and the footings of the several columns in said books and the tabular statement returned is correct, as I verily believe. R. S., Art. 5130. § 203. All lists and statements to be filed with the county clerk. The assessor of taxes shall at the same time deliver to the board of equalization all the lists and statements of all property which shall have been made out or received by him, and arranged in alphabetical order, together with the roll withdrawn to aid him in the passed assessment. The lists and statements shall be filed in the county clerk's office, and remain there for the inspection of the public. R. S., Art. 5131. 164 Taxation in Texas. § 204. Rolls to be distributed. After the board of equalization shall have examined the rolls or assessment books and made all corrections, if any be necessary, the assessor shall send one copy of each to the comptroller of public accounts, one copy of each to the collector of his county, and he shall file the other copies in the county clerk's office until the next assessment, when the assessor shall have the right to withdraw them and use as provided in this title. R. S., Art. 5132. § 205. Compensation of assessor of state and county taxes. Each assessor of taxes shall receive the following compensa- tion for his services, which shall be estimated upon the total values of the property assessed, as follows : For assessing the state and county tax, on all sums for the first two million dollars or less, five cents for each one hundred dollars of property assessed; On. all sums in excess of two million dollars and less than five million dollars, two and one-quarter cents on each one hundred dollars ; On all sums in excess of five million dollars, one and seven- tenths cents on each one hundred dollars ; One-half of the above fees shall be paid by the state and one- half by -the county ; And for assessing the poll tax, five cents for each poll, which shall be paid by the state. The commissioners' court may allow to the assessor of taxes such sums of money, to be paid monthly from the county treas- ury, as may be necessary to pay for clerical work, taking assess- ment and making out the tax rolls of the county, such sums so allowed to be deducted from the amount allowed to the assessor as compensation of said tax rolls ; provided, the amount allowed to the assessor by the commissioners' court shall not exceed the compensation that may be due by the county to him for assessing. R. S., Art. 5133. § 206. How paid by the state. The comptroller, on receipt of the rolls, shall give the assessor an order on the collector of his county for the amount due him by the state for assessing the state taxes, to be paid out of the first money collected for that year. R. S., Art. 5134. Assessor and His Duties. 165 § 207. By the county. The commissioners' court shall issue an order on the county treasurer of their county, to the assessor, for the amount due him for assessing the county tax of their county, to be paid out of the first money received from the collector on the rolls of that year. R. S., Art. 5135. § 208. Penalties for neglect of duty. Should any assessor of taxes fail or neglect to make out and return his rolls or books to the commissioners' court in the time and manner provided for in this chapter, it shall be competent for the commissioners' court to deduct from his compensation such amount as they may deem proper and right for such neglect and failure ; and should his rolls or books, when presented for ap- proval to the commissioners' court, prove to be imperfect or erro- neous, the court shall have the same corrected or perfected either by the assessor or some other person than the assessor of taxes. Such person so employed by the commissioners' court shall be entitled to such part of the commissions to which such assessor is entitled to as the court may allow ; and said court shall so certify to the comptroller, who shall pay such person in the same manner as the assessor of taxes is paid, and the amount so deducted by the comptroller from the commissions of the as- sessor of taxes whose duty it was to have performed such work. R. S., Art. 5136. § 209. Assessor of taxes — Maximum fees to be retained by the assessor. The maximum amount of fees of all kinds that may be retained by the assessor shall be an amount not exceeding $2,000.00 per annum, and in addition thereto one-fourth of the excess of the fees collected by him. R. S., Art. 2495c (Acts 1897, S. S., p. 42). § 210. Fees less than maximum — Statements of fees col- lected — Excess to be paid into county treasury. The amounts allowed to each officer mentioned in Art. 2495c may be retained out of the fees collected by him under existing laws ; but in no case shall the state or the county be responsible for the payment of any sum when the fees collected by any officer are less than the maximum compensation allowed by this chapter, or be responsible for the pay of any deputy, or assistant. 166 Taxation in Texas. Each officer mentioned in the preceding article, and also the sheriff, shall at the close of each fiscal year make to the district court of the county in which he resides a sworn statement show- ing the amount of fees collected by him during the fiscal year and the amount of feeis charged and not collected, and by whom due and number of deputies and assistants employed by him dur- ing the year and the amounts paid and to be paid; and all fees collected by the officers named in Art. 2495c during the fiscal year, in excess of the maximum amount allowed and of the one- fourth of the excess of the maximum' amount allowed for their services, and for the services of their deputies or assistants herein- after provided for, shall be paid to the county treasurer of the county where the excess occurred; provided, that any officer in Art. 2495c does not collect the maximum amount for his fees for any fiscal year and who reports delinquent fees for that year shall be entitled to retain, when collected, such part of such delin- quent fees as is sufficient to complete, the maximum compensation for the year in which delinquent fees were charged, and also to retain the one-fourth of the excess belonging to him, and the remainder of the delinquent fees for that fiscal year shall be paid as hereinbefore provided for when collected. R. S., Art. 2495d. §211. Deputies and assistants — Appointment and compensa- tion. Whenever any officer named in Art. 2495c shall require the service of deputies or assistants in the performance of his duties, he shall apply to the county judge of his county for authority to appoint same, and the county judge shall issue an order author- izing the appointment of such a number of deputies or assistants as in his opinion may be necessary for the efficient performance of the duties of said officer. The officer applying for appointment of a deputy or assistant, or deputies or assistants, shall make affidavit that they are necessary for the efficiency of the public service, and the county judge may require in addition a statement showing the need of such deputies or assistants, and in no case shall the county judge attempt to influence the appointment of any person as deputy or assistant in any office. The maximum amount allowed for deputies or assistants for their services shall be as follows, to-wit : I Assessor and His Duties. 167 First assistant or chief deputy, a sum not to exceed a rate of $1,200 per annum; others not to exceed a rate of $900 per annum. The county judge, in issuing his order granting authority to appoint deputies or assistants, shall state in such order the num- ber of deputies or assistants authorized and the amount to be paid to each, and the amount of compensation allowed shall be paid out of the fees of the office to which said deputies or assist- ants may be appointed, and shall not be included in estimating the maximumi salaries of officers named in Art. 2495c. R. S., Art. 2496e. § 212. Penalty for failure to charge up fees for remission of fees, etc. Any officer named in Art. 2495c, and also the sheriff, who shall fail to charge up the fees or costs that may be due under existing laws or who shall remit any fee that may be due under the laws, or who shall fail to make the report required in Art. 2495d, or who shall pay his deputy or assistant a less sum than that amount specified in his sworn statement, or receive back any part of such compensation allowed such deputy or assistant as a rebate, shall be deemed guilty of a misdemeanor and on convic- tion thereof shall be fined in any sum not less than $25 nor more than $500. Each act forbidden in this article shall constitute a separate oiTense. Art. 2495g, R. S. § 213. Payment of ex officio services. It is not intended by this chapter that the commissioners' court shall be debarred from allowing compensation for ex officio serv- ices to county officials not to be included in estimating the maxi- mum provided for in this chapter when in their judgment such compensation is necessary; provided, such compensation for ex officio services shall not exceed the amounts now allowed under the law for ex officio services ; provided, further, the fees allowed by law to district and county clerks, county attorneys and tax collectors in suits to collect taxes shall be in addition to the maximum salaries fixed by this chapter. Art. 2495h, R. S. § 214. Officers to keep a correct statement — Accounts to be examined by grand jury. It shall be the duty of those officials named in Art. 2495c, and also the sheriffs, to keep a correct statement of the sums coming 168 Taxation in Texas. / into their hands as fees and commissions, in a book to be pro- vided by them for that purpose, in which the officer at the time when any fees or moneys shall come into his hands, enter the same, and it shall be the duty of the grand jury (and the district judge shall so charge the grand jury) to examine these accounts at the session of the district court next succeeding the first day of December of each year, and make a report on same to the district court at the conclusion of the session of the grand jury. R, S., Art. 24951. §215. Certain officers not required to make a report or keep a statement. The officers named in Art. 2495c in those counties having a population of fifteen thousand, or less, shall not be required to make a report of fees as provided in Art. 2495c, or to keep a statement provided for in Art. 2495d or to keep a statement pro- vided for in Art. 24951 ; the population of the county to be de- termined by the vote cast at the next preceding presidential elec- tion, on the basis of five inhabitants of each vote cast at such elec- tion; provided, that all district attorneys shall be required to make the reports and keep the statements required in this chap- ter. R. S., Art. 2495 j. § 216. Statement of tax collector and assessor. The tax collector and assessor at the time of their settlement of accounts with the comptroller, shall file with him a copy of the sworn statement required under Art. 2495d. Art. 2495k, R. S. § 217. Fiscal year — At what time reports must be made, and by whom. A fiscal year within the meaning of this chapter shall begin on December 1, of each year, and each officer named in Art. 2495c, and also the sheriff, shall file the reports and make the settlement required in this chapter on December 1 of each year. Whenever such officer serves for a fractional part of a fiscal year, he shall nevertheless file his report and make a settlement for such part of a year as he serves and shall be entitled to such proportional part of the maximum allowed as the time of his services bears to the entire year. However, an incoming officer elected at the general election, who qualifies prior to December 1, next follow- ing, shall not be required to file any report or make any settle- Assessor and His Duties. 169 ment before December 1 of the following year, but his report and settlement shall embrace the entire period dated from his quali- fication. This act shall take effect and be in force from and after December 1, 1897. R. S., Art. 24951. § 218. Commission in school district tax. "Rev. Art. 5133 provides that the compensation to be paid as- sessors for the assessment of state and county taxes shall be 1 cent on each $100 valuation. Art. 3945 authorizes the levy of school district taxes, and declares that the assessor shall receive a commission of 1 per cent for assessing the same. Held, that for assessing such school-district taxes an assessor was entitled to 1 per cent on the total assessment, and not 1 cent on each $100 valuation of the assessment." McDonald v. Farmer, 56 S. W. 555, 23 Tex. Civ. App. 39. § 219. Compensation for funded indebtedness. "The general tax law allows, as compensation to the assessor of state and county taxes, a percentage on the valuation of prop- erty assessed, 'two-thirds' of which to be paid by the state and one-third by the county. Gen. Laws 1889, p. 89, authorizing coun- ties to fund their indebtedness, provides that 'all taxes levied under this act shall be assessed and collected in the same man- ner, and by the same officers whose duty it is to assess and col- lect the state tax, and they shall receive for their services one- fourth the rate of commissions allowed for assessing and col- lecting the state tax.' Held, that the assessor levying a tax to meet the funded indebtedness of a county is entitled to receive, as compensation, one-fourth of the rate paid by the state for like services under the general tax law." Commissioners' Court v. F^rHnj,' 24 S. W. 794; 86 Tex. 348. § 220. Duty of assessor as to unrendered property. "It is only where property has not been rendered for taxation that it can be assesed and placed on the unrendered roll, and this must be done by the assessor (Rev. St., Art. 4711), and the board of equalization has no authority to direct property, which has been rendered for taxes by the owner, to be listed by the assessor as unrendered property under another name." Cook v. G., H. & S. A. Ry. Co., 24 S. W. 544; 5 Tex. Civ. App. 644. CHAPTER XL BOARD OF APPRAISERS. Sec. 221. Boards of equalization — Their qualifications and du- ties. 222. Equalization of assessments. 223. Boards may equalize without complaint. 224. Assessor to submit list to board of equalization. 225. Appointment and duties of board of equalization in cit- ies or towns. 226. Annual meetings of said board. 227. Shall value property. 228. Values to be equalized by board. 229. Unrendered property list to be examined by board. 230. Notice to property owners. 231. Board to lower values — When. 232. Approval of lists and rolls by board. 233. Action of board final. 234. Compensation of board. 235. Oath to be taken. 236. Approval of board — Sufficient. 237. Excessive assessmen t — Fraud — Remedy. 238. Determining powers of board and assessor. 239. Deputy assessor sitting as §221. Sec. member of board. 240. Fraud — Reduction' — Failure to appear — Notice. 241. Appellate jurisdiction from city board valid. 242. De facto officers. 243. No power to add property to list. 244. Excessive assessment from fraudulent motives. 245. County commissioners not liable in civil action. 246. "Valuation must first be made by assessor. 247. Owner must have notice of increase of valuation. 248. List must be presented to board. 249. Action of board final. 250. Acts of two members valid. 251. Meeting of board after time. 252. Not required to classify prop- erty on minutes. 253. Valuation. 254. No criterion of value in con- demnation. 255. Constitution, Article 8, Sec- tion 18, applies to State and county taxes. 256. Board of appeals not neces- sary — Where. Boards of Equilazation — Their qualifications and du- ties. The commissioners' courts of the several counties of this state shall convene and sit as a board of equalization on the second Monday in June of each year or as soon thereafter as practicable before the first day of July, to receive all the assessment lists or books of the assessors of their counties for inspection, correc- tion, equalization and approval. Board of Appraisers. 171 1. They shall cause the assessor to bring before them at such meeting all the assessment lists, books, etc., for inspection and see that every person has rendered his property at a fair market value, and shall have power to send for persons, books and pa- pers, swear and qualify persons, to ascertain the value of such property, and to lower or raise the value on the same. 2. They shall have power to correct errors in assessments. 3. They shall equalize improved lands into three classes — the first class to embrace the better quality of land and improvements ; the second class to embrace the second quality of lands and im- provements, and the third class to embrace lands of but small or inferior improvements. The unimproved lands shall embrace first, second and third class, and all other property made as nearly uniform as possible. 4. After they have inspected and equalized as near as possi- ble, they shall approve said lists or books and return to assessors for making up the general rolls, when said board shall meet again and approve the same, if found correct. 5. Whenever said board shall find it their duty to raise the assessment of any person's property, it shall be their duty to order the county clerk to give the person written notice, who ren- dered the same, that they desire to raise the value of the same. It shall be their duty to cause the county clerk to give ten days' written notice before their meeting by publication in some news- paper, but if none is published in the county, then by posting a written or printed notice in each justice's precinct, one of which must be at the court house door. 6. The assessors of taxes shall furnish to the board of equali- zation on the first Monday of June of each year, or as soon there- after as practicable, a certified list of names of all persons who either refuse to swear or qualify, or to have signed the oath or affirmation as required by law, together with the assessment of said persons' property made by him through other information ; and the board of equalization shall examine, equalize and correct assessments so made by the assessor, and when so revised, equal- ized and corrected, the same shall be approved. Acts 1879, p. 44 ; Amend. 1895; Sen. Jour. No. 108, p. 486; Sayles' R. S., Art. 5120. The Legislature shall provide for equalizing, as near as may be, the valuation of all property subject to or rendered for taxa- 172 Taxation in Texas. tion (the county commissioners' court to constitute a board of equalization), with reference to their value in the several coun- ties. St. Const., Art. 8, Sec. 18. This section, making county commissioners' court a board of equalization, applies to state and county taxes and not to city taxes. Scolhard v. City of Dallas, 42 S. W. 640. Houston City Charter, as amended by special laws 1897, p. 186, Ch. 17, provides for the appointment of a board of appraisement composed of two aldermen and one citizen, to be annually nom- inated by the mayor and confirmed by the city council, to equalize taxes, etc., and the ordinances of the city require that the board shall be similarly composed, and that their compensation shall be $5.00 for each day's service, and requires such board to take an oath different from that required of the aldermen. Held, that such charter provision and ordinances merely conferred a new power on the aldermen, and did not create a new office within Constitution, Art. 16, Sec. 40, declaring that no person shall hold or exercise at the same time more than one civil office of emolu- ment. City of Houston v. Stewart, 87 S. W. 665 ; 99 Tex. 67. § 222. Equalization of assessments. In case the person listing the property makes the oath, and the assessing officer is satisfied that it is correctly valued, he shall list the same accordingly; but if the assessor is satisfied that the value is too low he shall list the same at such value as he, as a sworn officer, deems just; and if the person listing makes oath that the assessment is excessive, the value shall be decided by the board of equalization, whose valuation shall be final. R. S., Art. 5123. § 223. Boards may equalize without complaint. The boards of equalization shall have power, without complaint from any one, to supervise the assessments of their respective counties, and if satisfied that the valuation of any property is not just and fair, to increase or diminish the same, and to affix a proper valuation thereto, and their action in such cases shall be final, and not subject to revision by said board or any other tribu- nal thereafter. R. S., Art. 5124. § 224. Assessor to submit list to board of equalization. The assessor of taxes shall submit all the lists of property ren- dered to him prior to the first Monday in June to the board of Board of Appraisers. 173 equalizatioit of his county on the first Monday in June, or as soon thereafter as practicable, for their inspection, approval, cor- rection or equalization ; and after the board of equalization shall have returned the corrected and approved lists of taxable prop- erty, the assessor of taxes shall proceed to assess all the unren- dered property of his county as provided for in this title, and shall proceed to make out and prepare his rolls or books of all the real and personal property, listed to him in the form and manner prescribed by the comptroller of the state. R. S., Art. 5126. (1) The remedy against the illegal act of an assessor in rais- ing an assessment without authority is by application to the board of equalization. Duck v. Peeler, 7 A Tex, 268; 11 S. W. nil. (2) The board has no power to strike from the assessment roll property placed thereon by the assessor. Galveston County V. Galveston Gas Co., 72 Tex. 509; 10 S. W. 583; Galveston Co. V. Wharf Co., 72 Tex. 557; 10 S. W. 587. (3) The board has power to revise and increase the valua- tion of any property upon the assessment rolls. Duck v. Peeler, 74 Tex. 268; 11 S. W. 1111. An assessment roll does not fix any liability on the taxpayer or his property until the list has been approved by the board of equalization. Chisholm v. Adams, 71 Tex. 678; 10 S. W. 336. § 225. Appointment and duties of board of equalization in cities and towns. The city councils of the several cities and towns of this state incorporated under the general laws shall annually, at their first meeting or as soon thereafter as practicable, appoint three com- missioners, each being a qualified voter, a resident and property owner of the city or town for which he is appointed, who shall be styled the board of equalization, and at the same meeting said council shall by ordinance fix the time for the meeting of such board of equalization. Sayles R. S., Art. 505. § 226. Annual meetings of said board. The board of equalization shall convene annually, at the time fixed by the city council, to receive all the assessment lists or books of the assessor of their city for examination, correction. 174 Taxation in Texas. equalization, appraisement and approval, and at all meetings of said board the city secretary shall act as secretary thereof. Sayles' R. S., Art. 506. § 227. Shall value property. The board of equalization shall cause the assessor to bring be- fore them, at the time fixed for the convening of said board, all the assessment lists or books of the assessor of their city, for their examination, that they may see if each and every person has rendered his property at a fair and market value, and said board shall have power to send for persons and papers to swear and qualify persons who testify, to ascertain the value of such property ; and if they are satisfied it is too high, they shall lower it to its proper value; and if too low they shall raise the value of such property to a proper figure. Said board shall also have power to correct any errors that may appear on the assessor's lists or books. Sayles' R. S., Art. 507. § 228. Values to be equalized by board. The board of equalization shall equalize as near as possible the value of all the improved lots within the corporate limits of their city, having reference to the size and location of. said lots and the improvements thereon, and shall equalize the value of unimproved lots as nearly as possible, having reference to the size and location thereof, and all other property of the same kind shall be made as nearly equal as possible. Any person may file with said board at any time before the final action of said board a complaint as to the assessment of his or any other per- son's property, and said board shall hear said complaint, and said complainant shall have the right to have witnesses sum- moned in sustaining said complaint as to the insurance on said property, or the rents and profits it may bring the holder thereof. Sayles' R. S., Art. 508. § 229. Unrendered property list to be examined by board. The city assessor, at the same time that he delivers to said board his lists and books, as provided in article 507, shall also furnish to said board a certified list of the names of all persons who either refuse to swear or qualify or to sign the oath or affir- mation as required by law, together with a list of the property of such persons situated within the corporate limits of their Board of Appraisers. 175 city, as made by him through other information, and said board shall examine said lists and appraise the property so listed by the assessor, Sayles' R. S., Art. 509. § 230. Notice to property owners. In all cases where the board of equalization shall find it their duty to raise the value of any property appearing on the list or books of the assessor, they shall, after having fully examined such lists or books and corrected all errors appearing therein, adjourn to a day not less than ten nor more than fifteen days from the date of adjournment, such day to be fixed in the order of adjourn- ment, and shall cause the secretary of said board to give written notice to the owner of such property or to the person rendering the same, of the time to which said board may have adjourned, and that such owner or person rendering the said property may at that time appear and show cause why the value of said prop- erty should not be raised, which notice may be served by deposit- ing the same, properly addressed and postage paid, in the city postoffice. Sayles' R. S., Art. 510; City of San Antonio v. Hoef- ling, 39 S. W. 918; 90 Tex. 511; San Antonio v. Hoefling, 90 Tex. 513. § 231. Board to lower values, when. The board of equalization shall meet at the time specified in said order of adjournment, and shall hear all persons, the value of whose property has been raised, and if said board is satisfied they have raised the value of such property too high, they shall lower the same to its proper value. Sayles' R. S., Art. 511. § 232. Approval of lists and rolls by board. The board of equalization, after they have finally examined and equalized the value of all property on the assessor's lists or books, shall approve said lists or books, and return them, together with the lists mentioned in Art. 509, that he may make up therefrom his general rolls as required by law ; and when said general rolls are so made up the board shall meet again to examine said rolls and approve the same if found correct. Sayles' R. S., Art. 512. § 233. Action of board final. The action of said board at the meeting provided for in Art. 511 above, shall be final, and shall not be subject to revision by said board or by any other tribunal thereafter. Sayles' R. S., Art. 513. 176 Taxation in Texas. § 234. Compensation of board. The members of the board of equalization and the city secre- tary while acting as secretary of said board, shall receive such compensation for their services, to be allowed by the city council, as said council may deem just and reasonable. Sayles' R. S., Art. 514. § 235. Oath to be taken. Before said board shall enter upon their duties they shall be sworn, by any officer authorized by law to administer oaths, to faithfully and impartially discharge all duties incumbent upon them by law as such board. Sayles' R. S., Art. 515. § 236. Approval of board sufficient. Where the board of appraisers approved the valuation of the assessor, a taxpayer cannot complain that it was the board's duty to place the valuation, and not the assessor's. Moody v. City of Galveston, 50 S. W. 482; 21 Tex. Civ. App. 16. § 236a. Appointment of members. Where the appointment of the members of a board of equaliza- tion is announced by the mayor in the presence of the city council, no one objecting, it is held on collateral attack that this is an ap- pointment by the aldermen. McCombs v. City of Rockport, 14 Tex. C. A. 562. § 237. Excessive assessment — Fraud — Remedy. Our constitution provides that "taxation shall be equal and uni- form." All property in this state, whether owned by natural per- sons or corporations, other than municipal, shall be taxed in pro- portion to its value, which shall be ascertained as may be pro- vided by law. Art. 8, Sec. 1. We are of the opinion, that where the board of equalization in raising or fixing the value of property, acts from corrupt or fraudulent motives, and in violation of the laws of the state, whether constitutional or statutory, their acts are voidable at the suit of the party aggrieved, and that the courts of the state having jurisdiction over the amount involved and the subject matter may, in a proper case, declare such acts to be void and enjoin the en- forcement thereof or compliance therewith, and that Articles 5123 and 5124 of our Revised Statutes were not intended to debar or preclude any person from applying to the courts for relief in such Board of Appraisers. 177 cases — not, indeed, to revise the action of such board in fixing values, but to set it aside for fraud. The Legislature, in de- claring their official acts, in valuing property for taxation to be "final" and "not subject to revision" had in contemplation their lawful acts, and not such as are prompted by corrupt, arbitrary, or fraudulent motives, and in violation of constitutional or statu- tory rights. The statute under which the board was organized limits its power to fix values on property at its "fair market value." The Legislature has no power to create any board or com- mission and empower it to confiscate any person's property, either directly or indirectly. To arbitrarily value one person's prop- erty for taxation at largely more than it is worth, while an- other's, subject to the same rate of taxation, is placed at greatly less than its value, is a clear violation of our Constitution, be- cause the tax in such a case is not equal and uniform, and the property of the county is not taxed in proportion to its value. It is an arbitrary wrong done the former in his "lands and goods" and a fraud upon his rights, for which he has a remedy in the courts of the State guaranteed by Sec. 13 of our Bill of Rights, which declares: "All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law." Texas Constitution, Art. 1, Sec. 13. By due course of law reference is here made not only to the valid statutory enactments of the Legislature, but to the general law of the land — "a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society." Cooley's Principles of Constitutional Law, pp. 231, 232, Our statute (Article 5120) seems to contemplate that the board of equalization shall constitute a kind of judicial tribunal. It is formed out of the Commissioners' Court, which is required to convene and sit as a board of equalization at a certain time and place. It shall have power to send for persons, books, and pa- pers, swear and qualify persons to ascertain the value of prop- erty, and see that every person has rendered his property at a fair market value. And whenever they shall find it their duty to 12 178 Taxation in Texas. raise the assessment of any person's property the county clerk shall give such person written notice that they desire to raise the value of the sarrie. These provisions clearly contemplate that the value to be fixed by the board where a contest is made, shall be the result of their deliberate judgment, exercised in the light of the facts proven, as well as of matters within their own knowledge, the proceeding being judicial in its character. If, therefore, these boards can arbitrarily ignore the facts, the provisions of the statute requir- ing the party whose assessment is to be raised to have written notice thereof would be a mockery and a farce. Johnson v. Holland, 43 S. W. 71 ; 17 Tex. Civ. App. 210. A party seeking by injunction equitable relief against an al- leged unauthorized action by the board of equalization must estab- lish clearly facts showing that the board had acted illegally and without authority. /. & G. N. R. R. Co. v. Smith Co., 54 Tex. 1. If the board of equalization, in determining the proper valua- tion of property for taxes, errs, and affixes a valuation deemed by the taxpayer to be excessive, that fact gives him no right to resort to the courts for relief. /. & G. N. R. R. Co. v. Smith Co., 54 Tex. 1. When a question of valuation for taxation has been once regu- larly referred to the proper board of equalization, the valuation of that tribunal is final. T. & P. R. R. Co. v. Harrison County, 54 Tex. 119. Where city property, is not rendered for taxation, but the owner is known, and it is listed and valued by the assessor, such valua- tion can not be increased by the board of appeal and revision, without notice to the owner. City of San Antonio v. Hoefling, 39 S. W. 918 ; 90 Tex. 511. Where a tax is in part legal and in part illegal and is capable of apportionment, the court will give judgment for that part thereof which might be levied. Nalle v. City of Austin, 44 S. W. 66, 91 Tex. 424. § 238. Determining powers of board and assessor. The board of equalization was created by the Constitution itself, and its duties were sufficiently defined in the Act of August 21, 1876, to make it competent to determine the valuation of property listed, when that question was properly referred to it, either under Section 5 or Section 17 of that act. Board of Appraisers. 179 When a taxpayer renders his tax list to the assessor in person, and after answering all questions by him, subscribes the oath prescribed by the statute, if the assessor, for cause deemed suffi- cient, proceeds then and there to change the valuation, and the taxpayer then makes oath that the valuation is excessive, the case is one coming within the provisions of Section 17 of the Act "of 1876. If, however, the valuation be forwarded by mail, oath being made to the list, out of the county in which it is rendered, before some other officer, the case is then under the provisions of Section 5, and the assessor, if dissatisfied, is neither required or empowered to affix a valuation, but should refer the same to the board of equalization. If forwarded, not by mail, but con- veyed by another party, it would still be under Section 5. Inter- national & G. N. Ry. Co. V. Smith County, 54 Tex. 1. When a question of valuation for taxation has been once reg- ularly referred to the proper board of equalization, the valuation of that tribunal is final. Texas & Patcific Ry. Co. v. Harrison County, 54 Tex. 119. § 239. Deputy assessor sitting as member of board. • A deputy assessor, who was also a county commissioner, sat as a member of the board of equalization to revise the assessment of property for taxes, to which board the question of valuation was referred on the protest of a taxpayer. Held — (1) The action of the board of equalization was not void, the taxpayer not objecting at the time to the deputy assessor consti- tuting a portion of the board, and it not being shown that there was not a quorum of the board without the deputy assessor. Texas & Pacific Ry. Co. v. Harrison County, 54 Tex. 119. § 240. Fraud — Reduction — Failure to appear — Notice. A petition to restrain the collection of a tax because based on a fraudulent overvaluation of the assessor, which • alleges merely that the assessment was never by the assessor presented to the board of equalization, or passed on directly by such board, does not show that the board did not approve the assessment com- plained of. Under Sayles' Civ. St., Arts. 5120 et seq., providing for the convening of the Commissioners' Court at certain times as a board of equalization to correct, equalize, and approve assess- ments, when the court has once approved an assessment it has no jurisdiction to reduce it on application of a taxpayer. 180 Taxation in Texas. The fact that the officer of a corporation who alone was in- trusted with the duty of rendering the corporate property for taxation has been sick for several months does not excuse the corporation from failure to render its property, or to appear before the board of equalization to object to the valuation thereof, it having been assessed as unrendered, so as to entitle the corpora- tion to object to the assessment as fraudulent after its approval by the board. Where a taxpayer does not object to an assessment, the board of equalization need not notify him to appear before it. Clcm/son Lumber Co. v. Jones, S. W., Vol. 49, page 909 ; 20 Tex. Civ. App. 208. § 241. Appellate jurisdiction from city board valid. Under the Constitution, providing that the Legislature shall have power, by local or general law, to increase, diminish, or change the civil and criminal jurisdiction of county courts, the Legislature is authorized to confer on the county court of Travis County appellate jurisdiction of proceedings of the board of equalization of the city of Austin. Nolle v. City of Austin, Vol. 56, S. W., p. 954; 23 Tex. Civ. App. 595. § 242. De facto officers. Persons who fill the office of the board of equalization of a city are at least de facto officers, and their legal appointment will be presumed until the contrary is shown. Nolle v. City of Austin, Vol. 56, S. W., p. 954 ; 23 Tex. Civ. App. 595. Where certain members of a city board of equalization held over after the termination of their term, their places not having been filled by appointment, and plaintiff and other taxpayers of the city appeared and recognized them as constituting a legal board of equalization, their acts were valid as a de facto board. Nalle V. City of Austin, 93 S. W. 141, 41 Tex. Civ. App. 423. § 243. No power to add property to list. Const., Art. 8, Sec. 5, provides that, if any railroad property subject to municipal taxation shall not have been rendered for taxation, the city shall have power to require its rendition, and Section 11 provides that all property rendered for taxation by the owner shall be assessed at its fair yalue by the proper officer. San Antonio City Charter, Sec. 194, empowers a board of appeal to hear grievances as to assessments made by the assessor, and "to Board of Appraisers. 181 increase or diminish any assessment," as it may deem just. Sec- tion 193 provides that the assessor shall assess and return all property subject to taxation, and shall list the same, and that all property not returned by the owner shall be assessed by the as- sessor. Held, that the board of appeals has no power to add a franchise of a railroad company to the list of its property, on account of the company's and the assessor's failure to list it. San Antonio St. Ry. Co. v. City of San Antonio, S. W., Vol. 54, p. 907 ; 22 Tex. Civ. App. 34. Under Rev. St. 1895, Tit. 104, Chap. 3, providing the method of making tax assessment, the Commissioners' Court, sitting as a board of equalization, has no power to assess property for taxes ; such authority, save in exceptional cases, being vested in the county assessors. In the absence of statutory authority, a board of equalization can not assess property not listed and valued by the assessor. Rev. St. 1895, Art. 5124, as amended by Acts 1907, p. 459, ChapN 11, provides that the board of equalization shall supervise the assessment of their respective counties, and, if satisfied that the valuation of any property is not in accordance with law, in- crease or diminish it, and affix a proper valuation of the same, and that, when the assessor shall furnish the Commissioners' Court with the rendition as provided in Article 5123, it shall be the court's duty to hear evidence and fix the value of the property in accordance therewith. Held, that a board of equalization has no power to add to the rolls property not previously assessed, nor to take from the rolls property contained therein. The addition of alleged omitted property to plaintiff's assess- ment by a board of equalization being void, he was not required to show that he had applied to the board for relief in order to have the assessment of such property annulled, and the collection of the tax enjoined. Sullivan v. Bitter, 113 S. W. 193. § 244. Excessive assessment from fraudulent motives. The District Court has jurisdiction to entertain a petition for an injunction to restrain the collection of a tax based upon an assess- ment that, as to the petitioner, is unreasonably excessive and fraudulently made, where the amount involved is within the court's jurisdiction. A petition for an injunction restraining the collection of a tax, which states that the tax was based upon an assessment which 182 Taxation in Texas. was unreasonably excessive, and made in fraud of plaintiff's rights, and discriminates against him, states a cause of action. When the board of equalization, in raising or fixing the value of property, acts from corrupt and fraudulent motives, and in violation of the laws of the state, their acts are voidable at the suit of the party aggrieved; and Rev. St. 1895, Art. 5124, pro- viding that the acts of the board of equalization "shall be final and not subject to revision by said board or any other tribunal thereafter," was not intended to preclude any person from apply- ing to the courts for relief in such cases. Johiison v. Holland, 43 S. W. 71, 17 Tex. Civ. App. 210. § 245. County commissioners not liable in civil action. The members of a county commissioners' court are not liable in a civil action to one whose property has been wrongfully taken by the tax collector in pursuance of such commissioners' order to collect a tax levied by them in a district which they have er- roneously determined to be within their jurisdiction. Exemplary damages can not be recovered either of the officer collecting or the board levying a tax on the inhabitants of a dis- trict which the board has erroneously determined lies within its jurisdiction, though property has been wrongfully and illegally seized in consequence of the order for collection. Wright v. Jones, 38 S. W. 249, 14 Tex. Civ. App. 423. § 246. Valuation must first be made by assessor. Under a city charter providing that, where property is not returned to the assessor after notice, he shall assess it in the name of the last known owner, and that the value shall be de- termined by the board of revision to whom is given the power to correct errors, etc., the valuation is to be made in the first instance by the assessor, subject only to revision by the board. Hoefling V. City of San Antonio, 38 S. W. 1127, 15 Tex. Civ. App. 257. § 247. Owner must have notice of increase of valuation. Where a city board of tax revision increases the valuation of property for tax purposes, without notice to the owner, a levy made in accordance therewith creates no lien on the property. Where several tracts of land belonging to one owner are listed and valued separately, an increase in the valuation of some of the tracts by the board of revision, without notice to the owner, ren- Board of Appraisers. 183 ders the levy invalid only as to the tracts so increased. HoeHing V. City of San Antonio, 38 S. W. 1127, 15 Tex. Civ. App. 257. Where property is not rendered for taxation, and the owner was known, it was the duty of the assessor, not only to list it in the name of the owner, but also to value it for taxation, and the board of appraisement has no power to increase that value without notice to the owner. City of San Antonio v. Hoe/ling, 39 S. W. 918; San Antonio v. Hoetling, 90 Tex. 513. Under Subdivision 1, requiring the board, on raising one's as- sessments, to give him "written notice," a postal card containing such notice, mailed to the taxpayer by the clerk, is sufficient, and any defect therein is waived if the taxpayer appears, and the board give him a full hearing. Grahani v. Lasater, 26 S. W. 472. § 248. List must be presented to board. Where, before taxes assessed can become a lien on land, the tax list must be presented to the board of equalization for ap- proval and for correction of any errors in the listing of property, under Gen. Laws Tex. 44, an injunction will not be granted be- fore such approval to restrain an assessor of a county from as- sessing lands claimed to be in another county. Chisholm v. Ad- ams, 10 S. W. 336, 71 Tex. 678. § 249. Action of board final. Plaintiff, in an action to restrain collection of taxes, alleged that his land was assessed at an agreed valuation between him and the assessor, who afterwards unlawfully listed it at a higher valuation ; that he was cited to show cause before the board of equalization why his assessment be not raised, but he did not; that the board made no order changing or affecting the valuation of his land as theretofore listed ; that the assessor had no power to change the assessment made by him without an order of the board in open court, and entered in the minutes; but did not state that he applied to the board to correct the assessment, nor give a reason for not doing so, nor that he could not obtain re- lief in that way, if entitled to it. Held, that under Rev. St. Tex., Art. 4715, which provides that the board shall have power to increase or diminish the valuation of any property, and affix a proper one, and that such action shall be final, and not subject to revision thereafter by said board or any other tribunal, plain- 184 Taxation in Texas. tiff's failure to show cause, when cited, precluded him from after- wards questioning the increased valuation. Duck v. Peeler, 11 S. W. 1111, 74 Tex. 268. § 250. Acts of two members valid. Acts of two members of a board of equalization are valid, with- out co-operation of the third. Ferris v. Kemhle, 12 S. W. 689, 75 Tex. 476; Grahmi v. Lasater, 26 S. W. 472. § 251. Meeting of board after time. Sayles' Civ. St., Art. 1517a, Subd. 1, providing that the county commissioners' courts shall convene and sit as a board of equal- ization on the second Monday in June, "or as soon thereafter as practicable before the first day of July," does not render a contin- uation of their proceedings into July a nullity. Graham v. Lasa- ter, 26 S. W. 472. § 252. Not required to classify property on minutes. The fact that one of the commissioners steps out for a moment during the proceedings is immaterial if no vote is taken during his absence. Graham v. 'Lasater, 26 S. W. 472. § 253. Valuation. In a suit to enjoin the collection of taxes on the ground that, under the rule of the commissioners' court, the land was assessa- ble at two-thirds of its fair cash market value, but plaintiff's lands were willfully assessed at more than such value, while the lands of resident owners were assessed at less than such value, in order to raise the question on appeal whether plaintiff was discriminated against, a finding should have been requested as to whether the property of others was assessed according to the court's rule, and whether plaintiff's property was assessed at a higher rate. It can not be assumed from a finding that plaintiff's property was worth as much or more than the value placed upon it that the court would have found that its valuation was more than two-thirds of its fair cash market value. In a suit to enjoin the collection of taxes on the ground that the commissioners' court rule required the land to be assessed at two-thirds of its fair cash market value, but plaintiff's land was willfully assessed at more than such value, while 'the lands of resident owners were assessed at less, so as to discriminate against plaintiff, testimony as to the value of the timber per thousand Board of Appraisers. 185 feet on the several tracts belonging to plaintiff taken as a whole was admissible as tending to show the value of each par- ticular tract; plaintiff's land consisting of a large number of tracts situated on a railroad relatively close together. Lufkin Land and Lumber Co. v. Noble, 127 S. W. 1093. Where it did not conclusively appear that a city board of equal- ization abused its discretion in fixing the valuation of certain property, the action of the board is final and can not be disturbed. Linz V. City of Sherman, 62 S. W. 71. § 254. No criterion of value in condemnation. The value of land for taxation, though fixed by the owner when assessed, forms ho criterion of its value in a proceeding to con- demn it for a railroad right of way. Crystal City & U. R. Co. v. Isbell, 126 S. W. 47. § 255. Const. Art. 8, Sec. 18, applies to state and county taxes. Const., Art. 8, Sec. 18, which discloses that the county com- missioners' court shall constitute a board for equalizing assess- ments, applies to state and county taxes, and not to city taxes. Scdllaxrd v. City of Dallas, 42 S. W. 640, 16 Tex. Civ. App. 620. § 256. Board of Appeals not necessary where. A property owner who does not in any way complain of the assessment of his property can not resist payment of the tax levied according to such assessment on the ground that there is no proper board of appeals to pass upon objections to assess- ments. Scollard v. City of Dallas, 42 S. W. 640, 16 Tex. Civ. App. 620. CHAPTER XII. SUMMARY SALE OF PROPERTY FOR TAXES DUE. Sec. Sec. 257. Difference between sale of 270. property under summary sale and sale under a regu- 271. lar judgment of foreclosure. 258. Constitutional provision. 272. 259. Forced collection to begin — When. 273. 260. Personal property may be pointed out. 274. 261. Tax lien superior to assign- ment — Attachment — In- 275. heritance or devise except 276. when. 262. All property liable for taxes. 277. 263. Sales of personal property — How made. 278. 264. If the property levied upon 279. be insufficient. 280. 265. Sale of real estate when per- 281. sonal property is insuffi- cient. 266. Notice of the sale of real es- 282. tate for taxes — How made. 267. List to be posted. 283. 268. Sale of real estate may be 284. continued from day to day. 285. 269. Sales of land— How made. 286. The tax deed and its requi- sites. Sales to be reported to the commissioners' court. Redemption of land sold for taxes. Redemption from private pur- chasers. Receipt of collector's notice —When. Relief— When. Certicate of redemption from collector. Lands to be bid in for State —When. May redeem — How. If not redeemed. May redeem in what manner. Commissioner's board to sit as a board of inquiry — When. Sale for taxes due towns and cities. Sheriff to execute deeds. What must be proven. Summary sale not nullified. Summary sale prohibited by Constitution of 1869. § 257. Difference between sale of property under summary sale and sale under a regular judgment of foreclos- ure. It has almost become proverbial in Texas to say that land ac- quired under a sale for taxes can not be held and that such a title is invalid. This is true in regard to land acquired under an ex parte sale made by the tax collector, for the purchaser, in order to maintain his title, would have to prove every condition prece- dent to the sale. Beginning with the levy he would have to prove Summary Sale of Property for Taxes. 187 step by step every act to have been legally taken ; every notice to have been properly given. This is because the sale is an ex parte proceeding and the delinquent taxpayer has not had his day in court. An entirely different construction will be given, however, to a sale made under a regular decree of foreclosure, when proper parties have been made and the proceedings regu- lar, which they would have to be in any other suit to give valid- ity to the decree. A sale under such a judgment would be as binding as a sale and foreclosure of any other kind of decree of foreclosure, subject only to the right of the owner to redeem within two years. See Haynes v. State, 44 Tex. Civ. App. 492; Cooper Grocery Co. v. City of Waco, 71 S. W. 619. § 258. Constitutional provision. Provision shall be made by the first legislature for the speedy sale of a sufficient portion of all lands and other property for the taxes due thereon, and every year thereafter for the sale of all lands and other property upon which the taxes have not been paid, and the deed of conveyance to the purchaser for all lands and other property thus sold shall be held to vest a good and per- fect title in the purchaser thereof subject to be impeached only for actual fraud; provided, that the former owner shall, within two years from date of purchaser's deed, have the right to re- deem the land upon the payment of double the amount of money paid for the land. St. Const., Art. 8, Sec. 13. This section does not secure a right to redeem land sold by decree of court, in suits for the enforcement of taxes. San An- tonio V. Berry, 92 Tex. 320, 48 S. W. 497. The right of redemption secured to the owner by this section applies to only "speedy sale," for which the legislature was re- quired to make provision. This section only states the object of the deed, when the law has been complied with. Meredith v. Coker, 65 Tex. 31. § 259. Forced collection to begin when. If any person shall fail or refuse to pay the taxes imposed upon him or his property by law, until the first day of January next succeeding the return of the assessment roll of the county to the comptroller, the collector of taxes shall, by virtue of his tax roll, seize and levy upon, and sell so much personal property belonging to such person as may be sufficient to pay his taxes, together 188 Taxation in Texas. with all costs accruing thereon ; provided, there shall be no levy on property when the owner thereof has the right to pay at the comptroller's office, until a list of the persons who have paid their taxes at said office has been furnished the collector of taxes by the comptroller. The comptroller shall forward said list of paid taxes on or before the first day of February of each year, and the tax collector shall, immediately on receipt of said list from the comptroller, levy on and sell the property of such non-residents as have not paid their taxes, in accordance with the law regulat- ing the sale of the property for taxes. Sayles R. S., Art. 5173. § 260. Personal property may be pointed out. If any person shall point out to the collector of taxes sufficient personal property belonging to him to pay all taxes assessed against him before the first day of January of any year, the col- lector shall immediately levy upon and sell such property so pointed out, in accordance with the laws regulating tax sales of a similar class of property. Sayles R. S., Art. 5174. § 260a. When property about to be removed from the county. If it comes to the knowledge of the collector that any personal property assessed for taxes on the rolls is about to be removed from the county, and the owner of such property has not other property in the county sufficient to satisfy all assessments against him, the collector shall immediately levy upon a sufficiency of such property to satisfy such taxes and all costs, and the same sell in accordance with the law regulating sales of personal prop- erty for taxes, unless the owner of such property shall give bond, with sufficient security payable to and to be approved by the col- lector, and conditioned for the payment of taxes due on such property, on or before the first day of January next succeeding. Sayks R. S., Art. 5175. § 261. Tax lien superior to assignment, attachment, inherit- ance or devise, except when In all cases where a taxpayer makes an assignment of his prop- erty for the payment of his debts, or where his property is levied upon by creditors, by writs of attachment or otherwise, or where the estate of a decedent is or becomes insolvent, and the taxes assessed against such person or party, or against any of his es- tate, remain unpaid in part or in whole, the amount of such un- Summary Sale of Property for Taxes. 189 paid taxes shall be a first Hen upon all such property; provided, that when taxes are due by an estate of a deceased person, the lien herein provided for shall be subject to the allowances to wid- ows, and minors, funeral expenses, and expenses of last sickness ; and such unpaid taxes shall be paid by the assignee when said property has been assigned, by the sheriff out of the proceeds of sale in case such property has been seized under attachment or other writ, and by the administrator or other legal representa- tive of decedents, and if said taxes shall not be paid, all said prop- erty may be levied on by the tax collector and sold for such taxes in whomsoever's hands it may be found. Sayles R. S., Art. 5175a. § 262. All property liable for taxes. All real or personal property held or owned by any person in this state shall be liable for all state and county taxes due by the owner thereof, including taxes on real estate, personal property and poll tax; and the collector of taxes shall levy on any per- sonal or real property to be found in his county to satisfy all delinquent taxes, any law to the contrary notwithstanding. Sayles' R. S., Art. 5176. § 263. Sales of personal property, how made. In making sales of personal property for taxes, the collector shall give notice of the time and place of sale, together with a brief description of the property levied on and to be sold, for at least ten days previous to the day of sale, by advertisements in writing to be posted at the courthouse door, and at two other public places in the county ; and such sale shall take place at the courthouse door of the county in which the assessment is made, by public auction. Sayles R. S., Art. 5177. § 264. If the property levied upon be insufficient. If personal property levied upon be insufficient to satisfy the taxes and penalties due and costs accrued thereon, the collector shall levy upon and sell so much other personal taxable property belonging to the person as will be sufficient to satisfy such taxes, penalties and costs in the same manner as an original levy and sale; and in all cases of sales for taxes, if there be an excess remaining in the hands of the collector, after satisfying all taxes, penalties and costs, the same shall be paid over to the original owner by the collector, or deposited in the hands of the county 190 Taxation in Texas. treasurer subject to the order of such owner. Sayles R. S., Art. 5178. § 265. Sale of real estate when personal property is insuffi- cient. ^ If the delinquent is not possessed of a sufficiency of personal property in the county, subject to seizure and sale, to satisfy all taxes due by him, the collector of taxes shall seize so much of the real estate of such delinquent, situated in the county, as will be sufficient to satisfy such taxes and all costs, and the same sell in accordance with the provisions of the succeeding article. Sayles R. S., Art. 5179. § 266. Notice of the sale of real estate for taxes, how made. In making sales of real property for taxes the collector shall advertise the same for sale in some newspaper published in the county where the land is to be sold, for three successive weeks, if there be one, and the publisher of such newspaper shall receive as compensation not exceeding twenty-five cents for each tract or parcel of land so advertised, to be taxed as other costs of sale against such land ; provided the cost of advertising in a news- paper shall be deducted from the fees allowed the collector for advertising; and provided, that the comptroller shall allow the collector twenty-five cents per tract for each tract of land bid off by the state ; and if there be no newspaper published in the county, or there being a newspaper published in the county, and the pub- lisher thereof refuses to publish the advertisement at the price herein fixed, then advertisement shall be made by posting the same for thirty days previous to the day of sale, at the court- house door and three other public places in the county where the land or lots are situated, giving in said advertisement such de- scription as is given to the same on the tax rolls in his hands, stating the name of the owner, if known, and if unknown say "unknown," together with the time, place and term of sale, said sale to be for cash, to the highest bidder, at public outcry, at the courthouse door and between legal hours, on the first Tues- day of the month. Sayles R. S., Art. 5180. A failure to give the notice required by law of the place where tax sale will occur vitiates the same. A recitation in the tax deed that the tax collector offered the land at public auction at the time, place and in the manner required by law is not evidence of either fact. Henderson v. White, 69 Tex. 103, 5 S. W. 374. Summary Sale of Property for Taxes. 191 § 267. List to be posted. Prior to the sale of any real property for taxes in any county in this state, the collector of taxes shall advertise the same by posting a list of the names of the delinquents for thirty days as follows: One copy at the courthouse door of the county, and a copy at two other public places in the county where the lands or lots are situated. Sayles R. S., Art. 5181. § 268. Sale of real estate may be continued from day to day. As far as may be practicable all the lands and town lots levied upon for taxes shall be advertised in one notice and be sold on the same day ; and such sales may be continued from day to day until concluded, but at the close of each day's sale the collector ■ of taxes shall make proclamation of such continuance on the fol- lowing day. No sale shall be considered complete until the pay- rrHent of the purchase money, and if the same is not paid before the completion of the tax sales, the collector shall resell the property, and continue such sale until the same is complete. (Acts 1876, p. 289.) Sayles R. S., Art. 5182. § 269. Sales of land, how made. The collector of taxes, in making sales for taxes due upon real estate, shall sell at auction at the time and place appointed so much of said real estate as may be necessary to pay the taxes and penalties due and all costs accruing thereon, and shall offer said real estate to the bidder who will pay the taxes and penal- ties due, and costs of sale and execution of deed for the least amount of said real estate, who shall be deemed the highest bid- der. Should a less amount of said real estate than the whole tract or parcel of said real estate levied upon be sold for the taxes and penalties due and all costs of sale and execution and (of?) deed, the collector shall, in making his deed to the purchaser, be- gin at some corner of said tract or parcel of land or town lot and designate the same in a square as near as practicable. Sayles R. S., Art. 5184. § 270. The tax deed and its requisites. The collector of taxes shall execute and deliver to the pur- chaser, upon the payment of the amount for which the estate was sold, and costs and penalties, a deed for the real estate sold, which deed shall vest a good and perfect title to said land in the pur- 192 Taxation in Texas. chaser, if not redeemed in two years, as hereinafter provided; which deed shall state the cause of sale, the amount sold, the price for which the real estate was sold, the name of the person, firm, company or corporation on whom the demand for taxes was made; provided, the name is known, and if unknown say "un- known," the same description of the land as is given in the tax rolls, and such other description as may be practicable for better identification ; and when real estate has been sold he shall convey, subject to the right of redemption provided for in Article '5187, all the right and interest which the former owner had therein at the time when the assessment was made. Sayles R. S., Art. 5185. The declaration in the twenty-fifth, section of the tax law of 1840 (Hart. Dig., Art. 3087), that the tax deed should be good and effectual both in law and equity, must be regarded as giving no special sanction to the conveyance, beyond that derived from the general principles of the law. (But quere, if the doctrine had not been firmly established.) And hence, notwithstanding that provision, it is necessary for the plaintiff, claiming under a tax sale made by virtue of that law, to allege and prove that all the prerequisites were performed. Hadley v. Tankersley, 8 Tex. 12. Construing the Act of March 20, 1848 (Hart. Dig., Art. 3145), which provided that a tax collector's deed, "when recorded ac- cording to law, shall be prima facie evidence that all the requi- sites of the law have been complied with in making such sale," held that such deed was not thereby made evidence of a compli- ance with the prerequisites to the acquisition and exercise of the power to sell. The statute applied only to the proceedings to be had after the right and power to sell were acquired. Citing De- vine V. McCulloch, 15 Tex. 491 ; Kelly v. Medlin, 26 Tex. 56, and other cases. Terrell v. Martin, 64 Tex. 121. Where a tax deed was admitted in evidence without objection, without evidence of the facts necessary to give the assessor and collector power to sell, and the court charged the jury that the tax deed was prima facie evidence that all the requirements of the law had been complied with, but the jury found against such title, under the charge of the court on another point, a question being made in this court whether the finding on such other point could be sustained, the court said it was not necessary to decide the question, because the party did not prove the facts necessary Summary Sale of Property for Taxes. 193 to give the assessor and collector power to sell, and affirmed the judgment. Devine v. McCulloch, 15 Tex. 488. The power of the officer to sell land for the non-payment of taxes is a naked power, not coupled with an interest ; and in all such cases the law requires that every prerequisite to the exercise of that power must precede its exercise ; that the agent must pur- sue the power or his act will not be sustained by it. Yenda v. Wheeler, 9 Tex. 408. A tax deed is of itself no evidence of title in the purchaser at a tax sale. Pratt v. Jones, 64 Tex. 694 ; Damson v. Ward, 7\ Tex. 72, 9 S. W. 106. A legal assessment, advertisement and tax sale of land must be clearly shown before any rights can be acquired under a tax title. Railumy Co. v. Poindexter, 70 Tex. 98, 7 S. W. 316. A collector's deed to property subject to taxation and sold in accordance with law, vests a good and perfect title, which can only be impeached for actual fraud. Such a deed would there- fore constitute a cloud upon the title regularly sold, but not liable for the tax, to prevent or remove which equity may be invoked. Cassiano v. Ursuline Academy, 64 Tex. 67 Z. It is settled that tax titles, when in every respect complete, may constitute perfect assurances of title; they may constitute the basis of good title under the statute of limitations independent of any judicial determination as to their validity ; and under certain circumstances they are to be deemed colorable titles. Though invalid, a tax title is not necessarily without meritorious consid- eration if the owner had reasonable grounds for believing that his title was good. Hatchett v. Conner, 30 Tex. 104; House v. Stone, 64 Tex. 677. When a tax deed gives what on its face appears to be a suffi- cient description of the land conveyed, and there is no evidence de- veloping any latent uncertainty, the authorities do not decide that such deed does not satisfy the statute of limitations. Flanagan V. Boggess, 46 Tex. 331. A patent ambiguity in description of the land in a tax deed ren- ders it void. Crumbley v. Busse, 32 S. W. 438. Tax deeds, void upon their face for want of certainty and falsity of description of the land claimed, are not to be deemed deeds duly registered, and will not support the plea of the statute of limitations of five years. Nor are they evidence of title or 13 194 Taxation in Texas. color of title to sustain the plea of possession for three years, etc. Kilpatrick v. Sisneros, 23 Tex. 113; Wofford v. McKenna, 23 Tex. 36. A conveyance by a tax collector or sheriff of a number of acres to be taken out of a larger survey is void for uncertainty. Mor- gm V. Smith, 70 Tex. 637, 8 S. W. 528. A deed purporting to convey land which describes it only by quantity, and as being part of a larger tract, with nothing where- by to identify what specific portion of the larger tract is intended to be conveyed, is void for uncertainty of description of tax title. Lumber Company v. Hancock, 70 Tex. 312, 7 S. W. 724. To be of any force a tax title must be proved to be the con- summation of a valid sale. State taxes are levied by general law and are not required to be proved ; county taxes are levied by the commissioners' court, and the levy must be proved or the sale will not appear to have been made for a legal demand. Citing Blackwell, p. 155. Greer v. Howell, 64 Tex. 688. Even after the lapse of forty years, no presumption will be indulged that the laws regulating the assessment and sale of land for taxes have been complied with so as to supply the missing evi- dence of power in the officer to make the sale. Telfener v. Dil- lard, 70 Tex. 139, 7 S. W. 847. One claiming land under a tax sale made under the Act of 1840 (Early Laws, Art. 711) must aver and prove compliance on the part of the officer who executed the deed with all the essential requisites of the law for a valid tax sale. The petition alleged the existence of a void tax sale and that it was a cloud upon plaintiff's title. On the trial a tax deed for the land was produced, and there was no testimony to any fact upon which the legality of the tax sale could be based. Held, that it did not devolve upon the plaintiff to further show the invalid- ity of the tax deed. It being void, no testimony was required to authorize the court to treat it as invalid. Dawson v. Ward, 71 Tex. 72, 9 S. W. 106. Ordinarily it is requisite to the validity of a tax sale that the property sold shall have been described when listed for taxation by the number of the certificate under which it was surveyed. Henderson v. White, 69 Tex. 103, 5 S. W. 374; McCormick v. Edwards, 69 Tex. 106, 6 S. W. 32. A tax deed was attacked upon the following among other grounds: 1. The tax rolls failed to show the number of the cer- Summary Sale of Property for Taxes. 195 tificate by virtue of which the land was located. 2. The notice of sale fails to show when the land would be sold. 3. The deed made by the collector describes the land sold for taxes as being one hundred and sixty acres, patented to Jeremiah Heath, as- signee of Benjamin F. Berry, describing it by metes and bounds and excepting out of said tract eighty acres on which the taxes were paid by H. F. Heath. These objections are well taken. Henderson v. White, 69 Tex. 103, 5 S. W. 374. Where the tax deed assumes to convey the title of the unknown owner, without reference to the derivation of title or to the per- son under whom he claimed, and the proceedings have been oth- erwise regular it may be effectual; but where the owner under- takes to convey a particular title, the purchaser takes the title so conveyed ; none other will pass by the deed. Yenda v. Wheeler, 9 Tex. 408; Wheeler v. Yenda, 11 Tex. 562, A falsity which might probably mislead the owner, in the des- ignation or description in the assessment of lands not rendered for taxation, runs through and invalidates all subsequent pro- ceedings. Yenda v. Wheeler, 9 Tex. 408. Where a tax law requires copies of the assessment roll to be pos1;ed at certain places, a failure on the part of the assessor or collector to post the copies as required will invalidate the tax sale. Yenda v. Wheeler, 9 Tex. 408. An action of trespass to try title to certain lots bought at a sale for taxes due on them was against persons holding them under claim of right. The defendants pleaded the ten years stat- ute of limitation. Held: (1) That if the tax deed was vaUd, and any title passed, it was only such as the real owner of the land had at the time of sale. (2) That such a person stands in relation to persons in possession under claim of right, but with no title, just as the real owner would stand had there been no sale. (3) That if there had been no tax sale, and the suit had been instituted by the real owner at the time it was, if his right of action would have been barred by the statute of limitation, so would that of the purchaser at tax sale or those holding under him. Jordan v. Higgins, 63 Tex. 150. One claiming under an invalid tax title, not void on its face, is entitled to adduce evidence as to improvements under his sug- gestion of good faith and to have that issue determined. French V, Grenet, 57 Tex. 273, and Wofford v. McKinna, 23 Tex. 36, 196 Taxation in Texas. approved, and Robson v. O shorn, 13 Tex. 298, questioned, Hatchett v. Conner, 30 Tex. 104; House v. Stone, 64 Tex. 677. Whether a purchaser of land at tax sale whose title is invalid but who neither knew, nor by proper diligence could have known, when he purchased, the invalidity of his deed, is entitled to have refunded to him taxes which were a charge upon the land before the entering of a decree canceling the tax deed, quaere. Stewart V. Kemp, 54 Tex. 248. If a tax deed shows upon its face that it is void, it can not be the foundation for a claim for the value of improvements made in good faith. Hatchett v. Conner, 30 Tex. 104; House v. Stone, 64 Tex. 677. § 271. Sales to be reported to the commissioners' court. When the collector of taxes shall have made sale of any real estate under this chapter, it shall be his duty to make immediate return of said sale to the commissioners' court, stating in said return the land sold, the name of the owner, if known, and if un- known state the fact, the time of the sale, the amount for which said sale was made, together with the name of the, purchaser, which return shall be entered of record on the minute books of said court. Sayles R. S., Art. 5186. § 272. Redemption of land sold for taxes. The owner of land sold for the payment of taxes, or his heirs or assigns or legal representatives, may, within two years from the date of sale, redeem the estate sold by paying or tendering to the purchaser, his heirs or legal representative, double the amount of money paid for the land. Sayles R. S., Art. 5187. A tender to the purchaser at tax sale, under the third section of the act of June 2, 1873 (13th Leg., p. 187), concerning taxes, which is similar in terms to this article, the full amount of the purchase money paid for land at such sale, within twelve months, with one year's interest on the same, at the rate of twenty-five per cent per annum, worked ipso facto an immediate redemption of the land by the original owner, and left the purchaser at tax sale without title. Burns v. Ledhetter, 54 Tex. 374. § 273. Redemption from private purchasers. Any person having the right to redeem any land sold at tax sale may do so by payment, within the time prescribed by law, Summary Sale of Property for Taxes. 197 to the collector of taxes of the county in which the said land was sold, of the amount which the law requires to be paid ; provided, that the owner of said land, or his agent, shall first have made affidavit before some officer authorized by law to administer oaths, that he has made diligent search in the county where said land is situated for the purchaser thereof at the tax sale, and has failed to find him ; or that the purchaser at such tax sale is not a resident of the county in which the land is situated, or that he and the purchaser can not agree on the amount of redemption money. In such cases only shall the owner or agent be authorized to re- deem the same by the payment to the collector of taxes. (Acts 1879, S. S., p. 29). Sayles R. S., Art. 5188. § 274. Receipt of collector's notice, when. It shall be the duty of any collector of taxes, to whom payment is made under the provisions of this chapter, to give a receipt therefor, signed by him officially, in the presence of two wit- nesses, which said receipt, when duly recorded, shall be notice to all persons that the land therein described has been redeemed ; and the collector of taxes shall, on demand, pay over to the pur- chaser at said tax sale the money thus received by himi. Sayles R. S., Art. 5189. § 275. Relief, when. Any person whose land has been rendered for taxation, wheth- er the same was rendered in the name of the original grantee or not, and has also been placed upon the unrendered rolls for the same year, shall be entitled to relief upon complying with the requirements hereinafter indicated. Sayles R. S., Art. 5190. If any such lands shall have been sold for the taxes charged upon the unrendered rolls, and bought by the state, the owner thereof, his -agent or attorney, shall present to the tax collector of the county in which the land is situated a sworn statement to the effect that the same land has been rendered for taxation, and placed upon the regular assessment rolls for the year men- tioned. Said affidavit shall contain an accurate description of the land, and be accompanied with the certificate of the assessor that the same is true and correct ; and the tax collector shall thereupon present such person with a written statement, officially signed, that said tax has been canceled, and make a note of the same upon the unrendered rolls, provided, the provisions of this article 198 Taxation in Texas. shall apply to such lands at any time after the collector shall re- ceive the rolls until the same shall have gone into the hands of a private purchaser; and if the owner shall have paid the taxes charged upon the unrendered rolls at any time previous he shall be entitled to the warrant of the comptroller for the amount so paid, in the same manner as is provided in Article 5192 of this chapter, in cases of redemption from individual purchasers; pro- vided further that the tax collector shall make no charge whatever for the duties herein mentioned. (Acts 1881, p. 107, Sec. 2.) Sayles R. S., Art. 5191. § 276. Certificate of redemption from collector. When the owner of such lands shall have redeemed the same from a private purchaser, it shall be the duty of the tax collector to furnish him a certificate to that effect; and upon presentment of said certificate to the comptroller, the comptroller shall issue to him a warrant upon the treasury of the state for the amount of such tax. This warrant shall be receivable for all taxes to the state. For issuing the certificate provided for in this article the tax collector shall be allowed the sum of fifty cents, to be paid by the applicant. Sayles R. S., Art. 5192. § 277. Lands to be bid in for state, when. Should the collector of taxes fail to make sale of any real estate for want of a purchaser, he shall bid the same off for the state for the taxes and penalties due and all costs accruing thereon and execute a deed to the state ; and one deed shall in- clude all tracts of land bid off to the state at such tax sale, and make due return thereof, under such forms and directions as the comptroller may furnish and direct; and after sale and purchase by the state of any real estate it shall not be lawful for said col- lector to levy upon or advertise or sell the same for any remain- ing or accrued taxes due thereon until the same shall have been redeemed by the owner or is sold by the state. Said collector shall, on final settlement of his accounts with the commissioners' court and the comptroller of public accounts, be entitled to a credit for the amount of taxes due the state and county, respec- tively, for which the land and lots were bid off to the state. Sayles R. S., Art. 5193. Summary Sale of Property for Taxes. 199 § 278. May redeem, how. The owner, or his agent, of any lands that may have been conveyed to the state under the provisions of the foregoing arti- cle, desiring to redeem the same, may do so by depositing with the collector of the county in which the lands were sold double the amount of the purchase money and all accrued taxes thereon, within two years from the date of the deed to the state, and it shall be the duty of such collector to execute a receipt to such owner or agents, giving therein the amount of the money re- ceived, and a description of the land so as to identify the same, and sign and seal the same officially, and upon presentation of such receipt to the comptroller of public accounts, he shall exe- cute to the owner a relinquishment under his signature and seal of office, which may be admitted to record in like manner with other conveyances of land. Sayles R. S., Art. 5194. § 279. If not redeemed. In case said land shall not have been redeemed as provided in Article 5194, then the same may be sold as provided by Article 5193. § 280. May redeem in what manner. The owner of real estate which has been bought in by the state for taxes, his heirs or assigns, may redeem the same at any time prior to the sale thereof, by the payment to the collector of the county in which such real estate is situated, or to the comptroller, if in an unorganized county, of the amount designated by the comptroller as due thereon with costs of advertisement ; and pro- vided further, that if it shall at any time appear to the satisfac- tion of the comptroller that any land has been sold to the state for taxes which have been paid, or that the sale has not been made in accordance with the law authorizing the sale of the land for taxes, he shall, upon the payment of the amount that may be due thereon, cancel such sale, and in all cases he shall deliver to the owner of the land or his agent, a certificate under seal of his department, setting forth the fact that such land has been re- deemed or that such sale has been canceled, which certificate shall release the interest of the state, and the same may be recorded in the proper county as other conveyances of real estate are re- corded. Sayles R. S., Art. 5196. 200 Taxation in Texas. § 281. Commissioners' board to sit as a board of inquiry, when. The commissioners' courts of the several counties in this state shall, at the regular terms of said courts, sit as a court of inquiry in cases where land has been erroneously rendered for taxes; and any land owner whose land has been or may be sold to the state for taxes may appear before said court in person or by proxy and show to the satisfaction of a majority of said court that the taxes for which his or her lands have been sold have been paid, although the same was rendered in an incorrect abstract number or survey, or original grantee; thereupon said commis- sioners' court shall issue to the same land owner a certificate setting forth fully said facts, which certificate shall be signed of- ficially by the county judge of said county and upon the presenta- tion of said certificate to the comptroller of public accounts he shall execute and deliver to said land owner a valid deed relin- quishing all the right, title and interest the state may have ac- quired in and to said land by reason of such tax sale. Sayles R. S., Art. 5197. § 282. Sale for taxes due towns and cities. The provisions of this chapter in reference to the seizure and sale of real and personal property for taxes, penalties and costs due thereon shall apply as wjcII to collectors of taxes for towns and cities as for collectors of taxes for counties, and they shall be governed in selling real and personal property by the same rules and regulations in all respects as to time, place, manner and terms and making deeds as are provided for collectors of taxes for counties. Sayles R. S., Art. 5198. The requirement that land in towns and cities should be sold by lots is directory, and does not limit the power of the court to order the sale in the mode deemed most conducive to the interest of the parties. Oppenheimer v. Reed, 32 S. W. 325 ; 11 Tex. Civ. App. 367. § 283. Sheriff to execute deeds. In all cases in which lands have been sold, or may be sold for default in the payment of taxes, it shall be lawful for the sheriff selling the same, or any of his successors in office, to make a deed or deeds to the purchaser or to any other person to whom the purchaser may direct the deed to be made, and any such deed Summary Sale of Property for Taxes. 201 shall be held in any court of law or equity in this state to vest a good and perfect title in the purchaser thereof, subject to be im- peached only for actual fraud. Sayles' R. S., Art. 5232h. § 284. What must be proven. Whoever claims lands under a sale for delinquent taxes must take upon himself the burden of proving that the taxes were duly assessed, which were a charge upon the land, and 'that the successive steps were taken which led to a lawful sale therefor, or which he or some one under whom he claims becomes the purchaser. Yenda v. Wheeler, 9 Tex. 417; Robson v. Oshorn, 13 Tex. 307; Dennie v. McCulloch, 15 Tex. 491; Kelly v. Med- lin, 26 Tex. 48; McDaniel v. Needham, 61 Tex. 274; Terrell v- Martin, 64 Tex. 125 ; Houston v. Washington, 41 S. W. 135, 16 Tex. Civ. App. 504 ; Lombcrida v. Barnum-, 90 S. W. 699. It is well settled in this state that a purchaser at a sale for taxes, in which the requirements of the law are not complied with, acquires neither title nor any right whatever against the owner of the property. Eustis v. City of Henrietta, 39 S. W. 569, 90 Tex. 468 ; McCormick v. Edwards, 69 Tex. 106, 6 S. W. 32; Railway Co. v. Poindexter, 70 Tex. 103, 7 S. W. 316. It devolves upon a purchaser at a tax sale to show in support of his title, the strictest compliance with every formality, not only in the levy and assessment of the tax, but likewise in the form and manner of making such sales. This, however, refers to ex parte sales and not where the party has had his day in court. Labadie v. Dean, 47 Tex. 102. To be of any force, a tax title must be proved to be the con- summation of a valid sale. Greer v. Howard, 64 Tex. 688. § 285. Summary sale not nullified. Provisions for collection of taxes by suit do not nullify the provisions by summary sale of tax collector. Masterson v. State, 17 T. C. A. 93. § 286. Summary sale prohibited by Constitution of 1869. Authority to a city through its officers to seize and sell prop- erty of which the taxes have not been paid, conferred by an act of the Legislature in 1866, was destroyed by Sec. 21, Art. XII, of the Constitution of 1869, prohibiting the sale of landed prop- erty for taxes due thereon, except under a decree of some court of competent jurisdiction. Lockhart v. Mayor, Aldermen, etc., of the City of Houston, 45 Tex. 317. CHAPTER XIII. SUIT TO FORECLOSE TAX LIENS. Sec. Sec. 287. Suits to foreclose liens for 289. Right to sue for taxes. State and county taxes. 290. Consolidation for suits. 288. The particular property must 291. Delinquent record. have been sold or reported 292. Action in rem. delinquent before suit for tax on same will lie. § 287. Suits to foreclose liens for state and county taxes. Twenty days after the publication of such notice, or as soon thereafter as practicable, the commissioners' court or the county judge acting for said court, shall file a list of all lands so adver- tised for taxes due for any year or number of years, the tax on which remains unpaid, with the county clerk of the county in which such lands are located, or if unorganized, then with the county clerk of the county to which said unorganized county may be attached for judicial purposes, and are to be sold under the provisions of this chapter, for all the taxes, interest, penalty and costs, and shall cause suit to be filed in the name of the state of Texas, in the district court of said county, or, if unorganized, then in the district court of the county to which said unorganized county is attached for judicial purposes, stating therein by apt reference to lists or schedules annexed thereto a description of all lands or lots in such county upon which taxes and penalty have remained unpaid for any year or number of years since the first day of January, 1885, and the total amount of such taxes, with interest computed thereon to the time fixed for the sale thereof at the rate of six per cent per annum, and shall pray for judgment for the payment of the several amounts so specified therein, and in default thereof, that such lands be sold to satisfy said judgment for all taxes, interest, penalty and costs, and for such other relief to which the state may be entitled under the law and facts. All suits to enforce the collection of taxes, as provided in this chapter, shall take precedence and have priority over all other suits pending in the district court. The petition in such suits shall be signed by the attorney bringing the suit, and Suit to Foreclose Tax Liens. 203 shall be verified by the affidavit of said attorney, or the county judge, to the effect that the averments contained in said petition are true to the best knowledge and belief of affiant, and the pleadings of the defendant, except those of law, shall be veri- fied by like affidavit of the defendant, his agent or attorney. The county collector and county clerk and county assessor shall fur- nish all affidavits, certified copies of the records of their respective offices, and such other evidences as may be in their possession by virtue of such office, as may be applied for by the county attorney. Sayles' R. S., Art. 5232f. § 288. The particular property must have been sold or re- ported delinquent before suit for tax on same -will lie. "Under Acts 1895, p. 50, Ch. 42 (Sayles' Rev. Civ. St., Art. 5232a, et seq.), providing that all lands or lots which have been returned delinquent or reported sold to the state shall be subject to the provisions of the act relating to sales for taxes, and that real estate on which taxes have been paid under erroneous de- scriptions in the assessment rolls or which have been doubly assessed or on which taxes have been paid in a county other than that in which they are located shall not be deemed subject to the provisions of the act, where a decree for tax sale of an entire league referred to an exhibit in the petition therefor, which showed that in no one year had the entire league been re- ported sold for taxes or delinquent, was void, as beyond the jurisdiction of the court." Schaffer v. Davidson, 97 S. W. 858; 44 Tex. Civ. App. 100. § 289. Right to sue for taxes. The weight of authority seems to be that when a statute does not provide an exclusive remedy for the collection, they may be enforced by suit. Cave v. City of Houston, 65 Tex. 619. "In the absence of any express provision on the subject, a city has the power to bring suit for taxes." Brummer v. City of Galveston, 76 S. W. 429, 97 Tex. 93 ; City of Henrietta v. Eustis, 26 S. W. 619, 87 Tex. 14. A tax legally levied and assessed by a municipal corporation pursuant to its charter creates a legal obligation to pay such tax, and the city can recover it by suit, and this although there may be a summary mode of recovery provided by statute. Trust Co. V. City of Oak Cliff, 8 Tex. Civ. App. 217; City of Henrietta v. 204 Taxation in Texas. EusHs, 87 Tex. 14, 26 S. W. 619; Howard v. City of Houston, 59 Tex. 76 ; Cave v. City of Houston, 65 Tex. 619 ; State v. Baker, 49 Tex. 763 ; Bordages v. Higgins, 20 S. W. 726, 1 Tex. Civ. App. 43 ; Burroughs on Taxation, Sec. 105 ; Desty on Taxation, Sec. 706. The mode provided by statute for the collection of taxes will not be exclusive of other methods, unless it clearly appears from said statute that it was the intention of the Legislature to make it so. Trust Co. v. City of Oak Cliff, 8 Tex. Civ. App. 217 ; Cave V. City of Houston, 65 Tex. 619 ; 2 Desty on Taxation, Sec. 706; Bank v. United States, 19 Wall 227. The city of Austin, under its charter, may institute suit for taxes due it at any time after the day set apart by ordinance for sale of such property for taxes. Under its charter the city of Austin has a lien against each lot or p'arcel of land for taxes due thereon, and is entitled to have such lien foreclosed by suit. Nalle V. City of Austin, 42 S. W. 780. The Act of July 4, 1879, prescribing a mode for the collection of state and county taxes, and extending its provisions to taxes levied by towns and cities, was cumulative of the remedy already afforded by the provisions of the city charter of the city of Houston, granted by the Legislature on the 21st of April, 1879, which authorized the collection of taxes due the city by action of debt in any court having jurisdiction. Hoivard v. Mayor of Houston, 59 Tex. 76. Enforced by suit when no exclusive remedy. The weight of authority seems to be that when a statute does not provide an exclusive remedy for the collection of taxes, they may be enforced by suit. Cave v. Mayor, Aldermen and In- habitants of the City of Houston, 65 Tex. 619. § 290. Consolidation of suits. "Where the owners of property appeared and filed answers in a suit by the state for taxes, the fact that the suits were com- menced against unknown owners, when the county records dis- closed that the property belonged to defendants, will not sustain a plea in abatement." Watkins v. State, 61 S. W. 532. § 291. Delinquent record. The delinquent tax record as prepared by the comptroller is not a prerequisite iot proceedings to enforce the collection of Suit to Foreclose Tax Liens. 205 taxes due and delinquent after passage of the Act of 1895, p. 50, providing in Sec. 10 for the collection of future delinquent taxes. Master son v. State, \7 Tex. Civ. App. 91. § 292. Action in rem. Suits to collect taxes are proceedings in rem. Cooley on Tax- ation, p. 527; Black on Tax Titles, Sec. 167. CHAPTER XIV. PARTIES. Sec. Sec. 293. Parties. 303. Cases in point only when 294. Present owner of land prop- party is in possession. , er party. 304. All persons claiming interest. 295. City of Houston. 305. Action against State officer, 296. Suit in name of city. not against State. 297. Bondholders necessary par- 306. State necessary party in ac- ties. tion to restrain collection 298. Heirs not necessary parties — of taxes. When. 307. State officers right lo sue. 299. Husband necessary party. 308. One in possession must be 300. County taxes delinquent col- party. lectible by State. 309. Estate as defendant. 301. Unknown owners, are not un- 310. State and county not neces- known where title is of rec- sary parties — ^When. ord and residence shown. 311. Sale before death. 302. Lien holders. 312. Community or separate prop- erty. § 293. Parties. The proper persons shall be made parties defendant in such suits and shall be served with process, and the other proceed- ings had therein as provided by law for suits of like character in the district courts of this state. Sayles' R. S., Art. 5232g. § 294. Present owner of land proper party. Taxes are made a lien upon the property against which they are assessed, and the property, not the owner of it at the time the taxes are laid, is liable for the payment thereof, although the law may provide for the personal liability of the owner. The act of the Legislature under which this suit is brought does not authorize a personal judgment against the owner for the taxes due upon the land. So the provision that the "proper persons shall be made parties defendant in such suits, and shall be served with process, and other proceedings had therein as pro- vided by law for suits of like character in the district courts of this state," is fully met with respect to parties by making the present owner of the land sole defendant to a suit for the fore- Parties. 207 closure of the lien for taxes; and the law does not contemplate a foreclosure against every person who may have been con- nected with the title at any time during the period covered by the delinquent taxes. It is clear from a reading of the act that only the owner or person claiming the land at the time the suit is brought should be a party defendant. League v. State, 56 S. W. 263, 93 Tex. 553. Where the owner of land is in actual occupation thereof through agents or tenants, and his title is of record, he is a necessary party to the suit for taxes, and a suit against all per- , sons owning or having or claiming any interest in the lands is without effect against the owner. Bingham et al. v. Matthews, 86 S. W. 781, 39 Tex. Civ. App. 41; Hollywood v. Wellhausen, 68 S. W. 329, 4 Tex. 965 ; Pearson v. Branch, 87 S. W. 222 ; Green v. Robertson, 70 S. W. 345, 30 Tex. Civ. App. 236. § 295. City of Houston. The City of Houston is the party beneficially interested in the collection of the taxes sued for, and its charter does not require the suits to be in the name of the assessor and collector, and suit is properly brought in the name of the City of Houston. Lockhart v. City of Houston, 45 Tex. 322. § 296. Suit in name of city. "Unless there is express direction in the charter or ordinances of a. city that suits for unpaid taxes shall be brought in a par- ticular manner, the assessor and collector may institute such suits in the name of the city." Robert Lockhart v. Mayor, Alder- men, etc., of the City of Houston, 45 Tex. 317. § 297. Bondholders necessary parties. "In a suit by taxpayers. of a county, to annul proceedings of the county court authorizing the issuance of bonds of the county, and to enjoin the collection of taxes to pay interest on such bonds, the bondholders are necessary parties." T. V. Board v. Texas & Pacific R. W. Co. et al, 46 Tex. 317. § 298. Heirs not necessary parties — When. "The heirs are not necessary parties to an action to cancel a tax deed by the executor and sole devisee, in which defendant files a plea in reconvention in the nature of a cross-action of trespass to try title; Rev. St. Tex., Art. 1202, providing that in 208 Taxation in Texas. suits against a decedent's estate, involving title to realty, the administrator and heirs shall be made parties defendant." Luf- kin V. City of Galveston, 11 S. W. 340, 7Z Tex. 340. § 299. Husband necessary party. In a suit against a married woman for taxes, her husband is a necessary party defendant, when property is not community nor homestead, but separate property of the wife. Crosby v. Terry, 91 S. W. 652, 41 Tex. Civ. App. 594. § 300. County taxes delinquent collectible by state. Delinquent tax due the county, as well as those due the state, may be recovered in an action by the state. Masterson v. State, 17 Tex. Civ. App. 93 ; Sayles' R. S., Art. 5232f. § 301. Unknown owners — Are not unknown where title is of record and residence shown. "In suing unknown owners, different procedure in some re- spects is prescribed from that necessary where the suit is against a known owner, or against the unknown heirs of a named per- son. It is made the duty of the county collector, county clerk, and county assessor to furnish the county attorney on his, appli- cation 'all affidavits, certified copies of the records of their re- spective offices, and such other evidence as may be in their pos- session by virtue of such office.' Vide Sec. 6. It is further ex- pressly provided in Sec. 15 that: 'Wherever the owner or own- ers of any lands or lots returned delinquent or reported sold to the state, or that may hereafter be reported sold or returned delinquent for the taxes due thereon for any year or number of years, are nonresidents of the state, or the name of the owner or owners of said land or lots be unknown, then, upon affidavit setting out that the owner or owners are non- residents, or that the owner or owners are unknown to the attorney for the state and after inquiry cannot be ascertained, said parties shall be cited and made parties defendant by notice' as prescribed in the act. In such event only does this act author- ize suits against the unknown owner. With the sources of infor- mation available to the county attorney to which we have re- ferred, how can it be said that the owner of land with a com- plete chain of title of record is unknown? We think that it should be held that an 'unknown owner' within the mean- Parties. 3Q9 ing of the act under consideration is one not known to the coujfty attorney, and who cannot be ascertained by the inquiry pre- scribed by the statute. "It is undoubtedly true, as we recognized in the Gibbs case, that in a collateral attack upon a judgment its validity is not subject to question by reason of facts dehors the record. See Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325 ; Kenson V. Gage, 34 Tex. Civ. App. 547, 79 S. W. 605 ; Scudder v. Cox, 35 Tex. Civ. App. 416, 80 S. W. 872. The rule, however, ex- cluding extrinsic evidence to impeach a judgment, has no appli- cation, we apprehend, where the effort is to show that one was not a party. Such evidence is not in contradiction of the record. It goes merely to the question of the identity of the parties. As illustrating the thought in mind, see Freeman on Judgments (4th ed.). Sec. 175; Bollinger v. Chotcteau, 20 Mo. 89; Crosley V. Hutton, 98 Mo. 196, 11 S. W. 613; Palmer v. Hayes, 112 Ind. 290, 13 N. E. 882. The facts, therefore, relating to the record of appellant's title that we have recited are to be construed, we think, as in legal effect placing appellant outside the class of persons upon whom the judgment could operate, rather than as constituting an attack upon the judgment itself. In other words, if appellant was not an 'unknown owner' within the meaning of the law, then he was not bound by the judgment because not a party thereto. It is in such sense only, it seems to us, that the cases of Bingham v. Mattheias, 39 Tex. Civ. App. 41, 86 S. W. 781, and Sellars v. Simpson (Tex. Civ. App.), 115 S. W. 888, can be justified. It was held in these cases that an owner of land in actual possession was not bound by a judgment of fore- closure and sale for taxes against an unknown owner. In the last case cited a writ of error was refused, thus indicating an approval of the holdings by our Supreme Court. In principle we do not see any sufficient reason why these cases are not applicable here. The fact of possession seems as certainly matter dehors the record as the fact of a duly recorded title. Both con- stitute notice of ownership, and it can hardly be said that pos- session, as evidence of notice or knowledge, is of greater dignity than the record, in view of our registration statutes. Rev. St. 1895, Art. 4652, declares that: 'The record of any grant, deed or instrument of writing authorized or required to be recorded, which shall have been duly proved up or acknowledged for rec- 14 210 Taxation in Texas. ord and duly recorded in the proper county, shall be taken and held as notice to all persons of the existence of such grant, deed, or instrument.' If, then, the state, which is bound as any other litigant in this respect, had notice — knowledge — of the existence of the deeds to appellant, it had notice and knowledge of his ownership at and before the institution of the suit. Appellant, therefore, as a known owner, was not made a party to the suit and is not bound by the judgment." Wren v. Scales, 119 S. W. 880; Scales v. Wren, 127 S. W. 164; BlanJton v. Nunley, 119 S. W. 881. "Olwners of land holding under recorded deeds forming a chain of title and under a recorded decree of partition are not un- known owners, and they are not bound by a judgment for delin- quent taxes rendered in a suit against unknown owners." Nun- ley V. Blanfon, 126 S. W. 1110. "A suit to foreclose a tax lien was brought against unknown heirs of a person named and the unknown owners of the land. The judgment recited that the 'defendants' were served, and that an attorney appointed held answer for the 'defendants,' and the foreclosure was in general terms without any mention of any defendants, but the 'defendants' were given the right to have the property divided and sold in tracts less than the whole sur- vey, the sale to be subject to the right of the 'defendants' to re- deem. Held, that the judgment foreclosed the lien as against all the unknown owners made defendants." Sellers v. Simpson, 115 S. W. § 302. Lien holders. Lien holders must be made parties in order to deprive them of their rights in and to the property, even though the demand for taxes is superior to their lien. Blair v. Guaranty Savings Loan md Inv. Co., 118 S. W. 610. § 303. Cases in point only when party is in possession. "The evidence failing to show that the appellant was in pos- session of the land when the foreclosure suit was filed, and when citation was issued therein, the cases of Hollyivood v. Wellhaiisen, 28 Tex. Civ. App. 541, 68 S. W. 329, and Bingham v. Matthews, 39 Tex. Civ. App. 41, 86 S. W. 781, relied on by her, are therefore not applicable. Gihhs v. Scales, 118 S. W. 189. Parties. 211 § 304. All persons claiming interest. "In a suit under the delinquent tax act, all parties owning or claiming any interest in the property must be made parties, and be served with citation." Ball v. Carroll, 92 S. W. 1024, 42 Tex. Civ. App. 333. § 305. Action against state officer not against state. "An action against the attorney-general, the state comptroller and the state treasurer to enjoin the assessment and collection of a tax is not a suit against the state, but against the individual officers," Galveston, H. & S. A. Ry. Co. v. Davidson, 93 S. W. 436. § 306. State necessary party in action to restrain collection of taxes. "A suit against state officers to restrain the collection of a privilege tax on the operation of oil wells, imposed by Acts 29th Leg., p. 358, Ch, 148, is in fact a suit against the state, and cannot be maintained without its consent. "Where, in a suit to restrain the collection of certain privi- lege taxes, the trial court refused to grant complainants any re- lief under their petition for an injunction, the court's error in overruling defendants' exception in limine, that the suit could not be maintained without the consent of the state, was imma- terial." Producers' Oil Co. v. Stephens, 99 S. W. 157, 44 Tex. Civ. App. 327; Texas Co. v. Stephens, 103 S. W. 481, 100 Tex. 628. § 307. State officers right to sue. "Where, in a suit to restrain the collection of certain occupa- tion taxes, defendants, who were state officers, answered, merely praying that the state, which was not a party to the action, re- cover the taxes due, for the purpose of obtaining a construction of the statute and a declaration of the extent of plaintiff's lia- bility only, defendants had no such right of action for the taxes as entitled them to an ordinary judgment against plaintiff there- for." Texas Co. v. Stephens, 103 S. W. 481, 100 Tex. 628. § 308. One in possession must be party. "A judgment foreclosing a tax lien against unknown owners of land rendered upon citation served by publication is not bind- ing upon persons in actual possession of the land at the time of 212 Taxation in Texas. the filing of the suit and the rendition of the judgment, but not served with citation." Sellers v. Simpson, 115 S. W. § 309. Estate as defendant. "Where a suit to foreclose a lien for taxes was brought solely against the estate of a certain person, which was an entity in law, and citation was addressed to such estate, and judgment ren- dered against it, the owner of the property was not bound." Perry v. Whiting, 121 S. W. 903. § 310. State and county not necessary parties — ^When. "A plea in abatement to a city's action for taxes that the state and county are necessary parties, in order that their respective tax liens may be marshaled, is properly overruled where it does not appear that the state and county taxes are unpaid." Benni- son V. City of Galveston, 78 S. W. 1089, 34 Tex. Civ. App. 382. §311. Sale before death. *'A wife and her husband having parted with all their inter- est in a lot, it was not subject to be administered as a part of her estate, and a tax lien on it could not be enforced through such proceeding." Toepperwein v. City of San Antonio, 124 S. W. 699. § 312. Community or separate property. "Where a judgment of foreclosure of a tax lien against a lot was rendered against a husband and wife, and she died without a sale of it, a sale made after her death would be of doubtful effect, depending on whether it was community or her separate property, and all questions as to its effect would be re- moved by a proceeding against a subsequent purchaser, who assumed payment of such judgment, by a judgment establishing a lien and a clear right to issue foreclosure process, and the inclu- sion of such prior judgment in a suit to enforce a lien for all unpaid taxes was not for an idle and vexatious purpose." Toep- perwein V. City of San Antonio, 124 S. W. 699. CHAPTER XV. COURTS. Sec. Sec. 313. Jurisdiction of courts. 316. Foreclosing of lien on real 314. Limited jurisdiction of court. estate — Amount does not 315. Jurisdiction of county court control. to issue injunction. § 313. Jurisdiction of courts. A suit to collect delinquent taxes, where no question of fore- closure is involved, is a suit on debt, and should be brought in the court having jurisdiction of the amount. Hozvurd v. The Mayox, of Houston, 59 Tex. 78; City of Henrietta v. Eustis, 87 Tex. 14, 26 S. W. 619; State v. Trilling, 62 S. W. 788. The justice court, and not the district court, has jurisdiction of an action under R. S., Art. 5212a, to recover taxes in the sum of $120.77 on the unrendered personal property, and the statutory penalty of ten per cent thereon for failure to pay the same, since it is an action on a debt, and the ampunt due is within the jurisdiction of the justice court. State v. Trilling, 62 S. W. 788. The penalty provided for failure to pay taxes on or before the 31st day of January, conceding that it is chargeable against the owner of unrendered personal property, is a mere incident to the principal obligation, and jurisdiction thereof will follow the main cause of action. State v. Trilling, 62 S. W. 788. Sayles' Statute, Art. 5232a, provides that: Real estate which may have been rendered for taxes and paid under errone- ous description given in assessment rolls, on land that may have been doubly assessed and taxes paid thereon in a county other than the one in which they are located, or land which may have been sold to the state and upon which taxes have been paid and through error not credited in the assessment rolls, shall not be deemed subject to the provisions of this chapter." That is, the chapter related to the collection of delinquent taxes by suit and it was held that the tax having been paid in one assessment, though an erroneous description, a suit against the unknown owner against land properly described was without jurisdiction 214 Taxation in Texas. and the judgment thereunder absolutely void, and subject to col- lateral attack. Hollywood v. Wellhausen, 68 S. W. 329, 28 Tex. Civ. App. 541. §314. Limited jurisdiction of court. "A suit to foreclose a lien for delinquent taxes on property of an unknown owner is a proceeding in rem, not strictly judi- cial, but only a step in administration proceedings, and the judi- cial department is resorted to only on account of the dereliction of the owner. Hence, the jurisdiction so invoked being special and limited by the act of the legislative department, nothing is taken by intendment in favor of the court's action, but it must appear from the record itself that the facts existed which author- ized the court to act, and that it kept within the limits of its law- ful authority in so doing." Youfig v. Jackson, 110 S. W. 74. § 315. Jurisdiction of county court to issue injunction. "Under the amended judiciary article of the Constitution (Art. 5, Sec. 16), giving the county court exclusive jurisdiction where the amount in controversy is over $200 and less than $500, the district court has not jurisdiction to restrain the collection of taxes in the sum of $374, notwithstanding the general power of the district courts to issue writs of injunction and mandamus. "Plaintiff corporations brought a suit in which they set up the illegal levy and assessment of taxes in a certain sum, the col- lection of which was threatened, and prayed that the taxes be declared illegal and their collection enjoined, and the petition also alleged that the taxes were a lien upon the land so as to be a cloud upon petitioners' title, but did not contain any appro- priate prayer for an action to remove a cloud from title. Two separate owners may join in an action to enjoin the collection of illegal taxes, but not to remove a cloud on title to land not owned jointly by them. Held, that the suit was not one to remove a cloud from title by reason of the illegal assessment of taxes, so as to give the district court jurisdiction, being only to enjoin the collection of illegal taxes, notwithstanding the incidental alle- gations as to cloud upon title." Aquilla State Bank v. Knight, 126 S. W. 893. Courts. 215 §316. Foreclosing of lien on real estate— amount does not control. "Where a city brought an action for taxes amounting to $186, and for the foreclosure of a tax Hen on defendant's real estate, a plea to the jurisdiction on the ground that the amount involved was below the limit of the jurisdiction of the district court was properly overruled, since, under the Constitution, the district court has jurisdiction to foreclose a lien on land, regardless of the amount involved." Grace v. City of Bonham, 63 S. W. 158, 23 Tex. Civ. App. 161. . CHAPTER XVI. PLEADINGS. Sec. Sec. 317. Must be verified. " 337. 318. Sufficiency of verification of petition. 338. 319. Verification of answer. 320. Answer not verified must be 339. specially excepted. 321. Several defendants. 340. 322. Exhibits. 341. 323. Lien. 324. Against owner. 342. 325. City of Galveston. 326. Purpose of tax. 343. 327. Not necessary to plead de- tails. 344. 328. City ordinances must be plead before they can be in- 345. troduced in evidence. 329. Duly assessed sufficient. 346. 330. Description of real estate. 331. Answer of defendant. 347. 332. Petition must allege owner- 348. ship in assessment against unknown owner. 349. 333. Allegations sufficient to ar- rive at bulk assessment — 350. Presumption of legality. 351. 334. Amended petition must be verified. 352. 335. Cross-bill asking relief — In- voice tax sale direct attack. 353. 336. Fraud in assessment. Allegations — ^What is neces- sary. Pleading of ordinance suffi- cient. Must state property within territory taxed. Description of land. Answer must deny specifi- cally. Petition need not allege ex- istence of debt — When. Need not plead city charter when a public act. Allegation that property was duly assessed sufficient. Petition not demurrable — When. Averment assessed for taxes sufficient. Must state year. Allegations of petition — Land in another county. Allegation to enjoin irregular assessments. School tax. To enjoin illegal excess must allege what. Not defective not to allege collector's failure to collect. Must state purpose and amount of tax. § 317. Must be verified. % the Act of 1897, p. 135, Sec. 7, the petition in such suits shall be signed by the attorney bringing the suit and shall be verified by the affidavit of said attorney, or county judge, to the effect that the averments contained in said petition are true to the best knowledge and belief of affiant, and the pleadings of the defendant, except those of law, shall be verified by like affidavit of the defendant, his agent or attorney. Pleadings. 217 § 318. Sufficiency of verification of petition. "A petition in tax foreclosure, being the instrument which calls into activity the court's authority, and sets it in motion, must conform in law to every substantial requirement, or it will fail to confer jurisdiction ; but, when the petition is other- wise sufficient and is signed and sworn to by the county attor- ney of the county where the land is situated, it is a substantial compliance with Sayles' Ann. Civ. St. 1897, Art, 5232 f, requiring the petition in tax foreclosure suits to be signed by the attorney bringing the suit, and verified by the affidavit of said attorney or the county judge, to the eiTect that the averments contained in the petition are true to affiant's best knowledge and belief, which section also requires certain officers to furnish affidavits, verified copies of records in their offices, etc., as may be applied for by the county attorney, for the county attorney, or the district at- torney in counties where there is no county attorney, is the officer required by Art. 5232f to represent the state and county in suits against delinquent taxpayers." Young v. Jackson, 110 S. W. 75. § 319. Verification of answer. "The defense of payment being unavailable unless pleaded, no evidence thereof can properly be allowed without such plea." State V. Quillen, 115 S. W. 660. § 320. Answer not verified must be specially excepted. "If an answer in an action to recover taxes is not sworn to, or is not sworn to in the manner required by Rev. St. 1895, Art. 5232f, the defect should be specifically excepted to by plaintiff, that it may be amended, as such question cannot be properly raised on an objection to the evidence." State v. Quil- len, 115 S. W. 660. § 321. Several defendants. In a suit against several jointly, in order to sustain a proper judgment the petition should allege which defendants own the several tracts and the amount of taxes assessed against each tract. Borden et al. v. City of Houston, 26 Tex. Civ. App. 29, 62 S. W. 426. § 322. Exhibits. District Court Rule No. 19, permitting the use of exhibits as an adjunct to pleading, expressly provides that the exhibit shall 218 Taxation in Texas. not relieve the pleader from making the necessary allegations of which the exhibit may be the evidence in whole or in part. Burden v. City of Houston, 26 Tex. Civ. App. 29, 62 S. W. 426; Pool V. Sanford, 52 Tex. 635. § 323. Lien. In order to foreclose a tax lien it must be pleaded. Stone v. Cortes, 90 Tex. 283, 83 S. W. 154, 35 L. R. A. 666; Netzorg v. Geren, 62 S. W. 791, 26 Tex. Civ. App. 119. § 324. Against owner. A petition in an action to recover taxes on unrendered per- sonal property, which action is required by Art. 5212a, R. S., to be brought against the persons owning the property at the time it should have been assessed, which only alleges that the defendant was in possession thereof at such time, is not a suf- ficient allegation of ownership, as against a demurrer specifically raising such objection. State v. Trilling, 62 S. W. 788. § 325. City of Galveston. Under Galveston City Charter (Special Laws 1876, p. 23, Ch. 11),. Sec. 79, authorizing the city by ordinance to levy and col- lect taxes, a petition in an action by the city for the collection of taxes, which alleged that by an ordinance the city had levied and ordered to be collected the tax due for municipal purposes, sufficiently stated a cause of action, and it was not necessary to set out the acts which constituted the levy. Galveston & W. Ry. Co. V. City of Galveston, 74 S. W. 539, 96 Tex. 520; Lock- art V. City of Houston, 45 Tex. 323 ; Parker v. City of Jackson- ville, 37 Fla. 352 ; Town of Elmq v. Carney, 4 Wash. 420. § 326. Purpose of tax. Under Rev. Stat., Art. 1195, requiring a petition to give a full statement of the cause of action in a suit by a city to col- lect taxes, the petition must show the purpose for which the tax was levied and the amount of the tax levied for each purpose authorized by statute. Maddox v. City of Rockport, 38 S. W. 397. § 327. Not neces^ry to plead details. To show a cause of action for taxes to pay interest on the bonded city debt, and to provide a sinking fund for its ultimate Pleadings. 219 redemption, it is sufficient to allege the passage of an ordinance in each year for which such taxes are claimed, levying a tax for the purpose of paying such interest and sinking fund; and it is unnecessary to further aver the existence of or the facts con- stituting such debt. Berry v. City of San Antonio, 46 S. W. 273, 92 Tex. 319. § 328. City ordinances must be plead before they can be in- troduced in evidence. Courts will not take judicial knowledge of the ordinances of a municipal corporation. They stand on the same footing as private and special statutes, and the laws of other states and of foreign countries, and must be averred and proved like other facts. In pleading, the ordinance need not bet set forth in totie- dene verbis, but the contents of an ordinance under which a right is claimed should be substantially stated and not the conclusion of the pleader as to its scope and legal eflfect. City of Austin v. Walton, 68 Tex. 507; Sterrett v. City of Houston, 14 Tex. 153; Light & Power Co. v. Lefevre, 93 Tex. 607. § 329. Duly assessed sufficient. The averment that property was "assessed for taxes" is suf- ficient, without detailing by whom it was assessed, and other facts showing a legal assessment. To require in the petition a detail of the facts necessary to make it appear that the levy and the assessment of the tax were regular and legal would be both burdensome and useless. They are themselves facts, sufficiently named in their nature from mere conclusions of law to admit of being averred like the protest of a bill exchange without specir fying what acts were done, or by what officer. Lockhart v. City of Houston, 45 Tex. 323 ; G. & W. Ry. Co. v. City of Gal- veston, 96 Tex. 525. § 330. Description of real estate. In a suit for taxes due on real estate, the petition should desig- nate and describe the real estate on which the taxes are due and the action to justify the sale of the land for the taxes must be an action in rem, as no sale can be made under a judgment in persona. Clegg v. State, 42 Tex. 605. § 331. Answer of defendant. "Where the pleadings of both parties are required to be sworn to, in an action by the state to foreclose a tax lien, it is unnec- 220 Taxation in Texas. essary for the state to prove facts admitted in defendant's veri- fied answer." League v. State, 56 S. W. 262, 93 Tex. 553 ; League v. State, 57 S. W. 34. "The defendant claims that his general denial prevents the taking of the answer as true, and that there was no proof show- ing that the state had title in the land, or that the defendant him- self was claiming title thereto. The law under which this pro- ceeding is had required the pleadings of both parties to be sworn to. A general denial is not applicable to the case. It is similar to the practice in case of mandamus, where it is held that because a defendant is required to traverse the allegations of the plaintiff, or to confess and avoid them, a general denial is no answer, and will not prevent judgment being taken upon the petition and the answer. Sansam v. Mercer, 68 Tex. 488, 5 S. W. 62. It was unnecessary for the state to prove the facts alleged and sworn to by the defendant. Ogden v. Boose, 86 Tex. 344, 24 S. W. 798." League v. State, 57 S. W. 35. § 332. Petition must allege ownership in assessment against unknown owners. "There was no averment in the petition that the taxes were assessed against the defendants, or that they were the owners of the land, during the years, or any of the time, for which the land was reported delinquent, and consequently there could be no personal judgment against the defendants for any part of the tax alleged to be due and delinquent. It did not appear from any averment in the petition that the defendants were the owners of the land at the time the suit was brought, or that they were at any time the owners thereof. Consequently there was no cause of action shown against the defendants for a foreclosure of the lien upon the land for the taxes. The plaintiff could not main- tain a suit for the recovery of the taxes by a foreclosure of the the lien and sale of the land without a party defendant ; and such party must be a person claiming the land, and not a fictitious person, or one not the owner thereof or claiming title thereto. If the name of the owner should be unknown, it would then be necessary to make such unknown party defendant, according to the practice in such case. The petition contained the general averments that the defendants were indebted to the state of Texas and Angelina county for the taxes, which were a lien upon Pleadings. 221 the land ; but other averments showed that the taxes were assessed upon the land during the time for which the assessments were made, or ever at any time owned it. The state cannot go into court and have the land sold for the payment of taxes with- out a suit filed and prosecuted to judgment, with proper parties. No cause of action was shown against the defendants, and, the plaintiff having declined to amend, the suit was properly dis- missed." State V. Mantooth, 49 S. W. 683, 20 Tex. Civ. App. 396. § 333. Allegations sufficient to arrive at bulk assessment — Presumption of legality. "In an action by a city to collect taxes assessed, where it does not appear whether the property was rendered or not by the owner, as required by law, but the petition avers that the taxes were legally levied and rendered and the exhibit attached shows description of the property, rate of taxation, and the amount due, the owner cannot complain that the lots were not separately as- sessed, as the property might have been rendered by him to be assessed in gross. . "A petition in an action to enforce an assessment authorized by a city ordinance need not state for what purposes the assess- ment was made, where it alleges that ordinances of the city pro- vided for the levy of a certain per cent on property valuation." Harris v. City of Houston, 52 S. W. 653, 21 Tex. Civ. App. 432. § 334. Amended petition must be verified. "Under Acts 1897, pp. 134-6, providing for foreclosure of tax liens, and which requires pleadings to be verified, a judgment by default may not be entered on an unverified amended petition, and this though the original petition was verified." Cockrell v. State, 55 S. W. 579, 22 Tex. Civ. App. 568. § 335. Cross-bill asking relief — Invoice tax sale direct attack. "Where one claiming title through a city which had purchased property on foreclosure of a tax lien, sued to try title against the original owner, who filed a cross-bill alleging that the court in the foreclosure proceedings had no jurisdiction, for the reason that he had not been cited and had not appeared therein, and asking that the cross-bill be taken as a direct attack on such judgment and proceedings, and offering to pay all sums due on 222 Taxation in Texas. such tax claim and costs, such bill was a direct and not a col- lateral attack on the foreclosure judgment, since by joining the city as a party, defendant became a plaintiff and was entitled to the same relief as if he had brought the suit." Scanlan v. Camp- hell, 55 S. W. 501, 22 Tex. Civ. App. 505. § 336. Fraud in assessment. "In a suit to recover taxes, fraud of the board of equalization in making assessment may be pleaded." Mann v. State, 46 S. W. 652, 18 Tex. Civ. App. 701. § 337. Allegations — What is necessary. "To show a cause of action for taxes to pay interest on the bonded city debt, and to provide a sinking fund for its ultimate redemption, it is sufficient to allege the passage of an ordinance in each year for which such taxes are claimed, levying a tax for the purpose of paying such interest and sinking fund ; and it is unnecessary to further aver the existence of or the facts con- stituting such debt." Berry v. City of 'San Antonio, 46 S. W. 273, 92 Tex. 319. "A complaint, in an action by a city in trespass to try title, set up that certain property was purchased by the city at a tax sale, which defendant claimed was sold, and asked judgment for the delinquent taxes, if the sale was held to have been void. Held, that the complaint did not allege the sale was void, and hence it was not necessary to set up wherein it was void." Conk- lin V. City of El Paso, AA S. W. 879. § 338. Pleading of ordinance sufficient. "A complaint by a municipality to recover special taxes to pay bonded indebtedness of the city, which pleads the ordinances making the levy, need not allege the existence of the indebtedness or the facts constituting such debt." City of San Antonio v. Berry, 48 S. W. 496, 92 Tex. 319. § 339. Must state property within territory taxed. "The suit is to recover a special tax assessed for a special pur- pose within a given territory, comprising a portion only of a county. It is alleged that the tax was assessed upon certain real estate, and in order to show that such assessment was legal, and liability for the payment of the tax existed, it was necessary for the plaintiff to allege that the real estate involved was within Pleadings. 223 the limits of the territory referred to. This the petition wholly fails to do, and for this reason appellant's general demurrer should have been sustained. Cooley on Taxation, p. 159. It is true the petition alleges that the taxes sued for were legally and duly levied and assessed, but that is merely the averment of the pleader's conclusion, and not an allegation of facts showing the correctness of such conclusion. Millican v. McNeil, 92 Tex. 400, 49 S. W. 219." Miller v. Crawford Independent School District, 63 S. W. 894, 26 Tex. Civ. App. 495. § 340. Description of land. "Where, in tax suit proceedings, land in survey No. 150 is attempted to be described, but is described as No. 130, the error in the description is fatal to the proceedings. Wolf v. Gibbons, 69 S. W. 238; Brokel v. McKechnie, 69 Tex. 33; Brakel v. Mc- Kechnie, 6 S. W. 623. § 341. Answer must deny specifically. Law 1897, Ch. 103, in suits for state taxes, required the plead- ings of both parties to be sworn to. A general denial is not ap- plicable. It is similar to the practice in case of mandamus, where it is held that because a defendant is required to traverse the allegations of the plaintiff, or to confess and avoid them, a general denial is no answer, and will not prevent judgment being taken upon the petition and answer. League v. State, 57 S. W. 34, 93 Tex. 553 ; Sansom v. Mercer, 68 Tex. 488, 5 S. W. 62. § 342. Petition need not allege existence of debt — When. A petition to recover special taxes to pay city bonded indebt- edness, pleading ordinances making the levy, need not allege existence of the debt. Wright v. City of San Antonio, 50 S. W. 406. § 343. Need not plead city charter when a public act. A petition, in an action against a city, need not plead provi- sions of its charter on which the action is based, where the charter has been declared a public act of which judicial notice must be taken. Wright v. City of San Antonio, 50 S. W. 406. 224 Taxation in Texas. § 344. Allegation that property was duly assessed sufficient. A petition by a city for the recovery of taxes, alleging that the property was duly assessed for taxation, authorizes proof of the assessment. Wright v. City of San Antonio, 50 S. W. 406. § 345. Petition not demurrable — When. In an action for a personal judgment for taxes, the petition alleging that the taxes were levied to provide for interest and sinking fund on outstanding bonds, is not demurrable because no tax can be collected to pay interest on bonds prior to their sale. Moody V. City of Galveston, 50 S. W. 482, 21 Tex. Civ. App. 16. § 346. Averment assessed for taxes sufficient. "The averment that property was 'assessed for taxes' is suf- ficient, without detailing by whom it was assessed, and other facts showing a legal assessment. The 'levy and assessment' are themselves facts sufficiently removed in their nature from mere conclusions of law to admit of being averred without setting out what acts were done, or by what officer, in making the levy and assessment." Robert Lochart v. Mayor, Aldermen, etc., of the City of Houston, 45 Tex. 317. § 347. Must state year. 'Tn an action of trespass to try title, where the defendant relied upon a tax deed for his title, the answer set up that the tax deed was issued in pursuance to a sale for the unpaid taxes of the year 18 — . Held, that the plea was fatally defective in not stating the year for which the taxes were due." Gulf, C. & S. F. Ry. Co. V. Poindexter, 7 S. W. 316, 70 Tex. 98. § 348. Allegations of petition — Land in another county. "Gen. Laws Tex. 1879, pp. 24, 28, provide that assessors shall be furnished with a correct abstract of the surveys in their sev- eral counties ; and that any lands which have been assessed in any county according to the abstract of land titles, and the taxes paid thereon, shall not be afterwards subject to the pay- ment of taxes for the same period in a different county, although a subsequent survey shall show the said land to be in the latter county. Held, where one claiming his lands to be in a certain county sought to restrain the assessor of another county from listing them, on the ground that they would thereby be subject Pleadings. 225 to double taxation, that the petition was insufficient which did not aver that the abstract showed the land to be in the former county. Chrisholm v. Adams, 10 S. W. 336, 71 Tex. 678. § 349. Allegation to enjoin irregular assessments. "I Sayles' Civ. St., Art. 1517a, provides that the board of equalization shall have power to correct any errors in the assess- ment of property at any time before the tax thereon is paid. Held, that where a party fails to allege in his petition that he has ap- plied to the commissioners' court to correct an alleged irregularity and overvaluation, an injunction to restrain the collection of the alleged irregularly assessed taxes- will be denied." Swenson v. McLaren, 21 S. W. 300, 2 Tex. Civ. App. 331. § 350. School tax. To authorize a judgment for the recovery of any tax for school purposes due cities incorporated under the general law, it must be averred and proved that the city had, in accordance with the provisions of the statutes authorizing such action, been duly or- ganized into a separate school district. McCombs v. City of Rockport, 14 Tex. Civ. App. 561. § 351. To enjoin illegal excess must allege v^^hat. A petition which alleges that a city has exempted a water com- pany from taxation, in consideration of its supplying the city with water at reduced rates, and that plaintiff taxpayer is thereby obliged to pay higher taxes than he otherwise would, is insuffi- cient to entitle him to maintain an action to enjoin the amount of such illegal excess, when neither the amount thereof, nor other amounts from which it may be calculated, is averred. Altgelt v. City of San Antonio, 17 S. W. 75, 81 Tex. 436. § 352. Not defective not to allege collector's failure to collect. Gen. Laws 1905, p. 317, Chap, 129, Sec. 2, provides that no tax collector shall be allowed to credit for lists of delinquent or insol- vent taxpayers as provided by Rev. St. 1895, Art. 5170, until he makes oath in writing that he has exhausted all resources to col- lect the taxes under specified statutes. Held, that such provision had no reference to fees to which the collector is entitled in suits to collect delinquent taxes under such act, and hence a petition for such relief was not defective for failure to allege that the tax collector had performed the duties prescribed in Section 2. Unknown Owner v. State, 118 S. W. 803. 15 226 Taxation in Texas. § 353. Must state purpose and amount of tax. Under Rev. St. 1879, Art. 1195, requiring a petition to give a full statement of the cause of action in a suit by a city to collect taxes, the petition must show the purpose for which the tax was levied, and the amount of the tax levied for each purpose author- ized by statute. Maddox v. City of Rockport, 38 S. W. 397. CHAPTER XVII. SERVICE. Sec. r Sec. 354. Service — How made. 365. 355. Notice to non-residents — Un- known owners and other 366. proceedings in suits for taxes. 367. 356. Insufficient service — Judg- 368. ment void. 357. What citation by publication 369. should contain. 370. 358. Personal judgment. 359. Jurisdiction of non-resident. 371. 360. Citation by publication strict- ly construed. 361. Sufficiency of notice and pub- 372. lication against unknown onwers. 373. 362. Citation in tax cases different. 363. Date of filing. 374. 364. Act 1897 repealed all other laws. 375. Where one is in possesiion and title of record. Appointment of attorney and statement of facts. Proof of publication. Void service against unknown owners. Must describe land. May be addressed directly to defendants. Citation against unknown owners governed by the special statutes. Proper affidavit must be filed or judgment is invalid. May be collaterally attacked —When. When good against unknown owners. Liability of county to pay for citation by publication. §354.. Service — How made. Under the Law of 1897, p. 134, Sec. 7, it is provided that the defendants be served with process, and other proceedings had therein as provided by law for suits of like character in the dis- trict courts of this state. § 355. Notice to non-residents — Unknown owners and other proceedings in suits for taxes. Wherever the owner or owners of any lands or lots returned delinquent or reported sold to the state or that may hereafter be reported sold or returned delinquent for the taxes due thereon for any year or number of years, are non-residents of the state or the name of the owner or owners of said land or lots be un- known, then upon affidavit setting out that the owner or owners are unknown to the attorney for the state and after inquiry can 228 Taxation in Texas. not be ascertained, said parties shall be cited and made parties defendant by notice in "The name of the state and county directed to all persons owning or having or claiming any interest in the following described land delinquent to the state of Texas and county of , for taxes, to-wit: (here set out description of the land as contained on the assessment roll and such further description obtainable in the petition), which said land is de- linquent for taxes for the following amounts: $ for state taxes and $ for county taxes, and you are hereby notified that suit has been brought by the state for the collection of said taxes, and you are comrnanded to appear and defend such suit at the term of the district court of GDunty, and state of Texas, and show cause why judgment shall not be ren- dered condemning said land (or lot) and ordering sale and fore- closure thereof for said taxes and costs of suit," which notice shall be signed by the clerk and shall be published in some news- paper published in said county one time a week for three consecu- tive weeks. If there is no newspaper published in the county then notice may be given by publication in a paper in an adjoin- ing county. A maximum fee of two and one-half cents per line (seven words to count a line) for each insertion may be attached for publishing the citation as above provided for. If the publica- tion of such citation can not be had for the compensation provided for in this article, then publication of the citation herein provided may be made by posting a copy at three different places in the county, one of which shall be at the court house door. It shall be lawful in all cases to set forth in the petition the names of all parties interested as far as ascertained, and may make them par- ties and also to join and make defendants of all persons having or claiming any legal or equitable interest in the land described in the petition, and such suit after such publication shall be pro- ceeded with as in other cases, and whether any party or parties make defense or not on the trial of said case the state and county shall be entitled to prove the amount of taxes due and shall have a decree for the sale of said land or lot as in those cases where defendant owners have been personally served and defend suit, and a sale of said land or lot shall be had and be as binding as where defendants were personally served with process. In all suits for taxes due the defendant shall be entitled to credits he can show due him for any year or number of years for which he Service. 229 may be able to produce receipts, but the state shall have judgment and foreclosure of tax lien for any year or years sued for where the defendant can not offer receipt or other positive proof show- ing the payment of the claim for the taxes. Act 1897, p. 138, Sec. 15; Sayles R. S., Art. S2?>2o. § 356. Insufficient service — ^Judgment void. A judgment in a tax suit and a sale of land thereunder, ren- dered and made pursuant to a service of process by publication against the unknown owners, and to a trial in which there was no appearance by the owner, was void, where the premises were ac- tually occupied by the owner as a homestead at the time of the proceedings. Crosby v. Terry, 91 S. W. 652, 41 Tex. Civ. App. 594. Under Acts 1897, p. 138, Chap. 103, Sec. 15, prescribing the requisites of notice in tax suits, and providing that the notice shall be in "the name of the state and county" and directed to all per- sons "owning or having or claiming any interest" in the land, a notice running in the name of the state only, and directed to the sheriff or any constable of the county, commanding him to sum- mon "Unknown persons whose residence is unkown," was fatally defective, and judgment based thereon was void. Babcock v. Wolff arth, 80 S. W. 642, 35 Tex. Civ. App. 512. Under General Laws 1897, p. 138, Chap. 103, Sec. 15, prescrib- ing the form of the citation or notice in tax^ cases when the owner of lands charged to be delinquent is a non-resident, which pre- scribed form, among other things, directs that the party sued shall be cited and made party defendant by notice "in the name of the state and county directed to all persons owning or claiming any interest" in the land to be affected a notice not complying with such form is insufficient to support a judgment for taxes with foreclosure of tax lien. Garvey v. State, 88 S. W. 873 ; Babcock V. Wolffarth, 80 S. W. 642, 35 Tex. Civ. App. 512. § 357. What citation by publication should contain. Under R. S., Art. 1235, requiring a citation on a non-resident by publication to contain a brief statement of the cause of action, a citation in a suit for taxes is insufficient to support a default in judgment; where it only alleges a gross sura to be due from all defendants for certain years as taxes on land merely described 230 Taxation in Texas. as 1,002 acres, a part of the Smith survey in Harris County. Borden et al. v. City of Houston, 26 Tex. Civ. App. 29, 62 S. W. 427. Citation by pubHcation being at best but a substitute for per- sonal service and ex parte in its character, the requisites prescribed by law should be strictly complied with. Stegall v. Huff, 54 Tex. 196 ; Borden et al. v. City of Houston, 62 S. W. 427 ; Netzorg v. Geren, 62 S. W. 791, 26 Tex. Civ. App. 119. The article of the statute prescribing the requisites of a cita- tion by publication requires more than must be contained in a citation to be served in the county when the suit is instituted. In the latter it need state only the nature of the plaintiff's de- mand, whereas in the former it must contain a brief statement of the cause of action. (R. S., Art. 1235.) Borden et al. v. City of Houston, 26 Tex. Civ. App. 29 ; Pipkin v. Kaufman, 62 Tex. 545. § 358. Personal judgment. It is settled that personal judgments against non-residents upon service by publication are void. Pennoyer v. Neff, 95 U. S. 714; Wilson V. Seleynon, 144 U. S. 41 ; York v. State, 73 Tex. 651 ; Taliaferro v. Batter, 77 Tex. 578; Brezmng Co. v. Hirsch, 78 Tex. 192 ; Foote v. Sewell, 81 Tex. 659 ; Netsorg v. Geren, 62 S. W. 791, 26 Tex. Civ. App. 119. § 359. Jurisdiction of non-resident. In order to obtain jurisdiction over the property of a non-resi- dent through service by publication, every essential requisite of the law must be strictly complied with. Allen v. Wyser, 29 Tex. 151 ; Stephenson v. Railway Co., 42 Tex. 162; Byrnes v. Samp- son, 74 Tex. 79, 11 S. W. \07Z; Netsorg v. Geren, 62 S. W. 791, 26 Tex. Civ. App. 119. § 360. Citation by publication strictly construed. Service by publication is, at best, but a miserable substitute for the notice usually required to bring the citizen into court, and is not justified on any ground but that the state has the right to subject the property within the borders to the payment of debts due by a non-resident to it or any of its citizens, and can in no other way adjust rights between non-residents and itself or its inhabitants. The rule is based upon the fiction that property is always in the possession of its owner, either in person or through Service. 231 an ag-ent. Being outside the state, the non-resident can not be reached by personal service and it is only through and in con- nection with his property that any of his rights can be adjudi- cated. Such being the case, how essential it is that he should be, in the manner prescribed by law, notified of any attempt to sub- ject his property to the payment of any demands against him. 'Netsorg v. Geren, 62 S. W. 791, 26 Tex. Civ. (App. 119. Where a citation by publication of a non-resident defendant in an action by the state to recover taxes and foreclose the tax lien on the land, stated that the action was for taxes for a certain sum for a certain year on certain described property, but did not state that the action was also to foreclose the tax lien ; the cita- tion did not contain a statement of the cause of action as re- quired by Sayles Civ. St., Art. 1235, so as to give the court juris- diction, and therefore the owner may recover the land sold under a default judgment foreclosing the lien. Netsorg v. Geren, 62 S. W. 791, 26 Tex. Civ. App. 119. It was contended on motion for rehearing in the last cited case {Netsorg v. Geren) in effect, that appellant having been notified by citation by publication that he had been sued in the district court of Grayson County for taxes in the sum' of $7.72. He was thereby notified that a forclosure of the statutory lien was sought because the district court could not have assumed jurisdiction of a suit for that sum unless there was also a suit to foreclose lien on real property. Appellant, being a resident of another state, was not charged with knowledge of the laws of Texas {M or eland v. Atchison, 19 Tex. 303). If it was neces- sary to ask for a foreclosure of the lien in the petition, it was necessary to notify appellant that such foreclosure had been asked. Netsorg v. Geren, 62 S. W. 791, 26 Tex. Civ. App. 119. Sayles Ann. Civ. St. 1897, Art. 5232o, provides for a notice to non-residents on suits for taxes, to be directed to all persons owning or claiming any interest in the land, and which shall state that suit has been brought for the collection of the taxes, and command those owning, etc., to appear and defend such suit. A notice was directed to the sheriff or any constable of the county, and notified him that suit had been brought, and commanded him to appear and defend it, and show cause, etc. Held, that notice was fatally defective, as it was contended by the defendants in the tax suit ( 1 ) that the notice was not directed to "all persons own- 232 Taxation in Texas. ing or having or claiming any interest" in the land; (2) that it did not notify them that suit had been brought by the state for the collection of said taxes; and (3) that it did not command them to appear and show cause why judgment should not be ren- dered condemning said land, and ordering it sold for taxes and costs of suit, as provided. On the contrary, it was directed to the sheriff or any constable, notifying him that suit had been brought by the state for the collection of said taxes, and com- manded him to appear and defend it. Earnest v. Glaser, 74 S. W. 605 ; Babcock v. WoWarth, 80 S. W. 642, 35 Tex. Civ. App. 512. § 361. Sufficiency of notice and publication against unknown owners. The notice by publication in some newspaper published in the county once a week for three consecutive weeks, required by Sayles Ann. Civ. St. 1897, Art. 5232o, in suits to foreclose tax liens where the owner is a non-resident or his name is unknown, is appropriate to the nature of the case, and sufficient to meet the requirement of due process of law. Notice to unknown owners by publication for three months in a newspaper, as required by Sayles Ann. Civ. St. 1897, Art. 5232o, in suits to foreclose tax liens, is sufficient, even though the unknown owners chance to be heirs of the original patentee, not- withstanding Article 1236, providing that where property may have accrued to the heirs of any deceased person, any party hav- ing a claim against them, relative to such property, if their names are unknown to him, may sue, describing them as heirs of such ancestors, naming them, and that citation shall command them to be summoned by making publication of citation once each week for eight successive weeks previous to the return of such citation ; for the representative of the state may have been ignor- ant that the unknown owners were such heirs, and is not charge- able with notice of the facts, and besides, the notice required by Article 1236 is not such as the law provides for in special pro- ceedings of the character in question, and could be resorted to, if at all, only in the absence of a specific statute providing notice for such case. Under Sayles Ann. Civ. St. 1897, Art. 5232o, requiring notice of suits to collect delinquent taxes to be "directed to all parties owning or having or claiming any interest" in the land in ques- Service. 233 tion, etc., a notice "to unknown owners, and to all persons owning or having, or claiming any interest," etc., is sufficient, at least on collateral attack, even though immediately preceding that para- graph are recitals not required by the statute, for they may be treated as surplusage. Under Sayles Ann. Civ. St. 1897, Art. 5232o, providing that, upon affidavit setting out that the owner of land reported sold or returned delinquent for taxes is unknown to the attorney of the state, notice of tax foreclosure suit may be given by publication, an affidavit by the county attorney that the statements are true to the best of his knowledge and belief is sufficient. A notice to unknown owners of tax foreclosure suit, specifying only the aggregate sum due for state and county taxes, is suffi- cient on collateral attack, where the several sums due the county and state are set forth in exhibits attached to the petition, not- withstanding Sayles Civ. Ann. St. 1897, Art. 5232o, prescribing the form of notice, which in that respect is, "Which said land is delinquent for taxes for the following amounts: $ for state taxes, and $ for county taxes," for the owners were deprived of no substantial right by reason of the omission to state separately the sums due, and the omission is at most a defect that could only be taken advantage of by motion of quash, bill of review, or some direct proceeding to vacate the judgment. Young V. Jackson, 110 S. W. 74. § 362. Citation in tax cases different. In Article 5232o, Sayles Ann. Civ. St. 1897, it is apparent from the language of said article that it was the intention of the legis- lature to prescribe a form of citation or notice in suits by publi- cation against non-residents or unknown owners for taxes, dif- ferent from the ordinary citation, and peculiar to the class of cases mentioned. The object in the enactment was to formulate a guide for citing the non-resident or unknown delinquent tax- payer and in testing the corrections of a citation in such cases that law alone must be looked to. Kenson v. Gage, 79 S. W. 605, 34 Tex. Civ. App. 547. Sayles Ann. Civ. St. 1897, Art. 1236, authorizing the service of process in an action against unknown heirs, by publication once each week for eight successive weeks, governs in an action under the delinquent taxes, for Art. 5232g provides that in such 234 Taxation in Texas. actions the proper persons shall be made parties defendant and shall be served with process as provided by law for suits of like character. Williams et al. v. Yoimg et al., 90 S. W. 940, 41 Tex. Civ. App. 212. § 363. Date of filing. Under Sayles Ann. Civ. St. 1897, Art. 5232o, providing a form of citation to be published in suits for taxes against non-residents or unknown land owners in which the date of filing the suit is not required to be given, the failure to include such date in the citation does not vitiate it. Kenson v. Gage, 79 S. W. 605, 34 Tex. Civ. App. 547. § 364. Act 1897 repealed all other laws. Since Acts 1897, p. 138, Chap. 103, Sec. 15, describing the requisites of notice in tax suits, repealing all conflicting laws, and had no saving clause with respect to suits then pending, a notice issued prior to the time such act took effect and published subsequent thereto should have complied herewith. Babcock v. Wolifarth et al, 80 S. W. 642, 35 Tex. Civ. App. 512. § 365. Where one is in possession and title of record. When the owner of land is in actual occupation thereof through agents or tenants, and his title is of record, the state and its offi- cers are charged with the knowledge of his possession, and can not, without actual notice to him, deprive him of title by a suit under Sayles Ann. Civ. St. 1897, Art. 5232o, authorizing the fore- closure of delinquent tax liens on land owned by non-residents, or by unknown owner by suit instituted by publication of sum- mons against all persons owning or having or claiming any in- terest in the lands. Bingham et al. v. Matthews, 86 S. W. 781, 39 Tex. Civ. App. 41 ; Peareson v. Branch, 87 S. W. 222 ; Holly- wood V. Wellhausen, 68 S. W. 329, 4 Tex. 965. § 366. Appointment of attorney and statement of facts. In an action against a non-resident for state and county taxes cited by publication, failed to comply with Article 1346, Sayles Ann. Civ. St. 1897, providing that where service of process has been made by publication and no answer has been filed, the court shall appoint an attorney to defend the suit, and judgment shall be rendered as in other cases, but in every such case a statement of the evidence, approved by the judge, shall be filed with the Service. 235 papers of the cause as part of the record thereof. Garvey v. State, 88 S. W. 873 ; Byrnes v. Sampson, 74 Tex. 79, 11 S. W. 1073. § 367. Proof of publication. Where the statute prescribing the notice required for tax fore- closure does not require that it be directed to the sheriff or con- stable, as it ordinarily does, but seems to negative the idea that it should be placed in the hands of such officer for execution, and no rnethod is prescribed for proving the fact of its execution, whatever is sufficient to inform the court of the fact of publica- tion would, when the court is so informed, authorize it to pro- ceed to judgment, and it should be presumed on collateral attack in favor of the judgment that the court found the notice was published as required. Hence an affidavit of publication made by the publisher of a newspaper, and in other respects proper, is sufficient, especially in view of Rev. St. 1895, Art. 1457, author- izing the affidavit of a publisher of a newspaper to be taken as evidence of his serving a notice in the manner prescribed by statute. Where the officer who takes a publisher's affidavit of publi- cation of a notice of foreclosure proceedings is the clerk of the court which tries the case, and he is authorized to administer oaths, and the proceedings resulted in sale under the notice, on collateral attack it will be presumed that the trial judge knew his clerk's official signature, and was satisfied that the affidavit was made and the notice published as stated, even though no seal is affixed to the jurat, and, in any event, the affidavit was not void because of the officer's failure to affix his seal to the jurat, for it could have been amended by leave of court by afterwards affixing the impress of the seal. Young v. Jackson, 110 S. W. 74. § 368. Void service against unknown owner. In proceedings to sell land of an unknown owner for unpaid taxes, the citation by publication was addressed as follows : "To the Sheriff or any Constable of El Paso County — Greeting." It commanded the sheriff that by making publication thereof he summon the owner of the property. Service of the citation was made by the sheriff by publication in a county newspaper once per week for four consecutive weeks. Held, that the citation was void, and the judgment, being silent as to what service was had upon the unknown owner, was based upon the void citation, and was also void. Bowden v. Patterson, 111 S. W. 182. 236 Taxation in Texas. § 369. Must describe land. Under Sayles Ann. Civ. St. 1897, Art. 5232o, providing that the notice in tax suits shall be directed to all persons claiming any interest in the land so described as to identify it, a notice in a tax suit for taxes due on the "A. Netherly" survey issued to the unknown owners of the "A. Wetherby" survey, and pub- lished as directed to the unknown owners of the "A. Weatherby" survey, is fatally defective. Harris v. Hill, 117 S. W. 907. § 370. May be addressed directly to defendants. The citation served by publication in an action for delinquent state and county taxes may be addressed to defendants and it need not be addressed to any officer nor require any officer to make return thereof. Gibbs v. Scales, 118 S. W. 188. § 371. Citation against unknown owners governed by the Special Statutes. A proceeding against the unknown owner of land to foreclose a delinquent tax assessment as authorized by Laws 1897, p. 138, Chap. 103, Sec. 15, is a special proceeding in which the citation need not state the file number of the proceeding, as required by Rev. St. 1895, Art. 1214, regulating citations in general ; the proceeding being governed by the special rather than the general law. "Unknotmi Owner v. Staie, 118 S. W. 803. § 372. Proper affidavit must be filed or judgnient is invalid. The findings show that the judgment of foreclosure rendered in the tax suit contained no recital of notice to, or service upon, the defendant in that suit, and that the petition, although sworn to by the county attorney representing the state, contained no al- legation that the owner was a non-resident of the state, or that the owner was unknown and could not be ascertained by inquiry. Supplementing the findings of the trial court, we further find that the original petition in the foreclosure suit contained the allegation "that the defendant's place of residence is unknown to plaintiff." The question first arises, does the failure to file the affidavit for a service by publication, as required by Article 5232o, Sayles Rev. Civ. St., affect the jurisdiction of the court to proceed to judgment in the case? That article, so far as perti- nent to the inquiry, reads: "Wherever the owner or owners of any lands or lots returned delinquent or reported sold to the Service. 237 state, or that miay hereafter be reported sold or returned deHn- quent for the taxes due thereon for any year or number of years, are non-residents of the state, or the name of the owner or owners of said land or lots be unknown, then upon affidavit setting out that the owner or owners are non-residents or that the owner or owners are unknown to the attorney for the state and after in- quiry can not be ascertained, said parties shall be cited and made parties defendant by notice," etc. We think it is to be understood from this language that as a condition precedent to the court's power to inquire into the merits of the action the affi- davit provided for must have been filed. In other words, a cita- tion by publication is not authorized except upon the filing of such affidavit, and of course, a judgment without citation may be shown to be invalid if properly attacked. The following authori- ties appear to treat such omission as a jurisdictional defect: Hardy v. Beaty, 84 Tex. 562, 19 S. W. 778, 31 Am. St. 80; la^ns V. Root (Tex. Civ. App.), 55 S. W. 412; Pemioyer v. Neif, 95 U. S. 714, 24 L. Ed. 565; Coom v. Throckmorton, 25 Ark. 60; Allen V. Smith, 25 Ark. 495 ; People v. Pearson, 76 Cal. 400, 18 Pac. 424; Bardsley v. Nines, 33 Iowa, 157; Jeffrey's Heirs v. Hand's Heirs, Z7 Ky. 89 ; Murdoch v. Hillyer, 45 Mo. App. 287 ; Gilmore v. Lampman (Minn.), 90 N. W. 1113, 91 Am. St. 376; Beckett V. Cuenin (Colo.), 25 Pac. 167, 22 Am. St. 399. Stone- m79; Howard v. North, 5 Tex. 290, 51 Am. Dec. 769; Sydnor v. Roberts, 13 Tex. 598, 65 Am. Dec. 84; Harle v. Lang- don's Heirs, 60 Tex. 555 ; Morris v. Hastings, 70 Tex. 26, 7 S. W. 649. § 494. Burden of proof different where party is in court. The rule requiring purchasers at tax sale to show the strictest compliance with every formality, refers to ex parte sales by the tax collector and not to sales under valid judgments in courts of competent jurisdiction where the delinquent taxpayer has had his day in court. Lphadie v. Dean, 47 Tex. 102; Osee v. City of Henrietta, 90 Tex. 338. § 495. Possession pending redemption. The owner of land sold for delinquent taxes is entitled to pos- session during the two years allowed him for redemption under the statute. The owner may redeem by paying double the amount, hence it was not contemplated that the purchaser should receive this sum and be entitled to the revenues of the property also, which the right of possession would carry. Masterson v. State, 17 Tex. Civ. App. 94. § 496. Purchase by owner. A purchase made by one whose duty it was to pay the taxes shall operate as payment of the taxes only. Cooley on Taxation, 501. A tax lien can not be defeated by the owner permitting the land to be sold and buying it in. The money that he pays for the land is simply treated as a payment upon the taxes, that he should have paid before the sale. Texarkana Water Co. v. State, 35 S. W. 788. § 497. Equitable lien for taxes paid. A life tenant of an undivided interest in lands failed to pay the taxes. A third person purchased the land at a suit against the life tenant for delinquent taxes. Held, that the third person held the land as a tenant in common with the other owners of the land, Purchaser at Tax Sale. 291 and his payment of taxes gave him at most an equitable Hen on the interests of his co-tenants for the taxes paid on the part of the property not included in life tenant's estate. Niday v. Coch- ran, 93 S. W. 1027, 42 Tex. Civ. App. 292. § 498. Not entitled to refund under void judgment. The holder of a tax title based on a decree which was void as being in excess of the jurisdiction of the court was not entitled to have the owner of the land refund him the money paid on ac- count of taxes, especially where he made no examination either in person or by attorney of the proceedings in the tax suit. Schaffer v. Davidson, 97 S. W. 858, 44 Tex. Civ. App. 100. Plaintiff, in an action of trespass to try title to land purchased at a tax sale, prayed that if he were not allowed to recover the property, then he be adjudged to have a lien for the taxes so paid, and that his lien be foreclosed. The tax sale was void. Held, that plaintiff could not recover the taxes lawfully assessed upon the land and paid by his purchase. Plaintiff purchased land at a void tax sale. Held, that he could not recover money paid by him to redeem the land from a former sale to the state. It was the voluntary payment of a stranger, and entitled him to no equity. McCormick v. Edwards, 6 S. W. 32, 69 Tex. 106. § 499. Not innocent purchaser when. A purchaser of land subject to state tax lien was not an inno- cent purchaser where the description of the property on the tax rolls was sufficient to identify the same and the delinquent rolls showed that the taxes had not been paid. Haynes v. State, 99 S. W. 405, 44 Tex. Civ. App. 492. § 500. Acquired no title against one in possession not a party to suit. Where property was sold for taxes, if the tax deed was valid, it passed only such title as the real owner, at the time the assess- ment was made, had at the time of the sale, and the purchaser stood in relation to persons having no title, but in possession un- der claim of right, with no notice of the sale, just as the real owner would have stood if there had been no sale, since own- ership of the land, as against those claiming adversely to the un- known owner, is not vested in the purchaser by Const., Art. 8, 292 Taxation in Texas. Sec. 13, embraced substantially in Rev. St. 1895, Art. 5232h, providing that the tax deed shall be held to vest a perfect title in the purchaser, subject to be impeached only for actual fraud, and Rev. St. 1895, Art. 5232b, providing that the taxes on all lands returned delinquent, or reported sold to the state, city, or town, for taxes thereon since January 1, 1885, or on lands which may hereafter be so returned or reported sold shall remain a lien on the land, though the owner be unknown, or though it be listed in the name of a person not the actual owner, and though the ownership be changed, the land may be sold, under the judg- ment of the court, for all taxes, etc., shown to be due by such as- sessment for any preceding years ; and hence, where, at the time land was purchased at a tax sale, defendants had been in adverse possession thereof for years, and with no notice of any sale, con- tinued thereafter in adverse possession for the statutory period of ten years, the purchaser's grantee was barred from recovery of possession. Patton v. Minor, 117 S. W. 920. § 501. Legality of partnership to purchase at tax sale. A partnership formed for the purpose of buying land at tax sales is not of itself unlawful, where it does not appear that it tended to prevent competition, or to prevent fair sale. Dawson V. Ward, 9 S. W. 106, 71 Tex. 72. § 502. Right to question title without payment of taxes. In case of a purchase by a city at a void tax sale, the owner can not question the title acquired, without showing the payment of all taxes; Rev. St., Art. 447, providing that no person may question such title without first showing payment of all taxes due. City of Henrietta v. Eustis, 26 S. W. 619, 87 Tex. 14. CHAPTER XXIV. PURCHASER IN GOOD FAITH. Sec. Sec. 503. Right to have amount paid 505. Purchaser of property with refunded. taxes due. 504. Purchaser in good faith. § 503. Right to have amount paid refunded. If the defendant in good faith bought the land at a sale for taxes, which he neither knew, nor by proper diligence might have known, to be invalid, and by his purchase, paid taxes which were a valid charge on the land, we are not prepared to say that the court should have allowed the owners the equitable relief of canceling the tax deed without requiring them to refund the pay- ments of which they had received the benefit. We have, however, been cjted to no case where such a rule has been enforced, as to sale for taxes, in the absence of some statutory provision on the subject. In Blackwell on Tax Titles (3d ed., p. 491) it is said that a court of chancery will impose terms upon the complainant in granting relief, and a case is cited from Ohio, where the court set aside a tax sale for fraud, but required the complainants to "refund the purchase money and interest, with the penalty of fifty per cent allowed by law." Dudley v. Little, 2 Hammond, 509. From the language used it may be inferred that there was a statute in Ohio on which the decision was based, and that infer- ence is strengthened when it is found that there was such a stat- ute there a few years later. See Blackwell on Tax Titles, p. 492 ; Gillette v. Webster, 15 Ohio, 623. In the case of Oshorn v. Rohson, a purchaser at a tax sale was denied compensation for improvements, on the ground that he either knew, or might have known, the invalidity of the sale. 13 Tex. 307. So here it would seem that the defendant ought to have known that the judgment of condemnation was a nullity, and in buying at a tax sale under such a judgment did not so act in good faith as to give him an equitable right to be recom- 294 Taxation in Texas. pensed on losing the land. See Cooley on Taxation, Chap. 17; also p. 544; Polk v. Rose et al, 25 Md. 153. Stewart v. Kemp, 54 Tex. 252. In Howard v. North, 5 Tex. 290-317, a full discussion of some phases of the question will be found. The court there held that the sheriff's sale and deed were void, and added: "But here an important question arises, as to the effect which this decision, avoiding the sale and conveyance, should in law, and according to the course of our system of procedure, have on the rights of the parties. We have repeatedly determined that the legal and equitable rights of parties litigant, in relation to the subject mat- ter of a controversy, should as far as practicable be set up and determined in a single suit," etc., etc. "That he (defendant) should not be compelled to restore possession until the purchase money, which he had paid for the benefit of the plaintiffs, and by which the judgment against them had been discharged, should be reimbursed and he indemnified. There is no charge, nor any pre- tense or evidence, that the defendant has been guilty of any fraud in the transaction." And in the further discussion of that case the court says : "His equity rests, not upon the want of knowledge as to title in the property, but on the ground of his hav- ing discharged a judgment against the defendant, for which he stood chargeable by a purchase made under the coercive process of the law, and therefore has an equitable claim to reimbursement by the defendant in execution." This case is approvingly cited in the case of Horan v. Wafirenberger, 9 Tex. 313. The case of Baily v. White, 13 Tex. 114, is where the defend- ant in the execution brought suit to set aside the sheriff's sale and for the recovery of the land from the purchaser. The court held the judgment was valid, but that the execution and sale was void, and that the purchaser was entitled to recover the pur- chase money paid by him, and for the value of improvements put upon the land. In the discussion of that case the court says : "Where a sale has been made on an invalid e^jecution, issued on a valid judgment, and the money paid has been applied to the satisfaction of the judgment, and there has been no fraud, the purchaser will not be compelled to restore the property purchased until reimbursed the amount paid by him." Andrews v. Richardson, 21 Tex. 297, is a case where the pur- chaser at judicial sale brought suit to enjoin a writ of possession Purchaser in Good Faith. 295 against his tenant, issued by a justice court, and the defendants in their answer sought to avoid the sale on the ground that there had been no appraisement as required by law. And by way of replication the plaintiff asked, that if for any cause the sale should be adjudged invalid, that then he be reinstated in his original right in the decree of foreclosure, and that he have execution". The court held that the sale was valid, but said that if it was not, the plaintiff would have been clearly entitled to the relief sought pro- vided he was the beneficial owner of the judgment; but if not the owner of the judgment, he would have been entitled to be re- imbursed for the money he had paid. The defendant in the void execution brought suit to set aside the sale. In Herndon v. Rice, 21 Tex. 455, the court held the sale void, and remarked, "But Herndon, having paid forty-one dollars in satisfaction of Rice's debt, should not the court decree this money to be refunded ?" In McDonough v. Cross, 40 Tex. 285, the court used this lan- guage: "It consequently follows, that appellant McDonough ac- quired no title or interest in the land by his purchase at execu- tion sale. As he discharged, however, a valid judgment debt against the estate, which was a charge against the devisees, we think he was subrogated to the rights of the judgment creditor, and he could by the proper presentation of his rights have sub- jected the land to the payment of the judgment in preference to any claim upon it by the devisees." In Peters v. Clements, 52 Tex. 140, the court held that "the purchaser at a sale under a judgment foreclosing a vendor's lien on the entire tract of land originally sold, is entitled to be subro- gated to the rights of the original vendor as against the pur- chaser of a portion of the land, who bought from the vendee be- fore the proceedings to foreclose were begun, and who was not made a party to such proceedings. He may have that portion of the land claimed by the second vendee, who was not a party to the foreclosure proceedings, resold to pay its proportion of the amount paid at the foreclosure sale for the whole tract." These constitute principal cases in which our supreme court has adjudicated the question. And from them it is concluded that where the judgment is valid, but execution or sale is invalid, and the purchaser is not a party to the judgment, and is guilty of no fraud in the purchase, and the money he paid has been ap- '296 Taxation in Texas. plied to the judgment, he will be entitled to hold the property until he is reimbursed. And in case the plaintiff in the execution is the purchaser, he will be restored to his original rights in the judgment. Burns V. Ledbetter, 54 Tex. 383. § 504. Purchaser in good faith. The general rule is believed to be that a purchaser at execution sale, who looks to the record and finds there a valid subsisting judgment authorizing the execution under which the officer pro- ceeds, and who in good faith buys, pays the purchase money and receives a deed, takes a title which is valid until the sale is set aside. Owen v. City of Navasota, 44 Tex. 522. That the owner of a lot, who bought it subject to taxes, was an innocent purchaser, could not be set up as a defense against a suit to enforce the tax lien, as every one is charged with knowl- edge of taxes and of the existence of the lien, and especially a person undertaking to pay all taxes and taking subject thereto. Toeppermein v. City of San Antonio, 124 S. W. 699. § 505. Purchaser of property with taxes due. Any one who has purchased property encumbered with a lien for taxes should be deemed as to- such taxes a delinquent tax- payer. Such a purchaser takes the property charged with the lien and he can not interpose any defense which his vendor might not had he continued to be the owner. Mellinger v. City of Hous- ton, 68 Tex. 42 ; Henry v. Horstick, 9 Watts 412 ; Smeich v. York County, 68 Penn. St. 439; Covington v. Boyle, 6 Bush (Ky.) 204 ; Rundell v. Lakey, 40 N. Y. 513. One who has purchased property incumbered with a lien for taxes should be deemed, as to such taxes, a delinquent taxpayer. Such a purchaser takes the property charged with the lien, and he can not interpose any defense which his vendor might not, had he continued to be the owner. Mellinger v. City of Houston, 3 S. W. 251, 68 Tex. 37. CHAPTER XXV. IMPROVEMENTS IN GOOD FAITH. Sec. . Sec. 506. May claim improvements in 507. Void tax. good faith under tax title 508. Evidence of not sufficient. not void on its face. 509. Under tax deed must prove prerequisites. § 506. May claim improvements in good faith under tax title not void on its face. A possessor in good faith is one who not only supposes himself to be the true owner of the land, but who is ignorant that his title is contested by any person claiming a better right. And a possessor in good faith within the meaning of the statute will be entitled to compensation for the permanent and valuable im- provements he has made upon the land while so in possession, though it should turn out that his title is defective, or that an- other has the superior title. It is therefore a question of fact to be determined by the jury from all the evidence, whether the possessor claimed the land as the owner, believing himself to be such when he made the improvements, notwithstanding the in- validity .in point of fact of the title under which he maintained his claim. In case the defendants claimed under a tax title which is invalid, they were entitled to adduce evidence as to improve- ments under their suggestion of good faith, and to have that issue determined. It was held in Robson v. O shorn, 13 Tex. 298, that an invalid tax title carried no equity with it; that it was inad- missible evidence to sustain a suggestion of possession and im- provements in good faith. That decision is now held to be ques- tionable authority. The parties having accepted a tax deed, not void on its face, may have possessed the property and made im- provements under the belief that their title was good, whether its validity as a conveyance arising out of the want of authority on the part of the assessor for failing to comply with the pre- requisites of the law necessary to pass the title, or other defects in the title claimed, were of such a character as would operate to negotiate or destroy the claim to being possessors in good 298 Taxation in Texas. faith, would be the proper subject of determination ; but the mere fact that the evidence disclosed the invalidity of the deed to con- vey title would not warrant the exclusion of the evidence that was offered, thereby refusing to hear the issue as to improvements. House V. Stone, 64 Tex. 683; W afford v. McKinna, 23 Tex. 36; French v. Grenet, 57 Tex. 278 ; Miller v. Brozvnson, 50 Tex. 597. In trespass to try title against one claiming under a tax deed, not void on its face, such claimant is entitled to prove the mak- ing of improvements on the land under his plea of good faith, and to have the issue of his right to reimbursement therefor de- termined in case his title is set aside. Lamberida v. Barnum, 90 S. W. 700; House v. Stone, 64 Tex. 677; French v. Grenet, 57 Tex. 273 ; Schleicher v. Gatlin, 85 Tex. 275, 20 S. W. 120. The question of good faith is one of fact, depending upon the circumstances of the particular case in which it is asserted. Wortham v.. Boyd, 66 Tex. 401, 1 S. W. 109. "The existence of good faith is a fact to be established in such cases by evidence of other facts tending to show that the person asserting it at the time he made improvements on the land believed himself to be its owner, and had grounds for such belief, such as would ordi- narily be satisfactory to one unlearned in the law, but of ordi- nary intelligence, after having made such inquiry as the law pre- sumes every person desiring to buy land will make, and as an ordinarily prudent man for his protection ought to make." Hol- stein V. Adams, 72 Tex. 485, 10 S. W. 560. § 507. Void tax. A tax deed void on its face for ambiguity of description will not support a claim for improvements in good faith. Crumbley V. Busse, 32 S. W. 438, 11 Tex. Civ. App. 319. It can not be held as a matter of law that one did not make his improvement in good faith because he held under a void tax title. Louder v. Schulter, 78 Tex. 103, 14 S. W. 205 ; Schleicher V. Gatlin, 85 Tex. 270, 20 S. W. 120; Netsorg v. Geren, 62 S. W. 789, 26 Tex. Civ. App. 119. A tax deed which is void on its face is admissible as evidence for defendant in trespass to try title in support of a plea of im- provements in good faith. Schleicher v. Gatlin, 20 S. W. 120, 85 Tex. 270. Improvements in Good Faith. 299 § 508. Evidence of not sufficient. Where land belonging to another is sold for taxes against J., who was a trespasser thereon, the judgment, deed, and writ of possession are inadmissible in trespass to try title brought by the real owner against the tax purchaser in possession, as such evi- dence, though considered in connection with evidence that J. held possession of the land and returned the same for taxation, and though the tax purchaser considered J. as the owner thereof, is insufficient to show that the purchaser is not a mere trespasser, and will not support a plea of improvements in good faith. Muniine v. McCloskey, 66 S. W. 853, 28 Tex. Civ. App. 83. § 509. Under tax deed must prove prerequisites. A tax deed is admissible for defendant in trespass to try title in support of a plea of the five years' statute of limitations, as well as of improvements made in good faith, without proof of the levy of the tax and the usual prerequisites to a sale for taxes. Schleicher v. Gatlin, 20 S. W. 120, 85 Tex. 270. CHAPTER XXVI. VENDOR AND VENDEE. Sec. Sec. 510. Purchaser under warranty deed. 513. Implied warranty against 511. Sale after January 1st. tax lien. 512. Assumption of taxes by 514. Cattle sale of. vendee. § 510. Purchaser under warranty deed. Where a grantee under a warranty deed was compelled to pay taxes thereon, which were a lien at the time of purchase, he should have been credited with the amount so paid in a judgment on a note given in part payment of the purchase price. Swope V. Mo. Trust Co., 62 S. W. 947, 26 Tex. Civ. App. 133. §511. Sale after January 1st. Since property owned by one on January 1st must be listed for taxes before June 1st of that year, though the taxes do not be- come due until October 1st following, he is personally liable for the taxes of that year, though he sells the property before the amount of such taxes has been ascertained, and before the pay- ment thereof becomes due. Carswell & Co. v. Habhersettle, 87 S. W. 911, 39 Tex. Civ. App. 493. To secure the payment of taxes and penalties the constitution provides that the annual assessment made upon landed property shall be a special lien thereon, and all property, both real and personal, belonging to any delinquent taxpayer shall be liable to seizure and sale for the payment of all the taxes and penalties due by such delinquent. Art. 8, Sec. 15. This lien attaches and the taxes become an encumbrance on the land from the date liability is fixed on the owner, which is the first day of January of the year, although the amount of said tax is not fixed or determined until some time subsequent thereto. Carsmell & Co. v. Hahhcr- zettle, 87 S. W. 912, 39 Tex. Civ. App. 493 ; Cruger v. Gennnth. 3 Wilson Civ. Cases, Sec. 24; Almy v. Hunt, 48 111. 45; RundcU V. Lakey, 40 N. Y. 514; Carswell v. Habhersettle, 86 S, W. 738, 12 Tex. 786. Vendor and Vendee. 301 § 512. Assumption of taxes by vendee. The assumption by the purchaser of a lot of the payment of a judgment for taxes in favor of a city gave it the right to sue him personally for the debt evidenced by it. The lien on a lot securing subsequently accruing taxes which a purchaser assumed could not be enforced, except by a suit against him. A city, desiring to avail itself of the assumption by a purchaser of a lot of a judgment in its favor for taxes, and also of subse- quent accruing taxes thereon, and having the right to personal recovery against him for both debts, could litigate his liability in one suit, and could properly include therein a prayer for fore- closure of the lien on the lot common to all the taxes. A clear and unambiguous written agreement to take property "subject to all taxes due thereon," is not subject to construction or explanatory testimony to show an agreement to assume the same. Evidence held not to show that the purchaser of a lot assumed personally to pay taxes due thereon, but to show that he took it subject thereto. Toepperwein v. City of San Antonio, 124 S. W. 699. § 513. Implied warranty against tax lien. Under Sayles Ann. Civ. St. 1897, Art. 633, providing that, from the use of the word "granted" or "conveyed" in any con- veyance by which an estate of inheritance or fee simple is to be passed, a covenant against incumbrances shall be implied, a con- veyance of land in fee, containing such words, impliedly war- ranted that the property was free from; tax liens. Bullitt v. Coryell, 85 S. W. 482, 38 Tex. Civ. App. 42. § 514. Cattle sale of. The seller is liable for taxes on such cattle regularly assessed to him before delivery. Edwards v. Irvin, 45 S. W. 1026. CAPTER XXVII. TAX LIEN. Sec. Sec. 515. Delinquent taxes lien on land. 518. Purchaser under tax judg- 516. Tax lien superior to assign- ment. ment, attachment, Inheri- 519. Lien only on separate tracts, tance or devise — Except. 520. Foreclosure of tax lien. 517. Foreclosure and sale of part 521. Priority of tax lien. releases all. 522. When lien attaches. 523. Tax lien — Public use. § 515. Delinquent taxes lien on land. All lands or lots which have been returned delinquent or re- ported sold to the state or to any city or town for taxes due thereon since the first day of January, A. D. 1885, or which may hereafter be returned delinquent or reported sold to the state or to any city or town shall be subject to the collection by suit filed to foreclose the tax lien and said taxes shall remain a lien upon said land, although the owner be unknown or though it be listed in the name of a person not the actual owner, and though the ownership be changed the land may be sold under the judgment of the court for all taxes, interest, penalty and costs shown to be due by such assessment for any preceding year. (Acts 1897, p. 132, Sec. 1.) § 516. Tax lien superior to assignment, attachment, inherit- ance or devise — Except. In all cases where a taxpayer makes an assignment of his property for the payment of his debts to where his property is levied upon by creditors, by writs of attachment or otherwise, or where the estate of a decedent is or becomes insolvent and the taxes assessed against such person or party against his es- tate remains unpaid in part or in whole property ; provided,, that when taxes are due by an estate of a deceased person the lien herein provided for shall be subject to the allowances to widows and minors, funeral expenses and expenses of last sickness ; and such unpaid taxes shall be paid by the assignee when said prop- erty was assigned by the sheriff out of the proceeds of sale in Tax Lien. 303 case such property has been seized under attachment of other writ and by the administrator or other legal representative of decedents and if said taxes shall not be paid all said property may be levied on by the tax collector and sold for such taxes in whom- soever's hands it may be found. (Report Joint Committee, 1895 No. Ill, Sen. Jour., p. 486.) § 517. Foreclosure and sale for part releases all. Where a city having a tax judgment on certain lots for cer- tain years recovered another judgment for taxes for both prior and subsequent years, and caused the entire property to be sold without reserve under the last judgment, it was bound by the action of its officers in making such sale, and the purchaser took the property free from any lien under the first judgment, wheth- er he knew of it or not. The city by such sale merely exhausted the security in collecting the second judgment, and the city char- ter prohibiting the release or compromise of a tax was not vio- lated. City of Houston v. Baxrtlett, 68 S. W. 730, 29 Tex. Civ. App. 27 ; Vieno v. Gibson, 85 Tex. 432, 21 S. W. 1028. § 518. Purchaser under tax judgment. The provision of a city charter that any person who shall pur- chase property incumbered with taxes shall be deemed as to such taxes a delinquent taxpayer, and takes the property charged with a lien, applies only to purchasers from a delinquent taxpayer, and does not apply to a purchaser of property sold under a tax judg- ment. City of Houston v. Bartlett, 68 S. W. 730, 29 Tex. Civ. App. 27. § 519. Lien only on separate tracts. The lien given by the Constitution of 1869 for taxes assessed against land, constitutes a charge only upon each separate tract for the taxes assessed against it, and that a judgment declaring a lien upon several tracts for the aggregate taxes due on all would be erroneous whether the tax was due a municipal government or the state. Jodon v. The City of Brenham, 57 Tex. 657 ; Edmond- son V. City of Galveston, 53 Tex. 161 ; Clegg v. State, 42 Tex. 506. § 520. Foreclosure of tax lien. A Hen can not be foreclosed upon an entire piece of property when the taxes have been assessed upon a portion only. Cave v. City of Houston, 65 Tex. 619. 304 Taxation in Texas. § 521. Priority of tax lien. Landlord's lien on a general stock of merchandise held prior to a city's lien for taxes for various years, in the absence of identi- fication of the particular goods seized which were subject to the tax lien, and in a contest between a city and a landlord as to the priority of a landlord's lien over the city's lien for taxes, the bur- den of proof was on the city to identify the particular portion of the stock subject to the lien. City of Fort Worth v. Boulware, 62 S. W. 928, 26 Tex. Civ. App. 76. . § 522. When lien attaches. In state and county taxes the tax lien attaches on January 1st. Cruger v. Linnuth, 3 W. Civ. 24. § 523. Tax lien— Public use. A tax lien can not be defeated on the ground that the land on which it is asserted has been dedicated to the public use, unless it appears that the public owns or claims the land by virtue of such dedication. Traylor v. State, 46 S. W. 81, 19 Tex. Civ. App. 86. CHAPTER XXVIII. PAYMENT. Sec. 524. Taxes payable in money or scrip. 525. Payment — How proved. 526. Where made. 527. Penalty of failure to pay taxes. 528. Taxes, etc., of cities less than 10,000 inhabitants collect- ible in current money only. 529. Action will not lie against tax collector — When. 530. What constitutes involuntary payment. 531. Not compulsory — Payment. 532. Payment — How made. 533. Payment in coupons must be before suit. 534. Receipts evidence to show payment. 535. Receipt no positive evidence of payment. Sec. 536. Right to rebut receipt and show that taxes were not paid. 537. Scrip not receivable. 538. Certificate of tax collector not sufficient evidence of payment of taxes. 539. Payment in warrant. 540. May compromise by deed. 541. In money, not in services. 542. Reduction of tax after pay- ment, 543. Tender of part. 544. Must show payment of taxes before validity of taxes can be questioned. 545. Presumption of payment by one rendering. 546. Payment before taxes are due not binding on State. 547. Credit to tax collector not payment. § 524. Taxes payable in money or scrip. The taxes due the state or county are made payable in the cur- rency or coin of the United States ; provided, that persons holding scrip issued to themselves for services rendered the county may pay their county ad valorem taxes in such scrip. (Acts 1879, p. 148; 1897, S. S., p. 38, Sec. 1.) R. S., Art. 5051. § 525. Payment — How proved. Payment of taxes may be proved by testimony, either direct or circumstantial, just as any other fact can be proved. Jordan v. Broim, 94 S. W. 399; Watson v. Hopkins, 27 Tex. 6Z7 ; Ochoa V. Miller, 59 Tex. 460; Allen v. Woodson, 60 Tex. 651 ; Button V. Thompson, 85 Tex. 115, 19 S. W. 1026; Smith v. Estill, 87 Tex. 270, 28 S. W. 801. 20 306 Taxation in Texas. § 526. Where made. All property, whether owned by persons or corporations, shall be assessed for taxation, and the taxes paid in the county where situated, but the legislature may, by a two-thirds vote, authorize the payment of taxes on non-residents of counties to be made at the office of public accounts. St. Const., Sec. 11, Art. 8. § 527. Penalty of failure to pay taxes. If any person shall fail or refuse to pay the taxes imposed upon him or his property by law until the thirty-first day of Jan- uary next succeeding the return of the assessment rolls of the county to the comptroller, a penalty of ten per cent on the entire amount of such taxes shall accrue, which penalty, when collected, shall be paid proportionately to the state and county. Acts 1897, p. 136, Sec. 10. § 528. Taxes, etc., of cities less than 10,000 inhabitants col- lectible in current money only. Taxes levied to defray the current expenses of the city gov- ernment, and all license and occupation taxes levied, and all fines, forfeitures, penalties and other dues accruing to cities, shall be collectible only in current money. Sayles R. S., Art. 522. § 529. Action will not lie against tax collector when. An action can not be maintained against a tax collector to re- cover taxes claimed to have been illegally exacted and paid un- der protest, on the ground that the assessment was at too high a valuation, where the tax roll was in due form, and the collector was acting within his authority. Continental Land & Caitle Co. V. 'Board, 16 S. W. 312, 80 Tex. 489. § 530. What constitutes involuntary payment. Payments made on an illegal demand, in order to be involun- tary, must be made under an immediate and urgent necessity, and the fact that they were made under protest, and from fear that legal proceedings would be instituted and business closed, does not render them' involuntary, and illegal taxes so paid can not be recovered. City of Laredo v. Loury, 20 S. W. 89. That a city tax collector, in his receipt, states the payment of an assessment on lands to have been made under protest, does not aflfect the character of the payment as voluntary or involun- tary, where the lands have already been sold under the law re- Payment. 307 garding delinquent taxpayers, and bought by the city, and the payment is afterwards made in pursuance of an agreement be- tween the former owner and the city. The proposition of a property owner to pay such assessment if the city would remit the interest and penalty allowed by law, though the right be reserved to resort to the courts should he thereafter find occasion, evidences a voluntary payment. A protest to be effective should refer specifically to property claimed to be illegally taxed, and not generally to property ad- mitted to be legally taxed as well as the former. The payment of an illegal demand by a party with full knowl- edge of the facts, except in case of necessity, as to protect one's person or property, is deemed voluntary. Galveston City Co. v. Galveston, 56 Tex. 486. Negotiations having arisen between plaintiff and defendant city looking to the acquisition of some of plaintiff's land for a street, she fixed a price on the land, which the council agreed to allow, provided it was applied on certain back taxes which she owed the city. She agreed with the city attorney to allow the money to go to satisfy her taxes in full, which agreement was re- ported to the council and accepted. Afterwards she brought a deed for the land to the mayor, and endorsed the warrant which she received therefor back to the city, protesting at the same time against the amount of the taxes. Held, that the payment by her of the taxes was voluntary. O strum v. City of San Antonio, 71 S. W. 304, 30 Tex. Civ. App. 462. § 531. Not compulsory payment. Since a deed from- a tax collector of the city of Galveston to a purchaser at a tax sale of land is no evidence of title without proof of all the jurisdictional prerequisites, the payment of the tax to avoid such sale, though made under protest, and with no- tice that the payer will sue to recover it, is not a compulsory payment. Davie's Ex'rs v. City of Galveston, 41 S. W. 145, 16 Tex. Civ. App. 13. § 532. Payment — How made. Art. 11, Sec. 4, of the State Constitution, which forbids that taxes should be paid in anything but current money, applies only to cities of 10,000 population or less. There is no such provision in Section 5 of Art. 11, which regulates the subject of 308 Taxation in Texas. taxation in cities of more than 10,000 population and the prohib- itory clause does not apply to cities of more than 10,000 popula- tion, therefore it is not unconstitutional to authorize cities of more than ten thousand inhabitants to receive in payment of taxes certificates of indebtedness. City of Houston v. Stewart, 87 S. W. 665, 99 Tex. 67. Section 40 of the charter of the city of Houston, as amended m 1899, contains the following provision : "Nothing but current money of the United States shall be collected or received in pay- ment of taxes or licenses due as hereafter assessed, except that coupons and scrip made receivable for taxes on the face thereof shall be receivable for all taxes except the bond tax." Sp. Laws, 26th Leg., p. 191, Chap. 17. Under this provision of the city charter it is clear that the city council were not authorized to pass an amendment making paving certificates receivable for taxes levied to secure funds to discharge the bonded indebtedness of the city, and if the ordinance authorizing the receipt of said certificates in payment of city taxes can be construed as includ- ing the special taxes above mentioned, it is to that extent void. If the exception in this provision of the charter had been omitted we would not, in view of the requirement of our constitution that when a city creates a debt and issues bonds therefor, it shall make provision for the levy and assessment of a sufficient tax to provide a sinking fund for the payment of the bonds at maturity and a fund for the payment of the interest as it accrues thereon, and in view of our statutes for the protection and safeguarding of this fund hold that a statute which in general terms authorized a city to make its evidences of indebtedness receivable for taxes was intended to apply to special taxes of the kind mentioned. The bonds are payable in current money and the mandate of the constitution requiring the city to provide a fund for their re- demption would not be complied with if the city received in pay- ment of the taxes levied to create such fund, anything other than current money, and any statute authorizing the payment of such taxes otherwise than in current money would in our opinion be contrary to the constitution of the state. To permit taxes of this kind to be paid in warrants or other evidences of indebtedness due by the city would greatly impair and might partially or whol- ly destroy, the fund made sacred by our constitution and laws to the payment of the bonds issued by the city, and thus prevent Payment. 309 the discharge by the city of its obligations to its bondholders. Any legislation which might produce such results would seem to be obnoxious to th? provision of the constitution of the United States which forbids a state to pass any law impairing the obliga- tion of contracts as well as to the provisions of our state con- stitution before mentioned. The city, as trustee for the bond- holders in the collection of the taxes levied to discharge the in- debtedness evidenced by the bonds, could interpose any objec- tion to the validity of the ordinance making the paving certificates receivable for taxes which the bondholders might interpose had they been parties to the suit. City of Houston v. Stezvart, 90 S. W. 52, 40 Tex. Civ. App. 499; City of Tyler v. Tyler B. & L. As- sociation, 82 S. W. 1066, 11 Tex. 48. § 533. Payment in coupons must be before suit. , Construing Sec. 6 of Art. 11 of the State Constitution, which provides that taxes levied by a municipal corporation to pay an indebtedness theretofore existing "may be paid in coupons, bonds or other indebtedness for the payment of which such tax was levied," held, that unless the taxpayer avails himself of the con- stitutional privilege to pay such tax in such coupons before the institution of a suit against him to enforce collection ; a tender after suit is unavailing, and the corporation is entitled to a moneyed judgment. Bummel v. Houston, 68 Tex. 10. Section 5 of the act to organize commissioners' courts (Laws of 15th Leg., p. 52), does not embrace or refer to taxes to pay the interest and provide a sinking fund for bonded indebtedness, incurred in aiding internal improvements, which were in truth • levied at the time the bonds were issued. That act refers to and limits to twenty-five cents on the hundred dollars those taxes for the payment of debts incurred prior to April 18, 1876, the levying of which is discretionary with the commissioners' court. Dean v. Lufkin, 54 Tex. 265. § 534. Receipts evidence to show payment. It is also objected that the receipts of the tax collector were not admissible evidence to prove payment of the taxes. This ob- jection we do not think tenable. The receipts come clearly with- in the rule, which admits entries made by third persons in the discharge of official duty to be received as original evidence. (1 Green Ev., Sees. 115, 116, 120, 147.) It can not, we think. 310 Taxation in Texas. be doubted that the court may take notice, without proof, of the fact that it is the duty, and the universal custom of tax col- lectors to give receipts upon the payment of taxes. The giving of the receipts is an official act and duty of the collector, acting on behalf of the government. The receipt is a documentary fact, evidencing the payment of the taxes ; and as such is admissible. Thus, in the case of Sherman v. Crosby (11 Johns. R. 70), a re- ceipt for the payment of a judgment, recovered by third person against the defendant, was held admissible in an action for the money so paid, by the party paying it, he having had authority to adjust the demand, and the receipt being a documentary fact in the adjustment, though the attorney who signed the receipt was not produced, nor proved to be dead. So in Hall v. Hall (1 Mass. 101), a case in point, where an administrator, to sup- port his charges in an administration account for payment of taxes, offered witnesses to prove the fact of such payment, it was held that the receipts of the collector were better evidence and should be produced. As respects the authority of the person who gave the receipts the fact that he acted in the capacity of tax collector is sufficient prima facie evidence of his authority. Deen v. Wills, 21 Tex. 647. § 535. Receipt no positive evidence of payment. A receipt in itself is only presumptive evidence of payment. It is not positive evidence of payment. Turner v. National Cot- ton Oil Co., 109 S. W. 1115; Graves v. Bullen, 115 S. W. 1177. § 536. Right to rebut receipt and show that taxes were not paid. A property owner paid $24 taxes to the tax collector by giving him $12 in cash and crediting him with the $12 balance on his private debt, and received a tax receipt. The collector reported $24 as paid, and attached to the report was a receipt of the city treasurer acknowledging receipt of the money. In a suit for the $12 balance, the city offered to prove that the collector, who was a defaulter, had reported $300 taxes as collected, which had in fact been paid by credits on his personal debts ; that he was un- der indictment and totally insolvent; and that he had collected $521 in cash, and had not reported it. Held, that the evidence was admissible to rebut the documentary evidence of payment, Payment. 311 as tending to show that the collector had not himself paid the $12 balance to the city. City of Georgetown v. Jones, 73 S. W. 22, 31 Tex. Civ. App. 623. § 537. Scrip not receivable. We conclude that when the legislature directed the assessors and collectors of the state of Texas to receive in payment of taxes "all coins made current by the laws of the United States and the exchequer bills of the republic of Texas," they meant these and nothing else, as certainly as if they had subjoined ex- press negative words. Statutes which prescribe (425) and limit the exercise of official duty ought to receive a strict interpreta- tion in respect to the powers conferred and the manner of their exercise, and those powers are not to be enlarged by construc- tion. The officer must look to the act by which his office is cre- ated and its duties are defined to ascertain the extent of his powers and the line of his duties; and he is not at liberty to transcend the former or vary the prescribed mode of perform- ance of the latter. The act sought to be enforced in this instance was in effect forbidden ; and that a mandamus will not lie to com- pel an officer of the government to perform an act forbidden by law has been heretofore decided by this court, (Hosner v. DeYoung, 1 Tex. 764; League v. DeYoung, 2 Tex. 497.) The certificates in question constitute the evidence of demands against the government, which doubtless are meritorious and just, and which as such address themselves to the sense of justice of the legislature, but which the courts, in the absence of a law author- izing their payment, have not the power to enforce against the government. (Borden v. Houston, 2 Tex. 594, 611, 613). Bryan V. Simdherg, 5 Tex. 424. § 538. Certificate of tax collector not sufficient evidence of payment of taxes. Tax collector certified as follows : "This is to certify that no state and county taxes are due on property owned by Mr. T. G. Williams up to date, as per records in this office." Held that cer- tificate was insufficient to show payment of taxes. Acklin v. Paschal, 48 Tex. 147. § 539. Payment in v^^arrant. Payment for taxes with a warrant calling for current money is equivalent to a payment with the money itself, and is therefore 312 Taxation in Texas. good. Ostrum v. City of San Antonio, 71 S. W. 304, 30 Tex, Civ. App. 462. § 540. May compromise by deed. A city may compromise and settle taxes due to it for general purposes by accepting therefor a deed of land for a road. Os- trum V. City of San Antonio, 71 S. W. 304, 30 Tex. Civ. App. 462. § 541. In money, not in services. Under Const., Art. 11, Sees. 4, 6, and Rev. St., Art. 522, re- quiring that taxes levied by a city to pay current expenses or in- terest on bonded indebtedness shall be paid in money, a municipal contract, providing that services to be rendered for the city shall be paid by crediting the amount due on the contractor's city taxes and to be afterwards levied, is invalid and such contractor can not resist payment of such taxes by reason thereof, though he may recover for the work done. Wagner v. Porter, 56 S. W. 560. § 542. Reduction of tax after payment. 2 Sayles Civ. St., Art. 5049, Subd. 1, requires occupation taxes to be paid in advance. An occupation tax was levied on de- fendant a few days prior to the passage of Gen. Laws (Called Sess.), 25th Leg., p. 50, which amended the act under which such tax was levied by prohibiting so large a levy as that made on de- fendant. Held, that the defendant was not entitled to a reduc- tion of the tax already levied. Brooks v. State, 58 S. W. 1032. § 543. Tender of part. A tax collector was not bound to accept a part of taxes due upon the owner's claim that the amount tendered was the whole amount due. Lufkin Laaid & Lumber Co. v. Noble, 127 S. W. 1093. § 544. Must show payment of taxes before validity of taxes can be questioned. In an action by a city to recover property, based on a tax deed, where the defendant, who is required to show that all taxes due on the property have been paid before he can be permitted to question the validity of the deed (Sayles Rev. Civ. St., Art. 447), relies on a tender, he must plead and prove an absolute ten- der of a sufficient sum to pay all taxes due. Payment. 313 The provisions of Sayles Rev. Civ. St., Art. 447, requiring proof of payment of all taxes legally due on property before a former owner can question the validity of a tax deed thereon, apply equally whether such owner is a plaintiff or defendant. Eustis V. City of Henrietta, 37 S. W. 632. § 545. Presumption of payment by one rendering. It will be presumed that payments made on tax assessments were made by the party rendering the land for taxation. Ryle V. Davidson, 116 S. W. 823. § 546. Payment before taxes are due not binding on state. Payment of taxes to the duly elected and qualified county col- lector, before the tax rolls have been delivered to him and when he had no warrant to collect the taxes, did not constitute a pay- ment of the taxes as against the state. T. & N. O. Ry. Co. v. State, 97 S. W. 142, 43 Tex. Civ. App. 580. § 547. Credit to tax collector not payment. Inasmuch as a tax collector was only authorized to receive cash for taxes, the fact that he was given credit on his account for taxes by a taxpayer did not amount to a payment. Figares v. State, 99 S. W. 412. CHAPTER XXIX. RIGHT TO RECOVER TAXES PAID. Sec. Sec. 548. Not authorized may be re- 552. When taxes paid can be re- covered, covered. 549. Taxes assessed without au- 553. Right to recover taxes paid. thority of law are void and 554. Voluntary and involuntary may be recovered back. payments. 550. Illegal tax — Payment under 555. Action to recover taxes. protest. , 556. Right to recover tax paid at 551. Taxes paid to prevent sale void sale. are compulsory and can be recovered. § 548. Not authorized may be recovered. Money collected by a city not authorized by law may be re- covered back, whether paid under compulsory process or not. Marshall v. Snediker, 25 Tex. 472 ; Baker v. Panola Co., 30 Tex. 93 ; Galveston v. Sydnor, 39 Tex. 241 ; City of Neivport v. Ringo, 10 S. W. 2 ; Torhett v. City of Louisville, 4 S. W. 345, 7 Tex. 602 ; City of Louisville v. Anderson, 79 Ky. 334. If money be paid through a clear mistake of law, and which in law or conscience was not payable, and should not be retained by the party receiving it, it may be recovered. City of Nezuport V. Ringo, 10 S. W. 3. § 549. Taxes assessed without authority of law are void and may be recovered back. 2 Desty on Tax., 793 and note 1. The action of assumption will properly lie to recover back from a municipal corporation taxes illegally assessed and col- lected under an unconstitutional law. 2 Desty on Tax., 794, notes 7 and 9. The case of City of Houston v. Feeser, 76 Tex. 365, was a voluntary payment from the facts in that case, that there was no law requiring appellee to pay the tax which he seeks to recover ; no process, civil or criminal, had issued or could legally issue un- der which his person or property could be seized. Right to Recover Taxes Paid. 315 Where taxes improperly collected by a county have been re- funded, the county can not thereafter recover the amount on the ground that it was paid under mistake of law. Graves Co. v. First Nat. Bank, 56 S. W. 16. The theory upon which payments for taxes are considered as voluntary is, as stated by Mr. Cooley on Taxation, p. 809, and all other authorities on this subject, because "every man is supposed to know the law, and if he voluntarily makes a payment which the law would not compel him to make, he can not afterwards assign his ignorance of the law as the reason why the state should furnish him with legal remedies to recover it back. § 550. Illegal tax — Payment under protest. One who pays an illegal tax under protest is entitled to recover from the county interest thereon from the date of payment. Gal- veston County V. Galveston Gas Co., 10 S. W. 583, 72 Tex. 509. § 551. Taxes paid to prevent sale are compulsory and can be recovered. The taxes having been paid under protest to prevent the sale and consequent cloud on the title, the payment was so far com- pulsory as to allow of a recovery back, if sought with reasonable promptness. The necessity for action was sufficiently immediate and urgent to remove the payment made to the collector from the class of voluntary payments. That an application for relief had been made to the county com- missioners' court and refused, would not bar a recovery back of the taxes illegally paid under protest. The question was not one of valuation, but of an illegal collection of money, to relieve against which the county court or board of equalization had no jurisdiction. Gas Co. v. Galveston County, 54 Tex. 287; City of Marshall v. Sneidiker, 25 Tex. 471 ; Baker v. Panola County, 30 Tex. 86; Galveston County v. Gorham, 49 Tex. 301. § 552. When taxes paid can be recovered. Money collected by a city not authorized by law may be recov- ered whether paid under compulsory process or not. Marshall V. Sneidiker, 25 Tex. 472 ; Baker v. Panola Co., 30 Tex. 93 ; Gal- veston V. Sydnor, 39 Tex. 241 ; City of Newport v. Ringo, 10 S. W. 2 ; Torbett v. City of Louisville, 4 S. W. 346 ; City of Louis- ville V. Anderson, 79 Ky. 334. 316 Taxation in Texas. If money be paid through a clear mistake of law, and which in law or conscience was not payable, and should not be retained by the party receiving it, it may be recovered. City of Newport v. Ringo, 10 S. W. 3. Taxes assessed without authority of law are void, and may be recovered back. 2 Desty on Tex., 793 and note 1. The action of assumption will properly lie to recover back from a municipal corporation taxes illegally assessed and collected un- der an unconstitutional law. 2 Desty on Tax, 794, notes 7 and 9. § 553. Right to recover taxes paid. Money collected as taxes by a city under an ordinance not au- thorized by its charter may be recovered by suit at law whether the tax was paid under compulsory process or not. Otherwise, if the money had been collected by the state authority, for want of power to sue the state. City of Galveston v. Sydnor, 39 Tex. 236. Where illegally assessed taxes are paid under protest after seizure, the money paid may be recovered back in a suit promptly brought against the officer before he is required to pay it over. Har desty v. Fleming, 57 Tex. 395. A tax was imposed by the legislature, and in the ordinary course of business paid by persons taxed without any question having been made, illegality or the irregularity of the collection of that part of it claimed by the county. In a suit to recover back a portion of the tax claimed to have been illegally assessed, held: (1) That the plaintiffs did not have the right to bring their suit at any time within two years to recover back that portion of the tax claimed to be illegal. (2) The tax being voluntarily paid, it was not, under the circumstances, contrary to good conscience for the county to retain it. Galveston County v. Gorham, 49 Tex. 279. After the entire property of a private corporation had been listed by it for taxation, the county assessor, without authority of law, made a further assessment on the corporation for prop- erty that it did not own, and the land of the corporation was ad- vertised by the collector for sale, to satisfy said illegal assessment ; thereupon the corporation paid the illegal tax under protest. Five months after payment a claim for the return of the money was presented to the commissioners' court, and in nine months more suit was brought against the county. Held: (1) That under Right to Recover Taxes Paid. 317 Sec. 13, Art. VIII, of the Constitution of 1876, and Sec. 18 of the Act of August, 1876, regulating the duties of tax collectors, a tax sale of the property of the corporation would have consti- tuted a cloud on its title. (2) The taxes having been paid un- der protest to prevent the sale and consequent cloud on the title, the payment was so far compulsory as to allow a recovery back, if sought with reasonable promptness. (3) Expressions of opin- ion in Red v. Johnson, 53 Tex. 284, noted and explained. (4) The necessity for action was sufficiently immediate and urgent to remove the payment made to the collector from the class of voluntary payments. (5) That an application for relief has been made to the county commissioners' court, and refused, would not bar a recovery back of the taxes illegally paid under protest. The question was not one of valuation, but of an illegal collection of money, to relieve against which the county court or board of equalization had no jurisdiction. Galveston Gas Co. v. County of Galveston, 54 Tex. 237. The right to recover back taxes paid under protest exists, al- though the taxpayer had not appeared before the board of equal- ization and contested the assessment. Hardesty v. Fleming, 57 Tex. 395. § 554. Voluntary and involuntary payments. That a city tax collector, in his receipt, states the payment of an assessment on lands to have been made under protest, does not affect the character of the payment as voluntary or involun- tary, where the lands have already been sold under the law re- garding delinquent taxpayers, and bought by the city, and the payment is afterwards made in pursuance of an agreement be- tween the former owner and the city. Galveston City Co. v. Galveston, 56 Tex. 486. The proposition of a property owner to pay such assessment if the city would remit the interest and penalty allowed by law, though the right be reserved to resort to the courts should he thereafter find occasion, evidences a voluntary payment. Gal- veston City Co. V. Galveston, 56 Tex. 486. The payment of an illegal demand by a party with full knowl- edge of the facts, except in case of necessity, as to protect one's person or property, is deemed voluntary. Galveston City Co. v. Galveston, 56 Tex. 486. 318 . Taxation in Texas. § 555. Action to recover taxes. Taxes illegal because of the illegal action of the board of equalization may be recovered. Gage v. Nevill, 3 W. Civ. 274. § 556. Right to recover tax paid at void sale. Appellant being a stranger to the title and having purchased at a void tax sale, equity will not subrogate him to the rights of the state for taxes paid, nor entitle him to be reimbursed by the owner in a suit brought by her to recover her property. Mumme V. McCloskey, 66 S. W. 854, 28 Tex. Civ. App. 83. CHAPTER XXX. REMEDIES OF TAXPAYER. Sec. Sec. 557. Cannot mandamus comptrol- 570, Tax collector's deed a cloud ler when. on title. 558. Injunction will not issue 571. Must pay tax due when. when. 572. Cannot enjoin issue of bonds 559. May enjoin when. — When. 560. Must pay amount before in- 573. Taxes on void bonds. junction will issue. 574 Right of taxpayer to raise 561. May inquire into validity of objections to legality of tax taxes after sale of land. levy and bond issuance. 562. Payment when necessary. 575. Certain defenses cannot be 563. Lapse of time. raised in suit for taxes. 564. Want of levy. 576. Not estopped by silence. 565. Extension of new limits. 577. Taxpayer has interest to en- 566. Valuation of property. join. 567. Relief granted where other 578. Relief from void sale. property is assessed with 579. Payment of taxes not a con- owners, dition precedent to defense. 568. Burden of proof. 569. Irregularities of a tax-roll. § 557. Cannot mandamus comptroller when. Rev. St., Art. 5049, Subd. 42, providing that the operators of railroads or steamboats within the state shall pay a tax on the gross receipts of passenger travel, to be returned under oath to the comptroller, and the tax to be collected by him under such regulations as he may prescribe, ' does not make it the duty of the comptroller to bring suit therefor. The comptroller could not be compelled to institute such suit by writ of mandamus, though it were his duty under the stat- ute. A taxpayer can not maintain mandamus to compel the comp- troller to institute such suit. Lemright v. Love, 65 S, W. 1089, 95 Tex. 157. § 558. Injunction will not issue when. A court of equity will not, at the instance of a taxpayer, en- join the officers of a municipal government from collecting taxes, on the ground of invalidity of the existing corporation; such 320 Taxation in Texas. issue being determinable alone by quo warranto proceedings. Troutman v. McCleskey, 27 S. W. 173, 7 Tex. Civ. App. 561. § 559. May enjoin when. In an ordinary case involving the validity of a tax, either state or municipal, on constitutional or other grounds, which may be considered and determined by the court just as consistently with public policy before as after its collection, and especially where the rights of a large number of persons are involved, and a number of suits may be avoided, and individual loss and dam- age prevented, courts may properly interpose by injunction to prevent the collection of such tax. Blessing v. City of Calves ten, 42 Tex. 642 ; George v. Dean, A7 Tex. 84 ; Harrison v. Vines, 46 Tex. 15. A misdescription of the property of a taxpayer by the assessor, or a mere irregularity in his entry of it upon the assessment list or roll, furnishes no sufficient ground for enjoining the collection of a tax, for which the plaintiff was justly liable, and with v.'hich his property had been legally assessed by the proper officers charged with this duty. Ceorge v. Dean, 47 Tex. 84. When the collection of an illegal tax is about to be enforced, one or more persons against whom the tax is levied may enjoin its collection. Morris v. Cummings, 45 S. W. 383, 91 Tex. 618. A petition to enjoin the collection of a tax because of unlawful and excessive assessment should show that the petitioner had used every mode provided by the law for his relief, and should allege readiness to pay the tax admitted to be due. R. G. R. R. Co. v. Scawlan, 44 Tex. 649. A petition for injunction to prevent the collection of a state tax, which discloses no individual damage about to be suffered from the sale sought to be enjoined, except that the sale would cast a cloud on the title of the plaintiff, is not sufficient to authorize the injunction. Red v. Johnson, 53 Tex. 284. See in this connection Gas Co. v. Galveston County, 54 Tex. 2. A party seeking by injunction equitable relief against an alleged unauthorized action by the board of equalization, must establish clearly facts showing that the board had acted illegally and with- out authority. /. & G. N. Ry. Co. v. Smith County, 54 Tex. 2. An injunction will lie to restrain the sale of property levied upon to satisfy a tax illegally assessed, where the invalidity does Remedies of Taxpayer. 321 not appear on the face of the assessment roll. Cook v. G. H. & S. A. Ry. Co., 24 S. W. 544, 5 Tex. Civ. App. 644. Not necessary to apply to board of equalization to enjoin ille- gal tax as the jurisdiction of board extends only to questions of valuation. Davis v. Burnett, 13 S. W. 613, 77 Tex. 3. § 560. Must pay amount due before injunction will issue. Before a citizen is entitled to an injunction to restrain the col- lection of taxes illegally assessed on a portion of his property only, it is his duty to demand a reduction for the amount im- properly assessed, and pay so much of the assessment as is legally due from him. Rosenberg v. Weekes, 67 Tex. 579. § 561. May inquire into validity of taxes after sale of land. A statute declaring that a tax collector's deed shall be con- clusive that the land was properly advertised for sale, and was sold for taxes as therein stated, that the grantee was the pur- chaser, and that the sale was conducted in the manner prescribed by law, and declaring that a person claiming adversely to it shall prove either that the land was not subject to taxation, or that the taxes had been paid, or that the land had never been listed and assessed, or had been redeemed, etc., does not preclude in- quiry into the validity of the taxes. A statute providing that no one shall be permitted to question a tax title without first showing that all the taxes due on the land have been paid, etc., refers only to taxes lawfully assessed upon the land itself. Lufkin v. City of Galveston, 11 S. W. 340, 73 Tex. 340. § 562. Payment when necessary. A property owner who seeks equitable relief from an excessive tax may be required to pay the legal' tax as a condition to the granting of relief. Conklin v. City of Henrietta, 44 S. W. 880. Sayles Civ. St., Art. 447, is unconstitutional in so far as it requires the payment of taxes precedent to making a defense against a void claim of title under an illegal tax sale. Eustis v. City of Henrietta, 43 S. W. 259, 91 Tex. 325. §563. Lapse of time. A party is not prevented, by mere lapse of time, from ques- tioning the right of a city to exercise a power which it has as- sumed and asserted without authority. Conklin v. City of El Paso, 44 S. W. 880. 21 322 Taxation in Texas. § 564. Want of levy. A property owner is entitled to set up and show want of au- thority to levy a tax as a defense to an action to recover it, Conk- lin V. City of El Paso, 44 S. W. 880. § 565. Extension of new limits. Where a city has voted to extend its limits, without the consent of the electors of the territory sought to be annexed, an injunc- tion will lie to restrain taxes levied by the city on such territory. Brennan v. Bradshaw, 53 Tex. 330, and Graham v. City of Green- ville, 2 S. W. 742, 67 Tex. 63, distinguished. Lum v. City of Bowie, 18 S. W. 142. § 566. Valuation of property. The remedy against a fraudulent assessment by the assessor is to review the assessment before the board of appraisers. Moody V. Galveston, 50 S. W. 482, 21 Tex. Civ. App. 16. § 567. Relief granted where other property is assessed with owners. Where the assessor includes in his assessment property not owned by the citizen, or a greater amount than is taxable, the latter is entitled to relief, though he did not render his property as provided by the statute. Moody v. City of Galveston, 50 S. W. 483, 21 Tex. Civ. App. 16; Griffin v. Heard, 78 Tex. 608, 14 S. W. 892. § 568. Burden of proof. One attempting to escape the payments of a tax, on the ground that municipal debts are invalid, has the burden of proving it. Winston v. City of Ft. Worth, 47 S. W. 740. § 569. . Irregularities of a tax-roll. Although a tax collector would be a trespasser and subject to damages, if he should seize and sell property for the collection of a valid tax, without a sufficient warrant for its collection, the invalidity of the assessment roll or process affords no sufficient ground for the interference of a court of equity, unless the party asking its aid is ready to do equity by paying the amount of the tax legally due from him. George v. Dean, 47 Tex. 85 ; Harrison V. Vines, 46 Tex. 15. Remedies of Taxpayer. 323 § 570. Tax collector's deed a cloud on title. A collector's deed to property subject to taxation and sold in accordance with law vests a good and perfect title, which can only be impeached for actual fraud. Such a deed would, there- fore, constitute a cloud upon the title of land regularly sold, but not liable for the tax, to prevent or remove which equity may be invoked. Cassiano v. Ursuliwe Academy, 64 Tex. 573. § 571. Must pay tax due when. A property owner who seeks equitable relief from an excessive tax may be required to pay the legal tax as a condition to the granting of relief. Conklin v. City of El Paso, 44 S. W. 879. § 572. Cannot enjoin issue of bonds when. A taxpayer can not enjoin the issue of bonds voted by a city, but which would be void even in the hands of a bona fide pur- chaser, since neither he nor the city would suffer injury from the issue. Bolton v. City of San Antonio, 21 S. W. 64. § 573. Taxes on void bonds. A city can not recover from a taxpayer taxes levied to create a sinking fund for and to pay interest on void bonds. City of Tyler v. Tyler Building & Loan Assn., 86 S. W. 750, 99 Tex. 6. Taxpayers can defend against the assessment of taxes to pay interest and create a sinking fund on void municipal bonds, but they must prove conclusively that the bonds are void in the hands of any holder, and can not afiford a basis of recovery against the city. City of Tyler v. Tyler Building & Loan Assn., 86 S. W. 750, 99 Tex. 6. § 574. Right of taxpayer to raise objections to legality of tax levy and bond issuance. When a tax is asserted, the taxpayer is entitled to show the want of authority to impose the tax, and, if the existence of the power depends on certain facts, he may show that such facts never existed. We do not regard this as a collateral attack upon the tax, but the assertion of defensive matter, that the defendant may properly present. Mr. Cooley says : "It will be a good de- fense to the suit that the tax for any reason is illegal." (Cooley on Taxation, p. 435.) If he can not raise the question in a suit against him for the tax it is difficult to conceive how the question 324 Taxation in Texas. could be raised, or by whom. Conklin v. City of El Paso, 44 S. W. 882 ; Berry v. City of San Antonio, 46 S. W. 273, 92 Tex. 319. § 575. Certain defenses cannot be raised in suit for taxes. In a suit by a city declared by resolution of its council to have a population of over 10,000, for taxes levied under the authority conferred on cities of over 10,000, the taxpayer can not raise the question whether the city had 10,000 inhabitants, which can only be done by a quo warranto proceeding for the dissolution of the corporation. A taxpayer sued for taxes levied to pay waterworks bonds can not set up irregularities in the issuance of the bonds as a de- fense. City of Tyler v. Tyler Building & Loan Assn., 81 S. W. 2, 98 Tex. 69. § 576. Not estopped by silence. The inhabitants of a city are not estopped from contesting the validity of bonds by standing by in silence and permitting the bonds to be issued, nor is the municipality estopped by a knowl- edge and long acquiescence in the act of the officers issuing them and by the levy of taxes and payment of interest. 15 Amer. & Eng. Ency. of Law, pp. 1137, 1138; Hainer on Municipal Securi- ties, Sec. 437. § 577. Taxpayer has interest to enjoin. A taxpayer has sufficient interest to enable him to maintain a suit to enjoin municipal authorities from paying an illegal debt. 15 Amer. & Eng. Ency. of Law, p. 1140; School Trustees v. Dow, 63 S. W. 1027. § 578. Relief from void sale. A proceeding by the owners of land to obtain relief from a void tax judgment and sale, was properly brought in the form of a motion to set aside the judgment and sale, accompanied with a tender of the taxes and costs due, rather than by a motion to retax the costs taxed against them' in the tax suit. Crosby v. Terry, 91 S. W. 653, 41 Tex. Civ. App. 594. § 579. Payment of taxes not a condition precedent to defense. In so far as Rev. St. 1895, Art. 518, requires payment of taxes as precedent to making defense to a void claim of title under a tax sale, it refuses him remedy by due course of law for an injury to his right of property, and deprives him of his property without Remedies of Taxpayer. 325 due course of law, in violation of State Const., Art. 1, Sec. 13, which provides all courts shall be open and every person for in- jury done him in his lands, goods, person or reputation sha,ll have remedy by due course of law," and Section 19 that "No cit- izen of this state. shall be deprived of life, liberty, property, privi- leges or immunities, or in any manner disfranchised, except by the due course of the law of the land." Eustis v. City of Henri- etta, 39 S. W. 567, 90 Tex. 468. CHAPTER XXXI. REDEMPTION. Sec. 580. Redemption under summary sale. 581. Land sold to State. 582. Land sold for city or town taxes. 583. An act to permit the owners of land or lots sold to the State or to any city or town for taxes to redeem the same. 584. Who may redeem. 585. Land sold to State, or city — Act 30th Legislature. 586. Land sold to State or to any city or town. 587. Sec. 13, Article 8 of Consti- tution, refers to summary sales. 588. Right to hold possession un- til period of redemption has expired. 589. No right to redeem under city charter containing no redemption provision. 590. Judgment — ^Writ of posses- sion. Sec. 591. Property sold for taxes prior to 1895. 592. Persons entitled to redeem. 593. Under charter city of Hous- ton. 594. Right to refuse redemption of part of tract. 595. Owner may redeem by pay- ment to the purchaser, even if he had sold to another. 596. Title remains until time of redemption. 597. Right to redeem for taxes before law of redemption. 598. Tender may be made through agents. 599. Effect of tender. 600. Collectors entitled to what fees. 601. Property of infant, feme covert or lunatic. 602. Judgment does not affect right to redeem. 603. After two years title perfect. 604. Right of redemption before sale. 605. Redemption after sale. § 580. Redemption under summary sale. Under the Act of 1875, p. 113, Sec. 100, authorizing the as- sessors and collectors of cities and towns to proceed summarily to sell property for taxes due on it by ex parte sales and make- deeds to purchasers, it was provided, however, that the owner of such property shall have the right to redeem the same at any time within two years of the day and date of the sale thereof, upon paying to the purchaser double the amount of taxes for which the same was sold, together with the costs of such sale and double the amount of all taxes paid by the purchaser since such sale. Sayles R. S., Art. 518. Redemption. 327 § 581. Land sold to state. That the owner or any one having an interest in land or lots heretofore sold to the state, or which may hereafter be sold to the state for taxes under decree of court, as provided in Acts of 1895, Chap. 42, 1897, Chap. 103, and 1899, Chap. 65, shall have the right within two years from' the date of such sale to redeem the same upon payment of double the amount of taxes and pen- alty for which sale was made, together with all costs and interest now required by law; provided, that at any time within twelve months from the date of such sale redemption may be made upon the payment of the amount of taxes, penalty and interest for which judgment has been rendered, with six per cent interest thereon front date of judgment, and all costs adjudged against the land ; provided, that where lands have been heretofore sold to the state for taxes under order of court, and two years have already expired since such sale, the owner of such land shall have the right to redeem said land within two years after the passage of this act upon payment of all costs and interest and double the amount of the delinquent tax. (Acts First Special Sess. 1901, p. 26.) Sayles St. (Sup.), Art. 5187a. § 582. .Land sold for city or town taxes. That all lands sold under and by virtue of decree and judg- ment of court for taxes due any incorporated city or town within this state may be redeemed by the owner or owners thereof within two years from the date of deed upon the payment to the purchaser, or his assigns, of double the amount so paid, including costs of court ; provided, that purchaser at such foreclosure sale, and his assigns, shall not be entitled to the possession of the prop- erty sold for taxes until the expiration of two years from the date of deed. (Acts 1899, p. 50.) Sayles St. (Sup.), Art. 5198a. § 583. An act to permit the owners of land or lots sold to the state or to iany city or town for taxes to redeem the same. Section 1. Be it enacted by the Legislature of the State of Texas : That the owner or any one having an interest in land or lots heretofore sold to the state or any city or town, or which may hereafter be sold to the state or to any city or town for taxes under decree of court, as provided in Acts of 1895, Chap. 42, and 1897, Chap. 103, shall have the right within two years 328 Taxation in Texas. from the date of such sale to redeem the same upon payment of double the amount of taxes for which sale was made, together with all costs, penalty and interest now required by law; pro- vided, that where lands or lots have heretofore been sold to the state or to any city or town for taxes under order of court, the owner of such land or lots shall have the right to redeem the same within two years after the passage of this act; provided, that at any time within twelve months from the date of such sale redemp- tion may be made upon payment of the amount of taxes, penalty and interest for which judgment has been entered, with ten per cent interest thereon from date of judgment, and all costs ad- judged against the land. Act of 1905, p. 323. § 584. Who may redeem. Section 1. That in all cases where lands in this state have been, or may be sold for taxes, and the owner of the land at the time of such sale, shall desire to redeem the same, under the provisions of the constitution of this state or of laws enacted on that sub- ject, it shall be sufficient to entitle such owner to redeem from the purchaser or purchasers thereof, for him to have had a paper title to such land, or to have been in possession of such land in per- son or by tenant, at the time of the institution of the suit under which the sale was made, or when such sale was made, and the existence of such facts and conditions shall be sufficient prima facie evidence of ownership to entitle the party so claiming own- ership to the right to redeem such land, and he shall not be re- quired to deraign title from the sovereignty, nor shall any hiatus or defect in his chain of title defeat the offered redemption. Nothing herein contained shall be held to limit the right of one offering to redeem to prove ownership otherwise than herein pro- vided, nor prevent any one having the superior title from redeem- ing such land within two years from the date of the tax sale by paying to the person who had previously redeemed such lands all amounts paid by him with legal interest. Act of 1905, p. 118. § 585. Land sold to state, or city — Act 30th legislature. Be it enacted by the legislature of the state of Texas : Section 1. That section 1, Chapter 132 of the Acts of the Regular Session of the Twenty-ninth Legislature, be amended so that it shall hereafter read as follows : Section 1. That the owner or any one having an interest in lands or lots heretofore sold to the state, or any city or town un- Redemption. 329 der decree of court in any suit or suits brought for the collection of the taxes thereon, or by a collector of taxes or otherwise, shall have the right within two years from the time this act goes into effect to redeem the same upon the payment of the amount of taxes for which sale was made, together with all costs, penalties and interest now required by law, and also the payment of all taxes, interest, penalties and costs on or against said lands or lots at the time of said redemption. And where lands or lots shall hereafter be sold to the state, or to any city or town for taxes under decree of court in any suit or suits brought for collection of taxes thereon, or by a collector of taxes or otherwise, the owner having an interest in such lands or lots shall have the right to redeem the same within two years after such sale, upon payment of the amount of taxes for which sale was made, together with all costs, penalties and interest now required by law ; and also the payment of all the taxes, interest, penalties, cost on or against said land or lots at the time of re- demption. Act of 30th Leg., p. 282 (Apr. 19th, 1907). § 586. Land sold to state or to any city or town. Section 1. That Section 1, Chapter 132 of the Acts of the Reg- ular Session of the Twenty-ninth Legislature, as amended by Chapter 145, Acts of the Thirtieth Legislature, be amended so that it shall hereafter read as follows : Section 1. That the owner or any one having an interest in lands or lots heretofore sold to the state or any city or town un- der decree of court in any suit or suits brought for the collection of the taxes thereon or by a collector of taxes or otherwise, shall have the right within two years from the time this act goes into eflfect to redeem the same upon the payment of the amount of taxes for which sale was made, together with all costs, penalties and interest now required by law, and also the payment of all taxes, interest, penalties and costs on or against said lands or lots at the time of said redemption. And where lands or lots shall hereafter be sold to the state or to any city or town for taxes under decree of court in any suit or suits brought for collection of taxes thereon, or by a collector of taxes or otherwise, the own- er having an interest in such lands or lots shall have the right to redeem the same within two years after such sale upon payment of the amount of taxes for whi'=h sale was made, together with all 330 Taxation in Texas. costs, penalties and interest now required by law ; and also the payment of all the taxes, interest, penalties, cost on or against said land or lots at the time of redemption. Act of 31st Leg., p. 400. § 587. Section 13, Article 8, of Constitution, refers to summary sales. We are also of opinion that Sec. 13 of Art. 8 of the Constitu- tion does not bear upon the question. The right of redemption which was secured to the owner by that section applies only to "the speedy sale" for which the legislature was required to make provision. The language of the section itself makes this mani- fest. It is as follows : "Provision shall be made by the first leg- islature for the speedy sale of a sufficient portion of all lands and other property for the taxes due thereon, and every year there- after, for the sale of all lands and other property upon which the taxes have not been paid, and the deed of conveyance to the purchaser for all lands and other property thus sold shall be held to vest a good and perfect title in the purchaser thereof, subject to be impeached only for actual fraud ; provided, that the former owner shall, within two years fron> date of purchaser's deed have the right to redeem the land upon payment of double the amount of money paid for the land." The proviso in which the right of redemption is given makes the period begin from the date of the purchaser's deed, and the deed referred to is that previously mentioned ; that is, to "the land thus sold." Clearly, by "land thus sold" is meant the land which was to be sold under the summary remedy which the legislature was to provide. City of San Antonio v. Berry, 48 S. W. 500, 92 Tex. 319. § 588. Right to hold possession until period of redemption has expired. It was error for the judgment of foreclosure for delinquent taxes to direct that the order of sale should have the effect of a writ of possession, as the law allows the owner two years in which to redeem, and he is entitled to possession during that time. League v. State, 56 S. W. 262, 93 Tex. 553. § 589. No right to redeem under city charter containing no redemption provision. Const., Art. 8, Sec. 13, requiring the legislature to provide for the speedy sale of property for taxes, and allowing the owners Redemption. 331 to redeem within two years, does not apply to a sale under a suit to foreclose a tax lien, brought under a municipal charter which contains no redemption provision. Collins v. Ferguson, 56 S. W. 225, 22 Tex. Civ. App. 552. § 590. Judgment — Writ of possession. A judgment for the sale of land for delinquent taxes should withhold the writ of possession until the expiration of the time for redemption. Ryon v. Davis, 75 S. W. 59, 32 Tex. Civ. App. 500. § 591. Property sold for taxes prior to 1895. Where property has been sold for taxes prior to 1895, and the property owner has only the right to redeem by paying double the taxes, or where his right to redeem has expired, he can not avail himself of Act 1895, Chap. 5a (Rev. St. 1895, Arts. 5232a et seq.), relating to tax sales and foreclosure of tax liens, and re- deem from such sales, except on the terms the act provides, where the limit of recovery it fixes is less than the original liability. Conklin v. City of El Paso, 44 S. W. 880. § 592 Persons entitled to redeem. The widow and daughter of a deceased land owner holding possession of the premises by tenant have such an interest in the land as entitles them under Sayles Ann. Civ. St. 1897, Art. 5232n, to redeem the land from sale for taxes within two years. Where the judgment under which defendant claims was a foreclosure of a tax lien against "unknown owners and M.," re- citing that they "own or claim some right to, or interest in," the land, defendant can not dispute the right of plaintiffs as heirs of M. to redeem such interest. Jackson v. Maddox, 117 S. W. 185. § 593. Under charter city of Houston. Under City Charter (Sp. Acts 29th Leg. 1905, p. 147, Chap. 17), Art. 3, Sec. 8, providing that in suits for taxes due the city the proper persons shall be made parties defendants, etc., and that the deed made under the sale shall vest a perfect title in the purchaser, means a perfect title as against the parties to the suit, and hence an incumbrancer not made a party to the tax suit had the same right to redeem from the tax lien as he had before the tax sale ; the purchaser at such sale being, as to him, subrogated only to the lien of the city for taxes, penalties, and costs, not including the costs of the tax suit and sale. 332 Taxation in Texas. Houston City Charter (Sp. Acts 29th Leg. 1905, p. 149, Chap. 17), Art. 3, Sec. 11, requiring an owner redeeming from a tax sale to pay double the amount paid by the purchaser, applies solely to the summary sale by the tax collector, and has no ap- plication to a sale under a judgment of foreclosure of the lien, the procedure for which is prescribed by Section 8. One entitled to redeem from a tax sale is liable to the pur- chaser for interest on the amount due only from the date of the sale to the time he tenders such amount to the purchaser and offers to redeem. Blair v. Guaranty Savings, Loan & Investment Co., 118 S. W. 608. § 594. Right to refuse redemption of part of tract. The owner of part of a tract of land sold under a judgment for non-payment of taxes wrote to the person holding title under the judgment, stating that he desired to redeem his interest in the land, and the holder under the judgment replied that he would be unwilling that a portion only of the land should be redeemed, and no tender of the amount due was made, nor was any offer made by the owner in his pleadings, in an action which he brought of trespass to try title, or upon the trial of the suit. Held, that there was no wrongful refusal of permission to redeem the land. Blmton V. Nunley, 119 S. W. 881. § 595. Owner may redeem by paying to the purchaser, even if he had sold to another. Under Rev. St. 1895, Art. 5187, providing that the owner of real estate sold for taxes may within two years after the sale redeem "by paying or tendering to the purchaser, his heirs or legal representatives, double the amount paid for the land," pay- ment may be made to the purchaser, although he had transferred his interest in the property, and the owners had notice of such transfer, as the word "purchaser," as used in the statute, applies only to the party who purchases at the tax sale, such statutes being liberally construed in favor of the owner, and such right is not affected by a judgment in an action by the owners against the original purchasers in which the right to redeem was con- ferred on the owners by payment or tender of the amount due to the purchasers or those holding under them. Turner v. Smith, 119S. W. 922. Redemption. 333 § 596. Title remains until time of redemption. Where a statute confers upon the owner the right to redeem from a tax sale, his title is not extinguished until the time for redemption has expired. Redemption from a tax sale gives no new title, it simply re- lieves the land from the sale which has been made, and this is true whether the redemption is made before the statutory time has expired or by consent of the purchaser afterwards. Bente V. Stdlivain, 115 S. W. 350; Turner v. Smith, 119 S. W. 925. § 597. Right to redeem for taxes before law of redemption. A right to redeem from a tax sale, authorized by statute and city charter, applies to a sale by a city, under a judgment for taxes made after the enactment of the statute or charter author- izing the redemption, though the taxes for which the city ob- tained its judgment accrued for years prior to the time that there existed any general law or city charter provision for redemption. Bente v. Sullivan, 115 S. W. 350. § 598. Tender may be made through agents. We disagree with appellants in the objections made to the fore- closure sale for the taxes of 1898, through which appellees claim, we nevertheless hold that the tender made appellees in redemp- tion of such sale was sufficient under Article 5232n, Rev. St. It is undisputed that the tender of a sufficient amount was made within the time required by laiv, and we can not think that the mere fact that the tender was made through an agency not known by the purchaser to have any interest in the land could affect the question. The real owner is given the right by the statute to redeem, and we know of no law which required the owner to ex- hibit his evidences of right at the time of redemption. In the instance before us appellants' agent in the town of Gra- ham arranged with the bank at that place, by 'phone, to procure the bank at Albany, Texas, to make the tender, which was re- fused because the purchasers did not believe or understand that the bank at Albany had any interest in the lands in controversy. No reason appears why, if deemed material, proper inquiry would not have led to full disclosure of the parties appellant in whose interest the tender was really made. Logan's Heirs v. Logan, 72 S. W. 418, 31 Tex. Civ. App. 295. 334 Taxation in Texas. § 599. Effect of tender. A tender to the purchaser at tax sale, under the third section of Act of June 2, 1873, concerning taxes, the full amount of the purchase money paid for land at such sale, within twelve months, with one year's interest on the same, at the rate of twenty-five per cent per annum, worked ipso facto an immediate redemption of the land by the original owner, and left the purchaser at tax sale without title. Burns v. Ledbetter, 54 Tex. 374. § 600. Collector entitled to what fees. On the redemption of land sold for taxes, and purchased by the state, the collector is entitled to retain only his costs and commissions, without interest or penalty, though, in order to redeem, the owner is required to pay double the total amount of taxes, costs, and commisisons. Ramsey v. State, 14 S. W. 793, 78 Tex. 602. § 601. Property of infant, feme covert or lunatic. If the real estate of an infant, feme covert, or lunatic be sold under the above provision, the same may be redeemed at any time within one year after such disability be removed. Sayles R. S., Art. 521. § 602. Judgment does not affect right to redeem. A decree, in a suit to enforce a tax on real estate, that the purchaser at the tax sale shall be placed in possession within thirty days, and that the defendant be debarred from asserting any claim or title in conflict with the lien foreclosed, does not deprive the owner of his equity of redemption, and hence is not erroneous. Guerguin v. City of San Antonio, 50 S. W. 142, 19 Tex. Civ. App. 98. § 603. After two years title perfect. Where the time for the redemption of the land had expired, two years, the land sold for taxes under a judgment of a court of general jurisdiction can not be redeemed by a direct offer to pay to the purchaser double the amount of money paid for the land. After the expiration of two years the title to the land ac- quired at the sale for taxes becomes perfect. Kenson v. Gage, 79 S. W. 607, 34 Tex. Civ. App. 547. Redemption. 335 § 604. Right of redemption before sale. Any delinquent taxpayer whose lands have been returned de- linquent or reported sold to the state for taxes due thereon, or any one having an interest therein, may redeem the same at any time before his lands are sold under the provisions of this chap- ter by paying to the collector the taxes due thereon since Janu- ary 1st, 1885, with interest at the rate of six per cent per annum, and all costs and the penalty of ten per cent as provided for in Article 5232j ; provided, such penalty has accrued under the pro- visions and since the passage and taking effect of this chapter. Sayles R. S., Art. 5232m. ^ § 605. Redemption after sale. » Where lands are sold under the provisions of this chapter, the owner or any one having an interest therein, shall have the right to redeem said land, or his interest therein, within two years from the date of said sale upon the payment of double the amount paid for the land. Sayles R. S., Art. 5232n. CHAPTER XXXII. EXEMPTIONS. Sec. Sec, 606. Constitutional provision. 621. 607. $250.00 furniture exempt. 608. Farm products. 622. 609. Property exempt. 610. Act 1906. 611. Act of 30th Legislature ex- 623. empting certain properties 624. from taxation. 612. Legislature may release when. 625. 613. Private schools — Buildings — What included in the terms. 614. City council may provide for the exemption of property 626. from taxation. 615. School property — ^What is ex- clusive use. 627. 616. School house occupied by family not exempt 628. 617. Land connected with board- ing school. 629. 618. Aid in construction of rail- 630. road — Sale of same. 63L 619. Leasehold not taxable against tenant — "When. 632. 620. Timber on school land sold not exempt. 633. Church publication not ex- empt. Buildings owned by char- itable institutions — Renting portions of. Public property. Exemption by municipality void. Vendee under executory con- tract not exempt from pay- ment of tax, even when sold by county. Property of municipal corpo- ration. Wharf Co., in which city owns interest, property of city. Right of exemption passed by sale. Leased State lands. State lands under contract. School land — Title in State. Property exempt from the operation of the Act of 1897. To be construed in favor of State. § 606. Constitutional provision. All occupation taxes shall be equal and uniform upon the same class of subjects within the limits of authority levying the tax; but the legislatures may by general laws, exempt from taxation public property used for public purposes ; actual places of re- ligious worship, places for burial not held for private or cor- porate profit; all buildings used exclusively and owned by per- sons or associations of persons for school purposes (and the necessary future of all schools) and institutions of purely public charity; and all laws exempting property above mentioned shall be void. St. Const., Art. 8, Sec. 2. Exemptions. 337 § 607. $250.00 furniture exempt. Provided, that two hundred and fifty dollars' worth of house- hold and kitchen furniture, belonging to each family in this state, shall be exempt from taxation. St. Const., Sec. 1, Art. 8. § 608. Farm products. Farm products in the hands of the producer and family sup- plies for home and farm use, are exempt from all taxation until otherwise directed by a two-thirds vote of all the members-elect to both houses of the legislature. St. Const., Sec. 19, Art. 8. § 609. Property exempt. The legislature may, general laws, exempt from taxation pub- lic property used for public purposes; actual places of religious worship ; places of burial not held for private or corporate profit ; all buildings used exclusively and owned by persons or associa-^ tions of persons, school purposes (and the necessary future of all schools), and institutions of purely public charity; and all laws exempting property from taxation other than the property above mentioned shall be void. St. Const., Sec. 2, Art. 8. The following property shall be exempt from taxation, to-wit : (1) Schools and Churches. — Public school houses and houses used exclusively for public worship ; the books and furniture therein and the grounds attached to such buildings necessary for the proper occupancy, use and enjoyment of the same, and not leased or otherwise used with a view to profit; all public col- leges, public academies, all buildings connected with the same, and all the lands immediately connected with public institutions of learning, and all endowment funds of institutions of learning not used with a view to profit; and all buildings used ex- clusively and owned by persons or associations of persons, for school purposes. This provision shall not extend to leasehold estates of real property held under the authority of any college or university of learning. (2) Cemeteries. — All lands used exclusively for graveyards, or grounds for burying the dead, except such as are held by any person, company or corporation with a view to profit, or for the purpose of speculation in the sale thereof. (3) Public Property. — All property, whether real or personal, belonging exclusively to this state or any political subdivision thereof, or the United States. 22 338 Taxation in Texas. (4) County Buildings. — All buildings belonging to counties used for holding courts, for jails or for county offices, with the land belonging to and on which such buildings are erected. (5) Poorhouses. — All lands, houses and other buildings be- longing to any county, precinct or town used exclusively for the support or accommodation of the poor. CSee No. 6, further down.) (6) All buildings belonging to institutions of purely public charity, together with the lands belonging to and occupied by such institutions, not leased or otherwise used with a view to profit, and all moneys and credits appropriated solely to sustain- ing such institutions. (7) Fire Engines. — All fire engines and other implements owned by towns and cities, used for the extinguishment of fires, with the buildings used exclusively for. the safe keeping thereof. (8) Market Houses, etc. — All market houses, public squares, or other public grounds, town or precinct houses or halls, used exclusively for public purposes and all works, machinery or fix- tures belonging to any town and used for conveying water to such town. (9) Public Libraries. — All public libraries and personal prop- erty belonging to the same. (10) Furniture. — Household and kitchen furniture, not ex- ceeding at their true and full value two hundred and fifty dol- lars to each family, in which may be included one sewing ma- chine. (11) Pensions. — All annual pensions granted by the state. Const., Arts. 81, 2; Art. 11 ; Acts 1876, pp. 275, 5). R. S., Art. 5065. Institution means all buildings used exclusively and owned by institutions of purely public character. And a Masonic temple, the third story of which is used by the Masonic order, the two lower stories rented, the proceeds of which are appropriated to the purposes of charities, is not exempt from taxation. Morris V. Lone Star Chapter of Masons, 68 Tex. 698, 5 S. W. 519. This section does not exempt property, it authorizes the legis- lature to do so. And public property applies to property owned by the state or one of its municipalities. Exemption of build- ings used for school purposes includes the lots upon which they Exemptions. 339 are placed, but does not include land used as a farm in connection with the buildings. St. Edwards College v. Morris, 82 Tex. 1, 17 S. W. 512. The power to commute taxes is but an incident to the power to exempt. When the power to exempt does not exist, the power to commute can not be exercised. The assumption on the part of a city to exempt property is void. Austin v. Gas Co., 69 Tex. 180, 7 S. W. 200. The action of the city of Houston in assessing a tax against a court house and in attempting to bind the county is violative of this section. Harris Co. v. Boyd, 70 Tex. 237, 7 S. W. 713. A house owned by a practicing attorney in which he lives with his wife, she conducting a school in it, is not exempt from taxa- tion. Edmonds v. City of San Antonio, 36 S. W. 495, 14 Tex. Civ. App. 155. § 610. Act 1906. Article 5065, Section 1. The following property shall be ex- empt from taxation, to-wit: 1st. Public school houses and houses used exclusively for pub- lic worship, the books and furniture therein and the grounds at- tached to each building necessary for the proper occupancy, use and enjoyment of the same, and not leased or otherwise used with a view to profit. All public colleges, public academies, all build- ings connected with the same and all the lands immediately con- nected with public institutions of learning and all endowment funds of institutions of learning not used with a view to profit and all buildings used exclusively and owned by persons or asso- ciation of persons for school purposes. This provision shall not extend to leasehold estates of real property held under authority of any college or university of learning. 2d. All lands used exclusively for grave yards or grounds for burying the dead, except such as held by any person, company or corporation with a view to profit or for the purpose of speculation in the sale thereof. 3d. All property, whether real or personal, belonging exclu- sively to this state or any political subdivision thereof, or the United States. 4th. All buildings belonging to counties for holding courts, for jails or for county offices with the land belonging to and on which such buildings are erected. 340 Taxation in Texas. 5th. All lands, houses and other buildings belonging to any county, precinct or town, used exclusively for the support or ac- commodation of the poor. 6th. All buildings belonging to institutions of purely public charity, together with the lands belonging to and occupied by such institutions not leased or otherwise used with a view to profit, unless such rents and profits and all moneys and credits are ap- propriated by such institutions solely to sustain such institutions and for the benefit of the sick and disabled members and their families and the burial of the same, or for the maintenance of persons when unable to provide for themselves, whether such per- sons are members of such institutions or not. An institution of purely public charity under this act is one which dispenses aid to its members and others in sickness or distress, or at death, with- out regard to poverty or riches of the recipient, also when the funds, property and assets of such institutions are pledges and bound by its laws to relieve, aid, and administer in any way to the relief of its members when in want, sickness and distress, and provides homes for its helpless and dependent members and to educate and maintain the orphans of its deceased members or other persons. 7th. All fire engines and other implements owned by towns and cities used for the extinguishment of fires with the buildings used exclusively for the safe keeping there. 8th. All market houses, public squares or other public grounds, town or precinct houses or halls used exclusively for public pur- poses, and all works, machinery or fixtures belonging to any town and used for conveying water to such town. 9th. All public libraries and personal property belonging to the same. 10th. All household and kitchen furniture not exceeding at their true and full value two hundred and fifty dollars to each family, in which may be included one sewing machine. 11th. All annual pensions* granted by the state, or United States. Act 1906, pp. 314, 315. The article of the Revised Statutes was amended as above, for the reason, as stated in emergency clause, because the article is not explicit enough to declare beyond a doubt as to what prop- erty and funds are not taxable. Exemptions. 341 §611. Act of 30th legislature exempting certain properties from taxation. Be it enacted by the legislature of the state of Texas : That Article 5065 of the Revised Civil Statutes, as amended by Chapter 127, of the General Laws of Texas, A. D. 1905, be amended as follows : Article 5065. Section 1. The following property shall be ex- empt from taxation, to-wit: (1) Public school houses and houses used exclusively for public worship, the books and furniture therein and the grounds attached to such buildings necessary for the proper occupancy, use and enjoyment of the same, and not leased or otherwise used with a view to profit. All public colleges, public academies, all buildings connected with the same and all the lands immediately connected with public institutions of learning, and all endowment funds of institutions of learning and religion not used with a view to profit and when the same are invested in bonds or mort- gages, or in land or other property which has been, or shall here- after be, bought in by such institutions under foreclosure sales made to satisfy or protect such bonds or mortgages — provided that such exemption of such land and property shall continue only for two years after the purchase of the same at such sale by such institutions and no longer — and all buildings used exclusively and owned by persons or associations of persons for school purposes. This provision shall not extend to leasehold estates of real prop- erty held under authority of any college or university of learn- ing. (2) All lands used exclusively for graveyards or grounds for burying the dead, except such as are held by any person, company or corporation with a view to profit, or for the purpose of specu- lating in the sale thereof. (3) All property, whether real or personal, belonging exclu- sively to this state, or any political subdivision thereof, or the United States. (4) All buildings belonging to counties for holding courts, for jails, or for county officers with the land belonging to and on which such buildings are erected. (5) All lands, houses and other buildings belonging to any county, precinct or town, used exclusively for the support or ac- commodation of the poor. 342 Taxation in Texas. (6) All buildings belonging to institutions of purely public charity, together with the lands belonging to and occupied by such institutions not leased or otherwise used with a view to profits, unless such rents and profits and all moneys and credits are ap- propriated by such institutions solely to sustain such institutions and for the benefit of the sick and disabled members and their families and the burial of the same, or for the maintenance of persons when unable to provide for themselves, whether such per- sons are members of such institutions or not. An institution of purely public charity under this act is one which dispenses its aid to its members and others in sickness or distress, or at death, without regard to poverty, or riches of the recipient, also when the funds, property and assets of such institutions are placed and bound by its laws to relieve, aid and administer in any way to the relief of its members when in want, sickness and distress and provides homes for its helpless and dependent members and to educate and maintain the orphans of its deceased members or oth- er persons. (7) All fire engines and other implements owned by towns and cities used for the extinguishment of fires with the buildings used exclusively for the safe-keeping thereof. (8) All market houses, public squares or other public grounds, town or precinct houses or halls used exclusively for public pur- poses, and all works, machinery or fixtures belonging to any town used for conveying water to such town. (9) All public libraries and personal property belonging to the same. (10) All household and kitchen furniture not exceeding at their true and full value two hundred and fifty dollars to each family ; in which may be included one sewing machine. (11) All annual pensions granted by the state, or United States. Act 30th Leg., p. 302 (Apr. 23d, 1907). § 612. Legislature may release when. The legislature shall have no power to release inhabitants of or property in, any county, city or town, from the payment of taxes levied for state or county purposes, unless in case of great public calamity in any such county, city or town, which such re- lease may be made by a vote of two-thirds of each house of the legislature. St. Const., Sec. 10, Art. 8. Exemptions. 343 § 613. Private schools — Buildings — What included in the terms. The owner of land and buildings used for private school pur- poses applied for an injunction to prevent them from being sold for taxes, claiming that under the Constitution of 1876 the prop- erty was exempt from taxation. Held: (1) That the Consti- tution of 1876 exempts a building used exclusively for school purposes ; the word building is as broad as the term house, and house has been construed to mean both the structure and the land on which it stands. Those who codified our laws, and the legislature that adopted the Revised Statutes, construed the word building to embrace the land used in connection with it. (2) That it has been the policy of the state to encourage educa- tional enterprises by exempting them frorn the burdens of gov- ernment, and there is nothing to warrant the inference that the framers of the constitution in the use of the word building in- tended to discriminate against private schools. (3) That ground used for the recreation of the students and to supply the school table with vegetables was necessary and used for the purpose and economical conduct of the school, and as such was exempt. Cassiano v. Ursiiline Acadetny, 64 Tex. 673 ; Trinity Church v. Boston, 118 Mass. 164; Pierce v. Cambridge, 2 Cush. 611 ; Mass. Gen. Hospital v. Somerville, 101 Mass. 319. Buildings in which plaintiff conducted a school, and in which he resided with his family, are not used exclusively for school purposes, and exempt from taxation. City of San Antonio v. Seeley, 57 S. W. 688. § 614. City council may provide for the exemption of property from taxation. The city council may by ordinance provide for the exemp- tion from taxation of such property as they may deem just and proper; provided, nothing contained in this chapter on taxation shall be construed to prevent the city council from imposing, levying and collecting special taxes and assessments for the improvement of the avenues, streets and alleys, as hereinafter provided. Sayles R. S., Art. 497. § 615. School property — What is exclusive use. Under Rev. St. Tex., Art. 4673, Sec. 1, exempting from tax- ation "all buildings used exclusively and owned by persons or associations of persons for school purposes," it is not necessary 344 Taxation in Texas. that the property, in order to be exempt, shall have been dedi- cated to school uses. It is sufficient if it is in fact so used. The fact that the owners of the school property live on it a portion of each year, for the reason that, as principal, matron, and teacher, their constant presence is necessary to the conduct of the business, does not justify a finding that the property is not used exclusively for school purposes. Red v. Morris, 10 S. W. 681, 72 Tex. 554. A building occupied by a practicing attorney as a homestead, though his wife also teaches a school therein, is not entitled to exemption under Article 5065 of the Revised Statutes of 1895, exempting all buildings used exclusively for school purposes. Edmonds v. City of San Antonio, 14 Tex. Civ. App. 155. Buildings in which plaintiff conducted a school, and in which he resided with his family, are not used exclusively for school purposes, and exempt from taxation. City of San Antonio v. Seeley, 57 S. W. 688. § 616. School house occupied by family not exempt. The constitution exempts "buildings used exclusively and owned by persons or associations of persons for school purposes (and the necessary furniture of all schools), and institutions of purely public charity" ; and adds, "all laws exempting property from taxation, other than the property above mentioned, shall be void." Art. 13, Sec. 2. The building in question was used by the owner and family not only for school purposes, but also as a residence. It is not enough that the main use of the building was as a school, nor that the owner and family were all engaged in the school as teachers or pupils. A building used by the owner as a family residence is not one used exclusively for school purposes, and therefore is not one exempted by the con- stitution. St. Mary's College v. Crawl, 10 Kan. 451-2 ; R. K. Red et al. V. John D. Johnson, 53 Tex. 288. §617. Land connected with boarding school. Land owned and used by the proprietor of a private school in such a manner as to enable him conveniently and cheaply to sup- ply the table of a boarding house kept by him for pupils, though contiguous to and immediately connected with land used ex- clusively for school purposes, is not within Const. Tex., Art. 8, Sec. 2, which empowers the legislature to exempt from taxation Exemptions. 345 "all buildings used exclusively, and owned by persons or asso- ciations of persons, for school purposes." St. Edwards' Col- lege V. Morris, \7 S. W. 512, 82 Tex. 1. § 618. Aid in construction of railroad — Sale of same. Act March 10, 1875 (Sp. Laws 1875, p. 69, Chap. 49), which, in compromise of a claim of a railroad company against the state for bonds to be given in aid of the construction of the rail- road, exempts from state taxes for twenty-five years all prop- erty which may be owned by it or its successors in virtue of the act incorporating it, is constitutional. Such exemption is not forfeited by sale of the railroad. Nor is it forfeited by failure of the company to construct and complete its road between the places and within the time required by its charter. State v. Colorado Bridge Co., 75 S. W. 818. § 619. Leasehold not taxable against tenant when. Rev. St. Tex., Art. 4691, provides that "property held under a lease for a term of three years or more," belonging to the state, or exempt by law from taxation in the owner's hands, shall be considered, for all purpose of taxation, as the property of the lessee. Held, that school lands, leased from the state for terms of six and ten years, under Act Tex. April 12, 1883 (Gen. Laws, 18th Leg., 1885), whereby the state reserved the right to termi- nate the lease at any time by selling the lands, are not taxable against the tenant, as the contract under which he holds can not be considered a "lease for a term of three years or more." Tram- mell V. Faught, 12 S. W. 317, 74 Tex. 557. § 620. Timber on school land sold not exempt. Const., Art. 11, Sec. 9, exempts from taxation all property of counties, etc., held only for public purposes. Art. 7, Sec. 6, pro- vides that all lands granted to the several counties for educa- tional purposes are the property of such counties, and shall be held by them in trust for the public schools. Acts 1905, p. 72, Chap. 52, provides that timber held by persons, purchasing from the state under the various laws for that purpose, shall be taxed. Held, that timber on county school lands was exempt from tax- ation under Section 9, so long as it was owned by the county, but, when sold, was not exempt from taxes levied after the sale. 346 Taxation in Texas. though not served from the land; Act 1905 applying to county lands as well as state lands. Montgomery v. Peach River Lum- ber Co., 117 S.W. 1061. § 621. Church publication not exempt. Under Const., Art. 8, Sec. 2, providing that the legislature may exempt institutions of purely public charity from taxation, only real estate owned and used exclusively by such institutions may be exempted, so that books and periodicals published and handled by a church publishing house, the funds from' the sale of which are to be used for the benefit of supernumerary and worn-out preachers, are taxable. Barbee v. City of Dallas, 64 S. W. 1018, 26 Tex. Civ. App. 571. § 622. Buildings owned by charitable institutions — Renting portions of. The provision in Const. Tex., Art. 8, Sec. 2, that the legisla- ture may exempt from taxation, among others, the buildings of "institutions of purely public charity," means such buildings only as are used exclusively and owned by such institutions. Hence, a hall owned by a chapter of Royal Arch Masons, certain portions of which are rented to persons and for purposes uncon- nected with the objects of the society, and the proceeds used by the society in furtherance of its charitable objects, is not a build- ing used exclusively by it, and is subject to taxation. Morris v. Lone Star Chapter No. 6, Royal Arch Masons, 5 S. W. 519, 68 Tex. 698. § 623. Public property. Under Const. Tex., Art. 11, Sec. 9, providing that "the prop- erty of counties, cities, and towns, held only for public purposes, * * * shall be exempt from forced sale, and from taxation," an assessment against a county, under a city ordinance, for im- provements on a street on which the county courthouse and lots abut, is void. Harris County v. Boyd, 7 S. W. 713, 70 Tex. 237. § 624. Exemption by municipality void. A contract made between the city of Austin and the Austin Gas-Light & Coal Company, exempting the property of the com- pany from municipal taxation, is ultra vires and void, being in vio- lation of Const. Tex., 1869, Art. 12, Sec. 19, which provides that taxes shall be equal and uniform throughout the state, and that Exemptions. " 347 all property shall be taxed in proportion to its value, except where the legislature shall by a two-thirds vote exempt property from taxation. City of Austin v. Gas-Light & Coal Co., 7 S. W. 200, 69 Tex. 180; Altgelt v. City of San Antonio, \7 S. W. 75, 81 Tex. 436. § 625. Vendee under executory contract not exempt from pay- ment of tax, even when sold by county. That our tax laws should be construed as they long have been, to require the vendee holding land under an executory contract of sale to pay the taxes assessed against such lands, we entertain no doubt. Lands so held are subject to execution as the prop- erty of the vendee, and the title of such vendee will support an ac- tion of trespass to try title. The fact that county is the vendor ought not to change the legal status of such vendee. True, it has been held that county school lands, so long as they remain the property of the county, are exempt from taxation, even in the hands of a lessee {Dougherty v. Thompson, 71 Tex. 192, 9 S. W. 99) ; but after the lands are sold by the county they be- come the property of a vendee for purposes of taxation, as well as of execution, even though a sale be on a credit, and the con- tract executory. It would certainly be unreasonable to treat a county selling its school lands on a credit as owner both of the notes or obligation taken for the purchase price and of the land. True, the county is not entirely divested of title to the lands until they are finally paid for, but until a forfeiture or rescission takes place on account of the default of the purchaser the purchaser is to be regarded as the owner, and the lands may be sold for taxes as his property. Taber v. State, 85 S. W. 837, 38 Tex. Civ. App. 235. § 626. Property of municipal corporation. In the absence of any law expressly providing otherwise, such property as a municipal corporation owns and uses for a public purpose is held not to be affected by general laws regulating tax- ation. Cooley on Taxation, 130, 131 ; Dillon on Municipal Cor- porations, 773, 774, and cases cited in the notes. Galveston Wharf Co. V. Galveston, 63 Tex. 23. 348 Taxation in Texas. § 627. Wharf company in which city owns interest property of city. The decree of the district court of Brazoria county, rendered April 1, 1869, in the case of The City of Gdveston v. The Gal- veston Wharf Company, consoHdating the interests of the re- spective parties thereto, vested the undivided one-third of the property of the consoHdated wharf company in the city of Gal- veston, w^ith the exception of certain property specified in the de- cree. Said one-third interest was represented by one-third of the stock of the consolidated company. The effect of said decree was to vest in the city of Galveston, not only the right to receive one-third on the dividends accru- ing to the wharf company, but the further right to one-third of the entire property of the company as consolidated; it being, however, subject to the control of the Galveston Wharf Com- pany for the uses and purposes for which the consolidation was made. Section 1, Art. 8, of the state Constitution, which enumerates certain property which is exempt from taxation, cannot be con- strued to subject all property not specified to taxation; that sec- tion simply indicates the character of things and the uses to which they must be appropriated in order to entitle them to the exemption. The city of Galveston owns such a beneficial interest in the property of the Galveston Wharf Company, and of the dividends to arise from its use, as renders it improper for the city to im- pose taxes which would ordinarily deprive the city of a part of the dividends of the company which it is entitled to receive. The two-thirds interest owned by the wharf company is sub- ject to state and municipal taxation. The Galveston Wharf Co. V. The City of Galveston, 63 Tex. 14. § 628. Right of exemption passed by sale. Act of 1875. — The "property" or "franchise" of a railroad, exempted from taxation by a legislative act, was sold under a mortgage. Held : (1) That the right of exemption from taxation probably did not pass by the sale as a thing sold and per force of the sale. (2) The Act of March 10, 1875, was a declaration having the force of a law, as well as a contract, by which the right to the Exemptions. * 349 exemption was secured to persons who might succeed in any manner to the corporate rights and ownership of the property exempted from taxation by the act. (3) The exemption passed by force of the law, while title to the thing exempted was subject to the rules regulating the trans- fer of property. (4) The word "successors" was evidently used to designate such persons as might, in a lawful manner, acquire the propri- etorship of the corporate rights and property through which they were to be exercised, while "assigns" was probably used to des- ignate parties who might acquire the land certificates before lo- cation, or the lands afterwards. /. & G. N. Ry. Co. v. Smith County, 65 Tex. 21. § 629. Leased state lands. Under Rev. St. Tex., Art. 4691, providing that "property held under lease for a term of three years or more, or held under a contract for the purchase thereof, belonging to this state, or that is exempt by law from taxation in the hands of the owner there- of, shall be considered, for all purposes of taxation, as the prop- erty of the person so holding the same, except as otherwise pro- vided by law," school lands leased for a term of ten years can not be assessed against the lessee at the value of the land, but only at the value of the leasehold, which is determined by Art. 4692 to be such price as it would bring at fair voluntary sale. Const. Tex., Art. 11, Sec. 9, exempting from taxation "prop- erty of counties, cities, and towns owned and held only for public purposes, applies to county school lands when leased to raise an available school fund, under the provisions of Art. 7, Sec. 6, pro- viding that each county may sell or dispose of such lands in whole or in part ; that said lands, or the proceeds thereof when sold, shall be held as a trust for the benefit of the public schools ; and that the interest and other revenue, except the principal, shall be available fund." Dougherty v. Thompson, 9 S. W. 99, 71 Tex. 192; State v. Taylor, 12 S. W. 176, 72 Tex. 297; Dazns v. Bur- nett, 13 S. W. 613, 77 Tex. 3. § 630. State lands under contract. Land set apart by the state for the contractor, as payment for the construction of a new capitol of Texas, to be conveyed to him from time to time when earned in the progress of the work, 350 Taxation in Texas. is not subject to taxation under Rev. St. Tex., Art. 4691, as land "held under a contract for the purchase thereof, belonging to this state." Nor did a lease executed after the original contract, under which the contractor took possession of all the land so set apart as a stipulated rent, until the title should vest in him by the com- pletion of the building, give him such a holding as to make the land taxable. Taylor v. Robinson, 10 S. W. 245, 72 Tex. 364. § 631. School lands — Title in state. Where school land was purchased and the first payment made under the act of July 8, 1879, as amended in 1881, it is subject to taxation under Id., Sec. 16, providing that "said land shall be subject to taxation from the date of the first payment into the treasury of the state," notwithstanding full payment has not been made or patent issued, and the title is still in the state. Hindes v. State, 67 S. W. 467, 68 Tex. Civ. App. 521. § 632. Property exempt from the operation of the act of 1897. Real estate which may have been rendered for taxes and paid under erroneous description given in assessment rolls, or lands that may have been doubly assessed and taxes paid on one assess- ment, or lands which may have been assessed and taxes paid thereon in a county other than the one in which they are located, or lands which may have been sold to the state and upon which taxes have been paid and through error not credited in the as- sessment rolls, shall not be deemed subject to the provisions of this chapter. When called upon the commissioner of the general land office shall furnish the county judge of any county compiling its own delinquent tax record, officially, with such information as may be necessary to enable him to determine the validity or locality of such surveys and grants as have not been shown by the printed abstracts of the land office. Act 1897, p. 137, Sec. 12. R. S., Art. 52321. § 633. To be construed in favor of state. When the construction of a law is doubtful, which, it is claimed, exempts one from some liability to the state, the doubt will be resolved in favor of the state and against the exemption. Morris V. Royal Arch Masons, 68 Tex. 698. CHAPTER XXXIII. HOMESTEAD. Sec. Sec. 634. Liable only for taxes as- 639. Sale of. sessed against it. 640. Wife need not be made party. 635. Liable for taxes, costs and 641. May be sold separately. interest against it. 642. Redemption. 636. Not liable for special im- 643. Executions and administra- provement assessments. tions. 637. Courts costs, 644. Proceeds from fire insurance. 638. Void tax sale — Repurchase 645. Judgment against husband by owner — Vendee's lien. good. § 634. Liable only for taxes assessed against it. Our constitution protects the homestead from forced sale for taxes, except such as may be assessed against it. St. Const., Sec. 50, Art. 16; Lufkin v. Galveston, 58 Tex. 545; Wright v. Strauh, 64 Tex. 66 ; Hayes v. Taylor, 17 Tex. Civ. App. 449. No real estate set apart, used or designated as a homestead shall be sold for taxes other than the taxes due on such home- stead. R. S., Art. 5183. (1) The homestead is not protected by the constitution from forced sale for lawful taxes that may be due on it. While that instrument throws the most ample protection around the home- stead, it clearly intends that in return it shall bear its just pro- portionate share of the burdens imposed by government and it is liable as other real property to all taxes, state, county or munici- pal, that are justly and lawfully laid on the property of the cit- izen. Lufkin V. Galveston, 58 Tex. 545. (2) The homestead is exempt from forced sale for taxes ex- cept such as are assessed against the homestead itself and a sale of it for other taxes as well as those assessed against it is in- hibited by the constitution. Wright v. Straub, 64 Tex. 64. § 635. Liable for taxes, costs and interest against it. The lot in controversy is the homestead of appellee, and only liable under the constitution for the taxes, costs, and interest as- sessed against it, and it can not be made liable for the taxes, costs, interest, or penalty that may be due by appellee on other prop- 352 Taxation in Texas. erty owned by him. But we are of the opinion that the language of the constitution, making the homestead Hable for taxes due upon it, includes interest, which is an incident of the tax debt, and that it is also liable for the costs and expenses incurred in assessing and collecting the taxes due upon such homestead, and the cost of suit, if any, that might be incurred in foreclosing a tax lien upon such property; but it could not be charged with the costs and expenses of assessing and collecting taxes due upon other property, or for costs incurred in obtaining judgment for such taxes. Nor is it liable for the interest due upon other taxes, nor for the penalty prescribed by the Act of 1897, either for the taxes due upon such property, or for any other taxes due upon property by the appellee. The principle decided in San Antonio v. Berry, 92 Tex. 319, 48 S. W, 496, and Bean v. City of Broumzvood (Tex. Civ. App.), 43 S. W. 1036, in effect recognizes the liability of the homestead for the costs incurred in collecting the taxes due upon it, and for the interest due upon such sum. In keeping with the above views, we are of the opinion that the court erred in not foreclosing the lien upon the property in question for the taxes due upon that property, as well as the costs incurred in an effort to collect same and foreclose the lien in this case, and for the costs permitted and authorized by law in assessing the property, etc., and for the interest due for the years 1897, 1898, 1899, and 1901. City of Marlin v. Green, 78 S. W. 705, 34 Tex. Civ. App. 421 ; Toep- perwein v. City of San Antonio, 124 S. W. 699. § 636. Not liable for special improvement assessments. A special assessment against a homestead for street paving is not a tax for which the home is liable. Lovenherg v. City of Gal- veston, 42 S. W. 1024, 17 Tex. Civ. App. 162. A special assessment against the homestead for sidewalk is not a tax within the meaning of the constitution. Higgins v. Bor- dages, 88 Tex. 460, 31 S. W. 52, 803. § 637. Court costs. The costs of a tax foreclosure suit are a lien on the home- stead so foreclosed. Berry v. City of San Antonio, 46 S. W. 273, 92 Tex. 319; Bean v. City of Brozmwood, 43 S. W. 1036; City of San Antonio v. Berry, 48 S. W. 496, 92 Tex. 319. Homestead. 353 §638. Void tax sale — Repurchase by owner — Vendor's lien. The debt for purchase money excepted by the constitution can be none other than that created in acquiring some sort of title to the homestead, and hence can not arise from a contract made after such title is fully vested and the homestead acquired. Cer- tainly the conveyance of a void tax title to the appellee, while in the full possession and enjoyment of his homestead, could not have strengthened his title thereto. Indeed, the tax sale pro- ceeded upon the assumption that the title to the homestead was already perfect in appellee. It follows therefore that the owner of a homestead sold for taxes at a sale which is void because other taxes than those on the homestead were included in the sale, does not, by taking fromi the purchaser at such sale, a conveyance of the homestead expressly retaining a vendor's lien to secure pay- ment of a note given as the purchase price, render the home- stead subject to sale on foreclosure of the vendor's lien. Hayes V. Taylor, 17 T6x. Civ. App. 449. < , § 639. Sale of. Where the amount of taxes for which a homestead is alleged to have been bought is greater than the amount allowed by the constitution, the sale is void, Hayes v. Taylor, 43 S. W. 314. § 640. Wife need not be made party. The wife need not be made a party in foreclosing a tax lien on a homestead. Bean v. City of Brotvnwood, 43 S. W. 1036; Berry v. City of San Antonio, 46 S. W. 273, 92 Tex. 319; Jer- gens V. Schiele, 61 Tex. 255 ; City of San Antonio v. Berry, 48 S. W. 496, 92 Tex. 319; Collins v. Ferguson, 56 S. W. 225, 22 Tex. Civ. App. 552; Honssels v. Taylor, 58 S. W. i91, 24 Tex. Civ. App. 72. § 641. May be sold separately. When the same judgment forecloses tax liens against a home- stead and other property, it is proper to have separate orders of sale issued at the same time, that the homestead may be sold separately. Bean v. City of Brownwood, 43 S. W. 1036. § 642. Redemption. Where, after the sale of a designated homestead for delin- quent taxes, the owners filed suit against the purchaser to set aside the sale and conveyance to him, and the suit was compro- 23 354 Taxation in Texas. mised within the two years from the date of the tax sale allowed for redemption, it being agreed that a judgment should be en- tered in favor of the purchaser, he at the time executing a con- veyance back to the owners for a consideration small in com- parison to the then value of the property, and the owners re- mained in possession during all the time from the date of the designation of the homestead until the husband's death, some four years subsequent to the time of the compromise, the transaction was a redemption. Where, after a sale of a homestead for delinquent taxes, the owners redeemed the hoitiestead, designation was not to be de- termined by the value of the property at the time of the convey- ance back of the tax purchaser, but the original designation would control. Bente v. Sullivan, 115 S. W. 350. § 643. Executions and administrations. A judgment for a city for taxes against a homestead, pre- serving the right of redemption in favor of the owner and con- taining a recital limiting the right of the purchaser thereunder to possession for two years after the date of the sale, during which time the owner did redeem, was binding upon the owner's executor whether or not there was any statutory authority to re- deem, and precluded him from asserting that a reconveyance to the owner by the purchaser at the tax sale made a new desig- nation of homestead necessary, as the rights of an executor are no greater than those of his testator ; a judgment rendered against the testator in all its parts, especially those favorable to his in- terests, being binding upon his executor. Bente v. Sullivan, 115 S. W. 350. § 644. Proceeds from fire insurance. The proceeds of a fire insurance policy issued on a building which is a part of a homestead, as well as the proceeds of the sale, of a homestead, cire exempt from the payment of a husband's debt other than for such debts as are owing for purchase money of the homestead or for taxes thereon. Alvord Nat. Bank v. Ferguson, 126 S. W. 622. § 645. Judgment against husband good. A judgment against the husband alone touching community property is conclusive as to the title to the property upon both husband and wife. Nor is the wife a necessary party to any suit Homestead. 355 in which the homestead is not available as a defense, merely on account of the fact that the family home is established on the property, unless she has a defense growing out of her homestead rights which would defeat the action, in which event she is a necessary party, Jergens v. Schiele, 61 Tex. 255. By the decisions of this state the homestead is not protected from forced sale for lawful taxes that may be due on it, and, from the above, the wife's plea of a homestead would avail nothing as a defense and she is therefore not a necessary party to a suit for taxes which are assessed in the name of her husband, though it may be taxes on the homestead. CHAPTER XXXIV. PERSONAL PROPERTY. Sec. Sec. 646. Personal estate includes what. 655. Assessment of taxes of Tele- 647. Credits and securities — Na- graph Co. tional bank stock — ^^Non-resi- 656. Corn and cotton — Division of dents. tax. 648. Bonds and securities. 657. Cattle ranging in two coun- 649. Duty of assessor and collector ties. of cities and towns to make 658. Taxes on indebtedness of lists of personal property. non-resident. 650. Separate value of each piece 659. Fish — Act •29th Legislature, not required in assessment. page 128. 651. Assessment — Description of 660. Vessels — Taxable where own- property, er resides. 652. Cattle taxed in county where 661. Vendor's lien notes owned by situated. non-residents, but within 653. Non-residence of owner. State. 654. Sale of personal property. § 646. Personal estate includes what. The term personal estate or property, as used in this title, shall be construed to include all household furniture, money, goods,, capital, chattels, public stocks and stocks of corporations, moneyed or otherwise, and generally all property which is not real. Sayles R. S., Art. 496. Personal property shall, for the purposes of taxation, be con- strued to include all chattels and effects, and all moneys, credits, bonds and other evidences of debt owned by citizens of the state, whether the same be in or out of the state; all ships, boats and vessels belonging to inhabitants of this state, if registered in this state, whether at home or abroad, and all capital invested there- in ; all moneys at interest, either within or without this state, due the person, to be taxed over and above what he pays inter- est for ; and all other debts due such persons over and above their indebtedness ; all public stock and securities ; all stock in turn- pikes, railroads, canals and other corporations (except national banks) out of the state, owned by inhabitants of this state ; all personal estate of moneyed corporations, whether the owners Personal Property. 357 thereof reside in or out of this state, and the income of any an- nuity, unless the capital of such annuity be taxed within this state; all shares in any bank organized or that may be organ- ized under the law of the United States ; all improvements made by persons upon lands held by them, the title to which is still vested in the state of Texas or in any railroad company, or which have been exempted from taxation for the benefit of any railroad company or any other corporations, or any other corporation whose property is not subject to the same mode and rule of tax- ation as other property. (Acts 1879, Chap. 40, p. 39. R. S., Art. 5063.) The term "personal .property," when employed in a tax law, includes bonds, notes, credits, and choses in action. Jesse French Piano Co. v. City of Dallas, 61 S. W. 942, 2 Tex. Ct. R. 261 ; Buck V. Miller, 45 N. E. 647, 37 L. R. A. 388, 62 Am. St. 436, 22 Amer. and Eng. Ency. of Law, 747 ; State v. Fidelity & Deposit Co., 80 S. W. 553, 35 Tex. Civ. App. 214. § 647. Credits and securities — National bank stock — Non-resi- dents. Non-residents loaning money in the state are not subject to taxation under Rev. St., Art. 5063, declaring that "personal property shall for the purposes of taxation be construed to in- clude all credits, bonds and other evidences of debt owned by citizens of the state, whether the same be in or out of the state * * *, all moneys at interest, either within or without this state, due the person to be taxed, over and above what he pays interest for, and all other debts due such persons over and above their indebtedness." The term "moneyed capital in the hands of individual citizens of such state" used in Rev. St. U. S., Sec. 5219, provid- ing that the taxation of the national banks "shall not be at a greater rate than is assessed on other moneyed capital in the hands of individual citizens of such state," and similar language in Rev. St. Tex., Art. 5080, providing that "nothing herein shall be so construed as to tax national or state banks or the share- holders theredf at a greater rate than is assessed against other moneyed capital in the hands of the individuals" refer to capital owned by natural persons, and not to capital belonging to cor- porations. 358 Taxation in Texas. § 648. Bonds and securities. Municipal bonds and securities, when properly executed, as- sume a concrete form, which gives to them a tangible status. They are more than mere evidences of debt. They may be stolen or converted, and the wrongdoer held responsible for their value. They constitute property within the meaning of the law, and their concrete form and fixed value as municipal securities give them a tangible existence. It is well settled that bank bills and mu- nicipal bonds are in such a concrete, tangible form that they are subject to taxation where found irrespective of the domicile of the owner. The debt is inseparable from the paper which de- clares and constitutes it. State v. Fidelity & Deposit Co., 80 S. W. 547, 35 Tex. Civ. App. 214; Thomas v. Morse, 80 Tex. 291, 16 S. W. 48; State Tax on Foreign-Held Bonds, 15 Wall. 300; New Orleans v. Stempel, 175 U. S. 309; Blockstone v. Miller, 188 U. S. 206; Bacon v. Hooker, \77 Mass. 335, 58 N. E. 1078, 83 A. St. R. 279. § 649. Duty of assessor and collector of cities and towns to make lists of personal property. It shall be the duty of the assessor and collector to make out a list of all personal property which has not been given in for as- sessment according to the provisions of this title, and assess the same in the name of the owner, if he be known; if not, then it shall be assessed by description of the property and as unknown owner, and the value of such property shall be determined by the board of equalization, and the same may be sold as in other cases, if the tax be not paid in the time prescribed by law. Sayles R. S., Art. 502. § 650. Separate value of each piece not required in assessment.* Revised Statutes, Art. 5118, providing that in assessing per- sonal property the different classes of personal property enu- merated therein shall be assessed at their value, does not require that the separate value of each piece shall be given in the assess- ment. Wright V. City of San Antonio, 50 S. W. 407. § 651. Assessment, description of property. Where a taxpayer tendered the assessor a statement worded "Credits, cash, office furniture, etc., $20,000," but the assessor re- fused it, and placed the property on the unrendered roll in the Personal Property. 359' same language, but at a higher vakiation, the taxpayer can not complain that the description did not show the character of the property and the amount on each class. Moody v. City of Gal- veston, 50 S. W. 482, 21 Tex. Civ. App. 16; Trust Co. v. City of Oak Cliff, 8 Tex. Civ. App. 217, 27 S. W. 1036; Cooley on Tax- ation (2d ed.), p. 360. § 652. Cattle taxed in county where situated- Owners of cattle held on a ranch in R. County, owing to drouth contracted with land owners in S. County for their pasturage there, and there kept them from' October 1, 1893, to May 1, 1894, intending to move them back as soon as there was sufficient pas- turage in R. County. Held, that the cattle were situated in S. County on Jan. 1, 1894, within the meaning of Sec. 11, Art. 10 of the Constitution, and subject to taxation there for the year 1894. Clampitt v. Johnson, 17 Tex. Civ. App. 281, 42 S. W. 866. § 653. Non-residence of owner. It is not necessary that the owner should reside within the state to render personal property situated within the state, liable to taxation. Hardesty Bros. v. Fleming, 57 Tex. 396. § 654. Sale of personal property. If any person shall fail or refuse to pay the taxes imposed upon him or his property by law until the 31st day of January next succeeding the return of the assessment rolls of the county to the comptroller, a penalty of ten per cent on the entire amount of such taxes shall accrue, which penalty, when collected, shall be paid proportionately to the state and county, and the collector of taxes shall by virtue of his tax rolls, seize and levy upon and sell so much personal property belonging to such person as may be sufficient to pay his taxes, together with the penalty above provided, interest, and all costs accruing thereon. Acts 1897, Sec. 10, p. 136. § 655. Assessment of taxes of telegraph company. An assessment of ta^^es may be properly made on a company under a sworn statement of its chief manager, when so required to be made by statute. W. U. T. Co. v. The State of Texas, 62 Tex. 630. § 656. Corn and cotton — Division of tax. The word "property" used in the statute imposing taxes is cer- tainly comprehensive enough to embrace corn and cotton; and 360 Taxation in Texas. •were the question to be decided on the import of that term in the abstract, it would be destructive of the defense set up. But such construction of the term "property," when taken in con- nection with the constitution and law imposing taxes for the pur- pose of raising revenue, would be so unequal, unjust, and op- pressive to the planting interest of the state that it can not be supposed that such was the meaning of the law. A single view of the subject will fully show that it was not. The planter's slave is assessed at his full value as a slave for life. Now, it would be difficult to conceive of any intrinsic value in the slave. He is only valuable as possessing a capacity for usefulness. He is capable of producing corn and cotton when employed by the planter. Now, if the slave has been taxed in proportion to his value, and the corn and cotton produced by him again taxed, it is, in eflfect, levying another tax on the slave. Under the tax law the slave is assessed annually at his full valuation, what it is supposed he would sell for. And so are the mules or teams. If the products are to be taxed, it surely could not be required that the slaves and teams should be assessed at a higher valuation than for one year's use. A tax is imposed on money at interest, and yet the interest so accruing is not taxed until it is let out to interest. If the corn and cotton should be exchanged for other property, that property would be subject to taxation. So the interest accruing on money loaned ; if that interest is invested in a loan, it becomes subject to taxation. State v. Jones, 5 Tex. 384. § 657. Cattle ranging in two counties. Art. 4676, R. S., provides that all property, real and personal, except such as is required to be listed and assessed otherwise, shall 'be listed and assessed in the county where it is situated, and there is no special provision excepting from this requirement cattle ranging near the line of two counties ; yet the statute does not intend to impose impossibilities or to work injustice, and a substantial compliance with its terms is all that is necessary. If, therefore, one whose pasture lies in the county of his resi- dence and partly in an adjoining county, renders for taxation his cattle feeding upon such pasture, and pays the tax thereon, in the county where he resides and where the entire herd feeding in his pasture is controlled, he complies with the substantial require- ments of the statute, the state receives from the property all the revenue to which she is entitled, and the owner is not overtaxed. Personal Property. 361 In 1884, O., a resident of Refugio County, owning a large pas- ture lying partly in the county of his residence and partly in Aransas, an adjoining county, in which pasture grazed several thousand head of cattle belonging to him, but which were always herded, as occasion required, in the county of his residence, was required by the assessor of Refugio County, in pursuance of written instructions from the comptroller of public accounts,' to render his entire herd of cattle for taxation in that county, for that year. Subsequently O., in rendering his property in Aransas County to the assessor thereof for taxation, noted upon his list the fact that all the cattle in his pasture had been rendered to the assessor of Refugio County. At a meeting of the county commissioners of Aransas County, held June 30, 1884, to revise and approve the lists submitted by the assessor of that county, the board added, without O.'s knowledge, to the list of property rendered by him, four thousand head of cattle, at a valuation of $52,000, part and parcel of the herd that had been rendered for taxation in Refugio County. O. paid to the tax collector of Re- fugio County the taxes upon his entire herd, and tendered to the tax collector of Aransas County the taxes due on his real estate in the latter county, but the collector refused to receive the money as the taxes on such property, and subsequently levied upon and advertised for sale all of O.'s lands in Aransas County, to satisfy the taxes assessed on both the lands and the four thousand head of cattle. O. applied for and obtained an injunction restraining the sale. Held: (1) That an injunction will lie, under such circumstances, to restrain the sale of real estate levied on to satisfy a tax illegally assessed. (Citing Red v. Johnson, S3 Tex. 284; George v. Dean, 47 Tex. 84, and Nat Bank v. Rogers, 51 Tex. 606.) (2) That it is not necessary, in such cases, before applying for an injunction to seek relief from the board of equalization, or other officers having control in matters of taxation. (Citing Hardesty v. F lemming, 57 Tex. 400.) (3) That it was unimportant whether the taxes in Refugio County were paid before or after the levy which was sought to be enjoined. It was sufficient if the right to the taxes had fully ac- crued to that county, and this was effected by the previous as- sessment made therein. (4) That it was not necessary for O. to allege at what time he was required to render his cattle in Refugio County. It is 362 Taxation in Texas. sufficient if it appears from his petition that it was done before the commissioners' court of Aransas County added the four thou- sand head of cattle to his assessment in the latter county. Court V. O'Connor, 65 Tex, 334. Under Gen. Laws Tex. 1887, p. 109 (Id., 1889, p. 29), provid- ing that all corporations . owning pastures which lie on county boundaries shall list for assessment all their live stock therein in the several counties in such proportion of the stock as the land in eachp county bears to the whole pasture, the live stock of such corporation is liable^ for taxes assessed thereon in each county, although taxes on the entire herd had been assessed and paid in the county in which the management of the business was con- ducted. Nolan V. San Antonio Ranch Co., 16 S. W. 1064, 81 Tex. 315. ,§ 658. Taxes on indebtedness of non-resident. A foreign corporation engaged in the manufacture and sale of pianos had an office in this state, from which agents were sent out to sell pianos, and notes were taken in payment. A store was kept in this state, from which pianos were sold, and orders often filled. The notes taken were usually secured by chattel mortgages, and made payable at different points in the state, and were sent to the state manager, who kept them for collection, and from their proceeds paid all expenses ; the balance being sent to the home office. Held, that under Sayles Civ. St., Art. 5061, subjecting all property to taxation, and Sec. 5067, requiring an agent to list all moneys and other personal property controlled by him as agent, and all moneys deposited subject to his order, and credits due from or owing by any person, etc., such notes are liable to taxation in this state, notwithstanding Article 5063 provides that personal property shall, for the purpose of taxa- tion, be construed to include goods, moneys, credits, and other evidences of debt "owned by citizens of the state" ; this section not being intended to confine such taxation to such property only as belonged to citizens of the state. Jesse French Piano & Organ Co. V. City of Dallas, 61 S. W. 942. Rev. St. 1895, Art. 5063, provides that "personalty" for the purpose of taxation shall be construed to include goods, etc., owned by citizens, whether in or without the state. Acts 29th Leg. (Laws 1905, p. 436, Chap. 8), provides for a tax for gen- Personal Property. 363 eral revenue purposes on all property "owned in the state," etc. Held, that personalty located in the state and owned by non-resi- dents is subject to taxation. Hall v. Miller, 115 S. W. 1168. § 659. Fish — Act of 29th legislature, page 128. Acts 29th Leg., p. 128, Chap. 90, imposing a tax on fishing boats and fish taken for market and amending Rev. St. 1895, Art. 2514, 2518k, is not void, though it only refers in its title to the sections amended and does not state the subject of the act. Acts 29th Leg., p. 128, Chap. 90, imposing a tax on fishing boats and fish taken for market and declaring that the title to the fish, oysters, terrapin, and shrimp in the public waters of the state is vested in the state, is not unconstitutional as con- taining more than one subject. Acts 29th Leg., p. 128, Chap. 90, imposing a tax on fishing boats and on fish taken for market, is not void as an ad valorem tax, in violation of the constitutional provision requiring equality and uniformity. Acts 29th Leg., p. 128, Chap. 90, imposing a tax on fishing boats and fish taken for market, is not void as a revenue measure originated in the senate, in violation of the constitutional provi- sion requiring such measures to originate in the house. Acts 29th Leg., p. 128, Chap. 90, authorizing the fish and oyster commissioner to confiscate fish sold and held without a permit required by the act, is not void on the ground that the fish, when reduced to possession, are private property. Acts 29th Leg., p. 128, Chap. 90, authorizing the confiscation of fish and oysters sold and held without a permit required by the act, is not void, as class legislation, because takers of shrimp are not included in the forfeiture clause. Acts 29th Leg., p. 128, Chap. 90, authorizing the fish and oyster commissioner to seize and sell summarily fish sold and held without a permit required by the act, is not void as a de- privation of property without due process of law. Raymond v. Kihhe, 95 S. W. .727, 43 Tex. Civ. App. 209. § 660. Vessels — Taxable where owner resides. Const., Art. 8, Sec. 11, provides that all property, whether owned by persons or corporations, shall be assessed for taxes in the county where situated. Rev. St. 1895, Art. 5068, provides that all property except such as is required to be listed and as- 364 Taxation in Texas. sessed otherwise shall be listed and assessed in the county where situated, and Article 5072 provides that all persons, companies, and corporations owning steamboats and other water craft shall list the same for assessment and taxation in the county in which the same may be required, registered, or licensed or kept when not so enrolled, etc. Held, that where coasting vessels were en- rolled in Galveston County, but were used to transport oil from points in Jefferson County, where their owner was domiciled, to points along the coasts of Texas and Louisiana, they were taxable in Jefferson county. State v. Higgins Oil Co., 116 S. W. 617. The legislature may, in certain instances, give to property an artificial situs for the purposes of taxation ; but when the prop- erty is physical in character, or of a nature that can acquire an actual situs, it must under our constitution be taxed in the county where actually situated or located. The finding of the court is to the fact that these vessels so taxed have an actual situs at Port Arthur, in the county of Jeiferson, and are not and have never been within waters located within the territorial jurisdiction of the city of Galveston, That vessels may acquire an actual situs is a proposition too well settled to be questioned, and that the place of enrollment and registration is not controlling, if the actual situs is elsewhere. Old Dominion Steaorated state banks from Banks. 373 the provisions of Article 5079 in so far as that article provides a basis of assessing the personal property of such banks, and pro- vides a means of taxing the personal property of state banking corporations in the hands of the shareholders, so that a state bank as a corporation is not liable for any taxes except those assessed against its real property, and an assessment against such a bank by the city of a personal tax on its stock, surplus, and undivided profits was unauthorized. City of Marshall v. State Bank, 127 S. W. 1083. § 675. President required to assess. Article 113 of the Penal Code, which requires the taxpayer to render his property for assessment, applies not only to the prop- erty actually owned by him, but to all property held by him in a fiduciary capacity, and includes national bank officials with respect to the shares, stocks, etc., owned by the individuals of the cor- poration. Downes v. State, 3 S. W. 242, 22 Tex. Crim App. 393. § 676. Deposits to be deducted as debts. Statutes of Texas permitting private banks to deduct their de- posits from their taxable assets do not discriminate against na- tional banks, which are, by Act of March 31, 1885, required to render a sworn statement of the number of their shares, each share for its actual cash value, less its proportion of real estate, which is taxed separately, since, to determine such value, it is nec- essary to deduct deposits, as debts against the bank. Engelke v. Schlender, 12 S. W. 999, 75 Tex. 559; Grimn v. Heard, 14 S. W. 892, 78 Tex. 607. § 677. Not exempt when. Money in the hands of others subject to draft is a credit due the bank, and is not exempt, though the money originally depos- ited may have been treasury notes. Griffin v. Heard, 14 S. W. 892, 78 Tex. 607. CHAPTER XXXVI. RAILROADS. Sec. Sec. 678. Assessment by railroads. 685. Exemptions of property — 679. Railroads to return sworn Pleadings. statements — When, etc. 686. Assessment as to bridges as 680. Property shall be assessed. roadbed. 681. Mode of assessment. 687. Improper rendition — Double 682. Municipal taxes. assessment. 683. Gross receipts. 688. Evidence of payment. 684. Exemption I. & G. N. R. R. Co. § 678. Assessments by railroads. It shall be the duty of every railroad corporation in this state to deliver a sworn statement, on or before the first day of June of each year, to the assessor of each county and incorporated city or town, into or through which any part of their road may run or in which they own or are in possession of real estate, a classi- fied list of all real estate owned by or in possession of said com-, pany in said county, town or city, specifying: ( 1 ) The whole number of acres of land, lot or lots, exclusive of their right of way and depot grounds owned, possessed or ap- propriated for their use, with a valuation affixed to the same. (2) The whole length of the railroad and the value thereof per mile, which valuation shall include right of way, roadbed, su- perstructure, depots and grounds upon which said depots are situate, and all shops and fixtures of every kind used in operating said road. (3) All personal property of whatsoever kind or character, except the rolling stock belonging to the company or in their pos- session in each respective county, listing and describing the said personal property in the same manner as is now required of citizens of this state. (Acts 1885, p. 61.) S. R. S., Art. 5082. 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 Banks, 375 rendered, the authorities of the city or town within which it lies shall have power to require its rendition, and collect the usual municipal tax thereon, as on other property lying within said municipality. Sec. 5, Art. 8, State Constitution. A board of appeal created by a city charter, to hear grievances as to assessments, made by the assessor, has no power to add a franchise of a railway company to the lists of property, on ac- count of the company's and the assessor's failure to list it. 5*. A. St. Ry. Co. V. City of San Antonio, 54 S. W. 907. Tax lien on lots owned by a railroad company, but not used in its business, on the insolvency thereof, held to extend only to such lots, and not to secure the payment of taxes due on other prop- erty of the insolvent to the impairment of a traffic balance lien on said lots. International & G. N. R. Co. v. Coolidge, 62 S. W. 1097, 26 Tex. Civ. App. 595. § 679. Railroads to return sworn statements when, etc. It shall be the duty of every railroad corporation in this state to deliver a sworn statement, on or -before the first day of April in each year, to the assessor of the county in which its principal office is situated, setting forth the true and full value of the roll- ing-stock of said railroad, together with the names of all the counties through which it runs, and the number of miles of road- bed in each of said counties, and the said assessment shall be sub- mitted to the board of equalization of the county in which its principal office is situated for review, as is provided by Article 5120 of this code and the other laws of this state in respect to boards of equalization, on the first Monday in June in each year, or as soon thereafter as practicable, and such board shall certify such final valuation when made, without delay, to the comp- troller of public accounts, who shall proceed at once to appor- tion the amount of such valuation among the said counties in proportion to the distance such road may run through any such county, and shall certify such apportionment to the assessors of such counties, and the same shall constitute part of the tax assets of such counties, and the assessor of each of said counties shall list and enter the same upon the rolls for taxation, as other personal property situated in said county; provided, that any railway company organized, and having its principal office with- out the state, and which may own or operate, as lessee or other- y7(i Taxation in Texas. wise, any line of railroad which is partly within the state and partly without, may render its rolling stock for taxation in the county where such company owning said railroad has established its office within this state, and a proportional part of such com- pany's rolling stock shall be rendered and assessed for taxation within the state, according to the number of miles of such rail- way therein, as compared with the number of miles without the state. (Acts 1885, p. 30.) S. R. S., Art. 5083. § 680. Where property shall be assessed. All property of railroad companies shall be assessed, and the taxes collected in the several counties in which said property is situated, including so much of the roadbed and fixtures as shall be in each county. The rolling stock may be assessed in gross in the county where the principal office of the company is located, and the county tax paid upon it shall be apportioned by the comp- troller, in proportion to the distance such road may pass through any such county, among the several counties through which the road passes, as a part of their tax assets. Sec. 8, Art. 8, State Const. § 681. Mode of assessment. Sayles Ann. Civ. St. 1897, Arts. 5073, 5082, provide for a list- ing and assessment in each county of railroad real estate, speci- fying the number of miles and value per mile, which valuation shall include right of way, depots, depot grounds, etc. Article 5120a provides that the assessor shall list for taxation property unrendered in past years "in the manner prescribed in the preced- ing article." Article 5119 referred to, provides for a listing of property, specifying the manner of describing it by giving the name of the owner, abstract number, etc., such also being the manner of assessing ordinary real property as prescribed by Article 5118. Held, that an assessment under Section 5120a of an unrendered portion of a railroad roadbed is sufficient which gives the length and assessed value of such unrendered roadbed. Under Sayles Ann. Ciy. St. 1897, Art. 5082, providing that ev- ery railroad shall deliver to the county assessor a list specifying the length of the road in the county and valuation per mile, in- cluding depots, depot grounds, etc., a railroad is assessed as an entirety, and not as so many distinct miles of road or distinct parts of the surveys over which it passes. State v. St. Louis Southwestern Ry. Co., 96 S. W. 69, 43 Tex. Civ. App. 533. Railroads. 377 § 681a. State may have lien on undivided interest. Under Sayles Ann. Civ. St, 1897, Sec. 5082, providing for the assessment of a railroad within a county as an entirety, and not as so many distinct miles of road, the state, in an action for the recovery of taxes on an unrendered portion of the roadbed is en- titled to a decree for the ^foreclosure of a lien on an undivided interest in the road. State v. St. Louis S. W. Ry. Co., 96 S. W. 69, 43 Tex. Civ. App. 533. § 682. Municipal taxes. Const., Art. 8, Sec. 5, declares that all railroad property within the limits of any city shall bear its proportionate share of mu- nicipal taxation, and, if not previously rendered, the city authori- ties shall have power to require its rendition and collect the usual municipal tax thereon. Section 8 declares that property of rail- road companies shall be assessed and taxes collected in the sev- eral counties in which the property is situated, including so much of the roadbed and fixtures as shall be in each county ; and that the rolling stock shall be assessed in gross in the county where the principal office of the company is located, and the county tax paid on it shall be apportioned by the comptroller in propor- tion to the distance the road may run through any such county among the several counties through which the road passes as a part of their assets. Held, that, under Rev. St. 1895, Art. 5083, providing for the general taxation of the rolling-stock of rail- road corporations, and Article 500, providing that only property situated within the limits of a city is taxable by it, a city con- taining the principal office of a railroad company was not, for that reason, authorized to levy municipal taxes on all the rail- road's rolling stock, only a small portion of which would neces- sarily be within the city on the 1st day of January of each year; the term "lying or being within the limits of any city or incor- porated town," etc., when applied to tangible movable property, meaning only such property as is actually and physically within the limits of the city. Where an assessor sued for commissions for making an assess- ment on the rolling stock of a railroad company, basing his right to recover on the theory that all of the rolling-stock of the road was taxable in such city, which was erroneous, and it did not ap- pear that the commissions to which plaintiff would be entitled on 378 Taxation in Texas. an assessment of such portion of the rolling stock as the city was entitled to tax would amount to a sum within the jurisdiction of the trial court, the petition was demurrable under the rule that where plaintiff relies on different or separate groups of facts, some of which disclose no cause of action on their face, the juris- diction of the trial court must be determined from the amount of the claim resting on those facts not subject to general demur- rer. City of Tyler v. Coker, 124 S. W. 729. § 683. Gross receipts. Section 1. Every railroad corporation, or the receiver thereof, and every other person, firm or association of persons, owning, operating, managing or controlling any line of railroad in this state, for the transportation of passengers, freight and baggage, or either, shall pay to the state an annual tax for the year 1905, and for each calendar year thereafter, equal to one per centum of its gross receipts, if such line of railroad lies wholly within the state ; and if such line of railroad lies partly within and partly without the state, it shall pay a tax equal to such propor- tion of the said one per centum of its gross receipts as the length of the portion of such line within the state bears to the whole length of such line ; provided, that if satisfactory evidence is sub- mitted to the comptroller at any time prior to the date fixed in Section 2 of this Act for the payment of the tax herein imposed, that any other proportion more fairly represents the proportion which the gross receipts of any such railroad for any year within this state bears to its total gross receipts, it shall be his duty to levy and collect for such year from such railroad a tax equal to such other proportion of one per centum^ of its total gross re- ceipts. Sec. 2. For the purpose of determining the amount of such tax, the president, vice-president, general manager, treasurer or superintendent of such railroad corporation, or the receiver there- of, or such other person, firm or association of persons shall, on or before the first day of October, 1905, and annually thereafter, report to the comptroller of public accounts, under oath, the gross receipts of such line of railroad, from every source whatsoever, for the year ending on the 30th day of June last preceding, and shall immediately pay to the state treasurer the annual tax herein imposed, calculated on the gross receipts so reported. The comp- Railroads. 379 troller shall have power to require such other reports and affi- davits as may in his judgment be necessary to protect the interests of the state, and he shall estimate such tax on the true gross receipts thereby disclosed, and assess and enforce the collection of such tax. Sec. 3. Every person required to make reports by this act, or by the comptroller of public accounts, under the powers herein given, who shall fail or refuse to make such reports, for a longer period than thirty days, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than one hundred nor more than five hundred dollars, and each day of failure or refusal after said thirty days shall constitute a separate offense. Sec. 4. Should such report not be filed with the comptroller, and the annual tax thereon estimiated paid to the treasurer on or before the first day of October of any year, a penalty of ten per centum upon the amount of such tax shall accrue thereon and be added thereto; and in case such report is not made or such tax and the penalty thereon are not paid on or before the first day of November thereafter, or in case of a failure to furnish the addi- tional report or affidavit required by the comptroller, for a longer period than thirty days, after demand therefor, or in case of, failure to pay within thirty days any tax or additional tax assessed by the comptroller, under this act, every such railroad corporation, or receiver thereof, or other such person, firm or association of persons shall forfeit and pay to the state the sum of two hun- dred dollars for each day any of said reports or payments may be delayed, after the expiration of such periods respectively. Sec. 5. The attorney general is authorized and required, upon request by the comptroller, to bring suit in the name of the state, in Travis County, against the proper parties defendant, to recover all taxes, penalties and forfeitures mentioned in this act, and venue and jurisdiction of such suits is hereby expressly conferred upon the courts of Travis County. Service of all process issued in such suits may be had upon any officer or agent of such per- son, firm, association of persons, corporation, or receiver thereof, within this state, and such service shall in all respects be held legal and valid. Sec. 6. The tax provided for by this act shall be in addition to all other taxes levied by law. Sub-division 36, of Article 5049, 4 380 ' Taxation in Texas. < Revised Statutes of 1895, and any existing statute imposing a tax upon the gross passenger earnings of railroads, is hereby re- pealed. Sec. 7 . The tax imposed by this act shall not be levied upon or collected from any person, firm, association, corporation, or re- ceiver owning, operating, managing or controlling any line of railroad in this state after such person, firm, association, cor- poration or receiver shall have paid the tax upon its intangible assets as provided for in an Act of the Twenty-ninth Legisla- ture entitled "An act for the taxation of the intangible assets of certain corporations, and to provide for the creation of a state tax board for the valuation of such intangible assets, and for the distribution of said valuation for local taxation, and for the assessment of said assets, and the levy and collection of taxes thereon," while the same may be in force and effect. Acts 1905, pp. 336 to 338. § 684. Exemption I. & G. N. R. R. Co. The lands granted to the I. & G. N. R. R. Co., under act of March 10, 1875, are exempt from taxation for the period men- tioned in the act, even by counties, cities or towns which had aided by the donation of lands in the construction of that com- pany's road. County of Anderson v. John W. Kennedy, 58 Tex. 617. The Act of March 10, 1875, creating an exemption from taxa- tion, known as the compromise act, was for the relief of the In- ternational Railroad, and both the language and intent of that law were to exempt that road from taxation for the period men- tioned in the act, except as to county taxes in such counties as had donated their bonds to aid in its construction. The compromise act of March 10, 1875, was intended to re- strict the exemption from taxation of property belonging to the consolidated company to such property as it held under charter originally granted to the International Railroad Company, and that the benefits otherwise extended to the consolidated company should be for and on account of acts which the International Company had already performed, under its charter, or such as the consolidated company might perform after the date of the compromise act under that chapter or act. I Railroads. 381 The compromise act of March 10, 1875, limits the exemption in favor of counties and towns, to such as had donated lands to aid in the construction of the International Railroad. Constitutional Law.— The acts of August 5, 1870, and of March 10, 1875, were not by reason of their exemptions of prop- erty from taxation violative of the constitution then in force. Taxation. — The act of March 10, 1875, known as the compro- mise act, created a valid and binding contract sustained by a val- uable consideration for the exemption of property from taxation, and was irrepealable. Cooley on Taxation, 52-56; Humphrey v. Pegues, 16 Wall. 249; Tomlinson v. Branch, 15 Wall. 460, cited and followed. The I. & G. N. Ry. Co. v. Anderson County, 59 Tex. 654. Exemption from taxation by act of legislature for good con- sideration, of property owned or to be owned by a railroad com- pany or its successors, attaches to the property, and can not be withdrawn for failure to faithfully exercise corporate powers, in the absence of provision for forfeiture. International & G. N. Ry. Co. V. State, 12 S. W. 685, 75 Tex. 356. § 685. Exemptions of property — Pleadings. Act of Aug. 5, 1870, incorporating the I. R. Co., granted it bonds of the state, and exempted its property from taxation for five years. The company consolidated with the H. & G. N. R. Co., and afterwards act March 10, 1875, expressly recognizing the consolidation, substituted for the bonds certain lands, and exempted from taxation for twenty-five years the company and its successors and assigns "and its and their capital stock, rights, franchises, railroads constructed and to be constructed pursuant to act August 5, 1870, and this act, rolling stock, and all other property" then or thereafter to be owned or possessed by it or its successors in virtue of act August 5, 1870; but the act further provided that the exemption should not apply to the lands or rail- roads which at the time of the consolidation belonged to the H. & G. N. R. Co., or which had since been or might thereafter be constructed or acquired under its charter, and that the act should not exempt any lands to which the consolidated company might be entitled by virtue of the charter of the H. & G. N. R. Co., or the franchises, roadbed, rolling stock, or any property ac- quired or thereafter to be acquired by virtue of the charter of 382 Taxation in Texas. the H. & G. N. R. Co. Held, that a petition to enjoin the col- lection of taxes on money earned by the consolidated company, which alleged that the money was earned by the consolidated com- pany, and not acquired by virtue of the charter of the H. & G. N. R. Co., and was therefore exempt from taxation, was demur- rable, since the averment might be true, and still the money might have been earned by the operation of the consolidated company of the line of railroad constructed by it in accordance with the charter of the H. & G. N. R. Co., in which case it would not be exempt. Pleasants, J., dissenting, Campbell v. Wiggins, 20 S. W. 730, 2 Tex. Civ. App. 1 ; Campbell v. Rivirie, 22 S. W. 993. § 686. Assessment as to bridges as roadbed. Where the state comptroller has instructed the assessor not to tax the railroad bridges separately, but to include all bed as railroad, whether built on ground or bridges, and a railroad company has returned a bridge on its line of road as so much mileage of railroad, the board of equalization can not order the assessor to place the bridge on the unrendered list as a bridge, at a greater valuation, since Rev. St., Art. 4713, j^rovides that the assessor shall follow the instructions of the comptroller. Cook V. G.H.& S. A. Ry. Co., 24 S. W. 544, 5 Tex. Civ. App. 644. § 687. Improper rendition — Double assessment. Where the property of a railroad company in a city is rendered for taxation by the company's agent, the trackage being rendered separate from other real estate owned by the company in the city, and the valuation of each being made distinct items, which was followed by subsequent assessments, there is not a double assess- ment. Where the property of a railroad in a city is rendered for taxa- tion by its agent in a form contrary to the statute, and the form and subsequent years, the company can not take advantage of the want of statutory form in the rendition. Galveston & W. Ry. Co. V. City of Galveston, 77 S. W. 269, 33 Tex. Civ. App. 384. § 688. Evidence of payment. In an action by a railroad company to restrain a tax collector from selling certain property to satisfy taxes of a certain year, Railroads, 383 alleged to be unpaid, the answer averred that the "Proportionate amount of plaintiff's rolling stock" had not been entered on the assessment rolls, and that the recital in the receipt held by plain- tiff, that the taxes on the rolling stock had been paid, was a mis- take. The evidence showed that plaintiff rendered to the as- sessor in the proper form a list of its property subject to taxation in the county for that year; that this rendition, excepting the valuation of certain lands, was accepted by the county board of equalization; that the list contained two items, the second of which showed the valuation of the "railway and appurtenances," that, attached to this list, was a slip, showing the different pieces of property constituting the second item, among which was a val- uation of the "proportionate amount of rolling stock furnished by the comptroller." The receipt of the assessor was also put in evidence, showing the payment by plaintiff of its state and county taxes for that year, and stating that a specified sum was for the proportionate amount of rolling stock. Held, that the evidence plainly showed that the taxes on "the proportionate amount of rolling stock" had been paid. Gillespie v. Gulf C. & S. F. Ry. Co., 18 S. W. 474. CHAPTER XXXVII. LICENSE AND OCCUPATION TAX. Sec. Sec. 689. One-half State tax. 704. 690. Tax shall be equal and uni- form. 691. Levy for 1900. 705. 692. Cities of 1,900 inhabitants oi over incorporated undev 706. general law shall have pow- er to levy and collect occu- 707. pation tax. 708. 693. Occupations that are subject 709. to taxation. 710. 694. Occupation tax — Liabilities. 711. 695. Power of city council to pro- vide for assessing taxes, 712. etc. 696. Collection of license tax, etc. 713. 697. Act of 30th Legislature pro- viding for the levy of occu- 714. pation taxes on certain oc- 715. cupations. 698. Repealing taxes on certain 716. occupations. 699. Act 30th Legislature provid- 717. ing occupation tax on deal- 718. ers in malt liquors in local option districts. 719. 700. Act 30th Legislature in re- gard to license and regulat- 720. ing sale of intoxicating 721. liquors. 701. Relating to the payment of 722. certain occupation taxes for remainder of 1907. 723. 702. Occupation tax upon persons engaged in the business of 724. dealing in unearned wages 725. of another. 726. 703. Tax on dealers in non-intox- 727. icating malt liquors. Occupation tax on soliciting orders in local option dis- tricts. Refunding unearned liquor dealer's license. Cannon crackers or toy pis- tols. Levy — S ufficiency. Must show levy of tax. Not liable — When. Occupation not property. Courts cannot interfere — When. Billiard table must be kept for profit. Temporary closing does not forfeit — Because — When. Occupation and privileges. Telegraph Company — Inter- state commerce. State must first fix the tax before city can tax. Photograph gallery. Lightning rod agents— Inter- state commerce. Foreign corporation — Inter- state commerce. Commercial travelers. Keeping pool-table without license. Fine for violating license law. Liquor property of firm n'* defense. "Vender of medicine. Barber. Oil producers. Indictment not bad for du- plicity. Railroads. 385 Sec. Sec. 728. Letting wagon for hire. 733. Wild west shows. 729. Interstate commerce. ' 734. Local option — Sale of liquors. 730. City ordinance — Vehicle not 735. Banks — Uniformity of taxa- taxed by State — Void. tion. 731. Social club. 736. Occupation — Flying-jenny. 732. Real estate agent can collect 737. Suflaciency of information. commission — When. § 689. One-half state tax. The occupation tax levied by any county, city or town, for any year, on persons or corporations pursuing any profession or busi- ness shall not exceed one-half of the tax levied by the state for the same period on such profession or business. St. Const., 1, Art. 8. § 690. Tax shall be equal and uniform. All occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax. St. Const., Sec. 2, Art. 8. A city ordinance authorizing council to impose a tax on indi- viduals having stalls for selling meat. The tax was collected only on butchers selling meat at private stalls, but not from butchers renting stalls from city. This section is as binding in cases of occupation taxes levied by the municipality as well as the state. And the prohibition of unequal taxes applies to collections as well as to the levy. HoeHing v. City of San Antonio, 85 Tex. 229, 20 S. W. 86. Act of 1881 imposing a tax of two dollars per mile on every firm or person running palace cars owned by the railroad com- panies in the state, is not a tax on property which must be taxed according to its value. Nor is it a tax on persons which must be uniform on the same class of subjects. It is an occupation tax. A tax imposed on one running a sleeping car over the railroad of another, when the same law exempts from taxation the act of running same kind of cars over the road of the car owner vio- lates this section. Pullman Palace Car Co. v. State, 64 Tex. 275. The twenty-fifth section of the occupation tax law of the 25th Legislature violates this section, because it exempts deaf, dumb and wounded soldiers. Ex parte Jones, 38 Cr. App. 482, 43 S. W. 513. 25 386 Taxation in Texas. Act of the 25th Legislature imposing an occupation tax on cot- ton buyers, but exempting such as pay an occupation tax as mer- chants, violates this section. Poteet v. State, 53 S. W. 869, 41 Tex. Crim. App. 268. The occupation tax law of the 25th Legislature which allowed a merchant to become a cotton buyer on payment of a less tax than required of other cotton buyers violates this section. Rainey V. State, 53 S. W. 882. The constitutional limitation that "taxation shall be equal and uniform throughout the state" is not violated by the act of April 22, 1871, imposing an occupation tax upon every person or firm dealing in stocks or bills of exchange in any city or town ex- ceeding five thousand in population, an annual tax of $250, and upon such occupation in a city or town of less population, fifty dollars. Texas Banking and Insurance Co. v. State, 42 Tex. 636. Acts Tex. March 11, 1881, and April 4, 1881, prohibiting the occupation of selling liquors in quantities less than one quart without paying the tax required by law, and without license, are not unconstitutional, because, as a condition precedent to engag- ing in such occupation, they require the tax thereon to be paid in advance for the term of a year, but permit the tax on other occupations to be paid quarterly, and require a license to pursue such occupation, but permit others to be pursued without a li- cense. As the requirement applies to all the persons of the class engaged in such occupation, the tax is "equal and uniform." Fahey v. State, 11 S. W. 108, 27 Tex. Crim. App. 146. By Acts Sp. Sess. 25th Leg., p. 54, Art. 5049, Subd. 40, a mer- chant who paid an occupation tax of $3 where his purchases were less than $2,000, and $300 where they were $750,000 or more, was not to pay a special license required of peddlers, $250 to the state and $100 in the county, for sales made at his place of busi- ness, or in the county where it was located. Held, that, since this gave a merchant the right to peddle anywhere in his county by paying less than the $350 peddler's license, the imposition of $350 on a peddler for doing the same thing was a violation of Const., Art. 9, Sees. 1 and 2, providing that taxation shall be equal and uniform, and that taxes of occupation shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax. Ex parte Overstreet, 46 S. W. 825, 39 Tex. Crim. App. 474; Ex parte Jones, 43 S. W. 513, 38 Tex. License and Occupation Tax. 387 Crim. App. 482; Poteet v. State, 53 S. W. 869, 41 Tex. Crim. App. 268; Rainey v. State, 53 S. W. 882, 41 Tex. Crim. App. 254. § 691. Levy for 1900. That there shall be collected by the state annually in advance an occupation tax on all persons or firms pursuing any of the following occupations, to-wit: From every foot peddler, five dollars in each county in which he peddles ; from every peddler with one horse or one pair of oxen, the sum of seven dollars and fifty cents in the county where he peddles ; from every peddler with two horses or two pairs of oxen, ten dollars in each county in which said occupation is pursued; from every peddler with sail or other boat in streams along coasts or bays of this state, ten dollars in each county in which said occupation is pursued ; provided, that nothing herein contained shall be so construed as to include traveling vendors of literature or traveling vendors of poultry, vegetables, fruits or other country produce exclusively, and fruit trees exclusively. From every person or firm who peddles out clocks, agricul- tural implements, cooking stoves or ranges, wagons, buggies, carriages, surreys and other similar vehicles, washing machines and churns, an annual tax of two hundred and fifty dollars, to be paid in each county in which said occupation is pursued ; pro- vided, that a merchant who pays an occupation tax as now re- quired by law shall not be required to pay this special tax for selling the articles named in this section when sold in his place of business. Every county in this state where any of said occupations are pursued shall be entitled to collect for the use of said county one-half of the amount required to be paid to the state. (Acts 1899, p. 201.) Sayles St. (Sup.), Art. 5049. The fact that the state has no authority to enforce the law against national banks does not make it void for the want of uniformity. It is equal and uniform on the same class of sub- jects within the limits of the authority of the state to tax. Brooks V. State, 58 S. W. 1033, 1034. Interest is not allowable on taxes from the respective dates when they become due, but from the date of the judgment hold- ing parties liable for taxes. Brooks v. State, 58 S. W. 1035. 388 Taxation in Texas. This law is constitutional. Mullinnix v. State, 60 S. W. 768. Photography is not a mechanical pursuit. The tax is not lev- ied on the vocation of a photographer but on the owner of a photographic gallery. Mullinnix v. State, 60 S. W. 768. This article makes it the duty of the comptroller to collect the tax upon the gross earnings of railroad companies, but it does not make it his duty to bring suit therefor. Suits must be brought in the name of the state and by its principal law officer, the attorney general or some other law officer whose duty it is to represent the state in legal proceedings. Lewi'ight v. Love, 95 Tex. 157, 65 S. W. 1089. One who manufactures and sells his product is not a dealer within the meaning of this law and is not taxable as such a deal- er. Egan V. State, 68 S. W. 273. § 692. Cities of 1,900 inhabitants or over incorporated under general law shall have power to levy and collect occu- pation tax. The city council shall have power to levy and collect taxes, commonly known as licences, upon trades, professional callings and other business carried on ; and upon carriages, hacks, coaches, buggies, drays, carts, wagons, and other vehicles used in said city, when the same are for public use ; and each and every person and firm engaging in the following trades, professions, callings and business, among others, shall be liable to pay such license tax ; but this enumeration shall not be construed to deprive the city council of the right and power to levy and collect other license taxes, and from other persons and firms, under the general au- thority herein granted. (lb., Sec. 83.) (1) In a general sense a license is an official permit to carry on a business or trade, or perform other acts which are forbid- den by law except to persons obtaining such permit. It also may apply to occupations not otherwise unlawful, but which the pub- lic welfare may require to be under some restraint. Hoefting v. San Antonio, 85 Tex. 228, 20 S. W. 85. (2) The power given in a city charter to license does not confer a power to tax ; by which is meant the power to take from the citizen a sum for the support of the government, whether it be national, state or municipal. Id. (3) The constitution provides that "all occupation taxes shall be equal and uniform upon the same class of subjects within the License and Occupation Tax. 389 limits of the authority levying the tax." (Const., Art. 6, Sec. 2.) This is as binding in case of occupation taxes levied by a munici- pal corporation as in such taxation levied by the state. Id. (4) Wheh the legislature has declared that an occupation shall be taxed, then, and not before, has a county, town or city the power to levy a tax upon such occupation. Id. contra, Hirsh- iield V. Dallas, 4 App. C. C, Sec. 177 ; City of Laredo v. Loury, 4 App. C. C, Sec. 320. (5) A municipal tax upon butchers vending meat, of $75 per stall per annum, and collected only of butchers vending meat at private stalls, and not of butchers renting stalls from the city, is a violation of the provision of the constitution requiring equal taxation. The inhibition applies to the collection equally as to the levy of taxes. Hoefling v. City of San Antonio, 85 Tex. 228, 20 S. W. 85. Sayles R. S., Art. 490. § 693. Occupation that are subject to taxation. Every person and firm engaged in selling goods, wares and merchandise ; every person and firm selling liquor in quantities over a quart ; every person and firm keeping a grog-shop, tip- pling place, barroom or drinking saloon ; every person or firm keeping a place where spirituous liquors, wines, cordials or beer are sold in quantities less than one quart ; every person or firm keeping a billiard table, ball alley, or nine or ten-pin alley, or any similar game ; every person or firm keeping a tavern or hotel, oyster shop, oyster saloon, or place of any description where eating or refreshments are furnished ; every person or firm keep- ing a livery stable, sale stable, feed or other kind of stable ; every person or firm selling goods, wares and merchandise at public auction ; every person or firm pursuing the occupation of real estate broker or agent, merchandise or cotton broker, or com- mission business ; every person or firm pursuing the occupation of hawker or peddler of goods or any article whatever ; every per- son or firm keeping a brewery, beer shop or distillery, or fruit stand; every person or firm keeping a storage or a warehouse, or engaging in compressing cotton, keeping an intelligence office ; each and every insurance company shall also be liable to pay said city such license tax, and each and every insurance agent in said city shall likewise be subject to said license tax, and such 390 Taxation in Texas. agent shall be held responsible therefor, and for each association, corporation or company of which he is agent. (lb., Sec. 84.) Sayles R. S., Art. 491. § 694. Occupation tax — Liabilities. Each and every firm keeping a lumber, wood or coal yard, or any place for sale of the articles aforesaid, or building material, shall be subject to said license tax, and all other persons from whom the city council may require said tax, under the authority in this title granted ; provided nothing herein contained shall in any wise prevent or restrain the city council from collecting the license, and each license tax hereinbefore provided for by this title ; each establishment shall be liable to said license tax ; and any person or firm pursuing occupations, business avocation, busi- ness or calling. (lb.. Sec. 85.) Sayles R. S., Art. 492. § 695. Power of city council to provide for assessing, taxes, etc. The city council shall have power to provide by ordinance for the assessing and collecting of the taxes aforesaid, and to de- termine when taxes shall be paid by corporations, and when by the individual corporators ; provided, no tax shall be levied un- less by consent of two-thirds of the aldermen elected. (lb., Sec. 86.) Sayles R. S., Art. 493. § 696. Collection of license tax, etc. The license tax shall be collected by the assessor and collec- tor and shall be paid to that officer by each and every person and firm owing such license and before engaging in any trade, pro- fession, business, calling, avocation or occupation subject to said tax ; and if any person shall engage in any business, calling, avo- cation or occupati'on which by an ordinance of the said city is subject to a license tax, without first having obtained said license, he, she or they shall, on conviction before the mayor or recorder's court, be liable to imprisonment or a fine of ten dollars, or both imprisonment and such fine, shall apply to all persons owning any license and failing to pay the same ; provided, that the city coun- cil may collect said license tax by suit in any court having juris- diction, under such rules and regulations as they may provide by ordinance; said taxes, commonly known as licenses laid as herein provided, shall not be construed to be a tax on property within the meaning of Article 496 or any other article of this title. (lb., Sec. 87.) License and Occupation Tax. 391 (1) The legislature never having conferred upon the city of Austin the powder to exempt any property which it was author- ized to tax, a contract with a private company exempting it from taxation in consideration of its establishing gas works and furnishing the city with gas at a reduced price, in so far as it attempted to give the exemption claimed is void. This would vio- late the rule as to uniformity. Austin v. Gas Co., 69 Tex. 180, 7 S. W. 200. (2) While the city may enforce the payment of a license tax by a suit, the payment of interest on the amount due can not be enforced in such suit. Heller v. City of Alvarado, 20 S. W. 1003, 1 Tex. Civ. App. 409. Sayles R. S., Art. 494. § 697. Act of 30th legislature providing for the levy of occupa- tion taxes on certain occupations. Section 1. Each and every individual, company, corporation or association doing an express business by railroad or water, in this state, shall, on or before the first day of March, 1908, and annu- ally thereafter, make a report to the comptroller of public ac- counts under oath, of the individual or of the president, treasurer or superintendent of such company, corporation or association, showing the amount of gross receipts from charges and freights within this state paid to or collected by such individual, company, corporation or association on account of money, goods, merchan- dise or other character of freight carried within this state during the twelve months next preceding. Said individuals, companies, corporations or associations, at the time of making said report, ^hall pay to the treasurer of the state of Texas an occupation tax for the year beginning on said date, equal to two and one-half per cent of said gross receipts as shown by said report. Sec. 2. Each and every individual company, corporation or as- sociation owning, operating, controlling or managing any tele- graph lines in this state or owning, operating, controlling or man- aging what is known' as wireless telegraph stations, for the trans- mission of messages, or aerograms, and charging for the trans- mission of such messages or aerograms, shall, on or before the first day of July, 1907, and quarterly thereafter, make a report to the comptroller of public accounts under oath of the indi- vidual, or of the president, treasurer or superintendent of such companies, corporation or association showing the gross amount 392 Taxation in Texas. received from all business within this state during the preceding quarter in the payment of telegraphic or aerogram charges, in- cluding the amount received on full rate messages and aerograms and half rate messages, and aerograms, and from the lease or use of any wires or equipment within the state during said quarter. Said individuals, companies, corporations and associations, at the time of making said report, shall pay to the treasurer of the state of Texas an occupation tax for the quarter beginning on said date equal to two and three-fourths per cent of said gross re- ceipts, as shown by said report. Sec. 3. Eiich and every individual, company, corporation, or association, owning, operating or managing or controlling any gas, electric light, electric power or water works or water and light plant, within this state and charging for gas, electric lights, electric power or water, shall on or before the first day of July, 1907, and quarterly thereafter, make a report to the comptroller of public accounts under oath of the individual or of the presi- dent, treasurer or superintendent of such company, corporation or association, showing the gross amount received from the busi- ness done within this state in the payment of charges for gas, elec- tric lights, electric power and water for the quarter next preced- ing. Said individual, company, corporation or association, at the time of making said report for any town or city of ten thousand inhabitants and less than twenty-five thousand inhabitants, shall pay to the treasurer of the state of Texas an occiif^ation tax for the quarter beginning on said date, equal to one-fourth of one per cent of said gross receipts, as shown by said report, and for any town or city of twenty-five thousand inhabitants or more, the said individual, company, corporation or association, at the time of making said report, shall pay to the treasurer of the state of Texas an occupation tax for the quarter beginning on said date, an amount equal to one-half of one per cent of said gross re- ceipts as shown by said report. Provided, that nothing herein shall apply to any gas, electric light, electric power or water works, or water and light plant within this state, owned by any city or town. Sec. 4. Each and every individual, company, corporation or association, owning, operating, managing or controlling any col- lecting agency, commercial agency, or commercial reporting credit agency within this state, and charging for collections made, License and Occupation Tax. 393 or business done or reports made, shall, on or before the first day of July, 1907, and quarterly thereafter, make a report to the comptroller of public accounts under oath of the individual or of the president, treasurer, or superintendent of such company, cor- poration or association, showing from business done within this state the gross amount received in the payment of charges for collections made and business done and reports made during the quarter next preceding. Such individuals, companies, corpora- tions or associations at the time of making said report, shall pay to the treasurer of the State of Texas an occupation tax for the quarter beginning on said date equal to one-half of one per cent of said gross receipts as shown by said report. Sec. 5. Each and every individual, company, corporation or association, residing without the state of Texas, or incorporated under the laws of any other state or territory, or nation, and owning stock cars, refrigerator and fruit cars of any kind, tank cars of any kind, coal cars of any kind, furniture cars or common box cars and flat cars, and leasing, renting or charging mileage for the use of such cars, within the state of Texas shall, on or before the first day of July, 1907, and quarterly thereafter, make a report to the comptroller of public accounts under oath of the individual, or of the president, treasurer or superintendent of such company, corporation or association, showing the amount of gross receipts from such rentals, or mileage, or from other sources of revenue received from business done within this state, during the quarter next preceding. Said individuals, companies and cor- porations, and associations, at the time of making said report, shall pay to the treasurer of the state of Texas an occupation tax for the quarter beginning on said date equal to three per cent of said gross receipts as shown by said report. Sec. 6. Each and every individual, company, corporation or association, whether incorporated under the laws of this state or of any other state or territory, or of the United States, or of any foreign nation, which owns, manages, operates, leases or rents any pipe line or pipe lines within this state, whether such pipe line or pipe lines be used for transmission of oil, natural or artificial gas, whether such oil or gas be for illuminating or fuel purposes, or for steam, for heat or power, or for any other purpose, and whether such pipe line or pipe lines be used for the transmission of articles by pneumatic or other power, shall, on or before the 394 Taxation in Texas. first day of July, 1907, and quarterly thereafter, pay to the state of Texas an occupation tax equal to two per cent of its gross receipts if such pipe line or pipe lines lie wholly within this state ; and if such pipe line or pipe lines lie partly within and partly without the state, such individuals, companies, corpora- tions and associations shall pay a tax equal to two per cent of such proportion of its gross receipts, as the length of such line or lines within the state bears to the whole length of such line or lines ; provided, that if satisfactory evidence is submitted to the comptroller of public accounts at any time prior to the date fixed by this section for the payment of the tax herein imposed, that any other proportion more fairly represents the proportion which the gross receipts of any pipe line or pipe lines for any quarter, within this state bears to its total gross receipts, it shall be his duty to collect for such quarter from every such pipe line or pipe lines a tax equal to such other proportion of two per cent of its total gross receipts. For the purpose of determining the amount of such tax, the individual or the president, treasurer or superintendent of such company, association or corporation, shall, on or before the first day of July, 1907, and quarterly thereafter, make a report to the comptroller of public accounts, under oath of the individual, or of the president, treasurer or superintendent of such company, corporation or associaJ:ion, showing the gross receipts of such pipe line or pipe lines from every source, whatsoever, for the quarter next preceding, and shall immediately pay to the state treasurer an occupation tax for the quarter beginning on said date, calculated on the gross receipts so reported. Sec. 7. Every sleeping car company, palace car company, or dining car company, doing business in' this state, and each indi- vidual, company, corporation or association leasing or renting, owning, controlling or managing any palace cars, dining cars, or sleeping cars within this state for the use of the public, for which any fare is charged, shall, on or before the first' day of July, 1907, and quarterly thereafter, report to the comptroller of public accounts, under oath of the individual, or of the presi- dent, treasurer or superintendent of such company, corporation or association, showing the amount of gross receipts earned from any and all sources whatever within this state, except from re- ceipts derived from buflfet service, during the quarter next pre- License and Occupation Tax. 395 ceding. Said individuals, companies, corporations and associa- tions, at the time of making said report shall pay to the treasurer of the state of Texas an occupation tax for the quarter begin- ning on said date equal to five per cent of said gross receipts as shown by said report. The tax herein provided for shall be in lieu of all other taxes now levied upon sleeping car, palace car or dining car companies, except the tax of 25 cents on the one hundred dollars of the capital stock of such car companies, as provided by the act of the Twenty-third Legislature, Chapter 102. Sec. 8. Every life, fire, fire and marine, marine, and marine inland insurance company, and every life and accident, life and health, accident, credit, title, steam boiler, live stock, fidelity, guar- anty, surety and casualty company and all other insurance com- panies doing business in this state, except fraternal life and do- mestic benevolent life insurance companies, at the time of filing its annual statement, shall report to the commissioner of insur- ance and banking the gross amount of premiums received in the state, upon property located in the state, and from persons resid- ing in this state, during the preceding year, and each of such companies shall pay an annual tax upon such gross premium re- ceipts as follows : Each life insurance company shall pay a tax of three per cent of such gross premiums ; all other companies enumerated above shall pay a tax of two per cent of such gross, premiums ; provided, that any company doing life insurance busi- ness in connection with any other class of insurance enumerated shall pay the same tax upon the gross receipts from life insur- ance of a company conducting a purely life insurance business ; and the gross premium receipts are understood to be a premium receipt reported to the commissioner of insurance and banking by the insurance companies upon the sworn statement of two principal officers of such companies. Upon receipt by him of sworn statements showing the gross premium receipts by such companies, the commissioner shall cer- tify to the state treasurer the amount of taxes due by each com- pany, which tax shall be paid to the state treasurer for the use of the state, on or before the first of March following, whose re- ceipt shall be evidence of the payment of such taxes, and no in- surance company shall receive a permit to do business in this state until such taxes are paid. But any life insurance company 396 Taxation in Texas. that shall comply with the terms and provisions of the act passed by the regular session the Thirtieth Legislature of this state, approved April 24, 1907, requiring the investment and deposit of 75 per cent of the reserve apportioned on account of policies of insurance written upon the lives of citizens of Jhis state, shall pay an annual tax of one per cent upon its gross receipts so long as said investments and deposits are made as provided in said acts. And that if any such insurance company shall have as much as one-fourth of its entire assets, as shown by said sworn state- ment, invested in any or all of the following securities: real es- tate in the state of Texas, bonds of this state or of any county, incorporated city or town of this state, or other property in this state in which by law such companies may invest their funds, then the annual tax of any such companies shall be one per cent of its said gross premium receipts ; and if any such company shall invest as aforesaid as much as one-half of its assets, then the annual tax of such company shall be one-half of one per cent of its gross premium receipts, as above defined, and provided fur- ther that no occupation tax shall be levied on insurance compa- nies herein subjected to a gross premium receipt tax, by any county, city or town. Provided, also, that all mutual fraternal benevolent associations, now or hereafter doing a life insurance or a life and accident insurance business in this state under the > lodge system and on the assessment plan, whether organized un- der the laws of this state, or a foreign state or country, are ex- empt from the provisions of this section. Any life insurance company heretofore or hereafter engaged in writing policies upon the lives of citizens of this state that shall cease writing such policies of insurance but shall continue to be engaged in collecting premiums or renewal premiums upon such policies shall report under oath annually as provided above to the said commissioner of insurance of this state the gross amount of premiums so collected and shall pay to the state thereon the three (3) per cent gross receipts tax above provided for. And any such life insurance company shall constitute and appoint the said commissioner of insurance of this state its duly authorized agent and attorney in fact for the purpose of accepting service for it or being served with citation in any suit brought against it in any court in this state in like manner as is provided by law for companies engaged in doing every character of insurance License and Occupation Tax. 397 business in this state, and such appointment and agency shall be continued and kept in force so long as such company continues to collect premiums of insurance from citizens of this state, and failure to make such report and pay such tax or to make and keep up the appointment of the agency as herein provided shall subject such company to a penalty for each year of $5,000 and in addition in a sum equal to double the amount of such tax for such year which penalty may be recovered by the state in a suit brought in the name of the state, under the direction of the said commissioner of insurance by the proper officer in the District Court of Travis County. The taxes aforesaid shall constitute all taxes and license fees collectible under the laws of this state against any such insurance companies, and no occupation or other taxes shall be levied on or collected from any insurance company by any county, city or town, but this act shall not be construed to prohibit the levy and collection of state, county and municipal taxes upon the real and personal property of such companies. Provided, that this shall not relieve agents from paying an occupation tax. Provided, fur- ther, that purely co-operative or mutual fire insurance companies carried on by the members thereof, solely for the protection of their own property and not for profit shall be exempt from the provisions of this bill. Sec. 9. Each and every individual, company, corporation or association created by the laws of this state or any other state or nation, which shall engage in his own name or in the name of others, or in the name of its representatives, or agents, in this state in the business of wholesale dealers in coal oil, naphtha, benzine or any other mineral oils refined from petroleum, shall, on or before the first day of July, 1907, and quarterly thereafter, make a report to the comptroller of public accounts, under oath of the individual, or of the president, treasurer or superintendent of such company, corporation or association, showing the gross amount collected and uncollected from any and all sales made within this state of any of said articles during the quarter next preceding. Said individuals, companies, corporations and asso- ciations, at the time of making said report, shall pay to the treas- urer of the state of Texas an occupation tax for the quarter be- ginning on said date equal to two per cent of said gross receipts and amount uncollected from said sales as shown by said re- port. 398 Taxation in Texas. A wholesale dealer within the meaning of this section is any individual, company, firm, partnership, corporation or associa- tion who buys any of the articles hereinbefore mentioned either in his own name or in the name of others, or in the name of their representative or agent and sells same either in his name or in the name of others, or in the name of their representatives or agents, to any person, firm, corporation or association to be sold again. Sec. 10. Each and every individual, company, corporation or association owning, operating or controlling any interurban, trol- ley, traction or electric street railway in this state and charging for transportation on said railway shall, on or before the first day of July, 1907, and quarterly thereafter make a report to the comp- troller of public accounts, under oath of the individual or of the president, treasurer or superintendent of such company, cor- poration or association, showing the amount of gross receipts from said charges for transportation on said railway paid to or uncollected by said individuals, company, corporation or associa- tion for the quarter next preceding. Said individual, company, corporation or association, at the time of making said report, if in or if connecting any town or city of less than twenty thousand inhabitants, shall pay to the treasurer of the state as an occupa- tion tax for the quarter beginning on said date equal to one-half of one per cent of said gross receipts as shown by said report; if in a city of more than twenty thousand inhabitants, said in- dividual, company or corporation or association, at the time of making said report, shall pay to the treasurer of the state of Texas an occupation tax for the quarter beginning on said date equal to three-fourths of one per cent of said gross receipts as shown by said report. Provided, that in ascertaining the popula- tion of any city or town, the same shall be ascertained by the last United States census, and provided further that where any inter- urban railroad shall connect any town having a population of more than 20,000 with another of a less population, that it shall be liable for the taxes measured by the population of the largest town. Provided, further, that the provisions of this act shall not apply to any street railway or traction company wholly with- in any town of less than ten thousand inhabitants. Sec. 11. Each any every individual company, corporation or association created by the laws of this state or any other state, License and Occupation Tax. 399 who shall engage in his own name or in the name of others, or in the name of its representatives or agents in this state in the busi- ness of a wholesale dealer or a wholesale distributor of spirituous, vinous or malt liquors or medicated bitters capable of producing intoxication, shall on or before the first day of July, 1907, and quarterly thereafter, make a report to the comptroller of public accounts, under oath of the individual, or of the president, treas- urer or superintendent of such company, corporation or associ- ation, showing the gross amount collected and uncollected from any and all sales made within this state of any of said articles during the quarter next preceding. Said individuals, companies, corporations and associations, at the time of making said report shall pay to the treasurer of the state of Texas an occupation tax for the quarter beginning on said date, equal to one-half of one per cent of said gross receipts from said sale as shown by said report. A wholesale dealer or distributor, within the meaning of this section, is any individual, company, association or corporation selling any of the articles hereinbefore mentioned either in his own or in the name of others or in the name of its representa- tives or agents to retail dealers, or who deliver on consignment to their agents for retail. Sec. 12. Each and every individual, company, corporation or association created by the laws of this state or any other state who shall engage in his own name or in the name of others, or in the names of its representatives or agents in this state in the busi- ness of a wholesale or retail dealer of pistols shall, on or before the first day of July, 1907, and quarterly thereafter, make a re- port to the comptroller of public accounts, under oath of the indi- vidual or of the president, treasurer or superintendent of said company, corporation or association, showing the gross amount collected and uncollected from any and all sales made within this state of all fire arms during the quarter next preceding. Such individuals, companies, corporations and kssociations, at the time of making said report, shall pay to the treasurer of the state of Texas an occupation tax for the quarter beginning on said date, equal to 50 per cent of said gross receipts from sales of all fire arms as shown by said report. Sec. 13. Each and every individual company, corporation or association, whether incorporated under the laws of this state or 400 Taxation in Texas. any other state or nation, engaged in publishing, printing, or selling text books used in the schools of this state, or law books of any character, or owning, controlling or managing any such business, as text books or law books purchasers, within the state or out of it, and having state agencies within this state for the purpose of selling any book or books to be used in any of the schools of this state, or any law books shall on or before the first day of July, 1907, and quarterly thereafter, make a report to the comptroller of public accounts, under oath of the individual or of the president, treasurer or superintendent of such com- pany, corporation or association, or of the person owning, con- trolling or managing any such business, showing the gross amount received from such business done within this state from any and all sources during the quarter next preceding. Said in- dividuals, companies, corporations and associations at the time of making said report shall pay to the treasurer of the state of Texas an occupation tax for the quarter beginning on said date, equal to one per cent of said gross receipts, as shown by said report. Sec. 14. Each and every individual, company, corporation or association owning, operating, managing or controlling any tele- phone line or lines or any telephones within this state, and charg- ing for the use of the same shall, on or before the first day of July, 1907, and quarterly thereafter, make a report to the comp- troller of public accounts, under oath of the individual, or of the president, treasurer or superintendent of such company, corpora- tion or association, showing the gross amount received from all business within this state during the preceding quarter, in the payment of charges for the use of its line or lines, telephone and telephones, and from the lease or use of any wires or equip- ment within this state during said quarter. Said individuals, com- panies, corporations and associations, at the time of making said report, shall pay to the treasurer of the state of Texas an occu- pation tax, for the quarter beginning on said date, equal to one and one-half per cent of said gross receipts, as shown by said report. Sec. 15. Each and every individual, company, corporation or association, whether incorporated under the laws of this or any other state or territory, or of the United States, or any foreign country, which owns, controls, manages or leases any oil well License and Occupation Tax. 401 within this state, shall, on or before the first day of July, 1907, and quarterly thereafter, make a report to the comptroller of public accounts under oath of the individual, or of the president, treasurer or superintendent of such company, corporation or as- sociation, showing the total amount of oil produced during the quarter next preceding and the average market value thereof during said quarter. Said individuals, companies, corporations and associations, at the time of making said report, shall pay to the treasurer of the state of Texas an occupation tax for the quar- ter beginning on said date, equal to one-half of one per cent of the total amount of all oil produced, at the average market value thereof, as shown by said report. Sec. 16. Each and every individual, company, corporation or association, whether incorporated under the laws of this or any other state or territory, or of the United States, or any foreign country which owns, controls, manages or leases any termmal com- panies, or any railroad doing a terminal business within this state, shall, on or before the first day of April, 1907, and quar- terly thereafter, make a report to the comptroller of public ac- counts, under oath of the individual, or of the president, treas- urer or superintendent of such company, corporation or associa- tion showing the total amount of its gross receipts from all sources whatever within this state during the quarter next pre- ceding, and the average market value thereof during said quarter. Said individuals, companies, corporations and associations, at the time of making said report, shall pay to the treasurer of the state of Texas an occupation tax for the quarter beginning on said date equal to one per cent of the total amount of its gross receipts from all sources whatever as shown by said report. Sec. 17. If any individual, company, corporation, firm or asso- ciation, in this act mentioned, shall begin and engage in any busi- ness for which there is an occupation tax herein imposed, on or after the beginning day of the quarter for which said tax is im- posed, then, and in all such cases, the amount of such tax for said beginning quarter shall be and is hereby fixed at the sum of fifty dollars, payable to the treasurer of the state of Texas, in ad- vance, but for the next succeeding quarter, and all other succeed- ing quarters, the tax shall be determined by reports to the comp- troller of pubHc accounts of the business for the preceding quar- 26 402 Taxation in Texas. ter, or part thereof, as herein otherwise in this act provided, and reports and payments of such tax shall be made subject to all other provisions of this act. Sec. 18. Any person, company, corporation or association, or any receiver or receivers, failing to make report for thirty days from the date when said report is required by this act to be made, shall forfeit and pay to the state of Texas a penalty of not exceed- ing one thousand dollars. Sec. 19. Any person, company, corporation or association or any receiver or receivers failing to pay any tax for thirty days, from the date when said tax is required by this act to be paid, shall forfeit and pay to the state of Texas a penalty of ten per cent upon the amount of such tax. Sec. 20. The penalties provided for by this act shall be recov- ered by the attorney general in a suit brought by him in the name of the state of Texas, and venue and jurisdiction of such suit is hereby conferred upon the courts of Travis County, Texas. Sec. 21, No individual, company, corporation or association, failing to pay all taxes imposed by this act shall receive a permit to do business in this state, or continue to do business in this state until the tax hereby imposed is paid. The receipt of the treasurer of the state of Texas shall be evidence of the payment of such tax. Sec. 22. Except as herein stated all taxes levied by this act shall be in addition to all other taxes now levied by law, provided that nothing herein shall be construed as authorizing any county or city to levy an occupation tax on the occupations and business taxed by this act. Sec. 23. If for any reason the comptroller of public accounts is not satisfied with any report from any such person, company, corporation, co-partnership or association, he may require addi- tional or supplemental reports containing information and data upon such matters as he may need or deem necessary to ascer- tain the true and correct amount of all taxes due by any such per- son, firm, or corporation. Every statement or report required by this act, shall have affixed thereto the affidavit of the president, vice-president, secre- tary or treasurer of the person, corporation, co-partnership or as- sociation, or one of the persons or members of the partnership, making the same to the effect that the statement is true. The comptroller shall prepare blanks to be used in making the reports required by this act. License and Occupation Tax. 403 Sec. 24. If the comptroller has reason to believe, or does be- lieve, that any individual company, corporation, association, re- ceiver or receivers, subject to the provisions of this act, has made a false return or has failed or omitted to make a full return of gross receipts, or other statement of business done, required by any of the provisions of this act, he shall report the same in writ- ing to the governor and it shall be the duty of the governor to immediately require the revenue agent of the state of Texas to examine any books, papers, documents, or other records or evi- dence showing or tending to show such unlawful act or omis- sion. Said revenue agent shall check the report made with such books, papers, documents or other records or evidence, and make his report to the comptroller, and if it appears from said report that any false or incorrect return has been made, or that any in- dividual, or the president, treasurer or superintendent of any company, corporation or association, or any member of any firm required by this act to make reports, has failed or omitted to make a full return, as required by law, then the comptroller shall notify such individual, or the president, treasurer or superintendent of any company, corporation or association, or receiver or receivers of any company, corporation or association or any member of any firm, to make forthwith an additional or supplemental report, and if any such individual or the president, treasurer or superin- tendent of any company, corporation or association, or any mem- ber of a firm, or any receiver or receivers of any company, cor- poration or association making said original report, shall fail or refuse to make said additional or supplemental report he shall be guilty of a misdemeanor, and on conviction shall be fined in any sum not less than two hundred nor more than five hundred dol- lars and venue of such prosecution is hereby fixed in Travis Coun- ty, Texas. If it appears from the report of the state revenue agent, or if the comptroller has reason to believe or does believe that any in- dividual, or any president, treasurer or superintendent of any company, corporation or association, or any receiver of any cor- poration or association or any member of any firm, has wilfully and deliberately made a false report, the comptroller shall report the matter to the grand jury of Travis County, Texas, for its ac- 404 ' Taxation in Texas. tion, and venue of any offense arising out of such transaction is hereby fixed in Travis County, Texas. Said state revenue agent, in the performance and discharge of the duties imposed upon him by this section, shall have the right to examine, either by himself or by any person acting under his direction, any books, papers, documents, records or evidence which he may believe ma- terial and proper to examine. Sec. 25. All persons, associations of persons, firms, and cor- porations upon whose business an occupation tax is irhposed un- der this act, shall, upon the taking effect hereof, be exempted and relieved from the operation of the act of the Twenty-ninth Legislature, approved April 17, 1905, being Chapter 146 thereof, providing for the taxation of the intangible assets of certain cor- porations, associations and individuals, and all sections of the act of the Twenty-ninth Legislature, beirfg Chapter 148 thereof, ap- proved April 17, 1905, imposing an occupation tax upon the oc- cupations herein taxed, are hereby repealed. But nothing in this act shall in any wise relieve any individual, company, corpora- tion or association or any receiver or receivers thereof, embraced within the provisions of Chapter 148, Acts of the 29th Legisla- ture, approved April 17, 1905, from any liability, obligation or penalty whatever, which may have been incurred or fixed under any of the provisions of said Chapter 148 ; and any and all such liabilities and obligation and any and all causes of action in be- half of the state accruing out of or arising under said Chapter 148, as well as any and all suits in behalf of the state therein, shall not abate nor terminate, but shall survive and remain in full force and effect, and any and all such causes of action and any and all such suits shall be maintained and prosecuted to final determination in all respects, as though none of the provisions of said Chapter 148 had been repealed. Acts 30th Leg., pp. 479 to 480. Sayles Ann. Civ. St. 1897, Art. 5049, Subd. 54, imposes an an- nual occupation tax on street railway companies, based on mile- age. Acts 30th Leg. (Gen. Laws 1907, p. 479), Chap. 18, levies a gross earnings annual occupation tax on street railways in cities of over 100,000 population; Section 22 declaring that the taxes so levied shall be in addition to "all other taxes," with the excep- tions defined by the act, while Section 25, prescribing the taxes from which corporations taxed under the act shall be exempt, License and Occupation Tax. 405 includes occupation taxes imposed by Act of 1905 (Laws 1905, p. 217, Chap. 111). Held, that the words "all other taxes," in Section 22, included all taxes except those specified in Section 25, and hence the Act of 1907 did not impliedly repeal so much of Article 5049, Subd. 54, as imposed occupation taxes on street railway companies, but that the taxes imposed by that act were in addition to the gross earnings tax imposed under Act of 1907. Dallas Electric St. Ry. Co. v. State, 120 S. W. 997. § 698. Repealing taxes on certain occupations. Section 1. That Subdivisions one (1), five .(5), six (6), eight (8), eleven (11), twelve (12), thirty-one (31), thirty-three (33), thirty-eight (38), fifty-one (51), fifty-five (55), fifty-nine (59), of Section one (1) of an act entitled "An act to amend Article 5049, Chapter one (1), Title 104, of the Revised Statutes, re- lating to general occupation taxes," Chapter eighteen (18) of the Laws of the First Special Session of the Twenty-fifth Legis- lature, levying an occupation tax upon merchants, brokers, and bankers, dentists not traveling, photograph galleries, toll bridges, land agents, attorneys and conveyances, livery stables, vehicles and wagon yards, local insurance agents, cotton, wool and hide buyers, steam laundries, grain elevators and dealers in cotton seed products, be and the same are hereby repealed. Sec. 2. That Subdivision thirteen (13) of Section one (1) of said act be so amended as hereafter to read as follows : "From every itinerant physician, surgeon, occulist or medical or other specialist of any kind, traveling from place to place in the prac- tice of his profession, except dentists practicing from place to place in the county of their residence, an annual tax of fifty dol- lars." Act 30th Leg., pp. 57 and 58. § 699. Act 30th legislature providing occupation tax on dealers in malt liquors in local option districts. Be it enacted by the legislature of the state of Texas : Section 1. In all counties, justices' precincts, towns, cities or other subdivisions of a county where the qualified voters thereof have, by a majority vote, determined that the sale of intoxicating liquors shall be prohibited therein, there is hereby levied upon all firms, persons, associations of persons and corporations selling at retail non-intoxicating malt liquors, such as "Uno," "Ino," "Fros- ty," "tin-top" and "tee-totle" and all other such liquors, an an- 406 Taxation in Texas. nual state tax of $2,000, and counties, also incorporated cities and towns where such sales are made may each levy an annual tax of iiot exceeding $1,000 upon all such persons, firms or cor- porations; provided, that this section shall not apply to regular druggists or pharmacists, who, as such, keep for sale as a part of a regular drug stock, such proprietary remedies as "malt ex- tract," "malt medicine" and "malt and iron" used exclusively as medicine and not as a beverage. Sec. 2. In all counties, justices' precincts, towns, cities or other subdivisions of a county where the qualified voters thereof have by a majority vote determined that the sale of intoxicating liquors shall be prohibited therein, there is hereby levied upon all firms, persons, associations of persons and corporations that pur- sue the business of selling or offering for sale any intoxicating liquors by soliciting orders therefor in any quantities whatsoever, in any such county, justice precinct, town, city or other subdivi- sion of a county, an annual state tax of $4,000, and each county, and also each incorporated city or town may levy an annual tax of not exceeding $2,000 in any such county or incorporated city or town where such business is pursued. Sec. 3. In all counties, justices' precincts, towns, cities or other subdivision of a county where the qualified voters thereof have by a majority vote determined that the sale of intoxicating liquors shall be prohibited therein, there is hereby levied upon all firms, persons, associations of persons and corporations that pursue the business of keeping, running, maintaining or operat- ing what is commionly known as a "cold storage" or any place by whatever name known or whether named or not, where intox- icating or non-intoxicating liquors or beverages are kept on de- posit for others, or where any such liquors are kept for others under any kind or character of bailment, an annual state tax of $2,000, and counties, also incorporated cities and towns, where such business is located, may each levy an annual tax of not ex- ceeding $1,000 upon each such place so kept, run, maintained or operated. Sec. 4. Each person and each firm and each corporation and each association of persons desiring to engage in the business mentioned in Sections one, two or three of this act in said local option territory before engaging in same shall file with the county clerk of the county in which the business is proposed to be pur- License and Occupation Tax. 407 sued, an application in writing for a license to engage therein and shall state the county or portion of the county in which the business is to be pursued and if within the corporate limits of any incorporated city or town, that fact shall be so stated and any such person or firm or corporation or association of persons shall pay to the tax collector of the county the entire amount of an- nual tax levied for the state and the entire amount of the annual tax upon such business as may be levied by the commissioners' court of said county, and if the business is to be pursued in an incorporated city or town, shall pay to the collector of taxes of such city or town the tax that may be levied on such business by said city or town, and all such taxes shall be paid in advance and no license shall be issued by the county clerk until the person or firm or corporation or association of persons applying therefor shall exhibit receipts showing the payment of all taxes levied and authorized by this act and the county clerk shall be entitled to charge a fee of twenty-five cents for the issuance of such license. Sec. 5. The county clerk shall be and is hereby required to make report of all licenses issued by authority of this act as in other cases. Sec. 6. Any person or any member of a firm or any member of an association of persons or any officer or representative of a corporation who shall pursue or engage in or aid or assist in any manner in said business mentioned in Sections one, two or three of this act in said local option territory without there hav- ing been issued to said person or firm or association of persons or corporation license therefor as provided for in this act shall each be guilty of a misdemeanor and on conviction therefor shall be fined in any sum not less than the amount of the tax due and not more than double that sum and shall in addition be imprisoned in the county jail not less than ninety days nor more than six months. Sec. 7. The actual threatened or contemplated pursuit of any such business mentioned in Sections one, two or three of this act in said local option territory by any person or firm or associ- ation of persons or corporation without there having first been procured a license therefor as provided in this act shall be en- joined at the suit of the state at the instigation of either the county or district attorney or at the suit of any individual citizen 408 Taxation in Texas. of the county where the business is or is about to be pursued, and it shall not be necessary for any citizen to show that he has any pecuniary interest involved and the state shall not be required to give security for cost and all the rules of evidence, practice and procedure that pertain to courts of equity generally, or that exist by virtue of any law of this state may be invoked and applied in any injunction proceeding instituted hereunder. Acts 30th Leg., pp. 212, 213, 214. § 700. Act 30th legislature in regard to license and regulating sale of intoxicating liquors. Section 1. Be it enacted by the legislature of the state of Texas: Hereafter there shall be collected from every person, firm, corporation or association 9f persons selling spirituous, vinous or malt liquors, or medicated bitters capable of producing intoxication, in this state, not located in any county or subdivi- sion of a county, justice precinct, city or town where local op- tion is in force under the laws of Texas, an annual tax of three hundred and seventy-five ($375) dollars on each separate estab- lishment as follows : For selling such liquors or medicated bit- ters in quantities of one gallon or less than one gallon, three hundred and seventy-five dollars ($375) ; for selling such liquors or medicated bitters in quantities of one gallon or more than one gallon, three hundred and seventy-five ($375) dollars; pro- vided, that in selling one gallon the same may be made up of different liquors in unbroken packages aggregating not less than one gallon; for selling malt liquors 'exclusively sixty-two dollars and fifty cents ; provided, further, that nothing in this article shall be so construed as to exempt druggists who sell spirituous, vin- ous, or malt liquors, or medicated bitters capable of producing intoxication, on the prescription of a physician or otherwise, from the payment of the tax herein imposed; provided, further, that this article shall not apply to the sale by druggists of tinctures and drug compounds, in the preparation of which such liquors or medicated bitters are used and sold on the prescription of a physician or otherwise, and which tinctures and compounds are not intoxicating beverages prepared in the evasion of the pro- visions of this chapter nor the local option law. The commis- sioners' court of the several counties in this state shall have the power to levy and collect from every person or association of License and Occupation Tax. 409 persons selling spirituous, vinous or malt liquor, or medicated bitters, a tax equal to one-half the state tax herein levied ; and where any such sale is made in any incorporated city or town, such city or town shall have the power to levy and collect a tax upon such sale equal to that levied by the commissioners' court of the county in which such city or town is situated. Sec. 2. A retail liquor dealer is a person, or firm permitted by law, being licensed under the provisions of this act, to sell spir- ituous, vinous and malt liquors, and medicated bitters capable of producing intoxication, in quantities of one gallon or less, which may be drunk on the premises. Sec. 3. A retail malt dealer is a person or firm permitted by law, being licensed under the provisions of this act, to sell malt liquors capable of producing intoxication exclusively, in quanti- ties of one gallon or less which may be drunk on the premises. Sec. 4. No person shall, directly or indirectly, sell spirituous or vinous liquors capable of producing intoxication in quantities of one gallon or less, without taking out a license as a retail liquor dealer. Any person who shall violate the provisions of this section shall be deemed guilty of a misdemeanor and upon con- viction thereof, shall be punished by a fine of not less than fifty dollars, nor more than two hundred dollars, or by imprisonment in the county jail for a term not to exceed six months, or by both such fine and imprisonment. Sec. 5. No person shall sell, directly or indirectly, malt liquor capable of producing intoxication in quantities of one gallon or less, without taking out a license as a retail malt dealer; pro- vided, that this section shall not apply to a retail liquor dealer, and that a retail liquor dealer's license shall be construed to em- brace a retail malt dealer's license. Any person who shall violate the provisions of this section shall, upon conviction thereof, be punished by a fine of not less than twenty-five dollars, nor more than one hundred dollars, or by imprisonment in the county jail for a term not exceeding ninety days, or by both such fine and imprisonment. Sec. 6. This act shall not be so construed as to deny the right of wine growers to sell wine of their own production in any quantity without licenses ; provided that such wine grower shall not permit nor suffer any wine so sold by him to be drunk on his premises; and provided further, that this section shail not be so 410 Taxation in Texas. construed as to give any wine grower the right to sell any wine to any minor without the permission of the parent, master or guardian of such minor first had and obtained, or any drunkard, after being notified by any relative to such drunkard not to make such sale, gift or disposition. Every wine grower who shall violate any of the provisions of this section shall be deemed guilty of a misdemeanor and, on conviction thereof, shall be punished by a fine of not less than twenty-five dollars, nor more than one hundred dollars, or by imprisonment in the county jail during a term not to exceed three months, or by both such fine and imprisonment. Sec. 7. No retail liquor dealer, nor retail malt dealer, shall carry on said business at more than one place at the same time under the same license ; nor shall any such license be assignable or transferrable more than once, but before the assignee or trans- 'ferree of such license can engage in business thereunder, he shall comply with the provisions of this act as is required of the original licensee; and provided, further, that the sale of such license, whether in the name of the original licensee or trans- feree may be made under execution or mortgage, and the pur- chaser of such license at such sale shall have the right to sur- render such license to the state, county or city which issued the tax receipt which is the basis therefor, and shall receive therefor the pro rata unearned portion of such license ; provided, fur- ther, that should said original licensee or his assignee or trans- feree desire to change the place designated in said license, he may do so by applying to the county judge as in case of original ap- plication, for license as provided in Section 9 of this act, but it shall be necessary to furnish another certificate from the comp- troller of public accounts. Acts 30th Leg., pp. 258, 259, 260. The Baskin-McGregor law. Acts 30th Leg. (Laws 1907, p. 258, Chap. 138), imposing an annual tax on persons selling in- toxicating liquors in non-local option territory, etc., does not impliedly repeal Acts 25th Leg. (Laws 1897, p. 223, Chap. 158), providing for license in local option territory; the provision in the Baskin-McGregor law that the same shall not be construed to be in conflict with any local option law, and no license shall be issued at any place where the local option law is in force, re- ferring only to licenses issued under the Baskin-McGregor law. Snead v. State, 117 S. W. 983, 55 Tex. Crim. App. 583. License and Occupation Tax. 411 § 701. Relating to the payment of certain occupation taxes for remainder of 1907. Be it enacted by the legislature of the state of Texas : Section 1. That any person, firm, company or corporation hereafter required to pay a tax for the year 1907, for pursuing any occupation upon which the tax is repealed by an act of the Thirtieth Legislature of the State of Texas, entitled "An act to repeal Subdivisions one (1), five (5), six (6), eight (8), eleven (11), twelve (12), thirty-one (31), thirty-three (33), thirty-eight (38), fifty-one (51), fifty-five (55), fifty-nine (59), and to amend Subdivision thirteen (13) of Section one (1) of an act entitled 'An act to amend Article 5049, Chapter one (1), Title one hun- dred and four (104), of the Revised Civil Statutes relating to general occupation taxes. Chapter eighteen (18) of the Acts of the First Special Session of the Twenty-fifth Legislature, relat- ing to taxes on certain occupations,' " approved March 21, 1907, shall have the right to pay said tax for that portion of the year 1907 unexpired at the date when such person, firm, company or corporation became liable for such tax, to be paid in proportion to the amount that would be due for the full year, and shall re- ceive a receipt therefor for such unexpired portion of the year ; provided that any such person, firm, company or corporation shall not be relieved from the payment of any occupation tax which has already accrued. Acts 30th Leg., p. 288. § 702. Occupation tax upon persons engaged in the business of dealing in unearned wages of another. Section 1. There is hereby imposed an annual occupation tax of five thousand dollars for state purposes upon every person who, in his own behalf or as agent for another, shall engage in the busi- ness of taking, purchasing or procuring assignments or transfers of wages not earned or not due and payable at the date of such assignment or transfer, whether such assignment or transfer is made absolutely, conditionally or as security, for each separate county in which such person may engage in such business, either in his own behalf or as agent of another. Sec. 2. The commissioners' court of any county of this state shall have the power to levy and collect from every person who shall engage in the business mentioned in Section 1 of this act, either in his own behalf or as agent for another, a tax equal to 412 Taxation in Texas. one-half of the state tax herein levied, which sum when col- lected shall be added to the road and bridge fund of said county. Any incorporated city or town in this state shall have the power to levy and collect a tax upon every person engaging in the busi- ness mentioned in Section 1 of this act, either in his own behalf or as the agent of another, equal to one-half the state tax herein imposed. Sec. 3. Any person shall be deemed to be engaged in the busi- ness referred to in Section 1 of this act, who shall take, accept, purchase or procure, directly or indirectly, either in his own be- half or as the agent of another, more than three such assign- ments or transfers during any calendar month. Provided, that this act shall not apply to or impose a tax upon any person, firm or corporation, taking, accepting, purchasing or procuring such assignments or transfers to pay or secure the purchase price of the necessaries of life for the family of the assignor or of the purchase price of a homestead of the assignor, or of improve- ments or repairs thereon, or for any article necessary for the use of the assignor in the pursuit of his employment, or for the pay- ment of life or accident insurance premiums, dues or assessments where such assignments or transfers are made directly to the person, firm or corporation from whom such purchases are made or to whom such premiums, dues or assessments are payable, or where such assignment made for any such purposes shall not be taken or accepted at a discount. Sec. 4. The state tax imposed by this act shall be paid annu- ally to the tax collector of the county for which such tax is paid, who shall not accept such payment until the person offering to pay the same shall have filed with the county clerk of said county a good and sufficient bond in the sum of five thousand dollars, signed by him as principal and by at least three good and solvent sureties to be approved by the county judge of said county, con- ditioned that the principal will not take, accept, purchase or pro- cure any assignment or transfer mentioned in Section 1 of this act, at a rate of profit or discount, or at a price which will yield a greater rate of interest than ten per cent per annum on the amount paid for such assignment or transfer ; and that in case of any violation of this condition, the person selling or giving such assignment or transfer may recover from the principal and sure- ties upon said bond double the amount of the wages so assigned or transferred. License and Occupation Tax. 413 Sec. 5. Any person who shall violate any of the terms or pro- visions of this act, or who shall directly, or as an agent for an- other, engage in the business mentioned in Section 1 of this act, without first paying the tax or taxes herein imposed, shall be deemed guilty of a misdemeanor and shall be fined not exceeding one thousand dollars or be imprisoned in the county jail not ex- ceeding three months, or by both such fine and imprisonment, and each violation of this act shall constitute a separate offense. Acts of 1905, p. 217. Acts 29th Leg., p. 217, Chap. Ill, Sec. 1, imposes an annual occupation tax of $5,000 on persons engaging in the business of purchasing assignments of unearned wages. Section 2 provides that the act shall not apply to persons procuring such assign- ments to pay for necessaries of life for the assignor's family, the purchase of a homestead for him, or for any article necessary for the assignor's pursuit of his employment, etc., where the as- signments are made directly to the person from whom the pur- chases are made, or where the assignments shall not be taken at a discount. Held, that the act is discriminatory, because it puts a tax upon a class and exempts other classes amenable to the tax, and hence is violative of Const., Art. 8, Sec. 1, requiring taxes to be equal and uniform, and Section 2, that all occupation taxes shall be equal and uniform upon the same class of sub- jects within the limits of the authority levying the tax. The act is violative of Const. U. S., Amend. 14, in that it is in restraint of the freedom of trade, denies equality before the law, denies the right of the citizen to act, and is class legislation. Owens V. State, 112 S. W. 1075, 53 Tex. Crim. App. 105. § 703. Tax on dealers in non-intoxicating malt liquors. Section 1. There is hereby levied upon all firms, persons, as- sociations of persons and corporations selling non-intoxicating malt liquors an annual state tax of two thousand ($2,000) dol- lars. Counties, incorporated cities and towns where such sales are made may each levy an annual tax of not exceeding one thou- sand ($1,000) dollars upon all such persons, firms or corpora- tions; provided, that this section shall not prevent the sale of such proprietary remedies as "malt extract," "malt medicine" and "malt and iron" manufactured and used exclusively as medicine and not as a beverage, when sold upon the prescription of- a reg- 414 Taxation in Texas. ular practicing physician ; provided, further, that not more than one sale shall be made upon any one prescription. Sec. 2. Each person and each firm and each corporation and each association of persons desiring to engage in the business mentioned in the preceding section of this act, before engaging in same, shall file with the county clerk of the county in which the business is proposed to be pursued, an application in writing for a license to engage therein and shall state the county and the portion of the county in which the business is to be pursued, and if within the corporate limits of any incorporated city or town, that fact shall be so stated and any such person or firm or corporation or association of persons shall pay to the tax collec- tor of the county the entire amount of annual tax levied by the state and the entire amount of the annual tax upon such business as may be levied by the commissioners' court of said county, and if the business is to be pursued in an incorporated city or town, shall pay to the collector of taxes of such city or town the tax that may be levied on such business by said city or town, and all such taxes shall be paid in advance and no license shall be issued by the county clerk until the person or firm or corporation or as- sociation of persons applying therefor shall exhibit receipts show- ing the payment of all taxes levied and authorized by this act and the county clerk shall be entitled to charge a fee of twenty-five cents for the issuance of such license. Sec. 3. The county clerk shall be and is hereby required to make report of all licenses issued by the authority of this act as in other cases. Sec. 4. Any person or any member of a firm or any member of an association of persons or any officer or representative of a corporation who shall pursue or engage in or aid or assist in any manner in said business mentioned in Section 1 of this act without there having been issued to said person or firm or asso- ciation of persons or corporation license therefor, as provided for in this act, shall each be guilty of a misdemeanor and upon con- viction thereof, shall be punished by a fine in any sum not less than one hundred dollars nor more than five hundred dollars, and by imprisonment in the county jail for a period of not less than twenty days nor more than ninety days. Acts 31st Leg., p. 51. License and Occupation Tax. 415 § 704. Occupation tax on soliciting orders in local option dis- tricts. Section 1. In all counties, justice precincts, towns, cities or other subdivisions of a county where the qualified voters thereof have by a majority vote determined that the sale of intoxicating liquors shall be prohibited therein, there is hereby levied upon all firms, persons, associations of persons and corporations that pur- sue the business of selling or offering for sale any intoxicating liquors by soliciting or taking orders therefor in any quantities whatsoever, in any such county, justice precinct, town, city or other subdivision of a county, an annual state tax of four thou- sand ($4,000) dollars, and each county, and also each incorpo- rated city or town may levy an annual tax not exceeding two thousand ($2,000) dollars in any such county or incorporated city or town where such business is pursued. Sec. 2. In all counties, justice precincts, towns, cities or other subdivisions of a county where the qualified voters thereof have by a majority vote determined that the sale of intoxicating liquors shall be prohibited therein, there is hereby levied upon all firms, persons, associations of persons and corporations that pur- sue the business of keeping, maintaining or operating what is commonly known as a "cold storage" or any place by whatever name known or whether named or not, where intoxicating or non-intoxicating liquors or beverages are kept on deposit for others, or where any such liquors are kept for others under any kind or character of bailment, an annual state tax of two thousand ($2,000) dollars. Counties, incorporated cities and towns, where such business is located, may each levy an annual tax of not ex- ceeding one thousand ($1,000) dollars upon each such place so kept, run, maintained or operated. Sec. 3. Each person and each firm and each corporation and each association of persons desiring to engage in the business mentioned in Sections 1 and 2 of this act in said local option ter- ritory, before engaging in same, shall file with the county clerk of the county in which the business is to be pursued, an appli- cation in writing for a license to engage therein and shall state the county or portion of the county in which the business is to be pursued and if within the corporate limits of any incorporated city or town, that fact shall be so stated and any such person or firm or corporation or association of persons shall pay to the tax 416 Taxation in Texas. collector of the county the entire amount of annual tax levied for the state and the entire amount of the annual tax upon such busi- ness as may be levied by the commissioners' court of said county, and if the business is to be pursued in an incorporated city or town, shall pay to the collector of taxes of such city or town the tax that may be levied on such business by said city or town, and all such taxes shall be paid in advance and no license shall be issued by the county clerk until the person or firm or corporation or association of persons applying therefor shall exhibit receipts showing the payment of all taxes levied and authorized by this act and the county clerk shall be entitled to charge a fee of twenty-five cents for the issuance of such license. Sec. 4. The county clerk shall be and is hereby required to make report of all licenses issued by authority of this act as in other cases. Sec. 5. Any person or any member of a firm or any member of an association of persons or any officer or representative of a corporation who shall pursue or engage in or aid or assist in any manner in said business mentioned in Sections 1 and 2 of this act in said local option territory without there having been issued to said person or firm or association of persons or corporation license therefor as provided for in this act shall each be guilty of a misdemeanor and on conviction therefor shall be fined in any sum not less than the amount of the tax due and not more than double that sum and shall in addition be imprisoned in the county jail not less than ninety days nor more than six months. Acts 31st Leg., p. 53. § 705. Refunding unearned liquor dealer's license. Section 1. That the sum of $350,000, or so much thereof as may be necessary, be and the same is hereby appropriated out of any money in the state treasury, not otherwise appropriated, for the purpose of refunding and repaying to each and every person, firm, association, or corporation who, on July 12, 1907, held a state license as a wholesale or retail dealer in spirituous, vinous, or malt liquors or as a wholesale or retail dealer in malt liquors exclusively, under the laws of this state, and who had paid to the state the occupation tax imposed by law therefor for a period which had not at that date expired (such license being abrogated as of that date, under the decisions of the courts, by the taking License and Occupation Tax. 417 effect of Chap. 138 of the General Laws of the Thirtieth Legis- lature, known as the Baskin-McGregor laws), the unearned por- tion of such occupation tax. By unearned portion of such occu- pation tax is meant that proportion of the whole sum of such tax collected by the state which the unexpired portion of the term for which the same was collected as of July 12, 1907, bears to the whole of the term for which such tax was paid. Acts 31st Leg., p. 83. § 706. Cannon crackers or toy pistols. Section 1. There shall be levied upon every person, firm or corporation engaged in the occupation of selling cannon crackers, or toy pistols used for shooting or exploding cartridges within this state an annual tax of five hundred ($500) dollars, and coun- ties and incorporated cities or towns in which such business shall be located shall have the power to levy a tax of one-half the above amount as now provided by law in addition to the above tax, and such person, firm or corporation so selling such cannon crackers shall be required to pay an additional tax in the above amount and take out an additional license for each separate establishment or place in which such cannon crackers shall be sold. Sec. 2. By the term "cannon cracker" is meant any fire cracker or other combustible package more than two inches in length, and more than one inch in circumference commonly sold and exploded for purposes of amusement. Sec. 3. Nothing in this act shall be so construed as to prohibit the sale of or to place a tax on the sale of cartridges, combustible packages or explosives commonly used for fire arms or artillery, mining, excavating earth or stone, scientific purposes or for any public or private work. Acts 31st Leg., p. 174. § 707. Levy — Sufficiency. An order of the commissioners' court levying an occupation tax on the occupations taxable by statute is sufficient, without specifying each and every occupation on which the tax is levied. Witherspoon v. State, 44 S. W. 164, 39 Tex. Crim. App. 65. At a regular term of the commissioners' court of Burleson County, convened in May, 1886, an order of said court was made and entered as follows : "There shall be levied and collected on all occupations pursued in said county of Burleson, which are not specially provided for by the laws of the state, a tax of one- .27 418 Taxation in Texas. half of the state occupation tax as levied by the laws of the state." This order, we think, is' a sufficient and valid levy of an occupa- tion tax for the county upon the occupation of liquor dealer. It was not essential to name the precise amount of the tax levied, because that amount is made certain by reference to the statute of the state, which fixes the amount of the state occupation tax at $300 per annum for the occupation of engaging in the sale of spirituous, vinous, or malt liquors or medicated bitters in quan- tities of less than one quart. Acts 17th Leg., Reg. Sess., p. 112, Sec. 1. The tax levied for the county, being one-half said state tax, must therefore be $150, and could not be any other amount. Wade v. State, 3 S. W. 787, 22 Tex. Crim. App. 629. § 708. Must show levy of tax. One can not be convicted of selling intoxicating liquors with- out having paid the occupation tax, without proof that a tax was imposed on the occupation of selling liquors. Scott v. State, 82 S. W. 656, 47 Tex. Crim. App. 176. Where, though it was alleged a tax had been levied by the commissioners' court, there was no proof on the trial for a viola- tion of Rev. St. 1895, Art. 5049, Subd. 3, providing that every traveling person selling patent or other medicine shall pay the tax therein prescribed, that the tax had been levied by the com- missioners' court, a judgment including both state and county taxes was erroneous. Needhatni v. State, 103 S. W. 857, 51 Tex" Crim. App. 248. § 709. Not liable when. Act May 12, 1899 (Laws 1899, p. 201, Chap. 116), provides that a tax shall be collected from every person or firm who ped- dles out clocks, cook stoves, or ranges, etc., to be paid in each county in which said occupation is pursued, provided that a mer- chant who pays an occupation tax as required by law shall not be required to pay this special tax for selling such articles in his place of business. Held, that on information which failed to negative the fact that defendant was such merchant, selling in his place of business was insufficient. Potts v. State, 74 S. W. 31, 45 Tex. Crim. App. 45. One selling ranges by sample, taking orders for future deliv- ery to be paid for only on such delivery, and who does not de- liver the goods sold is not a peddler within Act May 12, 1899 License and Occupation Tax. 419 (Laws 1899, p. 201), imposing a tax on every person or firm who peddles out ranges or other articles. Potts v. State, 74 S. W. 32, 45 Tex. Crim. App. 45. A peddler is an itinerant vendor of goods, who sells and deliv- ers the identical goods carried with him. He who sells by sam- ple, taking orders for goods for future delivery, to be paid for wholly or in part upon subsequent delivery, is not a peddler. Fotts V. State, 74 S. W. 32, 45 Tex. Crim. App. 45 ; State v. Lee, 11 N. C. 681, 37 Amer. St. 649. A physician residing in one town and maintaining an office in another in which he practices medicine as a specialist, traveling from place to place is within the meaning of Laws Sp. Sess., 1897, p. 51, Subd. 13, requiring a physician traveling from place to place as a specialist to pay an occupation tax. Broiles v. State, 68 S. W. 685, 44 Tex. Crim. App. 78 ; Hairston v. State, 37 S. W. 858, 36 Tex. Crim. App. 470. One manufacturing his ice and selling his product is not a deal- er within Sayles Ann. Civ. St., Art. 5049, Subd. 52, imposing a tax on a wholesale dealer in ice in cities of a certain population. Egan V. State, 68 S. W. 273. § 710. Occupation not property. It is contended, however, that if the two acts of the legislature referred to, can be construed to mean the tax sued for, they are void, because in contravention of the provisions of the 27th Sec- tion of the General Provisions of the Constitution of the State. It is in the words following: "Taxation shall be equal and uni- form throughout the state. All property in this state shall be taxed in proportion to its value, to be ascertained as directed by law, except such property as two-thirds of both houses of the legislature may think proper to exempt from taxation. The leg- islature shall have power to lay an income tax, and tax all per- sons pursuing any occupation, trade or profession ; provided, that the term occupation shall not be construed to apply to pursuits either agricultural or mechanical." The word property, as used in the constitution can not by any forced construction be tortured into meaning an occupation, calling or profession ; and, if the first part of the section can have any control over the exercise of the power of the legislature at all, it is in this way — that it would restrain the enactment of a law which would make a difference 420 Taxation in Texas. at different places within the state, on the tax imposed on the same occupation. Aulamier v. The Governor, 1 Tex. 665. § 711. Courts cannot interfere when. The legislature having the constitutional right to impose a tax on occupations, the mode in which it should be exercised is a matter for them, not to be questioned by the courts. State v. Stephens, 4 Tex. 137. § 712. Billiard table must be kept for profit. If a billiard table is kept for "occupation," the occupation was subject to the license tax imposed by the statute; because those "pursuing any occupation, trade or profession" are by the consti- tution subject to a license tax (Paschal's Dig., p. 942, Art. VII., Sec. 27). Trade or profession imports a profitable pursuit, and, if the billiard table was kept for amusement and not for profit, it was not subject to taxation. Trade v. Benseman, 31 Tex. 277. § 713. Temporary closing does not forfeit because when. The temporary closing of a liquor business where it was li- censed, and the conducting of it at another place without trans- fer of license, does not forfeit the right to thereafter carry it on under the license at the place provided therein. McLeod v. State, 76 S. W. 216, 33 Tex. Civ. App. 170. §714. Occupation and privileges. When a city is authorized to levy a license tax on particular property or business, and such tax has been' imposed, it will be presumed that the levy was made for the purposes authorized by law. Tax imposed by city ordinance on vehicles held a license, and not an occupation tax, and hence not to contravene Const., Art. 8, Sec. 1, though the state had not levied occupation tax. Broivn v. City of Galveston, 75 S. W. 488, 97 Tex. 1. § 715. Telegraph company, interstate commerce. Though telegraphic companies may be subject to congressional regulation, they are also subject to pay occupation taxes to the state ; at least until congress shall otherwise provide. An occupation tax imposed on a telegraph company, which graduates the tax according to the business done, regardless of a distinction between business done wholly within the state and License and Occupation Tax. 421 business done in part without the state, is free from the objection that it regulates or obstructs interstate commerce. Western Union Telegraph Co. v. The State of Texas, 55 Tex. 314. § 716. State must first fix the tax before city can tax. Under Const., Art. 8, Sec. 1, providing that the occupation tax levied by any city shall not exceed one-half the tax levied by the state on the same profession or business, a city can not impose a license for revenue on an occupation or business until the leg- islature has declared that such occupation or business shall be taxed, and has fixed the amount of the tax thereon, ^irshfield V. City of Dallas, (Tex. App.) 15 S. W. 124, so far as in conflict with this decision, overruled. City of Laredo v. Loury, 20 S. W. 89; HoeMng v. City of San Antonio, 20 S. W. 85, 85 Tex. 228. § 717. Photograph gallery. Laws Sp. Sess. 1897, p. 50, Subd. 6 (Sayles Civ. St., Aft. 5049, Subd. 6), levying an annual tax of $10 on every operator or owner of a daguerrean, photograph, or other like gallery, is not in conflict with Const., Art. 8, Sec. 1, providing that the leg- islature may impose occupation taxes, except that persons en- gaged in mechanical and agricultural pursuits shall never be re- quired to pay an occupation tax, since photography is not a me- chanical pursuit. Laws Sp. Sess. 1897, p. 50, Subd. 6 (Sales Civ. St., Art. 5049, Subd. 6), levying an annual tax of $10 on every operator or own- er of a daguerrean, photograph, or other such gallery, is not in conflict with Const., Art. 8, Sec. 2, declaring that all occupation taxes shall be equal and uniform' on the same class of subjects, merely because agents of houses situated in other states, with no place of business in Texas, who solicit orders for photographs, etc., for such foreign houses, can not be taxed, since this exemp- tion does not destroy the uniformity of the state's taxation of those carrying on such trade within its borders. Where a person was agent for the owner of a photograph gal- lery in D. County, and was taking photographs of houses, offer- ing them for sale, and soliciting business for his principal, in T. County, the evidence was not sufficient to show that such agent owned or operated a photograph gallery, and was therefore amen- able to taxation in T. County, under Laws Sp. Sess. 1897, p. 50, Subd. 6 (Sayles Civ. St., Art. 5049, Subd. 6), levying an annual 422 Taxation in Texas. tax of $10 on every operator or owner of a photograph gallery, etc. Mullinix v. State, 60 S. W. 768, 42 Tex. Crim. App. 526. § 718. Lightning rod agents — Interstate commerce. Defendant took orders to erect lightning rods, and the rods and equipments were shipped to him from another state, but he often completed work on contracts immediately after making them, and before he could have received the goods from the con- signor. Under defendant's contract with the consignor he had a salary and shared in the profits, he paying all freights and ex- penses of the business. The liability of the consignor was limited to the acts of the defendant in furnishing the goods on orders taken by him. Held, that the defendant was liable to the occupa- tion ta^. Camp v. State, 61 S. W. 401, 42. Tex. Crim. 499. § 719. Foreign corporation — Interstate commerce. Where a person traveling in a two-horse rig was agent for a foreign corporation, having no office within the state, for the sale of organs which were shipped from such corporation to the agent, and by him delivered to purchasers at their various places of resi- dence, from the wagon, the purchasers in each instance paying for the organs in cash and notes made payable to the corporation, the fact that the agent in one instance sold an organ which had been previously brought into the state and left at the house of another, and which he took from such house, and delivered to the purchaser, did not render the agent amenable to the state oc- cupation tax act prohibiting peddlers from selling goods within the state without a license, since the fact that the property had been shipped into the state and deposited with a bailee, instead of being delivered at once to the purchaser, did not the less ren- der it a subject of interstate commerce. Frence v. State, 58 S. W. 1015, 42 Tex. Crim. App. 222. § 720. Commercial travelers. Rev. St. 1895, Art. 5049, Subd. 3, providing that every trav- eling person selling patent or other medicine shall pay the tax therein prescribed, except commercial travelers or salesmen mak- ing sales or soliciting trade for merchants engaged in the sale of drugs at wholesale, exempts only those who sell at wholesale for wholesale merchants, and does not exempt those who sell at retail, though for wholesale merchants. Needham v. State, 103 S. W. 857, 51 Tex. Crim. App. 248. License and Occupation Tax. 423 § 721. Keeping pool table without license. The act of the Seventeenth Legislature, called session, pro- vides that the tax to be assessed and collected for every billiard, bagatelle, pigeon-hole, devil-among-the-tailors, or Jenny Lind ta- ble, or anything of the kind, used for profit, shall be $20; and any such table used in connection with a drinking saloon, or other place of business where intoxicating liquors are sold or given away, or upon which any money or other thing of value is paid, shall be regarded as used for profit. Held, that the said act does not authorize the taxation or license of the use of a pool table eo nomine; and, inasmuch as a pool table is not one of the tables enu- merated in the act, the information, to charge an offense under the act, should have alleged that the said pool table was of a kind with some one or all of those mentioned, and that it was used for profit. The motion to quash the information should have been sustained, and, failing to sustain it, the trial court erred in overruling the motion in arrest. Longenotti v. State, 2 S. W. 620, 22 Tex. Crim. App. 61. § 722. Fine for violating license law. The penalty for pursuing a taxed occupation without having paid license therefor is a fine not less than the amount of the taxes due, and not more than double that amount. In charging the jury that they could fine the defendant in an amount equal to the state and county tax, the trial court erred. Longenotti v. State, 2 S. W. 621, 22 Tex. Crim. App. 61. § 723. Liquor property of firm no defense. In a prosecution for selling intoxicating liquors without hav- ing paid the occupation tax, the fact that the liquors were the property of a partnership of which defendant was a member is no defense. Scott v. State, 82 S. W. 656, 47 Tex. Crim. App. 176. § 724. Vender of medicine. Under Pen. Code, Art. 110, providing that no person shall pur- sue any "occupation" without first obtaining a license, a sale by defendant, who is shown by the evidence to be a traveling Meth- odist minister, of three bottles of medicine, is not a pursuing of the "occupation of vending medicine," such as is contemplated by this article of the code. Love v. State, 20 S. W. 978, 31 Tex. Crim. App. 469. 424 Taxation in Texas. Rev. St. 1895, Art. 5049, Subd. 3, providing that no traveling person shall sell medicine till he pays the prescribed tax, pro- vided that the tax shall not apply to commercial travelers, drum- mers, or salesmen making sales or soliciting trade for merchants engaged in wholesaling drugs, is not unconstitutional. Huffman V. State, 115 S. W. 578, 55 Tex. Crim. App. 144. § 725. Barber. The trade of a barber is a "mechanical pursuit," within the meaning of Const., Art. 8, Sec. 1, exempting persons engaged in mechanical pursuits from an occupation tax ; and hence Acts 30th Leg. 1907, p. 273, Chap, 141, imposing a license tax on barbers, is invalid, as contravening such provision. Acts 30th Leg. 1907, p. 273, Chap. 141, imposing a license tax on barbers, but exempting from tax (1) students of the State University and other schools of the state who are making their way through school by serving as barbers ; (2) those serving as barbers in eleemosynary institutions of the state; and (3) those following the occupation of barbers in towns of 1,000 inhabitants or less — is unconstitutional, as discriminating. The act is also void as violating Bill of Rights, Sec. 3, in that it grants special privileges to certain individuals. Jackson v. State, 117 S. W. 818, 55 Tex. Crim. App. 557. § 726. Oil producers. The tax imposed on corporations and persons operating oil wells, by Acts 29th Leg., p. 358, Chap. 148, is a tax on the occu- pation of owning, controlling, or managing oil wells producing oil, and not an ad valorem tax, and therefore does not violate the state constitution fixing the rate of taxation. Producers' Oil Company v. Stephens, 99 S. W. 157, 44 Tex. Civ. App. 327. § 727. Indictment not bad for duplicity. An indictment charging in the same count a violation of the occupation law, in that accused pursued the occupation of running a ten-pin alley "and" bowling alley for profit without procur- ing a license, is not vitiated by the use of "and," even if terms "ten-pin alley" and "bowling alley" be not in effect synonymous. O'Neal V. State, 100 S. W. 919, 51 Tex. Crim. App. 100. License and Occupation Tax. 425 § 728. Letting wagon for hire. One engaged in running what is called a "move wagon," mov- ing furniture for hire, or so much per load, or by the job, always driving the wagon and loading and unloading it himself, or with such assistance as he might employ, does not let his wagon for hire, within the meaning of Art. 5049, Subd. 31, Acts 25th Leg., requiring a license from one who lets a wagon for hire, not con- nected with a livery or feed stable. Orr v. State, AA S. W. 1102. 39 Tex. Crim. App. 124. § 729. Interstate commerce. A tax on the occupation of canvassing for the sale of light- ning rods for the manufacturer, whose place of business was in another state, was a tax on interstate commerce, and therefore void. Talhutt v. State, 44 S. W. 1091, 39 Tex. Crim. App. 64. § 730. City ordinance — Vehicle not taxed by state, void. ■ An ordinance of a city imposing a tax on vehicles kept for public use not taxed by the state, held void. Ex parte Terrel, 48 S. W. 504, 40 Tex. Crim. App. 28. § 731. Social club. A club organized, in good faith, for the promotion of social intercourse and the encouragement of literature and art, in sell- ing intoxicants, in a private manner, only to its members and non- resident guests, but not with a view to profit, is not liable for the tax imposed by Sayles Civ. St., Art. 3226a, on persons en- gaged in the occupation of selling liquors. State v. Austin Club, 33 S. W. 113, 89 Tex. 20. § 732. Real estate agent can collect commission when. Sayles Civ. St., Art. 4665, imposing an occupation tax on real estate agents, and Article 4668c, providing that no person shall pursue his occupation unless he has a receipt for his occupation tax, does not prevent one who has not paid his tax from enforc- ing a claim for commissions for sale. Amato v. Dreyfus, 34 S. W. 450. § 733. Wild west shows. Under Sayles Ann. Civ. St. 1897, Art. 5049, Subd. 23, impos- ing a license tax on circuses wherein equestrian or acrobatic feats are exhibited, a Wild West show, portraying actual incidents that 426 Taxation in Texas. had happened in the west, and lacking most of the essentials which by common understanding a present-day circus includes, is not a circus. Where, under Sayles Ann. Civ. St. 1897, Art. 5049, Subd. 23, imposing a license tax on "circuses and other exhibitions," a Wild West show is not a circus, it can not be held as "another exhibi- tion," as, in construing laws imposing burdens of taxation, noth- ing should be left to inference or implication. State v. Cody, 120 S. W. 267. § 734. Local option — Sale of liquors. Laws 1897, p. 223, Art. 5060a, providing for collection of a tax for the sale of liquors in every district where local option is in force^ took effect August 20, 1897. A commissioners' court or- dered an election in a county on local option, which was held August 3, 1897. The result was declared August 18th, and pub- lication of said order was made for four weeks, after which the law became in force in such county. Held, that the act of 1897 was in force in such county, prior to the time the local option under the election went into effect in such county, so as to render sellers of liquor subject to such tax. The legislature can enact laws requiring parties in local op- tion districts to pay a certain tax for the privilege of selling intox- icating liquors, where said sales are made in conformity to the local option law. Snearly v. State, 52 S. W. 547, 40 Tex. Crim. App. 507. § 735. Banks — Uniformity of taxation. 2 Sayles Civ. St., Art. 5049, Subd. 5, providing for the levy of an occupation tax on every person, firm, or association engaged in banking, is not void, under Const., Art. 8, Sec. 2, which requires all occupation taxes to be equal and uniform on the same class of subjects, by the fact that it can not be enforced against na- tional banks, although applying to banks doing similar business, since the act applies to all banks subject to state taxation. 2 Sayles Civ. St., Art. 5049, Subd. 5, providing for levy of an occupation tax on every person, firm, or association engaged in banking, does not violate the Fourteenth Amendment of United States Constitution, which prohibits any state from denying to any citizen the equal protection of the laws, since the tax applies to all persons in the same class. Brooks v. State, 58 S. W. 1032. License and Occupation Tax. 427 § 736, Occupation — Flying-jenney. Where defendant, a farmer, had provided himself with the nec- essary equipment to operate a flying-jenney, an occupation taxed by law, and to operate the same for profit, he was guilty of pur- suing an occupation without paying the occupation tax provided therefor, the word "occupation," as used in the statute, meaning vocation, calling, trade, or the business which one engages in to procure a living or obtain wealth. Robbins v. State, 123 S. W. 695. §'737. Sufficiency of information. An information charging a violation' of Rev. St. 1895, Art. 5049, Subd. 3, providing that every traveling person selling patent or other nuedicine shall pay the tax therein prescribed, except com- mercial travelers or salesmen making sales or soliciting trade for merchants engaged in the sale of drugs at wholesale, which fails to allege that defendant was not a salesman making sales, is bad. Neddham v. State, 103 S. W. 857, 51 Tex. Crim. App. 248. CHAPTER XXXVIII. CITIES AND TOWNS. Sec. Sec. 738. Cities and towns having a 759. population of 10,000 or less. 760. 739'. Cities having more than 10,- 000 inhabitants. 761. 740. Debts incurred prior to adoption of present Consti- 762. tution. 763. 741. Counties and cities on the coast of the Gulf of Mexico. 742. School district. 764. 743. Taxes due towns and cities. 744. Lands in cities and towns. 765. 745. Power of city council to regu- late tax lists — Assessment 766. of taxes, etc. 746. Duty of taxpayers to render 767. inventory of property, etc. 768. 747. Abstract and survey not nec- essary — ^When. 748. May prescribe mode of assess- 769. ment. 749. Burden of proof. 750. Limitation on power to tax. 770. 751. No ordinances necessary to empower with authority to sue. 771. 752. Cities incorporated under general law may license cer- 772. tain occupations. 753. May license, etc., pedlers, 773. theatres, etc. 754. May license, etc., circuses, etc. 755. May license, etc., hackmen 774. and prescribe their compen- sation, etc. 775. 756. May license, etc., billiard ta- 776. bles, etc. 757. May authorize proper officer 777. to grant license, etc. 758. May tax street railways. Power over finances of city. City bonds shall specify — What. Bonds form taxation and may be used to pay taxes. Tax laws to remain in force. Laws to enforce collection continued in force, and all defenses to bonds cut off. Tax collector — Liability — Gov- ernor to appoint — When. Gulf cities may issue bonds for harbors, etc. Tax to be levied, interest paid and bonds sold, etc. Ad valorem tax. To levy and collect tax and issue bonds for improve- ments, buildings, etc. Cities of 10,000 inhabitants and over to levy and collect tax. — ^Validating act. Debt shall not be created un- less provision be made to pay the same. Power of city council to pro- vide for collection of taxes. Taxes for payment of indebt- edness. Board of aldermen may levy tax — How much — (Towns and villages.) Taxes by whom collected — Sale of property for. Real estate may be redeemed. When purchaser is a non-resi- dent. Where property is liable for taxes and owner is un- known. License and Occupation Tax. 429 Sec. Sec. 778. Incorporations for school pur- 796. poses. 779. Power of cities in general to 797. levy taxes. 780. Tax can be collected when 798. void portion ascertainable. 781. Duty of assessor and collector in regard to collection of 799. taxes. 800. 782. Property of taxpayer shall 801. be levied and sold for taxes 802. —When. 783. Assessor and collector shall make deed to purchaser to 803. property sold for taxes — 804. ' Effect of deed. 805. 784. Sale may take place at an- other time than that first 806. advertised — When. 807. 785. Property shall be struck off to city— When. 808. 786. Levy of taxes. 787. Record of levy. 788. Resolution sufficient basis for 809. suit— When. 810. 789. Right to sue. 811. 790. Mandamus — Purpose of tax 812. may be shown. 791.. Levy— Street. 813. 792. Inquiry into legality of cor- 814. poration of town. 815. 793. Ordinance providing for the issuance of bonds — Suf- 816. ficient — When. 794. Cities of over 10,000 may change rules of evidence. 817. 795. Cannot raise question of cor- porate existence in tax 818. suits. Reincorporation of abolishing municipality. Revised Statutes 1895, Article 487. Right of cities to sue under charter provisions not taken away by general law. City of Houston. Bonds for existing debts. Tax on bonds sold to city. Majority of alderman suf- cient to pass tax levying or- dinance. Interest. Mandamus. Ordinance not resolution — —When. Sufficiency of levy. Right of town to maintain action. Cities and towns may adopt general state law in regard to collecting taxes. De facto corporation. Bawdy house license. Galveston. Cities over 10,000 not within limit. Tax for school purposes valid. Implied authority to levy tax. Limitations of power — Appli- cation of tax fund. Towns which may or have abolished their corporate ex- istences. Collection of taxes where cor- poration is abolished. Relating to issuance of bonds and levy of taxes. § 738. Cities and towns having a population of 10,000 or less. Cities and towns having a population of ten thousand inhabi- tants or less, may be chartered alone by law. They may levy, assess and collect an annual tax to defray the current expenses of their local government, but such tax shall never exceed, for any one year, one-fourth of one per cent, and shall be collectible 430 Taxation in Texas. only in current money. And all license and occupation tax lev- ied, and all fines, forfeitures, penalties and other dues accruing to cities and towns, shall be collectible only in current money. State Const, Sec. 4, Art. 11. Annual tax here used means an ad valorem tax and is not a denial of power to collect other classes of taxes. Perry v. Rock- dale, 62 Tex. 454. The sum' for which bonds may be issued is the sum which to- gether with interest at the given rate could be liquidated by the annual stated payments. Russel v. Cage, 66 Tex. 428, 1 S. W. 270. The legislature has no power to authorize a city under 10,000 inhabitants to levy a special tax to pay the bonds or coupons, when she has already levied one-fourth of one per cent for cur- rent expenses. Gonld v. City of Paris, 68 Tex. 512, 4 S. W. 650. The power of a city of 10,000 inhabitants or less to create a debt is limited to a sum, the interest and two per cent of the principal, which can be paid out of a levy of 25 cents on each $100 worth of property. Bank v. Terrell, 14 S. W. 1003, 78 Tex. 450. Under Sec. 4 of Art. 11, and Sec. 9 of Art. 8, of the State Con- stitution, when the city of Paris had levied twenty-five cents on the hundred dollars' worth of its assessed taxable property for current expenses, it could levy no other tax, except for the pur- poses mentioned in the constitution. Gould v. City of Paris, 68 Tex. 511. Art. 11, Sec. 4, of the State Constitution, applies only to cities of 10,000 population or less. City of Houston v. Steimrt, 87 S. W. 665, 99 Tex. 67. § 739. Cities having more than 10,000 inhabitants. Cities having more than 10,000 inhabitants may have their charters granted or amended by special act of the legislature, and may levy, assess and collect such taxes as may be authorized by law, but no tax for any purpose shall ever be lawful, for any one year, which shall exceed two and one-half per cent of the taxable property of such city; and no debt shall ever be created by any city unless at the same time provision be made to assess and col- lect annually a sufficient sum to pay the interest thereon and cre- ate a sinking fund of at least two per cent thereon. St. Constitu- tion, Sec. 5, Art. 11. Cities and Towns. 431 Construing this section and Sec. 9, Art. 8, held that cities of 10,000 inhabitants are to be exempted from the maximum limit prescribed for municipalities as a class, and may levy ad valorem taxes to the extent of two and one-half per cent on the $100 val- uation, when so authorized by the legislature. Dean v. Lufkin, 63 Tex. 437 ; Cave v. City of Houston, 65 Tex. 619, Construing this section with Sec. 7, Art. 11, held that they apply to all cities alike without regard to the number of inhabitants. City of Terrell v. Dissaint, 71 Tex. 770, 9 S. W. 593. § 740. Debts incurred prior to adoption of present constitu- tion. Counties, cities and towns are authorized in such mode as may hereafter be provided by law, to levy, assess and collect the taxes necessary to pay the interest and provide a sinking fund to satisfy any indebtedness heretofore legally made and undertaken ; but all such taxes shall be assessed and collected separately from that levied, assessed and collected for current expenses of municipal government, and shall when levied, specify in the act of levying the purpose therefor, and such taxes may be paid in the coupons, bonds or other indebtedness for the payment of which such tax may have been levied. St. Const., Sec. 6, Art. 11. The subjects to which Sections 5 and 6 of this article refer being different, the limitations found in Section 5 do not apply to Section 6. Voorhies v. Mayor, 70 Tex. 331, 7 S. W. 679. To give effect to this section, Section 5 of this article must be held to regulate taxation to raise money for current expenses and to meet further indebtedness, which under the constitution may be created, and in manner operates as a limitation on the powers of taxation conferred by this section. This section relates only to such taxation as is necessary to raise means to pay municipal debts existing at the time the constitution was adopted. Id. Power conferred on a city by this section is not a discretionary one, but was conferred to secure the rights of creditors and must be exercised when necessary for their protection. Id. Unless a taxpayer avails himself of the right to pay in the coupon bonds or other indebtedness, for the payment of which such tax was levied by tendering payment before the institution of suit against him, the city is entitled to a money judgment. Bummel v. Mayor of Houston, 68 Tex. 10, 2 S. W. 740. 432 Taxation in Texas. The limitation imposed by this section on the powers of the counties to levy taxes applies only to the erection of public build- ings. T. & P. Ry. Co. V. Harrison, 54 Tex. 119. This section requires the purpose for which such taxes are lev- ied to be specified, and gives the taxpayer the privilege of paying the tax in the coupons, bonds and other indebtedness for the pay- ment of which such tax was levied. Dean v. Lufkin, 54 Tex. 265. This section makes a tax collected under it a special fund and property taken in lieu of the tax, like the tax itself, can not be diverted to any other purpose. City of Sherman v. Williams, 84 Tex. 421, 19 S. W. 606. This section makes a tax collected under it a special fund. City of Sherman v. Williams, 19 S. W. 606. This section has reference to debts existing at the adoption of the constitution and a city may levy any tax necessary to pro- vide for a debt, though its charter limits its taxing power to two per cent ad valorem. Voorhies v. City of Houston, 7 S. W. 679, 8 S. W. 109. This section has reference to debts existing at the time of the adoption of the constitution, is not affected as to such debts by Section 5 of this article. Id. This section, together with Section 5 of this article, discussed. Waxahachie v. Brown, 4 S. W. 209, 67 Tex. 519. § 741. Counties and cities on the coast of the Gulf of Mexico. All counties and cities bordering on the coast of the Gulf of Mexico are hereby authorized on a vote of two-thirds of the tax- payers therein (to be ascertained as may be provided by law) to levy and collect such tax for construction of sea walls, break- waters or sanitary purposes, as may be authorized by law, and may create a debt for such works and issue bonds in evidence thereof. But no debt for any purpose shall ever be incurred in any manner by any city or county unless provision is made at the time of creating the same, for levying and collecting a suffi- cient tax to pay the interest thereon and provide at least two per cent as a sinking fund ; and the condemnation of the right of way for the erection of such works shall be fully provided for. St. Const, Sec. 7, Art. 11. This section is complied with, if at the time of creating the debt, provision is made to collect a sufficient annual sum to meet Cities and Towns. ^ 433 the interest and provide the sinking fund; although the rate per cent to be levied is not determined. Mitchell County v. Bank, 91 Tex. 370, 43 S. W. 880. This section and Section 2 of this article and Section 9 of Article 8 are self executing in that all laws in conflict are void, but they do not themselves authorize the levying of the tax re- quired by the corporations; they must derive their authority to levy such tax from the legislature. Id. This section is complied with if there is an order providing for the annual collection by taxation of a sufficient sum to pay the interest and create a sinking fund, although it does not fix the rate or per cent of taxation for each year by which such sum is to be collected but leaves the fixing of such rate for each successive year to the commissioners' court or city council. Bas- sett V. City of El Paso, 88 Tex. 168, 30 S. W. 893. This act of April 29th, 1893, is constitutional. Id. This section applies to all counties in the state. Terrell v. Des- saint, 71 Tex. 770, 9 S. W. 593. § 742. School district. The legislature may constitute any city or town a separate and independent school district. And the citizens of any city or town having a charter, authorizing the city authorities to levy and col- lect a tax for the support and maintenance of a public institution of learning, such tax may hereafter be levied and collected, if, at an election held for that purpose, two-thirds of the taxpayers of such city or town shall vote for such tax. State Const., Sec. 10, Art. 11. A school tax must be voted before it can be levied, and the city in question must have legislative authority to control its schools before such election can be had. El Paso v. Conkling, 91 Tex. 537, 44 S. W. 988. This provision permits a vote for school tax only in cities hav- ing charters authorizing it. A municipality has no power of its charter alone to levy a school tax. 1 App. C. C, Sec. 989. A munici.pahty having assumed control of its public schools can collect a tax for school purposes. Ft. Worth v. Davis, 57 Tex. 225 ; Dmyer v. Hackworth, 57 Tex. 245 ; Perry v. Rockdale, 62 Tex. 451. 28 434 Taxation in Texas. Towns and cities have no power to levy taxes for school pur- poses other than those expressly authorized by the constitution. Ft. Worth V. Davis, 57 Tex. 225. This section clearly authorizes the legislature to constitute a city a school district. Act of 1891, authorizing towns incorporated for free school purposes to levy taxes for school purposes is in conformity with this section. Geid v. State, 31 Cr. App. 514, 21 S. W. 190; Jenks V. State, 29 Cr. App. 233, 15 S. W. 815. A city, a de facto school district, may levy the tax. El Paso V. Ruckman, 46 S. W. 27. A city incorporated under the general law, can not levy a tax for school purposes, except under certain conditions, expressed in this section. McCoombs v. City of Rockport, 37 S. W. 988, 14 Tex. Civ. App. 560. § 743. Taxes due towns and cities. The provisions of the chapter of the general law of Texas in reference to the sale by the tax collector of land for taxes due on it for state and county taxes shall apply as well to collectors of taxes for towns and cities as for collectors for counties, and they shall be governed in selling real and personal property by the same rules and regulations in all respects as to time, place, man- ner and terms and making deeds as are provided for collectors of taxes for counties. R. S., Art. 5198. The requirement that land in towns and cities should be sold by lots is directory, and does not limit the power of the court to order the sale in the mode deemed most conducive to the interest of the parties. Oppenheimer v. Reed, 32 S. W. 325, 11 Tex. Civ. App. 367. The Act of 1897, p. 127, Sec. 11, provides that any incorporated city or town or school district shall have the right to enforce the collection of delinquent taxes due it under the provisions of that act. § 744. Lands in cities and towns. In any incorporated city or town in which any lots or blocks of land situated within the corporate limits of said city or town have been returned delinquent or reported sold to said city or town for the taxes due thereon, the city council may prepare lists of de- linquents in the same manner as is provided for in Article 5232c, Cities and Towns. 435 and when such lists shall be certified to as correct by the mayor of said city or town, the city council may direct the city attorney to file suit in the district court of the county in which said city or town is situated, for the recovery of the taxes due on said prop- erty together with penalty, interest and costs of suit, which suits may be brought in the same manner as is provided in Article 5232e for the bringing of suits by the county attorney. Acts 1897, p. 139, Sec. 16 ; Sayles R. S., Art. 5232p. § 745. Power of city council to regulate tax lists — Assess- ment of taxes, etc. The city council shall have power by ordinance to regulate the manner and mode of making out tax lists or inventories and ap- praisements of property therein, and to prescribe the oath that shall be administered to each person on such rendition of prop- erty, and to prescribe how and when property shall thus be ren- dered, and to prescribe the number and form of assessment rolls, and fix the duties and define the powers of the assessor and col- lector, and adopt such measures as they may deem advisable to secure the assessment of all property within the limits of said city, and collect the tax thereupon; and may by ordinance pro- vide that any person, firm or corporation having property sub- ject to taxation or being liable for any tax under the provisions of this title, and neglecting to render a list, inventory and ap- praisement thereof, as required by ordinance of said city, shall be liable to fine and imprisonment. Sayles R. S., Art. 500; Trust Co. V. City of Oak Cliff, 8 Tex. Civ. App. 222; State v. Baker, 49 Tex. 763. § 746. Duty of taxpayers to render inventory of property, etc. Every person, partnership and corporation owning property within the limits of the corporation shall within two months after published notice, hand in to the assessor and collector of the city a full and complete inventory of the property possessed or con- trolled by him, her or them within said limits not exempt from taxation, on the first day of January of the current year, verified as required by ordinance, and any person failing or refusing to comply with the provisions of this article shall be liable to fine and imprisonment, and the city council shall, by ordinance, clearly 436 Taxation in Texas. define the duties of taxpayers herein, and make all necessary rules and regulations to secure the rendition of property and the col- lection of taxes due thereon. Sayles R. S., Art. 501. § 747. Abstract and survey not necessary when. When the city ordinances provide that a description of real es- tate by lot and block number shall be sufficient, a failure to give the abstract and survey numbers required by the general statute is not a fatal omission. Trust Co. v. City of Oak Cliff, 8 Tex. Civ. App. 222. § 748. May prescribe mode of assessment. A city has power by ordinance to regulate the manner and mode of making out tax lists or inventories of property. Sayles Civ. Stat., Art. 440 ; Trust Co. v. City of Oak CM, 8 Tex. Civ. App. 222 ; State v. Baker, 49 Tex. 763. § 749. Burden of proof. One attempting to escape the payment of a tax on the ground that municipal debts are invalid, has the burden of proving it. Winston v. City of Ft. Worth, A7 S. W. 740. § 750. Limitation on power to tax. No county, city or town shall levy more than twenty-five cents for city or county purposes, and not to exceed fifteen cents for roads and bridges, on the one hundred dollars valuation, except for the payment of debts incurred prior to the adoption of the amendment, September 25, 1883 ; and for the erection of public buildings, streets, sewers, water works, and other permanent im- provements, not to exceed twenty-five cents on the one hundred dollars valuation in any one year, and except as is in this con- stitution otherwise provided; and the legislature may also au- thorize an additional annual ad valorem tax to be levied and col- lected for the maintenance of the public roads, provided that a ma- jority of the qualified property taxpaying voters of the county, vot- ing at an election to be held for that purpose, shall vote such tax, not to exceed fifteen cents on the one hundred dollars valuation of the property subject to taxation in such county. St. Const., Sec. 9, Art. 8. § 751. No ordinance necessary to empower with authority to sue. As a city has the right by statute to bring suits, no ordinance is necessary to authorize it to sue for its taxes, a resolution direct- Cities and Towns. 437 ing the suit to be brought being sufficient for that purpose. Sayles R. S., Art. 342 ; Trust Co. v. City of Oak Cliff, 8 Tex. Civ. App. 217. § 752. Cities incorporated under general law may license cer- tain occupations. To license, tax and regulate merchants, commission merchants, hotel and innkeepers, drinking houses or saloons, bar rooms, beer saloons and all places or establishments where intoxicating or fermented liquors are sold ; brokers, money brokers, real estate agents and insurance agents, insurance brokers and auctioneers, and all other trades, professions, occupations and callings, the tax- ing of which is not prohibited by the constitution of the state, which tax shall not be construed to be a tax on property. . (1) A city can not tax and license a bawdy house. City of San Antonio v. Schneider, 37 S. W. 767. Sayles R. S., Art. 427. § 753. May license, etc., peddlers, theatres, etc. To license, tax and regulate, or suppress and prevent hawkers, peddlers, pawnbrokers, and keepers of theatrical or other exhibi- tions, shows and amusements. Sayles R. S., Art. 428. § 754. May license, etc., circuses, etc. To license, tax and regulate or prohibit theatres, circuses, the exhibitions of common showmen, and of shows of any kind and the exhibition of natural or artificial curiosities, caravans, menag- eries and musical exhibitions and performances. R. S., Art. 429. § 755. May license, etc., hackmen and prescribe their com- pensation, etc. To license, tax and regulate hackmen, draymen, omnibus driv- ers and drivers of baggage wagons, porters and all others pursu- ing like occupations with or without vehicles, and prescribe their compensation and provide for their protection and make it a mis- demeanor for any person to attempt to defraud them of any legal charge for services rendered, and to regulate, license and restrain runners for railroads, stages and public houses. Sayles R. S., Art. 430. § 756. May license, etc., billiard tables, etc. To license, tax and regulate billiard tables, pin-alleys, ball-al- leys ; to suppress and restrain disorderly houses, tippling shops 438 Taxation in Texas. and groceries, gambling and gaming houses, lotteries and all fraudulent devices and practices, and prohibit bawdy houses and houses of prostitution or assignation within the limits of the city. Sayles R. S., Art. 431. § 757. May authorize proper officer to grant license, etc. To authorize the proper officer of the city to grant and issue licenses, and to direct the manner of issuing and registering thereof and the fees and charges to be paid therefor. No license shall be issued for a longer period than one year, and shall not be assignable except by permission of the city council. Sayles R. S., Art. 432. § 758. May tax street railways. The city council of cities incorporated under general law shall have power to assess and collect the ordinary municipal taxes upon city or horse railroads. Sayles R. S., Art. 461. § 759. Power over finances of city. To appropriate so much of the revenues of the city, emanating from whatever source, for the purpose of retiring and discharging the accrued indebtedness of the city and for the purpose of im- proving the public markets, and streets, erecting and conducting city hospitals, city hall, water works, and so forth, as they may from time to time deem expedient ; and in furtherance of these ob- jects they shall have power to borrow money upon the credit of the city therefor in such sum or sums as they may deem ex- pedient, to bear interest not exceeding ten per cent per annum, payable semi-annually at such place as may be fixed by city ordinance, provided that the aggregate amount of bonds issued by the city council shall at no time exceed six per cent of the value of the property within said city subject to ad valorem tax. S. R. S., Art. 466. The term "debt," as used in the constitution, means any pe- cuniary obligation, imposed by contract, except such as were, at the date of the contract, within the lawful and reasonable contem- plation of the parties to be satisfied out of the current revenues for the year or out of some fund then within the immediate control of the corporation. McNeill v. City of Waco, 33 S. W. 322, A town exceeded its powers in contracting to issue bonds for a public purpose. It afterwards became a city under the gen- eral law. Held, that the contract was not ratified by the act of Cities and Towns. 439 becoming a city, nor could the city ratify where an issue of the bonds would increase its indebtedness beyond the legal limit- Waosed on him and his property, within the time prescribed by the ordinances of said city, the assessor and collector shall, by virtue of his tax list and assessment roll, levy upon so much property liable to taxation belonging to such person as may be sufficient to pay his taxes, and the assessor and collector shall give notice of the time, and place of sale by advertisement in writing (if not unknown property), the property and amount of taxes, costs and fees due thereupon; such notice shall be published in some Cities and Towns. 447 newspaper published in said city, and at the expiration of such notice, and on the day therein specified, the assessor and collector shall proceed to sell such property at public auction, in front of the court house door of the city, or such building as may be used for such purpose ; provided, that when real estate is offered for sale the smallest portion of grounds (to be taken from the east side of the premises) shall be sold for which any person will take the same and pay the taxes, costs and fees. Sayles R. S., Art. 517. § 783. Assessor and collector shall make deed to purchaser to property sold for taxes — Effect of deed. The assessor and collector shall, when any property has been sold for the payment of taxes, make, execute and deliver a deed for said property to the person purchasing the same and such deed shall be prima facie evidence in all controversies and suits in relation to the right of the purchaser, his heirs and assigns, to the premises thereby conveyed, of the following facts : First — That the land or lot or portions thereof conveyed was subject to taxation or assessment at the time the same was adver- tised for sale, and had been listed or assessed in the time or man- ner required by law. Second — That the taxes or assessment were not paid at any time before sale. Third — That the land, lot or portion thereof conveyed, had not been redeemed from sale at the date of the deed, and shall be con- clusive evidence of the following facts : (1) That the land, lot or portion thereof sold was advertised for sale in the manner and for the length of time required by law. (2) That the property was sold for taxes or assessments as stated in the deed. (3) That the grantee in the deed was the purchaser. (4) That the sale was conducted in the manner prescribed by law. And in all controversies and suits involving the title to land claimed and held under and by virtue of such deed, the person claiming title adverse to the title conveyed by such deed shall be required to prove, in order to defeat said title, either that the land was not subject to taxation at the date of the sale, that the taxes or assessment had been paid, that the land had never been listed 448 Taxation in Texas. or assessed for taxation and assessment as required by this title or some ordinance of the city, or that the same had been redeemed according to the provisions of this title, and that such redemption was made for the use and benefit of the person having the right of redemption under the law; but no person shall be permitted to question the title acquired by the said deed without first showing that he, or the person under whom he claims title, had title to the land at the time of the sale, or that the title was obtained after the sale, and that all taxes due upon the lands have been paid by such person or the person under whom he claims title as aforesaid, provided, however, that the owner of such property shall have the right to redeem the same at any time within two years of the day and date of the sale thereof, upon paying to the purchaser double the amount of taxes for which the same was sold, together with the costs of such sale and double the amount of all taxes paid by the purchaser since such sale. The assessor and collector shall have full power to levy upon any personal property to sat- isfy any tax imposed by this title ; all taxes shall be a lien upon the property upon which they are assessed, and in case any prop- erty levied upon is about to be removed out of the city, the as- sessor and collector shall proceed to take into his possession so much thereof as will pay the taxes assessed and costs of collec- tion. Sayles R. S., Art. 518. § 784. Sale may take place at another time than that first advertised when. If from any cause the sale of property levied upon or seized for taxes shall not take place at the time first appointed, the assessor and collector shall appoint some other time, give like notice and proceed to sell such property in the manner prescribed in the first instance, and in case such property levied upon or seized for taxes can not be sold on the day advertised, such sale may be postponed from day to day until completed, of which postponement the as- sessor and collector shall give verbal notice at the expiration of sale each day. Sayles R. S., Art. 519. § 785. Property shall be struck off to city when. If at any sale of real or personal property or estate for taxes no bid shall be made for any. parcel of land or any goods and chattels, the same shall be struck off to the city, and thereupon the city shall receive, in the corporate name, a deed for said property, Cities and Towns. 449 and shall be vested with the same right as other purchasers at such sale, and shall have power to sell and convey the same. Sayles R. S., Art. 520. § 786. Levy of taxes. City taxes have to be levied by an ordinance of the city council and such levies must be proved in order to enforce collections of such tax. Greer v. Howell, 64 Tex. 689. Where in fact no levy was made no levy can be proved and the tax for the years no levies were made is invalid. In the exercise of the taxing power by municipal corporations the authority conferred is to be strictly construed, and must be closely followed. Frosh v. City of Galveston, 7Z Tex. 409 ; Wood V. City of Galveston, 76 Tex. 132. And fair, reasonable doubt concerning the existence of a power in a city is resolved by the courts against the corporation. Wil- liams V. Davidson, 43 Tex. 34; City of Galveston v. Loonie, 54 Tex. 525 ; Brenham v. Water Co., 67 Tex. 554 ; Wood v. Galves- ton, 76 Tex. 132 ; Lufkin v. Galveston, 73 Tex. — . A municipality can impose no taxes except those authorized by statute, and the method prescribed by statute must be strictly pursued. 1 Desty on Taxation 475. In levying taxes for municipal purposes municipalities are bound by the limitations in their charters. 1 Desty on Taxation 464. In the exercise of the taxing power by municipal corporations the authority conferred is to be strictly construed, and must be closely followed. Frosh v. City of Galveston, 73 Tex. 409, 11 S. W. 402 ; Wood v. City of Galveston, 76 Tex. 132, 13 S. W.' 229; Sedg. St. & Const. Law, 397; 2 Desty on Taxation, 762; Burroughs on Taxation, 372, 471 ; Cooley on Taxation, 329. Taxes can not be levied or collected at any other time, or in any other manner than that designated by law. 1 Desty on Tax- ation, 467; Warren Co. v. Klein, 51 Miss. 807; 25 Amer. & Eng. Ency. of Law, pp. 186, 187, 188, 189, 190. § 787. Record of levy. Every essential proceeding in the course of a levy of taxes should appear in some written and permanent form in the rec- ords of the bodies authorized to act upon it; the record being usually the only evidence to show that the tax was duly levied. 29 450 Taxation in Texas. Absence of the record from the place provided for its preserva- tion, and in which it ought to be found, raises a presumption that it never existed. 25 Amer. & Eng. Ency. of Law, pp. 195, 196, 197. Where the statutes of a state prescribe a certain time for the levying court to convene and levy taxes, a levy by it at any other time is invalid. Morten v. McDearmid (Ark.), 17 S. W. 877. Where there is a provision that the city shall have power, by ordinance, to annually levy and collect taxes, it requires action on the part of the city council and prescribes that such action shall be evidenced by an ordinance which must be in writing, properly passed, and recorded on the minutes of the council, without this action legally taken by the council no officer has any authority to take any steps to enforce the collection of any sum whatever, the ordinance of the city council bears the same relation to the tax rolls, when properly made up, that the judgment of the court does to the execution issued for its enforcement. Earle v. City of Henrietta, 91 Tex. 303. § 788. Resolution sufficient basis for suit when. Sayles Rev. St., Art. 425, provides that the city council shall have power within the city, "by ordinance," to levy and collect a certain tax. The ordinances of a city provided generally for the collection of t-he tax, "in accordance with the statute," and "ac- cording to the law and ordinances of said city." Held, that a resolution by the city council was a sufficient basis for the institu- tion of an action to collect the tax. Dallas Title & Trust Co. v. City of Oak Cliff, 27 S. W. 1036, 8 Tex. Civ. App. 217. § 789. Right to sue. Where a city is empowered by charter to levy and collect taxes, the method provided in the charter is not exclusive, and the city may sue to collect the tax. Dallas Title & Trust Co. v. City of Oak Cliff, 27 S. W. 1036, 8 Tex. Civ. App. 217. § 790. Mandamus — Purpose of tax may be shown. Though a judgment against a town, on which execution has been returned unsatisfied, does not adjudicate the amount of the recovery against any particular fund, the liability on which it was rendered may be shown to have been incurred for any of the purposes for which the city may levy a tax ; and, where the power Cities and Towns. 451 to levy a tax for that purpose has not been exhausted, mandamus will lie to compel the levy of a specific tax for the payment of such judgment. Sandmeyer et al. v. Harris, 27 S. W. 284, 7 Tex. Civ. App. 515. § 791. Levy— Street. Amend. Const. 1890, Art. 8, Sec. 9, provides that no city shall levy more than 25 cents for city purposes, nor more than 15 cents "for roads and bridges," on the $100 valuation, except for the payment of debts incurred before the constitutional amendment of 1883; and, for the erection of public buildings, streets, and other permanent improvements, not more than 25 cents on the $100 valuation in any one year. Held, that the purpose of the levy for "roads and bridges," empowered the legislature to au- thorize cities to levy such tax "for the improvement of roads, bridges, and streets," and that "streets," as included in the power to levy 25 cents "for the erection of public buildings, streets, * * * and other permanent improvements," means streets acquired or opened up by condemnation, and not the keeping thereof in re- pair. Sandmeyer v. Harris, 27 S. W. 284, 7 Tex. Civ. App. 515. § 792. Inquiry into legality of corporation of town. It was not proper to inquire into the legality of the corpora- tion of the city of Beaumont in this suit, if, indeed, it would be proper to do so in the Suit No. 1,180 (City of Beaumont v. Wil- liam Higgins and Wife) ; Graham v. City of Greenville, 67 Tex. 67, 2 S. W. 742 ; Brennan v. Bradshaw, 53 Tex. 330 ; Tisdale v. Town of Minonk, 46 111. 9 ; President, etc., v. Thompson, 20 111. 200 ; Hafmlton v. President, etc., 24 111. 22 ; Kettering v. City of Jacksonville, 50 111. 41 ; Tomn of Decorah v. Gillis, 10 Iowa 234 ; Bird V. Perkins, 33 Mich. 28. The questions sought to be raised here were adjudicated in the Cause No. 1,180 (City of Beaumont V. Higgins) . When the supreme court, on the former appeal, in- quired into that judgment, and held it void, it was upon the ground, as stated in the opinion, that the want of jurisdiction of the district court appeared from the face of the record. Bordages V. Higgins, 1 Tex. Civ. App. 43, 19 S. W. 446, and 20 S. W. 184, 726. But as it was held, on motion for rehearing on that appeal, that the district court did have jurisdiction, the want of it, there- fore, did not appear ; so the original opinion by Judge Marr that 452 Taxation in Texas. there could be no collateral inquiry was correct. The introduc- tion in evidence by the plaintiff of the petition in Cause No. 1,180 was proper to show what had been adjudicated, and did not open up the questions then settled again ; hence the court did not err in excluding evidence to show that Beaumont was in fact incor- porated under Chapter 11 of Title 17 of the Revised Statutes, as it did not err in sustaining plaintiff's demurrer. Higgins v. Bor- dages, 28 S. W. 350. § 793. Ordinance providing for the issuance of bonds — Suffi- cient when. A city ordinance which, in providing for the issue of bonds payable in thirty years provides that there shall be annually col- lected by taxation, to create a sinking fund, a sum equal to one- thirtieth of the principal, and also the amount of the annual in- terest, meets the requirements of Const., Art. 11, Sees. 5, 7, re- quiring a city, when creating a debt, to provide for the assess- ment and collection annually of a sufficient sum to pay the inter- est, and to provide at least two per cent as a sinking fund, and Act April 29, 1893, containing similar requirements. Bassett v. City of El Paso, 30 S. W. 893, 88 Tex. 168. § 794. Cities of over 10,000 may change rules of evidence. Const., Art. 3, Sec. 56, prohibiting the legislature from passing a local or special law regulating the practice of changing the rules of evidence in a judicial proceeding, does not apply to acts granting special charters to cities containing over 10,000 inhabi- tants; such charters being specially authorized by Article 11, Sec- tion 5. A provision of the charter of a city having over 10,000 inhab- itants that the deed of its tax collector shall establish prima facie title to the property, under a sale for non-payment for taxes due thereon, is constitutional. Texas Savings & Real Estate Inv. Assn. V. Pierre's Heirs, 31 S. W. 426, 10 Tex. Civ. App. 453. § 795. Cannot raise question of corporate existence in tax suits. In an action by a city against a property owner, to recover taxes, defendant can not test the validity of plaintiff's actual and long-continued corporate existence. Troutman v. McCleskey Cities and Towns. 453 (Tex. Civ. App.), 27 S. W. 173, followed. Lum v. City of Bowie (Tex. Sup.), 18 S. W. 144, distinguished. McCrary v. City of Comanche, 34 S. W. 679. § 796. Reincorporation of or abolishing municipality. "Act April 13, 1891, provides a method of abolishing municipal corporations, and declares that their property shall be turned over to the county treasurer, and applied to the payment of the municipal debts. It also provides that, if an abolished munici- pality is reincorporated, the new corporation, upon majority vote of the taxpaying voters, may take the property and assume the debts of the old one. Held, that where the property of the former municipality was taken by the new corporation, the bonds issued to pay the indebtedness on said property were valid, al- though neither the taking of the property nor the assumption of the debt was submitted to a vote of the people." City of Brownwood v. Noel, 43 S. W. 890. § 797. Revised Statutes 1895, Article 487. "In cities authorized by Rev. St. 1895, Art. 487, to levy taxes not exceeding one and one-half per cent, on the assessed value, the discretion of the council in determining the amount that will be necessary to meet current expenses (which are a first charge against' the fund so derived) can not be controlled in advance by a mandamus compelling the levy of a sufficient portion of such tax to pay a judgment against the city. "A judgment recovered against a city subsequent to January 1, 1889, for an injury occurring prior to that date, is a 'debt lawfully contracted prior to the first day of January, 1889,' within Rev. St. 1895, Art. 487, authorizing certain cities, for the purpose of paying such debts, to levy and collect a tax of 25 cents on the $100 valuation, in addition to the amount levied for gen- eral purposes. "Mandamus will lie to enforce such levy." City of Shennan V. LangJuMt, 40 S. W. 140, 92 Tex. 13. § 798. Right of cities to sue under charter provisions* not taken away by general law. "Laws 1895, p. 53 (Rev. St. 1895, Arts. 5232m, 5232k), pro- viding for the collection of delinquent taxes, and that municipal 454 Taxation in Texas. corporations shall have the right to collect sucL taxes under its provisions, does not take away the authority given cities by special charter to collect by suit taxes due them. "Said act does not apply to proceedings to enforce payment of delinquent taxes pending at its adoption." City of San Antonio V. Berry, 48 S. W. 496. § 799. City of Houston. "Sp. Laws 1889, Ch. 11, Sec. 53, and Sp. Laws 1893, Ch. 5, Sec. 50, forbade a city to bring suit for the collection of taxes assessed after a certain time, and required it to pursue the sum- mary remedy of levy and sale; but the purchaser at such sale might sue the delinquent for the amount of the tax, and 50 per cent, thereon, and costs of advertisement and sale, provided the suit be brought within one year from date of sale. Sp. Laws 1895, Ch. 1, Sec. 50, and Sp. Laws 1897, Ch. 7, Sec. 40, repealed the inhibition against suit by the city, and authorized the collection of taxes by suit, and foreclosure of lien. Held, that the laws of 1889 and 1893 were not laws of limitation, but prescribed a method for the collection of taxes, and hence a city could main- tain suit for any taxes due, since the laws of 1895 and 1897 re- pealed the restriction on the city's right to sue." Link v. City of Houston, 59 S. W. 566. The Houston City Charter of 1903, which provides that all delinquent taxes due the city for the year 1875 up to and includ- ing the year 1896, and for all years to come, "may be collected by suit, being a copy of the provisions of city charters granted" in 1897 and 1899, authorizes the city to sue for all taxes due it for the year 1875, up to and including the year 1896, and all years thereafter; for the words "and for all years to come" must mean the years after 1896. City of Houston v. Dooley, 89 S. W. 777, 40 Tex. Civ. App. 371 ; Selmun v. Wolf, 27 Tex. 72; Edwards v. Morten, 92 Tex. 152, 46 S. W. 792, 92 Tex. 152; Holly V. Simmmis, 89 S. W. 776, 99 Tex. 230. § 800. Bonds for existing debts. "Since Sayles' Rev. Civ. St., Art. 986j, providing that an ordi- nance issue bonds to provide for existing debts shall adopt the act authorizing them and recite its caption, has reference only to cities whose charters contain no authority to fund a debt, El Cities and Towns. 455 Paso, whose charter (Sp. Laws 1889, Sec. 87) confers such au- thority, may issue bonds to provide for its floating debt in the manner provided in Sayles' Rev. Civ. St., Art. 986j, without reciting the caption or adopting the act." Conklin v. City of El Paso, 44 S. W. 880. §801. Tax on bonds sold to city. "A tax based on the issue of bonds is not invahdated by the fact that the bonds were sold to the city which issued them as an investment for its sinking fund, which was required by the charter to be invested in good interest-bearing securities." Conk- lin V. City of El Paso, 44 S. W. 880. § 802. Majority of aldermen sufficient to pass tax levying ordinance. Austin City Charter, Sec. 4, provides that the city council shall consist of a mayor and board of aldermen. Sec. 13 declares that a majority of the members of the "whole council" shall be necessary to pass any ordinance in any wise increasing or di- minishing the city revenues. Sec. 31 provides that in case of a tie vote by the council the mayor shall have the casting vote, and Sec. 78 provides that the mayor shall preside at all meetings of the city council, and shall have a casting vote when the council is equally divided, but not otherwise. Held, that the term "council" was used synonymously with the "board of alder- men" io Sec. 13, and that the "whole council" referred to meant "the whole board of aldermen," as distinct from a quorum thereof, so that, one of the aldermen having died prior to the passage of a tax levy ordinance passed by the vote of seven, such ordinance should be considered as having received a majority of the whole board or council. Nalle v. City of Austin, 93 S. W. 141, 41 Tex. Civ. App. 423. § 803. Interest. "Where the charter of a city itself created a liability for inter- est on unpaid city taxes, no ordinance was necessary to make such provision operative." Nalle v. City of Austin, 93 S. W. 142, 93 Tex. Civ. App. 423. § 804. Mandamus will not lie to compel a city to levy tax — When. "Mandamus will not lie to compel a city to levy a tax to dis- charge a debt, where it does not appear that the city council 456 Taxation in Texas. has been requested to levy a tax, and fails and refuses to do so. "Mandamus will not lie to compel a city to levy a tax to dis- charge a debt, where it does not appear that there is a necessity for the levying of an additional tax to enable the city to pay the debt." Gutta Percha & Rubber Mfg. Co. v. City of Cleburne, 107 S. W. 157. § 805. Ordinance not resolution \yhen. "Where statutes authorize a city to levy a tax by virtue of an election to be had under an ordinance passed for that purpose, an election had under a mere resolution is void." Miller v^ State, 69 S. W. 522, 44 Tex. Crim. App. 99. § 806. Sufficiency of levy. "In an action to recover on bonds issued under Acts 1889, p. 89, the fact that the tax levied was sufficient for five years to pay the interest and two per cent of the principal of the bonds makes a prima facie case of the sufficiency of such tax." Cass County V. Wilbarger Co., 60 S. W. 988, 25 Tex. Civ. App. 52. The Constitution places no limitation on the Legislature as to granting authority to cities of over ten thousand inhabitants as to mode and manner of assessment and equalization of taxes. Scollard v. City of Dallas, 42 S. W. 640, 16 Tex. Civ. App. 620 ; Ferris v. Kimble, 75 Tex. 476. § 807. Right of town to maintain action. "Where a city sued to foreclose a tax lien, the fact that it was incorporated under the general incorporating act did not defeat its right to maintain the action." Grace v. City of Bonham, 63 S. W. 158, 26 Tex. Civ. App. 161. "A municipal corporaion can maintain a suit to collect and enforce a lien for taxes. City of Henrietta v. Eustis, 26 S. W. 619, 87 Tex. 15, followed." McCrary v. City of Comanche, 34 S. W. 679; City of Henrietta v. Eustis, 26 S. W. 619, 87 Tex. 15. § 808. Cities and towns may adopt general state law in regard to collecting taxes. "Sayles' Rev. Civ. St., Arts. 432, 438, empowering cities to provide, by ordinance, for the levy and collection of municipal taxes, are not inconsistent with, not repealed by. Art. 4760, which makes the general statutory provisions as to the sale of prop- erty for taxes applicable to the collection of taxes by towns and Cities and Towns. 457 cities ; and a city may provide, by ordinance, that municipal taxes shall become due and delinquent at a different time from general taxes." Enstis v. City of Henrietta, 37 S. W. 632. § 809. De facto corporation. "An owner of property sold for taxes by a city cannot avail himself as a defense to the tax deed of the invalidity of the city's incorporation, where it is shown to have been a de facto corporation during all the time of its exercise of the taxing power." Enstis v. City of Henrietta, 37 S. W. 632. §810. Bawdy house license. "A charter giving a city power, by ordinance, 'to prevent and punish the keeping of houses of prostitution, * * * ^^^ ^^ adopt summary measures for the removal or suppression, or license, taxation, regulation and inspection of all such establish- ments,' does not authorize the city to tax and license bawdy houses." City of San Antonio v. Schneider, 37 S. W. 767. §811. Galveston. "Const. 1869, Art. 12, Sees. 20, 21, provide that taxes on land shall be a lien thereon, but that no land shall be sold for taxes, except under decree of court. Galveston City Charter 1871, Tit. 6, Art, 14, provides that no sales of land for taxes shall be made, except under decree of the Galveston district court, and that the city council may provide by ordinance for the institution and regulation of suits to enforce the lien of unpaid taxes, except that no sales shall be made till thirty days' notice has been given the owner, which notice may be actual or by advertisement for sixty days ; and that the owner may redeem from the sale at any time within two years, after which time the purchaser may apply for confirmation of the sale. Rev. Ord. Galveston 1871, Ch. 39, Art. 1, Sec. 14, provides that the city may foreclose any tax lien on land when the gross amount of taxes shall be $1(X) or more, and that in rendering judgment separate parcels shall be sepa- rately condemned, except in cases of lots in the same block. Held, that the jurisdiction of the Galveston district court to foreclose a tax Hen was a special and limited statutory jurisdiction, and hence a judgment foreclosing a tax lien was subject to collateral attack. "Where the record of a judgment of the Galveston district court foreclosing a tax lien showed that the action was brought 458 Taxation in Texas. to foreclose tax liens amounting to less than $100, that lots more than in one block was condemned and sold together, that notice of sale was given by advertising for 22 days, and that no con- firmation of the sale was ever had, the judgment was void, and no title passed by the sale made under the judgment." Cor dray v. Neuhaus, 61 S. W. 415, 25 Tex. Civ. App. 247. § 812. Cities over 10,000 not within limit. "Construing the amended Sec. 9 of Art. 8 of the State Consti- tution, and Sec. 5, Art. 11, the conclusion is announced that cities of ten thousand inhabitants are to be exempted from the maxi- mum limit prescribed for municipal governments as a class, and may levy ad valorem taxes to the extent of two and one-half per cent on the hundred dollars' valuation, when so authorized by the Legislature." Lufkin v. City of Galveston, 63 Tex. 437 ; Caue V. Mayor, Alderman and Inhabitants of the^ City of Houston, 65 Tex. 619. The city of Galveston has authority to levy an annual tax of seven cents on the one hundred dollars' valuation, to provide an emergency fund. Lufkin v. City of Galveston, 63 Tex. 437; Cofue V. Aldermmi and Inhabitants of the City of Houston, 65 Tex. 619. § 813. Tax for school purposes valid. "Act Tex., April 3, 1879, authorizing municipal corporations to take control of the public schools within their respective limits, and to levy a tax to support the schools as free schools, is not unconstitutional. 7 S. W. 726, affirmed. "The taxation of property for the support of free public schools, in accordance with the Constitution and laws of a state, is not a taking of property without due process of law, within the mean- ing of Const. U. S., 14th Amend." Werner v. City of Galveston, . 12 S. W. 159. § 814. Implied authority to levy tax. "A city was authorized, by one section of its charter, to collect an annual tax, not exceeding one per cent upon all property within its limits to be used for the 'current expenses' and 'general im- provement' of the city, and, by another section, 'to raise money on the credit of the city, for a special and definite purpose by issuing bonds, or otherwise,' provided that the bonded debt should Cities and Towns. 459 only be increased beyond a certain sum by consent of the tax- payers voting at an election for that purpose. Held, that, although the power to tax was not expressly conferred by the second section, it was necessarily implied, and was not therefore con- fined to the rate prescribed for 'current expenses' and 'general improvement' in the former section." Nalle v. City of Austin, 21 S. W. 375. § 815. Limitations of power — Application of tax fund. Rev. St., Art. 426, provides that cities having more than 10,000 inhabitants may levy taxes authorized by law, but no taxes shall for any one year exceed two and one-half per cent of the taxable property of such city. Held, that a city of more than 10,000 in- habitants, which has no special charter, is authorized to levy a tax of one-half of one per cent for protection against fire, one-fourth of one per cent for improving the streets, and one-fourth of one per cent for paying its outstanding indebtedness, where the whole levy does not exceed the statutory limit, since the applica- tion of the tax fund is left to the discretion of the city authori- ties, in the absence of special statutory directions. "A levy of a tax of one-fourth of one per cent for improving streets is not affected by a levy for school house purposes under Act March 23, 1887, providing that a city, incorporated under the general laws, may levy 25 cents on the $100 valuation of all property in such city for current expenses, and a like additional tax for the purpose of constructing or purchasing permanent im- provements, which includes building sites and buildings for public free schools, as such act does not repeal Rev. St., Art. 426. Luf- kin V. Galveston, 63 Tex. 438, followed." Muller v. City of Deni- son, 21 S. W. 391, 1 Tex. Civ. App. 293. §816. Towns which may or have abolished their corporate existence. It shall be the duty of the district court of the county in which such town or city, which has abolished its corporate existence, is situated and in which a receivership is pending, to provide for the payment of all claims legally established against such city or town, and to determine the priority of any claims, and to order the sale of all property in the hands of the receiver subject to sale for such purpose, and to direct such receiver to pay such claims, and in case the money and proceeds of property are in- 460 Taxation in Texas. sufficient to pay such indebtedness, then it shall be the duty of said court, at the request of any creditor, at the first regular term of said court in each year, to levy a tax upon all the property and real and personal estate situated within the limits of said city or town, as previously incorporated, on the first day of the pre- ceding January not exempt from taxation under the constitution and laws of this state sufficient to discharge the indebtedness, but not to exceed the rate allowed by existing law for such purposes in incorporated cities and towns. It shall be the duty of such receiver, in case of levy, to assess all the property all estate within such limits in the same manner as is provided by law for the assessment of such property by the county assessor, and he will value such property the same as the valuation placed thereon by such assessor and the county equalization board, and he will make out a tax roll and collect the taxes under such levy and assess- ment in the same manner and time as is provided by law for the assessment and collection of taxes of incorporated cities and towns under Title 18 of the Revised Statutes. Suits may be brought by the receiver against delinquents and a lien shall exist upon all property for such taxes the same as though the corporate exist- ence of such city or town had never been abolished, and such levy and assessment had been made by its council and assessor. Act of 1905, p. 327. § 817. Collection of taxes where corporation is abolished. Section 1. That whenever under the Act approved April 17, 1905, entitled, "An Act to provide for the disposition of the cor- porate property and the levy, assessment and collection of taxes to pay existing indebtedness of incorporated cities and towns which have heretofore, or may hereafter abolish their corporate existence and to repeal all laws in conflict herewith," the district court, having jurisdiction in the premises, has heretofore ordered, or may hereafter order, the assessment and collection of taxes for the payment of the indebtedness of such town or city, it shall be the duty of the county tax assessor for the county in which such town, or city is situated to assess the taxes so ordered in like manner as taxes in rural school districts, and it shall be the duty of the county tax collector for such county to collect such taxes in like manner as taxes in rural school districts ; provided, that this Cities and Towns, " 461 Act shall not repeal any part of Sec. 2 of the original Act approved April 17, 1905, and being Ch. 134 of the Acts of the Twenty- ninth Legislature. Sec. 2. For the services rendered under Sec. 1, the assessor and collector shall receive the same compensation as for like services for the assessment and collection of taxes in rural school districts, and it shall be the duty of said collector to pay such taxes when collected to the receiver of such city or town. Acts Thirty-first Legislature, p. 68. § 818. Relating to issuance of bonds and levy of taxes. Section 1. That Art. 486, Ch. 5, Title 18, of the Revised Stat- utes of 1895, be so amended that the same shall hereafter read as follows : Art. 486. The city or town 'council of any city or town in this state incorporated under the general law shall have the power by ordinance to levy and collect an annual ad valorem tax suffi- cient to meet the interest and sinking fund on all indebtedness legally incurred prior to the adoption of the Constitutional Amendment in 1883, regarding the power of cities and towns to levy and collect taxes, etc., and may levy and collect twentyrfive cents on the one hundred dollars' valuation of all property in such city or town for current expenses, and may levy and collect an ad- ditional twenty-five cents on the one hundred dollars' valuation for the purpose of construction or the purchase of public build- ings, water works, sewers, and other permanent improvements within the limits of such city or town, and shall also have power by ordinance to levy and collect a tax not exceeding fifteen cents on the one hundred dollars' valuation of property for the con- struction and improvement of the roads, bridges and streets of such city or town within its limits, and all cities and towns pro- viding for such improvements shall have the power to issue coupon bonds of the city therefor in such sum or sums as they may deem expedient, to bear interest not exceeding six per cent per annum ; provided, that the aggregate amount of bonds issued for the construction or the purchase of public buildings, water works, sewers and other permanent improvements shall never reach an amount where the tax of twenty-five cents on the one hundred dollars' valuation of property will not pay current interest and provide a sinking fund sufficient to pay the principal 462 Taxation in Texas. at maturity ; and provided, also, that the amount of bonds issued for street improvement purposes shall never reach an amount where the tax of fifteen cents on the one hundred dollars' valu- ation of property will not pay current interest and provide a sinking fund sufficient to redeem them at maturity, and the amount of bonds legally issued under acts passed prior to the adoption of the present Constitution shall not be computed and estimated in the amount of bonds which may be issued for the above-named city improvements. Within the meaning of this arti- cle shall be included building sites and buildings for the public free schools and institutions of learning within those cities and towns which have assumed or may assume hereafter the exclu- sive control and management of the public free schools and insti- tutions of learning within" their limits. Acts Thirty-first Legisla- ture, p. 444. CHAPTER XXXIX. SCHOOLS AND SCHOOL DISTRICTS. Sec. Sec. 819. Act of April 5th, 1907, fixing 827. Qualification of voter. rate for free school pur- 828. Bondholders necessary par- poses, ties — When. 820. Local taxation for school pur- 829. Irregularities will not re- poses, strain the collection of tax. 821. Levy for maintenance — In- 830. Suflaciency of notice to im- crease of levy — Lien. pose tax. 822. Power to levy tax. 831. Separate roll not necessary. 823. Levy once exercised is ex- 832. Cannot establish lien — When. hausted for years. 833. Defense — Not available. 824. Levy of taxes vested in local 834. Limitations on rate. boards. 835. Incorporated city or town — 825. Failure to designate levy by Limitation of tax. school districts only an ir- 836. Excessive levy curative act. regularity. 837. School tax — City council must 826. Action on part of city re- levy. quired. § 819. Act of April 5, 1907, fixing rate for free school pur- poses. Section 1. Be it enacted by the Legislature of the State of Texas: That Art. 5047, Ch. 1. Title 104, of the Revised Civil Statutes of 1895, be so amended as to hereafter read as follows: Article 5047 (4662). There shall be levied and collected an annual ad valorem State school tax of twenty cent for the year 1907 and every year thereafter on the one hundred dollars of the cash value thereof, estimated in lawful currency of the United States, on all real property situated and all personal property owned in the State on the first day of January of each year, and all personal property sent out of the State for the purpose of avoiding the payment of taxes thereon, and afterwards returned to the State, except so much thereof as may be exempted by the Constitution and laws of thi# State or the United States, which cash value shall be estimated in the manner prescribed by law. Acts Thirtieth Legislature, p. 141. 464 Taxation in Texas. § 820. Local taxation for school purposes. Section 1. Be it enacted by the Legislature of the State of Texas, That Sec. 58, of Ch. 124, of the General School Laws, passed by act of the Twenty-ninth Legislature, be amended so as to hereafter read as follows: Sec. 58. Whenever twenty or more qualified property tax- paying voters of any district, or a majority of the property tax- paying voters of any district, wish, for the purpose of taxing themselves for the building of school houses or supplementing the State school fund appropriated to said district, and shall make application to the county commissioners' court duly signed by them, said court shall enter up an order for an election to be held in said district to determine whether such tax shall be levied or not; said application shall designate the amount of tax asked to be levied, and the order of said court shall state : First — When said election shall be held. Second — At what point or points the polls shall be opened. Third — The amount of tax to be voted on; provided, that no election shall be held to determine the levy of a tax exceeding 20 cents on the $100 valuation of property. The commissioners' court shall order the -sheriff to give notice of such election by posting three notices in the district for three weeks before the election, and the sheriff shall obey such order. Not more than one such election shall be held in the same scholastic year. Acts Thirtieth Legislature, p. 168. § 821. Levy for maintenance — Increase of levy — Lien. Sec. 57. The commissioners' court of any county in this State shall have power to levy a special tax for the further maintenance of public free schools and the erection within each school district of a school house or school houses; provided, a majority of the qualified property taxpaying voters of the district voting at an election to be held for the purpose shall vote such tax, not to ex- ceed in any year fifty cents on the one hundred dollars' valua- tion of the property subject to taxation in such district; pro- vided, that all property assessed for school purposes shall be assessed at the rate of value of property as said property is as- sessed for state and county purposes. Sec. 58. Whenever twenty or more, or a majority of the prop- erty tax-paying voters of a district wish to tax themselves for Schools and School Districts. 465 the purpose of supplementing the State school fund appropriated to said district, they shall make application to the county judge, who shall issue an order for an election to be held in said district to determine whether such tax shall be levied. Said application shall designate either the specific rate of tax to be levied, or a rate of tax not exceeding fifty cents on the one hundred dollars' valuation of property, and the order of said judge shall state : (1) When said election shall be held. (2) At what point or points the polls shall be opened. (3) The rate of tax to be voted on ; provided, that no election shall be held to determine the levy of a tax exceeding fifty cents on the one hundred dollars' valuation of property, but the propo- sition may be for a specific tax rate within this limit or "for a school tax not exceeding fifty cents on the one hundred dollars' valuation of taxable property in the district." The county judge shall order the sheriff to give notice of such election by posting three notices in the district for three weeks be- fore the election, and the sheriff shall obey such order. Not more than one such election shall be held in the same scholastic year. Sec. 59. The county judge shall appoint a presiding officer for each voting place to hold said election, who shall make due return thereof as is required by law for holding a general elec- tion ; and each person who favors taxation for school purposes shall have written or printed on his ticket, "For School Tax," and each person opposed to such taxation shall have written or printed on his ticket, "Against School Tax." The ballots shall be prepared by the county judge, and the county shall bear the expense of having them printed. Sec. 60. All polls for school district elections shall be opened at eight o'clock a. m. and shall be closed at six o'clock p. m., and none of the officers holding such election shall be entitled to com- pensation therefor. Sec. 61. All persons who are legally qualified voters of this State and of the county of their residence and who are resident property taxpayers in said district, shall be entitled to vote in such school district election, and if at such election a majority shall vote for the tax, it shall be declared by the commissioners' court to have carried in said district and entered upon the records of said court to have been carried, and in all cases the returning 30 466 Taxation in Texas. officer shall make a full and complete return, as in other elec- tions, to said court within five days after said election is held, and said return shall be opened and counted at the first meeting of said court and the result declared. Sec. 65. If the election be to determine whether the tax shall be increased, each voter favoring the increase of the school tax shall have written or printed on his ballot, "For increase of school tax," and each voter opposing such increase shall have written or printed on his ballot, "Against increase of school tax," and if a majority of the votes cast be in favor of increasing the tax, it shall be increased. Sec. 66. The county commissioners' court shall, at the time of levying the taxes for county purposes, also levy upon such school district the rate of tax said district has voted upon itself, or, if the proposition shall have been "for a school tax not exceeding fifty cents on the one hundred dollars' valuation of taxable prop- erty in the district," the commissioners' court shall levy such a rate within that limit as shall have been determined by the board of trustees of said district and the county superintendent, and certified to said court by the county superintendent. It shall be the duty of the tax assessor to assess said tax as other taxes are assessed, and to make an abstract showing the amount of special taxes assessed against each school district in his county, and to furnish the same to the county superintendent, on or before the first day of September of the year for which such taxes are as- sessed ; and the taxes levied upon the real property in said dis- tricts shall be a lien thereon, and the same shall be sold for unpaid taxes in the manner and at the time of sales for State and county taxes are assessed and collected. A special tax voted in any dis- trict after the levy of county taxes shall be levied at any meeting of the commissioners' court prior to the delivery of the assess- ment rolls by the assessor. The tax assessor shall assess, and the tax collector shall collect said district taxes as other taxes. The tax assessor shall receive a commission of one-half of one per cent for assessing such tax, and the tax collector a commission of one-half of one per cent for collecting the same. The tax collector shall pay all such taxes to the county treasurer, and said treasurer shall credit each school district with the amount belonging to it, and pay out the same in accordance with the law. Schools and School Districts. 467 Sec. 76. When twenty or more, or a majority of the qualified tax-paying voters of a school district, shall petition the county judge, he shall order an election in the school district from which the petition came, to determine whether or not a majority of the legally qualified property tax-paying voters of that district desire the issuance of bonds as indicated in the petition and the annual levy of a tax sufficient to pay the current interest on said bonds and provide a sinking fund sufficient to pay the principal at ma- turity. Said election shall be ordered, held, and the returns counted and published as in other school elections in accordance with the laws of this State, and it shall not be necessary to vote upon a specific rate of tax, but the rate shall be determined as provided in Sec. 78 of this act. Sec. 77 . If after the results of said election are known it shall appear that a majority of the votes therein have been cast in, favor of the issuing of school house bonds, the commissioners' court of the county in which said school district is located shall issue said bonds on the faith and credit of said school district, which bonds shall bear not more than five per cent interest per annum, and shall run not more than forty years ; provided, that when the houses are to be built of wood the time of the bonds herein provided for shall not be more than twenty years. The said bonds shall be examined by the Attorney General of the State of Texas, and registered by the Comptroller of Public Accounts of the State of Texas. They shall be sold to the highest bidder and the purchase money shall be placed in the county treasury to the credit of said school district and the money shall be dis- bursed upon warrants issued by the trustees of said district, ap- proved by the county superintendent, in payment of accounts legally contracted in buying, building, equipping or repairing the school house or school houses for such district, or in the purchase of sites therefor; provided, that the commissioners' court may invest the county permanent school fund in such school district school house bonds, and the State Board of Education shall have the right to purchase such bonds on the same conditions as it may purchase other bonds. Sec. 78. When the commissioners' court shall provide for the issuance of such bonds, and each year thereafter so long as the bonds or any of them are outstanding, said court shall levy a tax not to exceed twenty-five cents on the one hundred dollars' 468 Taxation in Texas. valuation of taxable property of said school district, sufficient to pay the interest on the bonds and to produce a sinking fund, which, together with the interest thereon when placed at interest, shall be sufficient to pay the principal of said bonds at maturity. The rate of such tax shall be determined by the trustees of the district and the county superintendent and certified by the county superintendent' to the commissioners' court; provided, that the rate of the bond tax, together with the rate of special local tax of the district for the maintenance of schools therein, shall never exceed fifty cents on the one hundred dollars' valuation of taxable property of said school district, but if the rate of bond tax certi- fied by the county superintendent to the commissioners' court, together with the rate of maintenance tax previously voted in the district, shall at any time exceed fifty cents on the one hundred dollars, such bond tax shall operate to reduce the maintenance tax to the difference between the rate of the bond tax and fifty cents. Said school district bond tax shall be assessed and col- lected in the manner provided by law for the assessment and col- lection of the special local tax for the maintenance of public free schools ; provided, that the rate of school tax certified to the com- missioners' court by the county superintendent shall be the rate to be levied by the commissioners' court in the school district until a change in such rate shall be recommended by the county superintendent and board of trustees of the district within the limits prescribed by law. Sec. 80. Whenever the county judge in any county in the state of Texas shall have found it lawful and necessary to order an election for school house bonds, as provided herein, said county judge shall prepare proper ballots for use in said school district election, and the county shall bear the expense of having such ballots printed ; and each person who favors the issuance of bonds, and the levy of a tax therefor, shall have written or printed on his ballot, "For the Bonds," and each person opposed to such taxation shall have written or printed on his ballot, "Against the Bonds." Sec. 81. The said school district school house bonds shall ex- press on their face : The State of Texas, the name of the county, and the number or corporation name of the district issuing said bonds ; provided, the bonds shall not run more than forty years, Schools and School Districts. 469 and shall bear not more than five per cent interest per annum, and shall never be sold below par. It shall be the duty of the State Superintendent of Public Instruction to prepare as many as three sets of plans for public school buildings, the said plans being designed to meet the needs of rural schools of various sizes, and upon request of the trustees of any school district shall fur- nish copies of such plans and specifications. Sec. 154. Trustees of incorporated districts that have been or may hereafter be incorporated under general or special laws, for school purposes only, shall have power to levy and collect an annual ad valorem tax not to exceed fifty cents on the one hundred dollars valuation of taxable property of the district for the maintenance of schools therein, and a tax not to exceed twen- ty-five cents on the one hundred dollars for the purchase of sites and the purchasing, construction, repairing or equipping public free school buildings within the limits of such incorporated dis- tricts; provided, that the amount of maintenance tax, together with the amount of bond tax of the district, shall never exceed fifty cents on the one hundred dollars' valuation of taxable prop- erty. Said trustees shall have power to issue coupon bonds of the district for building purposes, to be made payable not ex- ceeding forty years from date, in such sums as they shall deem expedient, to bear interest riot to exceed five per cent per annum ; provided, that when such buildings are to be wooden the bonds herein provided for shall not run for a longer period than twenty years; provided that the aggregate amount of bonds issued for the above-named purpose shall never reach such an amount that the tax of twenty-five cents on the hundred dollars' valuation of property in the district will not pay current interest and provide a sinking fund sufficient to pay the principal at maturity, and provided further, that no such tax shall be levied and no such bonds issued until after an election shall have been held wherein a majority of the tax-paying voters voting at said election shall have voted in favor of the levying of said tax, of the issuance of said bonds, or both, as the case may be ; provided, that the specific rate of tax need not be determined in the election. Acts Thir- ty-first Legislature, pp. 18, 19, 20, 21, 22. § 822. Power to levy tax. "District boards of education being recognized by the Consti- tution, this court fails to perceive any difference between them 470 Taxation in Texas. and municipal corporations, to which it is admitted the taxing power, or power under the law to make assessments, may be dele- gated." D. P. Kinney et al. v. G. B. Zimpleman et al., 36 Tex. 554; The State of Texas v. Paul Bremond, 38 Tex. 116; A. B. Hall V. The Houston & Texas Central Railway Company, 39 Tex. 286. § 823. Levy once exercised is e'Schausted for years. "The discretionary power vested by law in a board of school directors, regarding the levying of taxes for school purposes, when once exercised, is exhausted for the year in which the levy is made; and their successors in office can not levy a different school tax for that year." A. Olliver et al. v. C. Carsner, 39 Tex. 396. § 824. Levy of taxes vested in local boards. "The levy of the one per cent school tax was unconstitutional. The Constitution contemplated the management and direction of the public schools, and the disbursement of the funds collected by taxes imposed, to be vested in local boards in the school districts, subject to the supervision of the superintendent of public in- struction; and the statute created a central board composed of the governor, attorney-general and superintendent, and, in effect, vested in it the absolute power of control and direction of the local boards. The statute was a perversion of the provisions of the Constitution in the establishment of a public school system, which erected a central power unknown to the Constitution, de- structive of the constitutional rights of the local authorities, and a dangerous engine of political power." A. J. Sumt, Adm'r of Whitmore, v. The State, 48 Tex. 120; The State v. G. D. Kelley et al, 43 Tex. 667. § 825. Failure to designate levy by school districts only an irregularity. "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 Fifteenth Legislature, Ch. 80, pp. 89, 90. It appears, how- ever, from the sworn answer, that the one-sixth of one per cent levied on the county to pay indebtedness to teachers was in fact Schools and School Districts, 471 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 I5y the law; but under the averments of the sworn answer, we do not think that this irregularity entitled plaintiff to enjoin the col- lection 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." Texas & Pacific R'y Co. v. Harrison County et al., 54 Tex. 124. § 826. Action on part of city required. "The charter of El Paso (Sp. Laws 1889, p. 50), providing for a tax of one per cent to maintain public schools, and Act 1893 (Sp. Laws, p. 43), amending the charter by providing for a tax of two per cent for that purpose, do not form the city into an independent school district without action on its part in accord- ance with the statute." Conklin v. City of El Paso, 44 S. W. 880. § 827. Qualification of voter. "Rev. St., Art. 3942, referring to elections held in school dis- trict created by the commissioners' court under the provisions of Ch. 10, provides that 'all persons who are legal qualified voters of the state and of the county of their residence, and who are resi- dent taxpayers in said district, as shown by the last assessment rolls of the county, shall be entitled to vote in any such school districts.' Held, not intended to require any additional qualifica- tion to entitle a person to vote at an election to determine whether or not a tax should be levied for school purposes, to those pre- scribed by Const., Art. 7, Sec. 3, authorizing the levy, 'providing, that two-thirds of the qualified tax-paying voters of the district voting at an election to be held for that purpose shall vote such tax,' and that the clause, 'as shown by the last assessment rolls of said county,' merely designates a method of ascertaining who are taxpayers of a district, and does not restrict the right to vote at such election to those only whose names appear on the last assessment rolls of the county, as the next succeeding article provides that a voter may be challenged, and that he shall be entitled to vote if he swears that he is qualified, and is a resi- dent taxpayer in the district. 472 Taxation in Texas, "Rev. St., Art. 3998, in relation to territory incorporated for school purposes only, under Ch. 15, provides that no person shall vote at an election to levy a tax for school purposes unless he is qualified under the constitution and laws of the state and is a taxpayer in the incorporated district, and Const., Art. 7, Sec. 3, authorizes a levy, 'provided that two-thirds of the qual- ified tax-paying- voters of the district voting at an election to be held for that purpose shall vote such tax.' Held, that a voter is qualified thereunder, though his name does not appear on the last assessment rolls of the county preceding the election, pro- vided he owns property within the territory subject to taxation." Hillsman v. Faison, 57 S. W. 920, 23 Tex. Civ. App. 398. § 828. Bondholders necessary parties when. "The holders of bonds are necessary parties to an action to restrain a school district from levying a tax to pay interest on such bonds." Boesch v. Byrom, 83 S. W. 18, 37 Tex. Civ. App. 35. § 829. Irregularities will not restrain the collection of tax. "Where school trustees are declared elected, and they assume to act as such, the regularity of their election cannot be questioned in a collateral proceeding to restrain the levy of a tax voted by the district at an election, the call for which was participated in by such trustees. "An election by a school district to determine whether a tax should be levied and bonds issued, which is otherwise regular and valid, is not rendered invalid by the fact that the school trustees, whose election as such was irregular because residing in territory not then legally attached to the district, participated in calling the election to determine the tax question. "In the absence of a showing that school trustees did not act for the best interests of the district, their act of changing the location of the school building is no ground for restraining a levy of taxes ordered by the districf." Boesch v. Byrom, 83 S. W. 18, 37 Tex. Civ. App. 35. § 830. Sufficiency of notice to impose tax. "Under Sec. 31 of the Act and Const. Tex., Art. 7, Sec. 3, which authorized special elections within school districts upon the application of qualified tax-paying voters thereof, for the Schools and School Districts. 473 purposes of supplementing the school fund, or for the erection of school buildings, but fail to prescribe the form of notice of such election, the notice is sufficient if it appears therefrom that the election is to determine whether a tax shall be imposed for school purposes." Reynolds Land & Cattle Co. v. McCabe, 12 S. W. 165, 72 Tex. 57. § 831. Separate roll not necessary. "Under Sayles' Civil St., Art. 3733h, providing that the tax as- sessor shall assess and the collector shall collect district school taxes as other taxes, failure to comply with the further provi- sion that a separate tax roll shall be provided therefor, and entry thereof on the margin of the general state and county rolls, will not invalidate the tax." Rhomberg v. McLaren, 21 S. W. 571, 2 Tex. Civ. App. 391. § 832. Cannot establish lien when. Under Sayles' Civ. St., Art. 425a, providing that incorporated cities and towns may levy a school tax if such city or town is a separate and independent school district, an action to establish a lien upon real estate for unpaid school taxes cannot be main- tained by a city unless it is averred and proved that such city has been duly organized as a separate and independent school district." McCombs v. City of Rockport, 37 S. W. 988, 14 Tex. Civ. App. 560. §833. Defense— Not available. "Under Rev. St. 1895, Art. 86. Ch. 15, giving school boards full management and control of free schools within independent school districts, where taxes were duly levied by a board of school trustees for a special purpose, not including the payment of pre- existing indebtedness, it was no defense to such taxes assessed against the treasurer of the district that during a previous scholastic year he had paid out on vouchers issued by the board of trustees $135.57 more than he had received, which was more than the district's claim against him for taxes." Massie v. School Dist., 105 S. W. 821, 47 Tex. Civ. App. 349. § 834. Limitations on rate. "Const., Art. 7, Sec. 3, authorizes the creation of independent school districts by special act, and without legal notice required in other acts of special legislation, and authorizes an additional tax 474 Taxation in Texas. for the maintenance and erection of schools, provided that two- thirds of the tax-paying voters of the district, voting at an elec- tion held for that purpose, shall vote such tax not to exceed 20 cents on the $100 on the taxable property in the district, but that the limitation upon the amount of the district tax shall not apply to incorporated cities or towns constituting separate and independent school districts. The amendment to the Constitution adopted September 25, 1883, and superseding Art. 11, Sec. 10, of the Constitution, conferred authority on the Legislature to constitute any city or town a separate and independent school dis- trict. Held, that the creation of two district classes of independ- ent school districts was authorized : First, a class in which an in- corporated city or town may be included, together with contigu- ous territory outside of the limits of the city or town, in which district the trustees could levy a special tax, not to exceed 20 cents on the $100, provided that two-thirds of the tax-paying voters of the district voted such tax ; and, second, a class in which the limits of the school district were confined to those of a munici- pality, to which district the constitutional limitation of 20 cents did not apply, and hence a tax in a district of the first class, levied by the trustees, in excess of 20 cents on the $100, was void." Brelsford, Special Judge, dissenting in part. Cummins v. Gas- ton, 109 S. W. 476; Snyder v. School Dist., Ill S. W. 723. § 835. Incorporated city or town — Limitation of tax. "Const., Art. 7, Sec. 3, provides for an annual state tax of such an amount, not to exceed 20 cents on the $100 valuation, as, with other available school funds, will be sufficient to support the public free schools for not less than six months in each year, and that the Legislature may provide for the formation of school districts in counties and may authorize an additional annual ad valorem tax within such districts for school purposes upon vote of the taxpayers, not to exceed in any one year 20 cents on the $100 valuation, but that the limitation upon the amount of dis- trict tax shall not apply to incorporated cities or towns consti- tuting separate and independent school districts. Held, that an independent school district, incorporated for school purposes only, and embracing an incorporated town and rural territory, is not an 'incorporated city or town' within the Constitution, and hence not exempted from the restriction as to taxation therein, and. Schools and School Districts. 475 where it had previously voted a tax to the full amount permitted by the Constitution, it had exhausted its power to tax for school purposes, and an election held to determine whether an additional school tax should be levied was void." Jenkins v. DeWitt, 115 S. W. 610. § 836. Excessive levy — Curative act. "If Act March 5, 1907 (Sp. Laws, Ch. 18), creating the Tulia independent school district and authorizing the collection of a school tax to pay interest on bonds, and creating a sinking fund therefor in excess of the rate of 20 cents on the $100 in violation of Const., Art. 7, Sec. 3, makes the school district itself and its bonds invalid, nevertheless such organization and bonds are cured by amendment to Const., Art. 7, Sees. 3, 3a, making valid all districts theretofore created and their bonds." Hutchinson V. Patching, 126 S. W. 1107. § 837. School tax — City council must levy. "Acts 1900, p. 19, Ch. 7, Sec. 6, provides that in cities consti- tuting independent school districts, and where a special tax for school purposes has been voted by the people or fixed by special charter not exceeding one-half of one per cent, the board of trus- tees shall determine the amount of such taxes, within the limit voted by the people or fixed by special charter, which shall be necessary for the maintenance of the schools for the current year, and it shall be the duty of the city council, on the requisition of the school board, to actually levy and collect such tax. Such provision was re-enacted in express terms in Acts 1905, p. 308, Ch. 124, Sec. 168, and other provisions of the act provide for an election by the voters of an incorporated city to determine whether the city public schools shall be under the control of the city council or board of trustees, and in express terms confers on the board of trustees, when that method of administration is adopted, full control of the public schools within the city. Held, that where a city's schools were under the control of a board of trustees, and such board determined in its discretion the amount of taxes, within the authorized limit, which should be levied for the ensuing year, the city council had not discre- tion but to levy that amount certified." City Council of Crockett V. Board of Trustees, 9B S. W. 889, 44 Tex. Civ. App. 428. CHAPTER XL. INTEREST AND PENALTIES. Sec. Sec. 538. Constitution. 845. No right to charge interest 539. Banks. without authority. 840. Interest cannot be charged 846. State entitled to interest. before tax is due. 847. Taxes improperly enjoined. 841. From date of judgment — 848. Penalty after January 3j-St. Except. 849. Statute must provide for in- 842. Not usurious. terest. 843. Contract to pay taxes not 850. No interest without express usurious. provision. 844. Damages in dissolution of in- 851. Where part is illegal. junction. § 838. Constitution. Art. 16, Sec. 11 of the Constitution, regulates the interest to be charged only in cases of contract where no rate is agreed on, and does not apply to cases not arising on contract, nor prohibit the legislature from authorizing the collection of a higher rate upon delinquent taxes. G. & W. Ry. Co. v. City of Galveston, 96 Tex. 520 ; 74 S. W. 537. § 839. Banks. In an action to collect a delinquent occupation tax, levied under 2 Sayles' Civ. St., Art. 5049, Subd. 5, authorizing such tax on banks, it is error to allow interest thereon, as not authorized by statute. Brooks v. State, 58 S. W. 1033. § 840. Interest cannot be charged before tax is due. "The heirs are not necessary parties to an action to cancel a tax-deed by the executor and sole devisee, in which defendant files a plea in reconvention in the nature of a cross-action of tres- pass to try title ; Rev. St. Tex., Art. 1202, providing that in suits against a decedent's estate, involving title to realty, the administrator and heirs shall be made parties defendant. "A tax to the amount authorized by law becomes excessive where interest is charged before it is due, and, being partly illegal, a sale therefor is a nullity." Lufkin v. City of Galveston, US. W. 340, 7Z Tex. 340. Interest and Penalties 477 § 841. From date of judgment — Except. "There is no authority, that we are aware of, to allow interest upon taxes from the time they were due, as was done upon the trial of this case. Unless there be express provision in the stat- ute that interest shall be recovered upon the tax from the time when it should have been paid, the courts have no authority to allow such interest, and a judgment for the recovery of the tax should bear interest only from its date. Edmonson v. City of Galveston, 53 Tex. 157." McCombs v. City of Rock port, 37 S. W. 989, 14 Tex. Civ. App. 560. § 842. Not usurious. "The laws relating to usury pertain alone to obligations accru- ing out of contracts, and do not apply to obligations for the payment of taxes." Nolle v. City of Austin, 93 S. W. 141, 41 Tex. Civ. App. 423. § 843. Contract to pay taxes not usurious. "Where interest contracted for did not exceed 10 per cent, and it could not be determined that the amount of tax levies would make the interest and taxes exceed 10 per cent, a mort- gage securing the debt was not usurious on its face by virtue of a provision requiring the borrower to repay all money paid by the lender for taxes and assessments on the premises, or on the bond and coupons or notes, or any part thereof." Norris v. W. C. Belcher Land Mortg. Co., 82 S. W. 500. § 844. Damages in dissolution of injunction. It is proper to render judgment for ten per cent damages on the dissolution of an injunction restraining the collection of a tax. R. G. R. R. Co. V. Scanlan, 44 Tex. 649. § 845. No right to charge interest without authority. A judgment against the owner of property for taxes due a municipal corporation, giving ten per cent interest on taxes as- sessed for the time they were due, is erroneous, in the absence of authority allowing such interest conferred by statute or ordi- nance. Edmunson v. City of Galveston, 53 Tex. 158; Western Union Tet. Co. v. State, 55 Tex. 314; Cave v. City of Houston, 65 Tex. 619. 478 Taxation in Texas. § 846. State entitled to interest. The state is entitled to interest on such sum of money as a tax collector should pay into the treasury, from date when such payment should have been made. Dean v. State, 54 Tex. 313; Burnett v. Henderson, 21 Tex. 590; Borden v. Houston, 2 Tex. 598; Evans v. State, 36 Tex. 323. § 847. Taxes improperly enjoined. The proper measure of damages against one who improperly enjoins the collection of taxes is interest on the amount enjoined. Rosenberg v. Weekes, 67 Tex. 580. § 848. Penalty after January 31st. If any person shall fail or refuse to pay the taxes imposed upon him or his property by law until the 31st day of January next suc- ceeding the return of the assessment rolls of the county to the comptroller, a penalty of ten per cent on the entire amount of such taxes shall accrue, which penalty when collected shall be paid proportionately to the state and county. Laws 1897, Sec. 10, p. 136; Sayles' R. S., Sec. 5232j. § 849. Statute must provide for interest. Interest is not recoverable on taxes unless the statute so ex- pressly provides. Cave v. City of Houston, 65 Tex. 619. Laws 1897, Ch. 103, provide that subsequent purchasers of land previously sold to the state for taxes shall be liable therefor, and requires parties desiring to redeem to pay all taxes due, with interest from Jan. 1, 1885. Held, in case of Leogue v. State, that though there was no law authorizing the collection of interest on taxes on land sought to be recovered when they were levied, the imposition of interest thereon by such act was not violation of Const., Art. 1, Sec. 16, declaring that no retroactive law shall be passed, since the state had the power to waive its tax title, and in doing so could prescribe such terms as it deemed just. No attack was made upon the sale, nor upon any of the proceedings leading up to it, and it stands before the court, under the de- fendant's allegations, as a valid sale, by which title passed to the state. This conclusion is based upon the fact that the title in the state is perfect, and it is not intended to express an opinion on the question when the proof does not show this fact. Leogue V. State, 57 S. W. 34, 93 Tex. 553 ; League v. State, 56 S. W. 262. Interest and Penalties. 479 § 850. No interest without express provision. Unless there be express provision in the statute that interest shall be recovered upon the tax from the time when it should have been paid, the courts have no authority to allow such inter- est, and a judgment for the recovery of the tax should bear in- terest only from its date. McCombs v. City of Rockport, 14 Tex. Civ. App. 562; Edmondson v. City of Galveston, 53 Tex. 157. §851. Where part is illegal. "Where the items of taxes due in an assessment were divisible, the fact that a part thereof was illegal did not relieve the tax- payer from liability for the balance; and, failing to tender the same, he became liable to the interest and penalties allowed by statute." State v. Fulmore, 71 S. W. 418. CHAPTER XLI. RETROSPECTIVE AND EX-POST FACTO LAWS. Sec. Sec. 852. Omitted property. 856. Cannot prescribe retro-active 853. Levy. penalty. 854. iMode of procedure. 857. Remedy pending litigation. 855. Evidence. § 852. Omitted property. A city ordinance, in so far as it merely provided for the taxa- tion of omitted property, held not void as an ex-post facto law. Muir's Adnt'rs v. City of Bordstown, (Ky.) 87 S. W. 1096. § 853. Levy. Legislature may legalize the levy and assessment of taxes. Boardman v. Beckimth, 18 Iowa 292. § 854. Mode of procedure. The legislature has power to adopt and legalize the acts of a municipality, invalid because of irregularities merely in the mode of a procedure, when there was municipal jurisdiction of the subject-matter. 2 Desty on Taxation, 617; Tafft v. Buffalo, 82 N. Y. 202 ; Butler v. Saginaw Co., 20 Mich. 22. § 855. Evidence. Legislature has the authority to provide that a particular showing by a party shall make out in his favor a prima facie case. This it has full power to do, and it may make the rules which it prescribes apply to controversies previously in existence, even through retrospective legislation forbidden by the state constitu- tion. Cooley on Taxation, 298 ; Rich v. Flonders, 29 N. H. 304 ; Southwick V. Southwick, 49 N. Y. 510; Gihhs v. Gale, 7 Md. 76; Cotifen V. McCutcheon, 43 Miss. 207; Bales v. Wadsworth, 23 Me. 553 ; Dallas Title & T. Co. v. Oak Cliff, 27 S. W. 1039, 8 Tex. Civ. App. 217. The power of the Legislature to make certain facts prima facie evidence is sustained in following case: Penn. Co. v. McCann, 53 Ohio St. 127, 31 L. R. A. 651. Retrospective and Ex-post Facto Laws. 481 § 856. Cannot prescribe retroactive penalty. A municipal corporation cannot prescribe a retroactive penalty for neglect to pay taxes promptly, nor the right to prescribe any penalty unless expressly authorized to do so. City of San Anto- nio V. Raiey, 32 S. W. 180; Cave v. City of Houston, 65 Tex. 619; Insurance Co. v. Ray, 50 Tex. 511; Ryan v. State, 5 Neb. 276; State V. Mayor, etc., 8 Vroom 39. § 857. Remedy pending litigation. A city passed an ordinance directing suit to be brought for taxes due when the suit had already been filed. The Court of Civil Appeals held that legislation affecting remedies applies to pending litigation, and that the most that could be legitimately contended for was that the suit was prematurely brought, which contention would involve merely a question of costs. Trust Co. V. City of Oak Cliff, 81 C. A. 220. 31 CHAPTER XLII. EFFECT OF REPEAL OF TAX LAWS. Sec. Sec. 858. Whether taxes are to be col- 860. Deed. lected by law enforced at 861. Retroactive law taking away the time of levy and if re- any right unconstitutional, pealed and when by subse- 862. Redemption, quent legislation. 863. Repeal of former law. 859. City's rights under repealed charter. § 858. Whether taxes are to be collected by law enforced at the time of levy and if repealed and when by subse- quent legislation. The repeal of former tax laws did not relinquish the right of the State to recover taxes previously levied but not collected. Clegg V. State, 42 Tex. 605 ; Harrington v. Galveston Co., 1 App. Civ., Sec. 794. - Taxes levied under a certain act are still to be collected under the remedies provided for in that act, unless there is an express provision in the subsequent act. Harrington v. Galveston Co., 1 App. Civ., Sec. 794. In general, when a tax system is revised, with a repeal of the former law, it is safe to assume that the legislative intent is that the new enactment shall be of retrospective force only, and shall not disturb existing valid assessments. Cooley on Taxation, p. 18 and note 1 ; Meyers on Vested Rights, 1447 and 1448. Where taxes are levied under a law which is repealed by a subsequent act, unless it appears clearly that the Legislature intended the repeal to work retrospectively, it will be assumed that it intended the taxes to be collected according to the law in force when they were levied. Oakland v. Whipple, 44 Cal. 303 ; Auditor-General v. Supervisors, 36 Mich. 70 ; Finn v. Haynes, 37 Mich. 63; Gerry v. Stoneham,, 1 Allen 319; Conway zk Coble, 37 111. 82. In McPhail v. Burris, 42 Tex. 146, our Supreme Court held that : "The law making the assessor's deed prima facie evidence Effect of Repeal of Tax Laws. 483 that all the prerequisites to the exercise of the power to sell the land for taxes had been complied with, was enacted long subse- quent to the sale of the land by the assessor and the execution of the deed here in question. To give this subsequent statute application to this deed and thereby vary and enlarge its legal import from that which it had when enacted would bring the law in conflict with that provision of the Constitution which forbids the passage by the Legislature of retroactive laws." The repeal of a tax law can not affect rights which have be- come vested under the repealed law. Thompson v. Common- wealth, 81 Pa. St. 314. The repeal of a law under which a tax is levied, after it is laid, does not discharge the lien of the tax. Gardenshire v. Mitchell, 21 Kan. 83 ; State v. Waterville Savings Bank, 68 Me. 515. Presumptively, tax laws are to have a prospective operation only, and the remedies they provide for collection will not be applied to taxes previonsly laid, unless an intent that they shall be is clearly manifest. 1 Desty on Taxation, p. 104 and notes 4 and 5. Local laws or special laws shall not be held repealed except by dearly indicated purpose on the part of the Legislature. A second law without a repeal clause or negative words does not repeal a former one unless its provisions are so clearly repugnant as to imply a negative. A subsequent act does not repeal a prior act unless there is a clear and strong inconsistency between them. 1 Desty on Taxation, p. 105 ; Cooley on Taxation, p. 294; Welsch V. Cook, 97 U. S. 543 ; Beals v. Hale, 4 How. 37 ; Ex parte Yeger, 8 Wall. 85 ; Commontvealth v. Erie R. Co., 98 Pa. St. 133 ; United States V. Taylor, 104 U. S. 2\6;Pons v. State, 49 Mich. 1. § 859. City's rights under repealed charter. "A city's right to taxes levied under a former charter is not impaired by a subsequent charter repealing all former charters, without a saving clause as to rights accruing thereunder." Ben- nison v. Galveston, 78 S. W. 1089, 34 Tex. Civ. App. 382. "The right to recover interest upon delinquent taxes given by the former charter of the city of Galveston was not repealed by Sec. 93 of the act granting its new charter (Laws 27th Leg., p. 145). Sections 1, 54 and 60 of the new charter preserved such 484 Taxation in Texas. right under the former one. If the new charter of the city of Galveston be held void because of the unconstitutionality of the commission feature therein, the repealing clause fell with it, leaving the former charter in force and the rights of action given the city thereby maintainable." G. & W. Ry. Co. v. City of Galveston, 96 Tex. 520, 74 S. W. 537. "Act April 3, 1879, providing that the mayor shall, upon the application of not less than 50 qualified electors of a city, call an election upon the question as to whether the city shall assume control of schools, and whether such control shall be by trustees or the council, together with Rev. St. 1879, Final Title 20, which provides that no law of the present session shall be affected by the repealing clause therein, and that laws in conflict therewith shall be the law of the State notwithstanding the act, super- seded Rev. St. 1879, Arts. 3781, 3782, providing that the council shall, upon the application of 20 taxpayers, call an election upon the question of assuming control of public schools, in so far as the method of assuming control of schools is concerned;' and hence a city acting under the latter law, after Act April 3, 1879, was passed, obtained no authority to control public schools or levy taxes for their support." Conklin v. City of El Paso, 44 S. W. 879. § 860. Deed. "The Act of February 5, 1842 (Hart. Dig., Art. 3057), to amend an act entitled an act to raise a revenue by direct taxa- tion, enacted that where land was sold for taxes, the tax col- lector should give the purchaser a certificate, and that if the land was not redeemed within one year, the tax collector, or his successor in office, should make to the purchaser a quit-claim deed, etc.; the Act of May 13, 1846 (Hart. Dig., Art. 3106), contained no provision respecting taxes previously levied, nor respecting cases where certificates of purchase were outstanding, and contained no words of repeal, but provided that where sales were afterwards made the deed should be delivered immedi- ately. Held, that the assessor and collector under the State was the successor of the tax collector under the republic, but that the latter act substituted new and different provisions from those embraced in the former, comprehending the entire subject- matter and of course effected an entire repeal of it, and that Effect of Repeal of Tax Laws. 485 therefore the assessor and collector had no authority to make a deed to a purchaser from his predecessor, the tax collector under the law of 1842, on presentation of a certificate, etc." Bryan v. Harvey, 11 Tex. 312. § 861. Retroactive law taking away any right unconstitu- tional. "Const. Tex., Art. 1, Sec. 16, providing that *no bill of at- tainder, ex-post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made,' was intended to pro- tect every right, although not strictly a right to property, which might accrue under existing laws prior to the passage of any law, which, if permitted a retroactive effect, would take away such rights." Mellinger v. City of Houston, 3 S. W. 249, 68 Tex. Z7. § 862. Redemption. "A tax sale and the rights acquired thereunder are to be de- termined by the law in force at the time of the sale." Bente v. Sullivan., 115 S. W. 350. § 863. Repeal of former law. "The repeal of former tax laws did not relinquish the right of the State to recover taxes previously levied, but not collected." Clegg V. State, A2 Tex. 605 ; Harrington v. Galveston Co., 1 App. Civ. 794. In g-eneral, when a tax system is revised with a repeal of the former law, it is safe to assume that the legislative intent is that the new enactment shall be of prospective force only and shall not disturb existing valid assessments. Cooley on Taxation, p. 18 and note 1 ; Meyers on Vested Rights, 1447 and 1448. CHAPTER XLIII. ADVERSE POSSESSION. Sec. Sec. 864. Statutory provision. 884. 865. Tax deed. 866. Must pay taxes. 885. 867. Payment of taxes not posses- sion. 886. 868. Presumptive possession. 869. Payment of taxes under for- feited survey. 887. 870. Pleading possession. 888. 871. Limitation. 872. Possession under void deed extends to what. 889. 873. Payment of taxes by ttiird 890. person. 891. 874. Void deed will not support limitation. 892. 875. Tract inclosed with others and use of part. 893. 876. Cannot establish title by pay- ment of taxes — When. 894. 877. Invalid tax dee/3 will not support limitation. 895. 878. Must prove payment of taxes on all of tract claimed. 896. 879. Tax roll evidence of pay- ment. 897. 880. Tax deed not good under three years statutes — When. 898. 881. Tax deed must describe prop- erty. 899. 882. Redemption period — Not nec- essary to re-register after such period. 900. 883. In whose name to be assessed. 901. Description of taxes — Failure to pay taxes. Only title of owner at time of sale passed. Payment shown without evi- dence of assessment. Tax deed will not support limitation — When. Not entitled to hold against purchaser at tax sale — When. Not interrupted by tax suit. Description in assessment. Land must be defined. Must pay taxes to acquire ti- tle under five-years statute of limitation. Presumption of for whom paid. Voidable judgment to show three years limitation. Tenant and landlord. Payment of taxes no proof of possession. Payment of taxes on land different from location in deed. Failure to pay taxes weakens claim on land. Possession not adverse during time allowed for redemp- tion. Undivided interest. Tax deed will support statute of limitation. § 864. Statutory provision. The statute provides: Every suit to be instituted to recover real estate as against any person having peaceable and adverse possession thereof, cultivating, using or enjoying the same and Adverse Possession. 487 paying- taxes thereon, if any, and claiming under a deed or deeds duly registered, shall be instituted within five years next after the cause of action shall have occurred and not afterward. R. S. 1895, Art. 3342. It is well settled that the payment of taxes and possession must concur. Snozv'den v. Ruch, 76 Tex. 197, 13 S. W. 189; Wall V. Club Land & Cattle Co., 88 S. W. 535. R. S. 1895, Art. 3342, declares that actions to recover real estate as against one having adverse possession and paying taxes and claiming under a duly registered deed shall be instituted within five years. Held, that where a deed under which a party claimed purported to convey an entire interest and the claim under the statute of limitation was the same, nothing less than the payment of all taxes for all the years would satisfy the statute. Wall v. Club Land & Cattle Co., 88 S. W. 535. § 865. Tax deed. All the successive steps of proving that the taxes were duly assessed and other matters which would show that a lawful sale of the land was made must be before a tax deed will sup- port the three years' statute of limitation. Lomberida v. Bar- wum, 90 S. W. 700; Telfener v. Dillard, 70 Tex. 140, 7 S. W. 847, 70 Tex. 139; Gillaspie v. Murray, 66 S. W. 252, 27 Tex. Civ. App. 580. A tax deed is a deed within the meaning of Art. 2193, R. S. 1879 (Art. 3342, R. S. 1895), and will support the plea of limi- tation of five years without proof of the prerequisite necessary to authorize the sale of the land for taxes. Lamberida v. Bar- num, 90 S. W. 700; Woffard v. McKinna, 23 Tex. 36; Schleicher V. Gatlin, 85 Tex. 270, 20 S. W. 120; Gillaspie v. Murray, 66 S. W. 252, 27 Tex. Civ. App. 580. § 866. Must pay taxes. The five-year statute of limitation does not apply, where those claiming thereunder fail to show a deed of record or a payment of taxes. Watts v. Bruce, 72 S. W. 258. § 867. Payment of taxes not possession. The payment of taxes on vacant lands by one who has not the legal title thereto is evidence of an assertion of title, but is not equivalent to possession. Texas Train & Lumber Co. v. Gwin, 67 S. W. 892, 29 Tex. Civ. App. 1. 488 Taxation in Texas. § 868. Presumptive possession. Payment of taxes is presumptive evidence of possession. Jack- son V. Deslonde, 1 U. R. C. 674, 691. § 869. Payment of taxes under forfeited survey. "Where a survey under a bounty warrant became void and was forfeited, after which a railroad company had the land surveyed under a valid certificate, payment of taxes prior to such latter survey was insufficient to start the five-year statute of limitations ; no taxes being legally due until the succeeding March after the railroad company's survey, and the land being state property after forfeiture of the survey on the bounty war- rant. "Where a survey of land under a bounty warrant to J. was forfeited, and the land was thereafter surveyed and located under a railroad certificate, payment of taxes after such sub- sequent location on the 'J. certificate' was insufficient to support a title under the five-year statute of limitations." Bond v. Gar- rison, 127 S. W. 839. § 870. Pleading possession. "An allegation that one held land under a tax deed is equiva- lent to alleging that he was in possession." Hamnwns v. Clwer, 127 S. W. 889. § 871. Limitation. "Rev. St., Art. 3193, providing for a limitation of five years where one in possession claims 'under a deed or deeds duly reg- istered,' does not apply to one who claims under a deed which is void on its fact. Stayton, C. J., dissenting. "A tax deed is admissible for defendant in trespass to try title in support of a plea of the five years' statute of limitations, as well as of improvements made in good faith, without proof of the levy of the tax and the usual prerequisites to a sale for taxes." Schleicher v. Gatlin, 20 S. W. 120, 85 Tex. 270. § 872. Possession under void deed extends to what. Plaintiff having entered under a deed duly registered and de- fendant under a tax deed which is void on its face, the possession of the latter is confined to its actual occupancy, and notwith- standing the entry of defendant, plaintiff may acquire title by ad- Adverse Possession. 489 verse possession to all the land not within the limits of defend- ant's actual occupancy under Rev. St. Tex. 1879, Art. 3193, limiting to five years actions to recover real estate as against any person having peaceable and adverse possession and cultivating, using, or enjoying the land, and paying taxes," if any, and claiming under a deed duly registered." Claiborne v. Elkins, 15 S. W. 395, 79 Tex. 380. § 873. Payment of taxes by third person. "Payment of taxes by a third person for one who claims by adverse possession is the same as payment by the claimant." Mariposa Land & Cattle Co. v. Sillimmt, 27 S. W. 773. § 873a. Payment on wrong tract of land. "Where there was no conflict in the original location of the adjoining surveys, C. and D., but thereafter the surveyor, in running out the boundaries and subdividing for sale the C. sur- vey, by mistajce located and marked one of its boundaries on the D. survey, and with reference to such boundary so marked on the ground a deed was made to plaintiff, purporting to convey 630 acres of the C. survey next to such boundary, payment by plaintiff of taxes assessed against such 630 acres as part of the C. survey is not payment of taxes on part of the D. survey so in- cluded in the description, so as to aid his adverse possession thereof." Hoehn v. House, 31 S. W. 83. § 873b. Not necessary to perfect title after period has already expired. "Where the taxes for a year do not become due and payable until after the period necessary to perfect title under the five years' statute of limitations ends, title becomes perfect under the statute without payment of the taxes for that year." Hal- bert V. Brown, 31 S. W. 535, 9 Tex. Civ. App. 335. § 874. Void deed will not support limitation. "A tax deed void on its face for ambiguity of description will not support the plea of five years' limitation." Crumbley v. Busse, 32 S. W. 438, 11 Tex. Civ. App. 319. § 875. Tract inclosed with others and use of part. "To sustain a claim of adverse possession, under the five years' statute, to a tract inclosed with others into one pasture, it was 490 Taxation in Texas. not necessary to show payment of taxes on, or deed for, any other of the tracts inclosed in the pasture. "The.inclosure and use of part of a tract are sufficient to sus- tain an adverse claim to the entire tract under the five years' statute." Brown v. O'Brien, 33 S. W. 267, 11 Tex. Civ. App. 459. § 876. Cannot establish title by payment of taxes when. "Where one purchased a stated number of acres in a given sur- vey adjoining another, and it was conveyed to him by metes and bounds, both the grantee and the owner of the adjoining survey supposing that the boundary given in the deed was the bound- ary between the surveys, such grantee cannot, by the payment of taxes on the number of acres called for in his deed, establish an adverse possession 'of a portion of such adjoining survey." Hull V. Woods, 38 S. W. 256, 14 Tex. Civ. App. 590. § 877. Invalid tax deed will not support limitation. "The defendant having failed to make the required proof, his t^x deed was rightly held not to confer on him a valid title to the land in controversy. Was the possession acquired under it a possession in good faith? We think clearly not. He cannot be a possessor in good faith who acquires the possession from one who had no power to give it, if he either knew, or by the use of proper diligence might have known, the want of power in his vendor. He who assumes the authority to sell the land of another must produce his power of attorney, and he who (308) buys from an agent must look to his authority ; because he is not the apparent owner, and his right to sell depends on the existence and validity of the power under which he assumes to act. This the purchaser must look to at his peril, and he cannot protect his purchase as an act of good faith towards the real owner, known to be such, on the ground that he believed the pretended agent had authority vy^hen, by an examination of the act or acts relied on as conferring the authority, he might have known that he had not. It cannot be good faith towards the real owner to take and assert adverse possession of his property under one whom he either knew or by the use of reasonable diligence might have known had no authority to dispose of it. A possessor by pur- chase at a sheriff's sale surely could not claim to be a possessor Adverse Possession. 491 in good faith if the sheriff's deed was unsupported by a judg- ment and execution conferring on him the authority to make the sale." Robson v. O shorn, 13 Tex. 307. § 878. Must prove payment of taxes on all of tract claimed. "When a registered deed is introduced to sustain the plea of the statute of limitations of five years, the party claiming under it must prove the payment of the taxes for that term upon the whole of the land specified in the deed." Kelly v. Medlin, 26 Tex. 48. § 879. Tax roll evidence of payment. In an action to recover possession of land, upon the ground of plaintiff's use and occupancy and payment of taxes thereon for more than five years, evidence that the land was assessed for taxation against plaintiff, and the tax roll marked "paid" for three years, and that it was the invariable custom of the tax col- lector, when taxes were paid, to so mark on the roll, did not show, but rather tended to repel, the fact of payment for the other two years." French v. Olive, 3 S. W. 568, 67 Tex. 400. § 880. Tax deed not good under three years statutes when. "A grantee of a tax title, though it be over 40 years old, who did not enter under the tax title until nearly 40 years after the execution of the deed, and then only for the purpose of cutting timber, is not entitled to hold under the Texas three years' statute of limitations, without proof of compliance with the law demanded in case of tax titles." Telfcner v. Dillard, 7 S. W. 847, 70 Tex. 139. § 881. Tax deed must describe property. "A tax deed, which is so defective as, on its face, to describe no land, and to leave it uncertain whether the lines could be so run as to contain the quantity called for, is not a 'deed' within the meaning of the five years' statute of limitations, and one claiming under it can obtain no title thereby." Harber v. Dyches, 14 S. W. 580. § 882. Redemption period, not necessary to re-register after such period. "Although the registration of a tax deed before the expira- tion of the period of redemption does not make it a muniment of 492 Taxation in Texas. title, or render it available as a basis of possession, under Rev. St. Tex., Art. 3193, which prescribes a limitation of five years in favor of one claiming under a deed 'duly registered,' yet, upon the expiration of the redemption period, such prior registration becomes good, and a new registration is not required." Davis V. Hurst, 14 S. W. 610. § 883. In whose name to be assessed. "A person in adverse possession is entitled to render it for taxation in the name of the person for whom he was holding, or in his own right when holding for himself, in compliance with Rev. St. 1895, Art. 3342, requiring the payment of taxes during the continuance of possession, in order to establish a claim of title by adverse possession in five years, though other persons claiming the same land might at the same time pay taxes thereon." Thom- son V. Weismmi, 82 S. W. 503, 98 Tex. 170. § 884. Description of taxes — Failure to pay taxes. A party claiming title by limitation for five years under a recorded deed, read in evidence his tax deed conveying "one thousand one hundred and seven acres of land taken from the league of land originally granted to John Toole, lying and being in the country of San Patricio, on the Popalotte, and more particularly designated as that part of said league of land claimed and held by Thomas Redmond." The land in controversy was not part of a league granted to John Toole, but was a separate survey of one thousand one hundred and seven acres granted to him. Held: The deed did not describe the land in controversy with that clearness and certainty requisite to meet the rigid requirements of the five years' statute of limitations. A failure to prove payment of taxes for any year of the five years' possession under a deed recorded will be fatal to the defense of limitation under the five years' statute. The mere failure of the real Owner of land to pay taxes, or his laches or delay in bringing suit for its recovery against an ad- verse claimant, will not defeat his action, when there has been no actual adverse possession for a sufficient length of time to support a plea of limitations. Murphy v. Welder, 58 Tex. 235. Adverse Possession. 493 § 885. Only title of owner at time of sale passed. An action of trespass to try title to certain lots, bought at a sale for taxes due on them, was against persons holding them under claim of right. The defendants pleaded the ten years' statute of limitation. Held : (1) That if the tax deed was valid, and any title passed, it was only such as the real owner of the land had at the time of the sale. (2) That such a purchaser stands in relation to persons in possession under claim of right, but with no title, just as the real owner would stand had there been no sale. (3) That if there had been no tax sale, and the suit had been instituted by the real owner at the time it was, if his right of action would have been barred by the statute of limitation, so would that of the purchaser at tax sale, or those holding under him. Jordan v. Higgins, 63 Tex. 150. § 886. Payment shov/n without evidence of assessment. Proof of the payment of taxes, in support of a plea of limitation, is admissible, without reference to whether the land was duly as- sessed for taxes or not. Haskins v. WaUet, 63 Tex. 214. § 887. Tax deed will not support limitation when. • A tax deed, void for uncertainty, or not purporting to con- vey the land to which the plaintiff has proved title, does not af- ford defendant a basis "of five years' limitation. (Following W afford v. McKenna, 23 Tex. 36.) Berrendo Stock Co. v. Kaiser, 66 Tex. 352. § 888. Not entitled to hold against purchaser at tax sale when. "Const., Art. 8, Sec. 15, provides that the annual land assess- ment shall be a specific lien, and that all property, real and per- sonal, belonging to any delinquent taxpayer, shall be liable to seizure and sale for the payment of all taxes and penalties due by the delinquent, and may be sold for the payment of taxes and penalties under legislative regulations. Sayles' Ann. Civ. St. 1897, Art. 5086, declares that all taxes on real property shall be a lien thereon until paid; and Art. 3351, relating to limitations, provides that the right of the state shall not be barred by any provisions of that chapter. Held, that where defendants, in ad- verse possession of certain land, had not been in possession for 494 Taxation in Texas. the 10 years required to confer title when the State instituted suit to foreclose its lien for unpaid taxes, so that they were not proper parties to such action, they were still bound by the judgment, thought not served with notice, as provided by Sayles' Ann, Civ. St. 1897, Art. 5232o, and hence were not entitled to hold the land as against the purchaser from the State and those claiming under him." Patton v. Minor, 125 S. W. 6. § 889. Not interrupted by tax suit. "The running of the statute of 10 years' limitation in favor of one in adverse possession of land as against the true owner is not interrupted by the foreclosure of a tax lien and a sale there- under." Sellers v. Simpson, 115 S. W. 888. § 890. Description in assessment. "There was no payment of taxes on certain land, necessary to give title thereto by adverse possession under the five-year stat- ute, where the description in the assessment was of other lands." Sharpe v. Kellogg, 116 S. W. 401; Loftin v. Miller, 118 S. W. 913. § 891. Land must be defined. "A claim of title to land claimed under a deed based on the five-year statute of limitations cannot be maintained where for some of the years making up the period taxes were paid on some undefined part of the land." Hoencke v. Lomax, 119 S. W. 842. § 892. Must pay taxes to acquire title under five years statute of limitation. "Must pay taxes to acquire title under five-year statute of limi- tations." Barrera v. Guerra, 122 S. W. 902. § 893. Presumption of for whom paid. "It is presumed, in trespass to try title to land claimed by ad- verse possession, that one residing on land under a deed thereto, and who is admitted to have paid the taxes, paid them for himself and not for another." Merriman v. Blalack, 122 S. W. 403. § 894. Voidable judgment to show three years limitation. "Though a tax judgment was voidable, it was admissible in evidence in behalf of purchasers at a sale thereunder in support of the three-year statute of limitations." Carr v. Miller, 123 S. W. 1158. Adverse Possession. 495 § 895. Tenant and landlord. "Where a tenant purchased the leased land at tax sale, it was necessary to set the statute of limitations running in its favor under such claim that it should repudiate its tenancy by notice to the landlord." Bryson & Ha/rtgrove v. Boyce, 92 S. W. 820, 41 Tex. Civ. App. 415. § 896. Payment of taxes no proof of possession. "Proof that a person for 11 years paid taxes on a tract of land raises no presumption of possession by him of the land." Lutcher v. Allen, 95 S. W. 572, 43 Tex. Civ. App. 102. § 897. Payment of taxes on land different from location in deed. "One pays taxes on the J. survey, so as to give title under the five-year statute, his receipts from the tax collector so stating though such survey is not where the patent and deed under which he claims show it to be located." Tarbrough v. Moody, 106 S. W. 891. § 898. Failure to pay taxes weakens claim for land. "Where, in trespass to try title involving a disputed boundary, defendant pleaded limitations, the fact that those under whom he claimed knew that the land in dispute was not a part of their tract according to survey, and it was not assessed nor taxes paid by them, weakened the claim of adverse possession, and the court did not err in refusing to instruct that such facts should not be considered." Hunter v. Malone, 108 S. W. 709. § 899. Possession not adverse during time allowed for re- demption. "The possession by a purchaser of land sold for taxes is not adverse to the owner during the two years from the execution of the deed within which the land may be redeemed, and limitations do not begin to run against the owner before the expiration of the redemption period." Beatty v. O'Harrow, 109 S. W. 414. § 900. Undivided interest. "As regards the question of acquisition of title to an undi- vided interest by adverse possession under the five-year statute, the deed under which one held possession having shown on its face that it was intended to cover a certain undivided interest. 496 Taxation in Texas. his payment of taxes on the land will be ascribed to such inter- est." Yarborough v. Whitman, 110 S. W. 471. § 901. Tax deed will support statute of limitation. "But we do concur in the opinion that because it is the deed of the assessor and collector of taxes, it is necessarily wanting in these requisites. Such a deed may be as valid and effectual to vest a title in the grantee as a patent from the government. If all the requirements of the law necessary to confer on the officer the power to sell have been strictly complied with, the sale and conveyance, if regularly made in pursuance of the power, will vest in the purchaser a good title. The difficulty in this class of titles is in proving the regularity of the proceedings necessary to confer the power, which are conditions precedent to its exer- cise. But it does not follow that the conveyance is not a deed because the power of the agent is not produced; the production of the power is necessary to give effect to the deed, and render it operative to pass the title, but not to constitute it a deed. A sheriff's deed is inoperative without proof of his power to sell ; it is no evidence of title, without the production of the judgment and execution. And so of every conveyance executed by an agent or attorney in fact; the production of the power is nec- essary to complete the evidence of title. But it cannot be said that the conveyance is not a deed until the power is produced. If the power must be shown, then a defendant must not only have a deed, but a title good in itself, before he can claim the protection of the statute. Such manifestly was not the intention of the law. It will scarcely be denied that a party holding under a sheriff's deed might claim the protection of the sixteenth sec- tion of the statute, and it is not perceived that, as respects this question, there is any difference between such a deed and that of the tax collector. The validity of each depends equally on the power of the officer. (Robson v. Osborn, 13 Tex. 208.) But it can not be said that the deed is void on its face or that it is not a deed until the power is produced." Wofford v. McKinna, 23 Tex. 43; Flmiagan v. Boggess, 46 Tex. 331, CHAPTER XLIV. LIMITATION. Sec. 902. State law. 903. State and county taxes not barred since 1876. 904. City of Houston. 905. A retroactive law of limita- tion. 906. State and county taxes not barred. , 907. Four years' limitation of ac- tions. 908. Limitation against action for taxes — Applies to municipal corporation and purchaser. 909. Suit to recover land sold for taxes. 910. Repeal of act not a bar to limitation. Sec. 911. Constitutional law, releasing debt to city. 912. Constitutionality of revoca- tion law of limitation. 913. Installments on bonds barred in four years. 914. Reasonable time allowed af- ter pasisage of limitation act in which to file suit. 915. Time act repeal not to be computed. 916. Mere lapse of time no de- fense. 917. Limitation of action for money paid under protest. § 902. State law. 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 in any county, city or state. Sayles' R. S., Art. 5212b. This article is the same as Section 16 of the Act of July 4, 1879, which it seems was omitted from the Revised Statutes of 1895, which went into effect September 1, 1895. There was, therefore, no law on the subject from September 1, 1895, to October 9 fol- lowing, the date of the passage of the above article. See Her- nandez V. City of San Antonio, 39 S. W. 1022. § 903. State and county taxes not barred since 1876. The 16th section of the Act of July 4, 1879, General Laws, Special Session 1879, provides that 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 32 498 Taxation in Texas. of any taxes due from him or her either to the state, or any county, city or town. Taxes due for the years 1875 and 1876 were barred at the time the Act of July 4, 1879, was passed, but the taxes due since then are not. Mellinger v. City of Houston, 68 Tex. Z7. § 904. City of Houston. Since 1897, the charter of the city of Houston has contained the following provision : "Any delinquent taxpayer shall have the right to plead in any court and to rely upon the statutes of limitation of four years in any suit for taxes alleged to be due the city of Houston." The power of the legislature to fix a period of limitation to suits by a city for the collection of taxes -is un- questioned, and the above provision of the charter of the city of Houston, except as it applied to suits pending at the time it was passed, and with the qualification that a reasonable time would be allowed the city in which to institute suits for taxes due prior to its passage, has been expressly upheld. Ollivier v. City of Houston, 93 Tex. 201, 54 S. W. 940, 943; Link v. City of Hous- ton (Tex. Civ. App.), 59 S. W. 566; Link v. City of Houston (Tex. Sup.), 60 S. W. 664. This suit was brought in 1902, and, as before stated, the charter provision fixing four years as the limitation to suits by the city for the collection of delinquent taxes was passed in 1897. Under these facts no issue of whether the city had had reasonable time after the passage of the charter to bring suit for taxes due at the time the charter was passed was raised, and the trial court should have held plaintiff's suit barred for all taxes due four years prior to the filing of the petition. Neither of plaintiff's pleas in avoidance of the defendant's plea of limitation alleged facts sufficient to suspend the running of the statute. The fact that John S. Stewart, the son and general agent of defendant, was attorney for the city from 1892 to 1900, and as such attorney failed to bring suit against the defendant for the recovery of taxes due by her to the city, could not estop defendant from pleading the statute of limitation. There is no allegation of fraud or collusion between the defendant and the city attorney. The city was charged with notice of the fact that the taxes were due and suits were not brought, and it was not prevented by any act of the defendant or her said agent from bringing suits for the taxes due it by defendant. The plea that Limitation. 499 the application of the statute of limitation would affect the rights of the bondholders who are not parties to this suit is equally with- out merit. As before stated, the city in all matters relating to the collection and preservation of the fund provided for the pay- ment of its bonded indebtedness is the representative of, and trustee for, the bondholders, and the right of the bondholders against the taxpayer must be enforced through the city. When the right of the city to enforce the collection of the tax becomes barred, that right is necessarily barred against the bondholders. City of Houston v. Stezmrt, 90 S. W. S3, 40 Tex. Civ. App. 499. § 905. A retroactive law of limitation invalid. In the above cited case of Mellinger v. City of Houston, 68 Tex. 37, in construing .the 16th section of the Act of July 4, 1879 (General Laws, Special Session 1879, p. 15), which denies to any taxpayer the right to plead in any court, or in any manner to 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 to any county, city or town, it was held, that: "That clause of the state constitution which provides that no retroactive law shall be made, was intended to impose a broader restriction on legislative power than could exist in its absence. It protects the citizen in every legal right existing before the enactment of any law designed to retroact and deprive him of it ; and this whether the right to property or not. A right in a legal sense exists when in consequence of given facts the law discloses that one person is entitled to enforce against another a claim, or to resist the enforcement of a claim urged by another. When by virtue of law a defendant may plead and show an existing state of facts which would defeat the plaintiff's right to recover, then a protecting right against the plaintiff's demand exists. Such a right is fixed and vested, and in view of the constitutional pro- vision against retroactive law can not be divested by legislation. The said constitutional provision protects a plaintiff in the en- forcement of every right, recognized and fixed by law against retroactive legislation. Prior to the Act of July 4, 1879, limita- tion would run against the right of a municipal government to en- force the collection of taxes, and if the bar was complete in favor of the delinquent taxpayer before the adoption of that act, the right to rely on limitation as a defense was an existing right. 500 Taxation in Texas. which could not be defeated by any retroactive force of that act. The general statutes of limitation do not exempt municipal corporations from their operation, and the courts have no power to do so upon mere grounds of expediency, or to avoid seeming hardship. Mellinger v. City of Houston, 68 Tex. 41 ; Galveston V. Menard, 23 Tex. 408 ; H. & T. C. Ry. Co. v. Travis Co., 4 Tex. Law Review 22. § 906. State and county taxes not barred. The codifiers of the Revised Statutes of 1895 omitted the Act of July 4, 1879, which prohibited the statute of limitation being plead as a defense to the payment of taxes in compiling the Re- vised Statutes, but at the first called session of the 24th Leg- islature, Otcober 9, 1895, the identical act of 1879 was re-enacted, which took eflfect immediately upon its passage (Gen. Laws, 1st Called Session 24th Legislature, p. 6). Then, if it could be said that limitation would run against the state when the statute is silent upon the subject it could only run from the time the Re- vised Statutes took effect to the time the law was re-enacted, from September 1 to October 9, 1895. This is true, also, as to claim for county taxes, or cities and towns incorporated under the gen- eral law, and cities which are not effected by some special pro- vision of their charters. The period during which the statute was silent was not sufficient to create a bar, and there was therefore no vested right. Hernandez v. City of San Antonio, 39 S. W. 1022; Ahney v. State, A7 S. W. 1043, 20 Tex. Civ. App. 101. We believe both acts of 1879 and 1895 had a prespective effect, and should be applied to all taxes then due and thereafter accru- ing for which' suits might afterwards be brought. In the emer- gency clause of the act of 1895, cited as a reason why the act should take effect at once, it is stated that "whereas there is now no law in this state to prevent delinquent taxpayers from set- ting up the statute of limitation as a defense against the payment of any taxes due," etc. Doubtless this declaration referred to the short period above mentioned, when the statute was not in force, and it is a legislative construction of the law as to that period but certainly it is not for the time when the act was in force. Ahney v. State, A7 S. W. 1044, 20 Tex. Civ. App. 101 ; Mellinger V. City of Houston, 68 Tex. 42, 3 S. W. 249. Limitation. , 501 § 907. Four years limitation of actions. To suspend the running of limitations so as to permit an attack on a judgment for taxes after the expiration of four years there must not only have been fraud in obtaining the judgment, but it must have been coupled with such concealment of the fraud as to prevent the attacking party from ascertaining the fraud by the use of reasonable diligence Dunn v. Taylor, 94 S. W. 347, 42 Tex. Civ. App. 241 ; Mnnson v. Hallowell, 26 Tex. 475 ; Ry. Co. V. Gay, 86 Tex. 571, 26 S. W. 599. § 908. Limitation against action for taxes — Applies to mu- nicipal corporation and purchaser. The statute of limitations will run against a municipal corpora- tion, to operate as a bar to the collection of city taxes, when the defense thereunder is not expressly taken away by statute. The taxes act of July 4, 1879 (Sp. Sess. Tex. 1879, Gen. Laws, p. 15), providing "that no delinquent taxpayer shall have the right to plead in any court, or in any manner to 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," applies to a purchaser of property incum- bered with a lien for taxes, and such act does not avail to take away the defense of the statute of limitations to taxes already barred by it at the date of its enactment, but does so in those cases where such bar had not matured at that date. Mellinger v. City of Houston, 3 S. W. 249, 68 Tex. 37. § 909. Suit to recover land sold for taxes. In a suit to recover land sold for taxes, the facts pleaded in regard to such suit being for the purpose of showing the tax judgment invalid, the statute of limitations as to actions for the recovery of land is alone applicable, and not that fixing the time in which a suit to set aside a judgment or a bill of review may be brought. Green v. Robertson, 70 S. W. 345, 30 Tex. Civ. App. 236. §910. Repeal of act not a bar to limitation. The act of the Legislature approved July 4, 1879, contained the following provision : "No delinquent taxjpayer 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 502 Taxation in Texas. any tax due from him or her, either to the state or any county, city or town." (Acts 1879, Sp. Sess., p. 15, Chap. 17, Sec. 16.) This provision continued in force until the revision of the stat- utes in 1895. In that revision, which became effective Septem- ber 1, 1895, this clause was omitted. By an act of the special session of 1895, which went into effect October 9, 1895 (Laws 1895, p. 6, Chap. 3, Sec. 1), this clause was re-enacted. Plain- tiffs in error contend that the omission in the Revised Statutes of 1895 operated to repeal this clause, and that from that time, as to taxes then due, the statutes of limitation operated against cities and towns, as if there had never been any law to prevent limitation from running; and they further insist that, the bar of the statute having become complete by the repeal of the statute, its operation could not be prevented by the re-enactment of this pro- vision. The same question has been passed upon by the Court of Civil Appeals of the Fourth District in the case of Hernandes V. City of San Antonio, 39 S. W. 1022, and by this court in Ah- ney v.. State, 20 Tex. Civ. App. 101, 47 S. W. 1043. The reason for the decision is not stated in the former case ; the court simply saying that the article saving cities from the statute "was in effect until September 1, 1895, and was re-enacted with the emergency clause on October 9, 1895, and the taxes of 1877 and those due for following years not being barred at that time, the statute de- nying the right to plead limitation was applicable." In the case of Ahney v. State, a decision of the question was perhaps un- necessary, as the suit was for taxes due the state and county. In discussing it, however. Judge Collard said : "If it could be said that limitation would run against the state, when the statute is silent upon the subject, it could only run from the time that the Revised Statutes took effect to the time the law was re-en- acted, from September 1 to October 9, 1895. The period during which the statute was silent was not sufficient to create a bar, and there was, therefore, no vested right." It may be conceded that the statutes in such cases only affect the remedy and that, when an exception operates to prevent the running of the statute of limitations, such exception may be re- pealed, and causes of action which would have been barred, but for such exception, will be barred after its repeal as if it had never been in existence. It may also be conceded that, when the bar of the statute has once become complete, its effect can not be de- Limitation. " 503 stroyed by subsequent legislation. The first rule, however, is sub- ject to an important qualification. To repeal such an exception without allowing a reasonable time to sue would be unconstitu- tional. It is customary, therefore, in repealing an exception which has prevented limitation from running, to allow a reason- able time after the repeal to sue upon causes of action which would be otherwise barred. But when the legislature, as in the present instance, has failed to make such provision, the repeal is not held invalid because of such omission ; but the court, while giving effect to the law, will nevertheless construe it as if it con- tained a provision allowing parties a reasonable time to assert rights which would be barred. Boon v. Chamberlain, 82 Tex. 480, 18 S. W. 655 ; Rncker v. Dailey, 66 Tex. 284, 1 S. W. 316. What is a reasonable time may sometimes become a question of fact. Link v. City of Houston (Tex. Sup.), 60 S. W. 664. The evidence may sometimes be such that the court can determine it as a question of law. Williams v. Bradley, 67 S. W. 170, 3 Tex. 968. Greenlaw v. City of Dallas, 75 S. W. 812, 33 Tex. Civ. App. 100. §911. Constitutional law, releasing debt to city. Section 55 of Article 3 of the Constitution of the State, which prohibits the legislature from extinguishing any obligation to the state or a municipality, renders void a law empowering defend- ants to plead limitation in pending suits by a city for taxes due more than four years before the suit began. Ollimer v. City of Houston, 93 Tex. 201, 41 Tex. Civ. App. 596. § 912. Constitutionality of revocation law of limitation. Houston city charter, as amended, authorizing any delinquent taxpayer to plead the four years' limitation to any suit for taxes due such city whether such suit has heretofore or may hereafter be brought, in so far as it relates to actions pending at the time it went into effect, contravenes Const., Art. 3, Sec. 55, prohibiting the legislature from extinguishing in whole or in part the in- debtedness, liabilities, or obligations of any corporation or indi- vidual to any municipal corporation therein. Under Const., Art. 3, Sec. 55, prohibiting the legislature from extinguishing the whole or any part of the indebtedness of any corporation or individual to the state or any municipal corpora- tion, a city is entitled to raise the question of constitutionality of 504 Taxation in Texas. a statute of limitation barring recovery for taxes assessed by it. Ollivier v. City of Houston, 54 S. W. 940, 93 Tex. 201, 22 Tex. Civ. App. 55. § 913. Installments on bonds barred in four years. Under a statute authorizing the issuance of city bonds to aid railroad companies, and providing for the levy of an annual tax to pay the interest and two per cent of the principal annually, in an action to recover the amount of such bonds, plaintiff was barred by limitations from recovering the two per cent install- ments maturing more than four years before the commencement of the action, when the money collected by tax to meet such in- stallments was disbursed by the assessor and collector of taxes, under the direction of the city council, in retiring whole bonds, instead of paying installments on them all. Thornburgh v. City of Tyler, 43 S. W. 1054, 16 Tex. 439. § 914. Reasonable time allowed after passage of limitation act in which to file suit. Where a corporate charter provides for a plea of four years limitation in bar of suits by the city for taxes, the city has a reasonable time after the act takes effect in which to bring suits on claims, though barred under the limitation prescribed by the charter at the time it took effect. Where a city has a reasonable time in which to bring suits for taxes after a law of limitations takes effect, it is a question of fact for the court whether a suit was brought within a reasonable time. Link v. City of Houston, 59 S. W. 566, 94 Tex. 378 ; Boon V. Chamberlain, 82 Tex. 480, 18 S. W. 655 ; Greenlaw v. City of Dallas, 75 S. W. 812, 33 Tex. Civ. App. 100. § 915. Time act repeal not to be computed. Laws Sp. Sess. 1879, p. 15, Sec. 16 (repealed by the adoption of the Revised Statutes in 1895, but re-enacted the same year), providing that no delinquent taxpayer should have the right to plead or in any manner rely on any statute of limitations by way of defense to a claim for taxes, suspended the running of lim- itations as to taxes due the state or county while it was in force, and such period should not be computed in determining whether delinquent taxes are barred. State v. Gibson, 65 S. W. 690, 27 Tex. Civ. App. 355. Limitation. 505 § 916. Mere lapse of time no defense. Where the statute of Hmitations was suspended by law as to taxes due a state or county, mere lapse of time could not be set up to defeat their recovery. State v. Gibson, 65 S. W. 690, 27 Tex. Civ. App. 355. § 917. Limitation of action for money paid under protest. Where a city purchased land, but, before final payment, re- quired the vendor to pay certain taxes, to enjoin the collection of which the plaintiff had an action pending, and the plaintiff paid such taxes under an agreement by which he received receipts merely stating that the money was paid under protest, and the injunction proceedings were finally decided in plaintiff's favor, but not until after the statutory limitation of his action for the recovery of the money paid under protest had expired, his right of action therefor was barred. City of Dallas v. Kruegel, 64 S. W. 922, 95 Tex. 43. - CHAPTER XLV. TAX UPON GROSS RECEIPTS. Sec. Sec. 918. Act providing for levying and 921. Not applicable where road is collecting taxes upon the incorporated under Act of gross receipts of certain in- Congress, dividuals, firms and corpo- 922. Taxes on corporate privileges, rations. 923. Oil companies. 919. Gross receipts tax bill. 924. Interstate commerce does not 920. Injunction will not lie to re apply. strain oflacers. § 918. Act providing for levying and collecting taxes upon the gross receipts of certain individuals, firms and corporations. Section 1. Each and every express company shall, on or be- fore the first day of March, 1906, and annually thereafter, through its superintendent or other chief ofiicer, or authorized agent, file with the comptroller a report, under oath, showing the amount of gross receipts from charges and freights within this state paid to or uncollected by such company on account of money, goods, merchandise or other character of freight carried within this state during the twelve months next preceding January the first of each year. Said express companies, at the time of filing the re- quired report, shall pay to the treasurer of the state an annual tax equal to two and one-half per cent on their gross receipts, as shown by said report. The receipt of the treasurer of the state shall be evidence of the payment of such taxes. Should any per- son, association of persons, the officers or agents of any such per- son, association of persons, or corporations herein named, fail to make the report provided for in this section for more than sixty days after the termination of any year, then he shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than fifty dollars, nor more than one hundred dollars. Each day after said sixty days have expired shall be deemed a separate offense ; and in addition thereto in the event of the failure of the officers or agents of any such company or corporation to make such report, and pay said tax, for sixty days Tax Upon Gross Receipts. 507 after the termination of any year, each and every such company or corporation so failing shall forfeit and pay to the state of Texas twenty-five dollars for each day said report and payment are delayed, which forfeiture shall be sued for by the attorney general, in the name of the state. For the purpose of suits and prosecutions provided for herein, venue and jurisdiction are here- by conferred upon the courts of Travis County, and service may be had upon any officer or agent of such company or corporation within this state, and such service shall in all respects be held legal and valid. The tax herein provided for shall be in lieu of all other taxes now levied upon express companies, and not in addition thereto. Sec. 2. Every sleeping car company, palace car company, or dining car company, doing business in this state, and every cor- poration, person or association of persons leasing or renting, own- ing, controlling or managing any palace cars or dining or sleep- ing cars within this state, for the use of the public, and for which any fare is charged, shall pay an annual tax equal to four per cent of their gross receipts earned from any and all sources whatever within this state, except from receipts derived from buffet service. Said taxes herein provided for shall be paid to the state treasurer quarterly for the use of the state. Every sucli company, association, person or corporation, so owning, con- trolling or managing any such dining car, palace car, or sleeping car, shall, on the first day of April of each year, and quarterly thereafter, report to the comptroller, under oath of the president, treasurer, superintendent or some other officer of said corpora- tion, or some agent thereof, duly authorized, the gross amount of receipts earned from any and all sources whatever within this state, except from receipts derived from buffet service, during the preceding quarter. Should any person, association of persons, the officers or agents of any such persons, association of persons, or corporations herein named, fail to make the report provided for in this chapter, for more than thirty days after the termina- tion of any quarter of the year, then he shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than fifty dollars nor more than one hundred dollars. Each day after said thirty days have expired shall be deemed a separate offense ; and in addition thereto, in the event of the failure of the officers or agents of any such company or corporation to make 508 Taxation in Texas. such report, and pay said tax, for thirty days after the termina- tion of any quarter of the year, each and every such company or corporation so faihng shall forfeit and pay to the state of Texas twenty-five dollars for each day said report and payment are de- layed, which forfeiture shall be sued for by the attorney general in the name of the state. For the purpose of suits and prosecu- tions provided for herein, venue and jurisdiction are hereby con- ferred upon the courts of Travis County, and service may be had upon any officer or agent of such company or corporation within this state, and such service shall in all respects be held legal and valid. The tax herein provided for shall be in lieu of all other taxes now levied upon sleeping car, palace car, or dining car companies, except the tax of twenty-five cents on the one hundred dollars of the capital stock of said companies employed in this state, as provided by the Acts of the Twenty-third Legislature, Chapter 102. Sec. 3. Each and every person, association of persons, firm, company or corporation owning, operating, managing or control- ling any telegraphic line or lines in this state, for the transmis- sion of telegraphic messages, and charging for the transmission of said messages, shall pay an annual tax of three per cent on their gross receipts from all sources within this state. Said taxes herein levied shall be paid to the state treasurer quarterly. Ev- ery such person, association of persons, firm, company or corpora- tion, so owning, controlling or managing any telegraphic line or lines in this state shall, on or before the first day of April of each year, and quarterly thereafter, report to the comptroller of public accounts, under the oath of the president, treasurer or su- perintendent of said company, association or corporation, or some officer or agent thereof, duly authorized, the amount received by them in the payment of telegraphic charges, including the amount received on full rate messages and half rate messages and from the lease of any wires, during the preceding quarter. Should any person, association of persons, firm, company or corporation, or the officers or agents of any such person, association of persons, firm, company or corporation herein named, fail to make the re- port provided for in this article, for thirty days after the termina- tion of any quarter of the year, then he shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than fifty dollars, nor more than one hundred dollars. Tax Upon Gross Receipts. 509 Each day after said thirty days have expired shall be deemed a separate offense. In addition thereto, in the event of the failure of the officer or agent of any such person, company or corpora- tion, to make the report herein required, and pay said taxes for thirty days after the termination of any quarter of the year, each and every such person, company, or corporation shall forfeit and pay to the state of Texas twenty-five dollars for each day said report and payment are delayed, which forfeiture and taxes shall be sued for by the attorney general, in the name of the state. For the purpose of suits and prosecutions provided for in this article, venue and jurisdiction are hereby conferred upon the courts of Travis County, and service may be had upon any officer or agent of such person, firm, company or corporation in this state, and such service shall in all respects be held legal and valid. The tax provided for in this article shall 6e in addition to all other taxes levied, except the present message tax of one cent on each full rate message, and one-half of one cent on each half rate mes- sage, which is levied by Article 5049, Revised Statutes of 1895, and which is hereby repealed. Sec. 4. Each and every person, association of persons, firm, company or corporation owning, operating, managing or con- trolling any telephone line or lines and telephones within this state, and charging for the use of the same, shall pay a tax of one and half per cent upon their gross receipts within this state ; pro- vided, that no gross receipt tax shall be levied upon any person, firm, company or corporation owning, managing or controlling any telephone line not operated for toll, revenue or hire. Said taxes herein levied shall be paid to the state treasurer quarterly. Every such person, association of persons, firm, company or cor- poration so managing, owning, or controlling any telephone line or lines, and telephones, in this state, shall on the first day of April of each year, and quarterly thereafter, report to the comp- troller of public accounts, under the oath of the president, treas- urer or superintendent of said company, association or corpora- tion, or some officer or agent thereof duly authorized, the amount received by them or it in the payment of charges for the use of its line or lines, telephone and telephones, during the preceding quar- ter. Should any person, association of persons, firm, company or corporation, or the officers or agents of such person, association of piersons, firm, company or corporation herein named, fail to make 510 Taxation in Texas. the report provided for in this article, for thirty days after the termination of any quarter of the year, then he shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than fifty dollars, nor more than one hundred dollars. Each day after said thirty days have expired shall be deemed a separate ofifense. In addition thereto, in the event of the failure of the officer or agent of any such person, firm, com- pany or corporation to make the report herein required, and pay said taxes for thirty days after the termination of any quarter of the year, each and every such person, company or corporation shall forfeit and pay to the state of Texas twenty-five dollars for each day said report and payment are delayed, w^hich for- feiture and taxes shall be sued for by the attorney general, in the name of the state. For the purpose of suits and prosecutions pro- vided for in this article, venue and jurisdiction are hereby con- ferred upon the courts of Travis County, and service may be had upon any officer or agent of such person, firm, company or corporation in this state, and such service shall in all respects be held legal and valid ; provided, that where telephone companies have previously paid the state tax for 1905, of twenty-five cents on each telephone in use, levied under Article 5243f, of the Re- vised Statutes of 1895, the amount so fixed in advance of the date when this act takes eflfect, shall be deducted from the amount shown to be due from the tax of one and one-half per cent on gross receipts imposed by this act. The tax provided for in this article shall be in addition to all other taxes levied by law, except that levied by Articles 5049 and 5243f, of the Revised Civil Stat- utes of 1895, which are hereby repealed. Sec. 5. Every surety and guaranty company, at the time of filing its annual statement, shall report to the commissioner of insurance its gross premium receipts in the state during the pre- ceding year, and shall pay an annual tax of two per cent on its gross receipts from fees or charges collected. Upon receipt by him of sworn statements showing the gross premium receipts by such companies, the commissioner shall certify to the state treas- urer the amount of tax due by each company, which tax shall be paid to the state treasurer on or before the first day of March, following, whose receipt shall be evidence of the payment of such taxes. No such company shall receive a permit to continue to do Tax Upon Gross Receipts. 511 business in this state until such taxes are paid. The tax pro- vided for in this article shall be in addition to all other taxes lev- ied by law. Sec. 6. Each and every person, firm, corporation or association of persons owning, operating or controlling any collecting agency or commercial agency in this state, and charging for collections made or business done, shall pay to the state treasurer an annual tax of one-half of one per cent upon their gross receipts for the use and benefit of the state. This tax shall be in addition to all other taxes levied and said taxes shall be paid to the state treas- urer quarterly. Every such person, firm, corporation or associa- tion of persons so owning, controlling or managing any commer- cial agency or collecting agency shall, on or before the first day of April, and quarterly thereafter, report to the comptroller of public accounts under oath of the president, treasurer or super- intendent of said company, association of persons, person or cor- poration, or some other officer or agent thereof duly authorized, the amount received by them or it in the payment of charges for collections made and business done for the quarter next preced- ing. Should any person, association of persons, firm, company or corporation, or the officers or agent thereof, herein named, fail to make the report provided for in this article, for thirty days after the termination of any quarter of the year, then he shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than fifty dollars nor more than one hundred dollars. Each day after the said thirty days have ex- pired shall be deemed a separate offense. In addition thereto, in the event of the failure of the officer or agent of any such per- son, company or corporation to make the report herein required and pay said taxes for thirty days after the termination of any quarter of the year, each and every such person, company or cor- poration shall forfeit and pay to the state twenty-five dollars for each day said report and payment are delayed, which forfeiture and taxes shall be sued for by the attorney general, in the name of the state. For the purpose of suits provided for in this article, venue and jurisdiction are hereby expressly conferred upon the courts of Travis County, and service may be had upon any officer or agent of any such person, company or corporation within this state, and such service shall in all respects be held legal and valid. 512 Taxation in Texas. Sec. 7. Each and every person, firm, corporation or associa- tion of persons owning, operating or controlling any gas, electric light or electric power plant or water works plant in this state, and charging for gas, electric light, electric power or water, shall pay to the state treasurer an annual tax of one-fourth of one per cent upon their gross receipts for the use and benefit of the state. This tax shall be in addition to all other taxes levied, and said taxes shall be paid to the state treasurer quarterly. Ev- ery such person, firm, corporation or association of persons so owning, controlling or managing any gas or electric light plant or electric power plant, or water works plant shall on or before the first day of April, and quarterly thereafter, report to to the comptroller of public accounts, under oath of the president, treasurer or superintendent of said company, association of per- sons, person or corporation, or some other officer or agent thereof, duly authorized, the amount received by them or it in the payment of charges for gas or electric lights, or electric power or water, for the quarter next preceding. Should any person, association of persons, firm, company or corporation, or the officers or agents thereof herein named fail to make the report provided for in this article, for thirty days after the termination of any quarter of the year, then he shall be deemed guilty "of a misdemeanor, and upon conviction shall be fined in any sum not less than fifty dollars, nor more than one hundred dollars. Each day after said thirty days have expired shall be deemed a separate offense. In addi- tion thereto, in the event of the failure of the officer or agent of any such person, company or corporation to make the report here- in required' and pay said taxes within thirty days after the termi- nation of any quarter of the year, each and every such person, company or corporation shall forfeit and pay to the state twenty- five dollars for each day said report and payment are delayed, which forfeiture and taxes shall be sued for by the attoi-ney gen- eral, in the name of the state. For the purpose of suits provided for in this article, venue and jurisdiction are hereby expressly conferred upon the courts of Travis County, and service may be had upon any officer or agent of any such person, company or corporation within this state, and such service shall in all respects be held legal and valid. Sec. 8. Each and every person, firm, association of persons, corporation, domestic and foreign, who shall directly or indirectly, Tax Upon Gross Receipts. 513 or as agent for another, or through any agent or agents, carry on, manage, superintend, or transact any business commonly known as exchanges, or dealing in futures, in any agricultural products, articles of commerce, corporation stocks, or any other article or commodity, or where orders are taken and booked to be accepted and consummated by another where there exists the bona fide intention to deliver, shall, on or before the first day of April of each year and quarterly thereafter, file with the comp- troller of public accounts a report in writing under oath showing the amount of gross receipts from the management of any such business from all sources for the preceding three months, and shall pay a tax of one and one-quarter (1>4) per cent on their gross receipts from all sources. Said tax herein levied shall be paid to the state treasurer quarterly, that is to say, on the first days of April, July, October and January of each year, provided that this article shall not apply to merchandise brokers and com- mission merchants. If any such person, or the manager or man- agers of any such business for any firm, association of persons, or corporation, shall fail to make the report, and pay the tax as above provided for, thirty days after the termination of any quar- ter of the year, each and every such person, firm, association of persons or' corporation, shall when so failing, forfeit and pay to the state twenty-five ($25) dollars for each day said report and payment are delayed, which forfeiture and tax shall be sued for by the attorney general in the name of the state, and venue is hereby given in any court of competent jurisdiction in Travis County. The tax here provided shall be in addition to all other taxes levied by law. Sec. 9. Each and every person, association of persons or cor- poration created by the laws of this or any other state or nation, which shall engage in their own name, or in the name of others, or in the name of their representatives or agents, in this state, in the wholesale business of coal oil, naphtha, benzine or any other mineral oils refined from petroleum, and any and all mineral oils, shall pay an annual tax of two per cent upon their gross receipts from any and all sales in this state of any of said articles in Section 9 of this act hereinabove mentioned, and an annual tax of two per cent of the cash market value of any and all of said articles that may be received or possessed or handled or disposed of in any manner other than by sale in this state; and it is hereby 33 514 Taxation in Texas. expressly provided that delivery to or possession by any person, association of persons or corporation in this state of any of the articles hereinabove mentioned in Section 9 of this act, from what- ever source the same may have been received, shall for the pur- pose of this act be held and considered such a sale and such own- ership and possession of such articles and property (where no sale is made) as will and shall subject the same to the tax herein pro- vided for. Said tax herein provided for shall be paid to the state treasurer quarterly, and every such person, agent, association of persons, or corporation so owning, controlling or managing such business shall, on or before the first day of April, and quarterly thereafter, report to the comptroller under oath of the president, treasurer, superintendent or some other officer of said corporation or association, or some duly authorized agent thereof, the amount received by them from such business in this state. Should any person, association of persons or corporation, or the officers or agents of any such corporation, person or association of persons herein named, fail to make the report herein provided for, and pay said taxes for thirty days after the termination of any quarter of the year, then he shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than fifty nor more than one hundred dollars. Each and every day after said thirty days have expired shall be deemed a separate offense. In addition thereto, in the event of the failure of the officers or agents of any such company or corporation to make the reports and pay said taxes, for thirty days after the termination of any quarter of the year, each and every such company or corpora- tion, or their officers or agents so failing, shall forfeit and pay to the state the sum of twenty-five dollars for each day said re- port and payment are delayed, which forfeiture and taxes shall be sued for by the attorney general in the name of the state. For the purpose of suits and prosecutions provided for in this article, venue and jurisdiction are hereby expressly conferred upon the courts of Travis County, and service may be had upon any officer or agent of such company or corporation in the state, and such service shall in all respects be held legal and valid. The tax herein levied shall be in addition to all other taxes levied by law. Sec. 10. Every person, firm, joint stock association, company, corporation, or association of persons, whether incorporated un- Tax Upon Gross Receipts. 515 der the laws of this state or of any other state or nation, or whether incorporated at all or not, engaged in publishing, printing and selling text books used in the schools of this state, or law books of any character, or any such person, firm, joint stock asso- ciation, company, corporation or association of persons owning, controlling or managing any such business as text book or law book publishers within this state or out of it, and having state agencies in this state for the purpose of selling any book or books to be used in any of the schools of this state, shall pay a tax of one per cent on their gross receipts from such business in this state. This tax shall be paid to the state treasurer quarterly. Every such person, firm, joint stock association, company, corporation or association of persons so owning, controlling or managing any such business as text books or law book publishers, or having state agencies in this state, shall on or before the first day of April, and quarterly thereafter, of each year, report to the comp- troller of public accounts, under the oath of the person owning or operating said agency, or of the president, treasurer, superin- tendent or some other responsible officer of such firm, company, joint' stock association, or corporation, the amount received by them from such business for and during the preceding quarter of the year. Should any person, association of persons, firm, com- pany or corporation, or the officer or agent thereof herein named, fail to make the report provided for in this article, for thirty days after the termination of any quarter of the year, then he shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than fifty dollars nor more than one hundred dollars, and each day after said thirty days have expired shall be deemed a separate ofifense. And in addition thereto, in the event of the failure of the officer or agent of any such person or corporation to make the report herein required, and pay the said taxes, for thirty days after the termination of any quarter of the year, each and every such person, company or corporation so failing shall forfeit and pay to the state twenty-five dollars for each day said report and payment are delayed, which forfeiture and taxes shall be sued for by the attorney general in the name of the state. For the purpose of suits and prosecutions provided for in this article, venue and jurisdiction are hereby expressly conferred upon the courts of Travis County, and service may 516 Taxation in Texas: be had upon any officer or agent of such person, company or corporation within this state, and such service shall in all respects be held legal and valid. Sec. 11. Every person, firm, joint stock association or cor- poration owning stock cars, refrigerator and fruit cars of any kind, tank cars of any kind, coal cars of any kind, furniture cars, or common box and flat cars, and leasing, renting, operating, hir- ing or charging mileage for the use of such cars, shall on or be- fore the first day of April, and quarterly thereafter, through its superintendent or other chief officer, or authorized agent, file with the comptroller of public accounts a report, under oath, showing the amount of gross receipts from such rentals or mile- age, or other sources of revenue, for the preceding three months, and shall pay a tax of two per cent on their gross receipts from all rentals or mileage or other sources of revenue received from any railway companies or other persons or from all other sources within this state ; provided, this shall not apply to the mileage and per diem paid by one railway company to another railway com- pany within this state for the use of such cars. Said tax herein levied shall be paid to the state treasurer quarterly. If any per- son, firm, joint stock association or corporation shall fail to make the report and pay the tax as above provided, for thirty days after the termination of any quarter of the year, each and every such person, firm, joint stock association or corporation so failing shall forfeit and pay to the state twenty-five dollars for each day said report and payment are delayed, which forfeiture and tax shall be sued for by the attorney general, in the name of the state. And it is hereby provided that the cars or property of any such person, firm, joint stock association or corporation shall be subject to seizure arid sale whenever found in this state, to pay the taxes, penalties and cost that may accrue under this article; provided, that upon the request of the comptroller each railroad company in the state of Texas shall forthwith and within not more than thirty (30) days aft^r such request shall have been made, report to said comptroller under oath the amounts paid by it for the use of the cars of the kind mentioned in this section within such period as the comptroller shall have fixed and to what companies, associations or individuals the same was paid and the amount paid to each and the dates and particulars of such payments, and if Tax Upon Gross Receipts. 517 any railroad shall fail to make any report as herein provided it shall forfeit and pay to the state twenty-five (25) dollars for each and every day during which said report is delayed, which shall be sued for by the attorney general in the name of the state. For the purpose of suits provided for herein, venue and jurisdic- tion are hereby expressly conferred upon the courts of Travis County, and service may be had upon any officer or agent of any such person, firm, company or corporation within this state, and if no officer or agent can be found within this state, service may be had by citation by publication, and such service shall in all respects be held legal and valid. The tax provided for in this article shall be in addition to all other taxes levied by law. Sec. 12. Every individual, joint stock association, company, co-partnership or corporation, whether incorporated under the laws of this state or of any other state, territory, or of the United States, or of any foreign nation, which owns or operates a pipe line or lines within the state of Texas, whether such pipe lines be used for the transmission of oil, natural or artificial gas, wheth- er the same be for illuminating or fuel purposes or for any other purpose, or for steam, for heat or power, or for the transmission of articles by pneumatic or other power, shall be deemed and held to be a pipe line company ; and every such pipe line company shall, on or before the first day of April of each and every year, and quarterly thereafter, through its superintendent, president, secretary or other authorized agent, file with the comptroller a re- port under oath, showing the amount of gross receipts from charges and freights within this state, paid to or uncollected by such pipe line company on account of any business transacted by it in the capacity of a pipe line company, as herein defined, during the three months next preceding ; and each pipe line company en- gaged in conveying oil shall report as a part of its gross receipts such sum as it would have been compelled to pay for conveying oil owned by it and conveyed for itself, if it had employed some other pipe line company to convey it. Said pipe line companies, at the time of filing the required report, shall pay to the treasurer of the state of Texas two per cent on the gross receipts, as shown by said reports. The receipt of the treasurer of the state shall be evidence of the payment of such taxes. Should any person, association of persons, the officers or agents of any such person. 518 Taxation in Texas. association of persons or corporation herein named, fail to make the report provided for in this section for more than thirty days after the termination of any quarter of the year, then he shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than fifty dollars, nor more than one hundred dollars. Each day after said thirty days have expired shall be deemed a separate offense; and in addition thereto, in the event of the failure of the officers or agents of any such company or corporation to make such report and pay said tax for thirty days after the termination of any quarter of the year, each and every such company or corporation so failing shall for- feit and pay to the state of Texas twenty-five dollars for each day said report and payment are delayed, which forfeiture shall be sued for by the attorney general, in the name of the state. For the purpose of suits and prosecutions provided for herein, venue and jurisdiction are hereby conferred upon the courts of Travis County, and service may be had upon any officer or agent of such company or corporation within this state, and such service shall in all respects be held legal and valid. The tax provided for in this article shall be in addition to all other taxes levied, but the provisions of this section shall not be construed to levy an additional tax on gas companies, as provided for elsewhere in this act. Sec. 13. Every individual, joint stock company, co-partner- ship or corporation, whether incorporated under the laws of this state or any state or territory of the United States or of any for- eign country, which owns, controls, manages or leases any oil well within this state, shall on or before the first day of April of each and every year, and quarterly thereafter, through its superintend- ent, president, secretary or other authorized agent, or in person or by agent (if said well belongs to or is managed or controlled by any individual), file with the comptroller a report under oath, showing the total amount of all oil produced by each of said par- ties, during said next preceding quarter, and also its market value. Said oil well companies or individuals owning, controlling or man- aging oil wells, at the time of filing the required report, shall pay to the treasurer of the state of Texas, one per cent on the gross products as shown by said reports, said amount in money to be fixed at the average market value of said product during the Tax Upon Gross Receipts. 519 preceding quarter. The receipt of the treasurer of the state shall be evidence of the payment of such taxes. Should any person, association of persons, the officers or agents of any such persons, association of persons or corporations herein named, fail to make the report provided for in this chapter, for more than thirty days after the termination of any quarter of the year, then he shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than fifty dollars, nor more than one hundred dollars. Each day after said thirty days have expired shall be deemed a separate offense. And in addition thereto, in the event of the failure of the officers or agents of any such com- pany or corporation, to make such report and pay said tax for thirty days after the termination of any quarter of the year, each and every such company or corporation so failing shall forfeit and pay to the state of Texas twenty-five dollars for each day said report and payment are delayed, which forfeiture shall be sued for by the attorney general, in the name of the state. For the purpose of suits and prosecutions provided for herein, venue and jurisdiction are hereby conferred upon the courts of Travis County, and service may be had upon any officer or agent of such company or corporation within this state, and such service shall in all respects be held legal and valid. The tax provided for in this article shall be in addition to all other taxes levied. Sec. 14. Except as herein stated, all taxes levied by this act shall be in addition to all other taxes now levied by law ; pro- vided, that nothing herein shall be construed as authorizing any county or city to levy an occupation tax on the business taxed by this act. Sec. 15. If for any reason the comptroller of public accounts is not satisfied with any report required to be made herein, he may require a further supplemental report from any such person, corporation, co-partnership or association, containing information and data upon such matters as he may need or deem necessary to ascertain the true and correct amount of all taxes due by any such person, firm or corporation. Every statement or report re- quired by this act shall have affixed thereto the affidavit of the president, vice-president, secretary or treasurer of the person, cor- poration, co-partnership or association, or one of the persons or 520 Taxation in Texas. members of the partnership making the same, to the effect that the statement is true. The comptroller shall prepare blanks to be used in making the reports required by this act. Sec. 16. If the comptroller has any reason to believe, or does believe, that any person, firm or corporation subject to the pro- visions of this act has made any false return, or has failed or omitted to make a full return, then the comptroller, or some per- Sion acting for him, shall file an affidavit with the district clerk of Travis County, or with any district judge of Travis County, in vacation, setting forth his belief that such person, firm or cor- poration, to be named in the affidavit, has unlawfully omitted from a certain specified tax return, a true and full statement, and that such person, firm or corporation, or some other person, firm or corporation to be named in the affidavit, has in his or its posses- sion certain specified books or papers containing evidence tending to show such unlawful omission. Upon the filing of such affidavit a writ shall issue forthwith, and be served by any proper officer, requiring the person, firm or corporation having possession of such books or papers to permit the inspection by the comptroller or by the revenue agent of the state of Texas, or so much thereof as may be specially named in such writ, and being only such books and papers or so much thereof as may contain the evidence tend- ing to show the unlawful omission complained of in said affidavit, and the court or the judge thereof in vacation, issuing such writ shall for the purpose of enforcing obedience thereto possess and exercise all the powers usually possessed and exercised by it or him in contempt proceedings. All costs incurred on account of the filing of any affidavit of the issuance of the writ thereon and of the service of such writ, shall be charged against the state of Texas ; provided, however, if as a result of such proceedings it is found that such designated person, firm or corporation has un- lawfully omitted from the report required herein any statement or statements, then the state shall recover the costs from such person, firm or corporation. Acts 1905, pp. 358 to 369. § 919. Gross receipts tax bill. Sess. Laws 1905, p. 336, Chap. 141, imposing on railroad com- panies a tax equal to one per cent of their gross receipts, when construed in connection with Chap. 19, p. 21, and Chap. 72, p. 100, amending Franchise Act, p. 351, Chap. 146, imposing taxes Tax Upon Gross Receipts. 521 on intangible assets, Chap. 148, p. 359, levying a tax on the gross receipts of certain corporations, and Chap. 8, p. 437, providing an increase of the ad valorem tax, all passed by the same session of the legislature, imposes a tax on the gross receipts of rail- roads, and not an occupation tax. Sess. Laws 1905, p. 336, Chap. 141, imposing a tax on the gross receipts of railroads from both state and interstate com- merce, is unconstitutional as a regulation of interstate commerce. A tax imposed on the gross receipts of railroads by Sess. Laws 1905, p. 336, Chap. 141, is not a franchise act. The tax imposed by Sess, Laws 1905, p. 336, Chap. 141, on the gross receipts of railroads, is not an income tax. The tax on the gross receipts of railroads, imposed by Sess. Laws 1905, p. 336, Chap. 141, if regarded as an income tax, is unconstitutional as class legislation. Sess. Laws 1905, p. 336, Chap, 141, imposing a tax on railroads equal to a certain per cent of their "gross receipts from all sources whatsoever," includes receipts from interstate commerce, as well as from local traffic. Sess. Laws 1905, p. 336, Chap. 141, imposing a tax on the gross receipts of railroads from both interstate commerce and local traffic, and not undertaking to separate the state and interstate business, is not divisible, but is wholly void, on account of the invalidity of the provision for taxation of receipts from interstate commerce. Galveston H. & S, A. Ry. Co. v. Davidson, 93 S. W. 436 ; Tex. & P. Ry. Co. v. Stephens, 93 S. W. 436 ; Gulf C. & S. F. Ry. Co. V. Davidson, 93 S. W. 436; /. & G. N. Ry. Co. v. Stephens, 93 S. W. 436 ; St. L. S. IV. Ry. Co. v. Davidson, 93 S. W. 436 ; State v. G. H. & H. Ry. Co., 93 S. W. 460; T. & P. Ry. Co. V. State, 93 S. W. 461 ; St. L. S. W. Ry. Co. v. State, 93 S. W. 461 ; M., K. & T. Ry. Co. v. State, 93 S. W. 462 ; H. E. & W. T. Ry. Co. V. State, 93 S. W. 462. The above contains the opinions of the court of civil appeals, which was reversed, supreme court holding as follows, to-wit : Const. U. S., Amend., Art. 14, Sec. 1, providing that no state shall deny to any person within its jurisdiction, the equal protec- tion of the laws, does not require uniformity or equality in the levying of taxes by a state government, and a state legislature may classify the different persons or subjects of taxation and 522 Taxation in Texas. where the tax levied on each class is equal and uniform as to that class, the constitutional provision is complied with. Gen. Laws 1905, p. 336, Chap. 141, imposing on railroad com- panies managing a line of railroad ih the state for the transporta- tion of passengers, freight and baggage, or either, an annual tax equal to one per cent of their gross receipts, acts uniformly on all companies of the class specified and does not deny to them the equal protection of the laws in violation of Const. U. S., Amend., Art. 14, Sec. 1. Gen. Laws 1905, p. 336, Chap. 141, imposing on railroad com- panies a tax of one per cent on their gross receipts, requiring rail- road companies to make reports on which the assessments are made and providing that the levy can only be enforced by regular proceedings in court, does not deprive a railroad company of its property without due process of law in violation of the Four- teenth Amendment of the Federal Constitution. A construction of a statute that renders it unconstitutional will not be adopted where a constitutional purpose can fairly be derived from its term. The tax on railroads imposed by Gen. Laws 1905, p. 336, Chap. 141, imposing on railroad companies a tax equal to one per cent of their gross receipts, is an occupation tax, and is not a tax on the gross receipts of railroads, and is not an interference with interstate commerce in violation of Const. U. S., Art. 1, Sec. 8, Subd. 3, the reference to the gross receipts being merely a means by which to ascertain the amount of the tax. The tax on railroads imposed by Gen. Laws 1905, p. 336, Chap. 141, imposing on railroads a tax equal to one per cent of their gross receipts, being an occupation tax, is not objectionable as imposing double taxation because the franchises of railroads are subject to ad valorem taxes. The tax levied on a corporation for the exercise of the privi- lege of carrying on its business is an occupation tax within Const., Art. 8, Sec. 1, authorizing the legislature to impose occupation taxes on persons and corporations doing business in the state. The tax imposed on the gross receipts of railroads by Gen. Laws 1905, p. 336, Chap. 141, is a uniform occupation tax on railroads of the same class, and the statute is not in conflict with Const., Art. 8, Sec. 2, providing that all occupation taxes shall be uniform on the same class and subjects. Tax Upon Gross Receipts. 523 The occupation tax imposed on railroads by Gen. Laws 1905, p. 336, Chap. 141, imposing on railroads a tax equal to one per cent of their gross receipts, is not unequal, because the gross earn- ings of some of the railroads consist more largely in receipts from interstate business than others. Const., Art. 8, Sec. 1, providing that the occupation tax levied by any county, city, etc., for any year on persons or occupations pursuing any profession or business, shall not exceed one-half of the taxes levied by the state for the same period on such profes- sion or business, confers no authority on counties, cities, etc., to levy a tax, but is a limitation on the power of the legislature to grant such authority. The provision of Rev. St. 1895, Art. 5050, conferring on the commissioners' courts of the counties of the state, the power to levy taxes, that the court "shall have the right to levy one-half of the occupation taxes levied by the state on all occupations not herein otherwise specially exempted" applies only to the subjects mentioned in the article, which specifies a number of occupations that are subject to taxation, and does not confer on 'the court power to levy taxes on an occupation thereafter made the subject of taxation by the state. Since Gen. Laws 1905, p. 336, Chap. 141, imposing on railroads a tax equal to one per cent of their gross receipts, nor any other statute, do not authorize any county, city, or town to kvy on a railroad any occupation tax for the exercise of its franchise to operate and carry on its business as a carrier, the statute is not in conflict with Const., Art. 8, Sec. 1, providing that the occupa- tion tax levied by any county, city, etc., on corporations pursuing any business, shall not exceed one-half of the taxes levied by the state on such business. Gen. Laws 1905, p. 336, Chap. 141, in force July 15, 1905, im- posing on railroad companies an annual tax equal to one per cent of their gross receipts, can not be construed to embrace the whole of the year 1905, and does not entitle the state to collect the full annual tax for that year ; for so construing the statute, it would be retroactive, and in conflict with Const., Art. 1, Sec. 16, prohib- iting the passage of retroactive laws. Gen. Laws 1905, p. 336, Chap. 141, in force July 15, 1905, im- posing on railroads an annual tax equal to one per cent of their gross receipts, though invalid as imposing a tax for the part of 524 Taxation in Texas. the year prior to the time it took effect, is not void as to the re- mainder of the year, but the court will give effect to it for the remainder of the year. Since the word "fine" in Const., Art. 1, Sec. 13, declaring that excessive fines shall not be imposed, includes "penalties," the section applies to penalties prescribed by an act for the failure of a taxpayer to pay taxes imposed. Gen. Laws 1905, p. 336, Chap. 141, imposes on railroads a tax equal to one per cent of their gross receipts, and prescribes a penalty of $200 each day a railroad makes a default in the pay- ment thereof. The taxes claimed by the state from one railroad company amounted to $74,724, and the penalties demanded amounted to $73,000. The taxes demanded from another rail- road company amounted to $1,555, and the penalty $73,000. Held, that the penalties were excessive, rendering the statute void, so far as it imposed penalties. Where a railroad could not pay the tax actually due, and a tender thereof to the state treasurer would be useless, as he could not accept the same, the state claiming a larger tax, could not recover penalties imposed for non-payment of taxes, the state being in the wrong. Gen. Laws 1905, p. 336, Chap. 141, imposing on railroad com- panies a tax equal to one per cent of their gross receipts, and providing that for the purpose of determining the amount of taxes, the officers of railroads shall annually report the gross re- ceipts from every source whatever, imposes a tax on the gross receipts of railroads derived from any source. State v. G. H. & S. A. Ry. Co., 97 S. W. 71, 100 Tex. 153. The title of an act, entitled an act imposing a tax on railroads operating any line of road in the state for the transportation of passengers, freight, and baggage equal to one per cent of their gross receipts, is sufficiently broad to include a provision im- posing a gross earnings tax on all corporations operating any line of railroad in the state, and to embrace a corporation owning a line within and one without the state. The statute imposing on railroads a tax on their gross receipts imposes a tax on the gross receipts of railroads derived from whatever source. State v. M., K. & T. Ry. Co., 100 S. W. 146. Tax Upon Gross Receipts. 525 § 92C. Injunction will not lie to restrain officers. Gen. Laws 1905, p. 336, Chap. 141, imposes on railroad com- panies an occupation tax equal to a specified per cent of its gross receipts, and for the purposes of determining the amount of the tax the railroads are required to report to the comptroller of the state the gross receipts for the preceding year. The comptroller is required upon such return to estimate the tax and assess and enforce its collection, and the attorney general is authorized, on request of the comptroller, to bring suit in the name of the state to recover the tax, and under the statute the only duty of the state treasurer is to receive the tax when paid. Held, that injunc- tion would not lie to restrain the comptroller, attorney general, and treasurer from performing their duties under the statute on the ground that the statute was unconstitutional, as there is "no statute giving a lien on property for an occupation tax, and the only way in which the tax could be enforced was by legal proceed- ings, and the railroad had an adequate remedy at law. Stephens V. Texas & P. Ry. Co., 97 S. W. 309, 100 Tex. 177. § 921. Not applicable where road is incorporated under act of congress. Sess. Laws 1905, p. 336, Chap. 141, imposing a tax on the gross receipts of railroads, is not enforceable against the Texas & Pa- cific Railway Company, incorporated under an act of Congress for the purpose of carrying on a railroad business in the state of Texas ; and this notwithstanding the acceptance of the act of the legislature of Texas of May 2, 1873, which, in granting certain rights and privileges to the railroad, provided that it should be subject to such general laws as might be applicable to other rail- roads, and that all the property of the corporation should be sub- ject to taxation, and notwithstanding that the railroad possesses certain franchises from the state. State v. Texas & P. Ry. Co., 98 S. W. 834, 100 Tex. 279; State v. M., K. & T. Ry. Co., 100 S. W. 146. § 922. Taxes on corporate privileges. The occupation tax on railroads, imposed by the statute im- posing on railroads doing business in the state a tax on their gross receipts, is not in conflict with Const., Art. 8, Sec. 2, re- quiring occupation taxes to be uniform on the same class of sub- 526 Taxation in Texas. jects, though the statute can not impose a tax on a railroad in- corporated under the act of Congress and doing business in the state. The statute imposing a tax on the gross receipts of railroads, provides that the tax shall not be levied on a railroad which shall have paid the tax on its intangible assets, as provided for by .Acts Reg. Sess. 29th Leg., p. 356, Chap. 146, providing for the taxation of the intangible assets of railroads. The former act w^as in force during 1905, while the latter act applied to taxation for 1906, and succeeding years. Held, that the validity of a gross earnings tax for 1905 was controlled by the former statute, and the question as to the operation of the two statutes on any tax that might be assessed after 1905 was not involved. State v. M., K. & T. Ry. Co., 100 S. W. 146. § 923. Oil companies. Acts 29th Leg., p. 358, Chap. 148, taxing all persons engaged in the operation of oil wells one per cent on the gross products of the wells as shown by certain reports required, is not unconstitu- tional for non-uniformity or inequality. Acts 29th Leg., p. 359, Chap. 148, imposes a tax of one per cent on the gross products of oil wells, and provides that a failure to make certain reports required by the act for more than thirty days after the termination of any quarter of the year shall consti- tute a misdemeanor, that on conviction the party guilty shall be fined in a sum not less than $50 nor more than $100, and that each day after the thirty days have expired shall be deemed a sep- arate offense. The act also provides that a failure to make re- port and pay the tax within thirty days after the termination of the quarter shall render the party or corporation liable to a pen- alty of $25 for each day the report and payment be delayed. Held, that the penalties provided for were disproportionate to the amount of the taxes assessable under the act, so that in an action to recover the taxes it was proper for the court to refuse to ren- der judgment for penalties. Producers' Oil Co. v. Stephens, 99 S. W. 157, 44 Tex. Civ. App. 327. Acts 29th Leg., p. 364, Chap. 148, Sec. 9, imposing an occupa- tion tax on wholesale dealers in petroleum products in addition to general taxes, was not invalid because such occupation tax was Tax Upon Gross Receipts. 527 an ad valorem tax, levied on the value of the corporation's prop- erty, and with the general tax levy exceeded the constitutional rate of taxation. Acts 29th Leg., p. 364, Chap. 148, Sec. 9, provides that every person, association, or corporation engaged in wholesaling petro- leum products shall pay an annual tax of two per cent on the gross receipts from sales of such products, and on the gross value of articles derived from petroleum, possessed, handled, or dis- posed of in any other manner than by sale within the state. Held, that the fact that the act imposed similar taxes on persons en- gaged in wholesaling other goods and products at less rates than that imposed on wholesalers of oil products did not render the act ' unconstitutional for inequality, or as denying wholesalers of oil products the equal protection of the laws. In determining the amount of an occupation tax levied on a wholesale oil dealer, as provided by Acts 29th Leg., p. 358, Chap. 148, wholesale sales to consumers, as well as sales to retailers, were properly included in determining the volume of the taxpay- er's business. Acts 29th Leg., p. 367, Chap. 148, Sec. 12, imposes a tax on every individual, etc., owning or operating a pipe line or lines for the transportation of oil, gas, steam, or other articles by pneu- matic or other power for others for hire or profit. Held, that such provision was not subject to constitutional objection for non- uniformity, because the owners of pipe lines employing the same exclusively for their own purposes are not also subjected to the tax. Acts 29th Leg., p. 367, Chap. 148, Sec. 12, imposes an occu- pation tax on the owners of pipe lines for the transportation of various substances for hire, and then declares that each pipe line company engaged in conveying oil shall report as a part of its gross receipts such sums as it would have been compelled to pay for conveying oil owned by it and conveyed for itself if it had em- ployed some other pipe line company to convey it, and imposes a tax of two per cent on the gross receipts as shown by such report. Held, that, in the absence of proof that any pipe line companies or persons transporting other things mentioned in such section did not also transport oil, the section could not be held uncon- stitutional as discriminating against the owners of pipe lines for oil. 528 Taxation in Texas. The fact that all persons owning or controlling pipe lines, with- out reference to the products transported, are included in a single class in the first part of the section, and taxed as such, did not preclude the legislature from making a sub-classification, and providing different rules for the purpose of arriving at the amount to be charged on the occupation of transporting products for hire by pipe lines. Acts 29th Leg., p. 358, Chap. 148, imposes an occupation tax on the owners of pipe lines used for hire or profit, and requires a report showing as a part of the gross receipts of such compa- nies such sums as it would have been compelled to pay for con- veying oil owned by it and conveyed for itself if it had employed some other pipe line company to convey it. Held, that such section was applicable to a corporation operating a pipe line for its own business, though there was no connection between its lines and those of others carrying oil, so that it could not have em- ployed the lines of others. Texas Company v. Stephens, 103 S. W. 481, 100 Tex. 628. § 924. Interstate commerce does not apply. The commerce clause of the Federal Constitution does not apply to the levy of occupation taxes on a business carried on wholly within the state, though including sales and deliveries outside the state. Texas Company v. Stephens, 103 S, W. 481, 100 Tex. 628. CHAPTER XLVI. INSURANCE COMPANIES. Sec. Sec. 925. Act of 1905. 927. Insurance companies 926. Occupation tax on gross pre- 928. Gross receipts. miums, § 925. Act of 1905. Art. 5243e. Every life, fire, marine, accident or other insur- ance company, at the time of its fiHng its annual statement, shall report to the commissioner of insurance the gross amount of pre- miums received in this state, and from persons residing in this 'state, during the preceding year, and each of such life insurance companies shall pay an annual tax of two per cent of such gross premium receipts ; and each of such fire, marine, accident or other insurance companies shall pay an annual tax of one and one-half per cent of such gross premium receipts ; and the gross premium receipts are understood to be the premium receipts reported to the commissioner of insurance by the insurance companies, on sworn statements. Upon receipt by him of sworn statements, showing the gross premium receipts by such company, the com- missioner shall certify to the state treasurer the amount of tax due by each company, which tax shall be paid to the state treas- urer, for the use of the state, on or before the first day of March following, whose receipt shall be evidence of the payment of such taxes, and no insurance company shall receive a permit to do business in this state until such taxes are paid. Provided that if any such insurance company shall have as much as one-fourth of its entire assets, as shown by the sworn statement, to be filed with the commissioner of insurance, invested in any or all of the following property or securities, to-wit: real estate in the state of Texas, bonds of this state or of any county, incorporated city or town of this state, or other property in this state in which by law such companies may invest their funds, then the annual tax of any such company shall be one-half of one per cent of its said gross premium receipts; and if any such company shall have in- vested as aforesaid as much as one-half of its said assets, then 84 530 Taxation in Texas. the annual tax of such company shall be one-fourth of one per cent of its said gross premium receipts ; provided, that the provi- sions of this act shall not apply to the Order of the Knights of Honor, Order of Railroad Conductors, and other kindred and like fraternal insurance orders. Provided, that all insurance com- panies affected by this act shall pay the same franchise tax levied by existing law upon other corporations of like capital, stock, surplus and undivided profit, all of which is respectfully sub- mitted. Act of 1905, p. Z7Z. Article 5243e. Every life, fire, fire and marine, marine, marine and inland insurance company, and every life and accident, life and health, accident, credit, title, steam boiler, live stock and cas- ualty company and all other insurance companies doing business in this state, except fidelity and guaranty companies, at the time of filing its annual statement shall report to the commissioner of . agriculture, insurance, statistics and history the gross amount of premiums received in the state, upon property located in this state, and from persons residing in this state during the preceding year, and each of such companies shall pay an annual tax upon such gross premium receipts as follows : Each life insurance com- pany shall pay a tax of two and one-quarter per cent of such gross premiums ; all other companies enumerated above shall pay a tax of one and three-quarters per cent of such gross premiums ; pro- vided, that any company doing a life insurance business in con- nection with any other class of insurance business enumerated shall pay the same tax upon the gross receipts from life insur- ance business as is levied against the receipts of a company con- ducting a purely life insurance business ; and the gross premium receipts are understood to be the premium receipts reported to the commissioner of agriculture, insurance, statistics and history by the insurance companies upon the sworn statement of two principal officers of such companies. Upon receipt by him of sworn statements showing the gross and net premium receipts by such companies the commissioner shall certify to the state treasurer the amount of taxes due by each company, which tax shall be paid to the state treasurer for the use of the state on or before the first day of March following, whose receipt shall be evidence of the payment of such taxes, and no insurance company shall receive a permit to do business in this state until such taxes are paid. Insurance Companies. 531 / Provided, that if any such insurance company shall have as much as one-fourth of its entire assets, as shown by said sworn statement, invested in any or all of the following securities ; real estate in the state of Texas, bonds of this state or of any county, incorporated city or town of this state, or other property in this state in which by law such companies may invest their funds, then the annual tax of any such company shall be one-half of one per cent of its said gross premium receipts ; and if any such com- pany shall have invested, as aforesaid, as much as one-half of its said assets, then the annual tax of such company shall be one- fourth of one per cent of its said gross premium receipts, as above defined ; and provided further, that no occupation tax shall be levied on insurance companies herein subjected to a gross pre- mium receipt tax, by any county, city or town. The tax aforesaid shall constitute all taxes and license fees collectible under the laws of this state against any such insur- ance companies, and no occupation or other tax shall be levied on or collected from any insurance company by any county, city or town ; but this act shall not be construed to prohibit the levy and collection of state, county and municipal taxes upon the real and personal property of such companies. Provided, that this shall not relieve agents from paying an occupation tax. Act of 1905, p. 427. § 926. Occupation tax on gross premium. Sec. 5. Each life insurance company, not organized under the laws of this state, doing business in this state, shall on or be- fore the first day of March, 1910, and annually thereafter, make a report to the commissioner of insurance and banking of this state, which report shall be sworn to by either the president or a vice-president, and the secretary or treasurer of such company, showing the gross amount of premiums collected during the year ending on December 31, preceding, from citizens of this state upon policies of insurance ; and each such company shall pay an- nually an occupation tax equal to three per cent of such gross premium receipts, such occupation taxes to be for and on account of the business transacted within this state during the calendar year in which such premiums were collected or for that portion thereof during which the company shall have transacted business in this state while this act was in force and effect ; and upon re- 532 Taxation in Texas. ceipt of such sworn statements showing the gross premium re- ceipts of such company, the commissioner of insurance and banking of this state shall certify to the treasurer of this state the amount of taxes due by each such company for the preceding year, which taxes shall be paid to the state treasurer for the use of the state, by such company ; upon his receipt of such certificate, the treasurer shall execute a receipt therefor, which receipt shall be evidence of the payment of such taxes, and no such life insur- ance company shall receive a permit to do business in this state until such taxes are paid; provided, that when the report of the investments in Texas securities of any company as of December 31, of any year, shall show that such company had invested on said date as much as thirty (30) per cent of its total reserves in Texas securities, the rate of said occupation tax shall be reduced to two and one-half {2}i) per cent, and when such report shall show that such company had invested on said date as much as sixty (60) per cent of its total Texas reserves in Texas securities the rate of such occupation tax shall be reduced to two (2) per cent, and when such report shall show that as much as seventy- five (75) per cent of the total Texas reserves of such company was invested on said date in Texas securities, the rate of such occupation tax shall be reduced to one and one-half (Ij^) per cent; provided, the investment in Texas securities of seventy- five (75) per cent of the Texas reserves provided for by this act shall in any event be required of all such companies. If upon examination of any company, or in any other manner the com- missioner of insurance and banking shall be informed that the gross premium receipts of any year exceeded in amount those shown by the report thereof, theretofore made as above provided, it shall be the duty of the commissioner to file with the state treasurer a supplemental certificate showing the additional amount of taxes due by such company which shall be paid by such com- pany upon notice thereof. It shall be the duty of the state treas- urer, if, within fifteen days after receipt by him of any certificate or supplemental certificate provided for by this section, the taxes due as shown thereby have not been paid, to report the facts to the attorney general, who shall immediately institute suit in the prop- er court of Travis County, to recover such taxes. Sec. 6. That no occupation tax other than herein imposed shall be levied by the state or any county, city or town upon any life Insurance Companies, 533 insurance company herein subject to the occupation tax in pro- portion to its gross premium receipts, or its agents. The occu- pation tax imposed by this act upon life insurance companies shall be the sole occupation tax which any company doing business in this state under the provisions of this act shall be required to pay after this act shall take effect. Sec. 7. That each life insurance company not organized under the laws of this state hereafter granted a certificate of authority to transact business in this state shall be deemed to have accepted such certificate and to transact such business thereunder subject to the conditions and requirements that after it shall cease to transact new business in this state under a certificate of authority and so long as it shall continue to collect renewal premiums from citizens of this state it shall be subject to the payment of the same occupation tax in proportion to its gross premiums during any year, from citizens of this state as is or may be imposed by law on such companies transacting new business within this state under certificates of authority during such year; provided, that the rate of such tax to be so paid by any such company shall never exceed the rate imposed by this act upon insurance com- panies transacting business in this state, and each such company shall make the same reports of its gross premium receipts for each such year and within the same period as is or may be re- quired of such companies holding "certificates of authority; and shall at all times be subject to examination by the commissioner of insurance and banking or some one selected by him for that purpose, in the same way and to the same extent as is or may be required of companies transacting new business under certifi- cates of authority in this state, the expenses of such examination to be paid by the company examined and the respective duties of the commissioner of insurance and banking in certifying the amount of such taxes and of the state treasurer and attorney general in their collection shall be the same as are or may be pre- scribed respecting taxes due from companies authorized to trans- act new business within this state. Sec. 8. That any life insurance company which has heretofore been, may now be, or may hereafter be engaged in writing poli- cies of insurance upon the lives of citizens of this state which has heretofore ceased or may hereafter cease writing such policies and which does not now or may not hereafter have a certificate 534 Taxation in Texas. of authority to transact the business of life insurance in this state, but which has continued or may continue to collect renewal or other premiums upon such policies, shall, before it may again ob- tain a certificate of authority to transact the business of life insur- ance in this state, report under oath to the commissioner of in- surance and banking of this state, the gross amount of premiums so collected from citizens of this state upon policies of insur- ance during each calendar year since the end of the period cov- ered by the last preceding report by such company of gross premi- um receipts upon which it paid an occupation tax, and shall pay to the state a sum equal to the percentage of its gross premium receipts for each such year that was required by law to be paid as occupation taxes by companies doing business in this state dur- ing such year or years and upon the payment of such sum and securing a certificate of authority to do business in this state the penalties provided for the failure to pay such taxes and make such reports in the past shall be remitted. Acts 31st Leg., pp. 243, 244, 245. § 927. Insurance companies. The words ''gross amount of premiums" received, as used in the statute, providing for the levy and collection of an occupation tax on corporations, etc., and requiring every fire insurance com- pany to annually report "the gross amount of premiums received" in the state on property located there and from persons residing there, during the preceding year, and imposing an annual tax on the gross premium receipts, and declaring that the gross premium receipts are the premium receipts reported to the commissioner on the sworn statement, etc., include sums which a fire insurance company paid for re-insurance without proof that the companies in which it re-insured had the right to claim a portion of the premium at the time the insurance was effected, and include the sums returned to policy holders on the cancellation of policies, as provided therein ; the word "gross" meaning whole, entire, total, without deduction. Where the language of a statute is plain and unambiguous, there is no room for construction, and it is not admissible to resort to forced constructions to limit or extend the meaning of language, and, where words have acquired a definite meaning in law, they must be so expounded. Fire Assn. of Philadelphia v. Love, 108 S. W. 158, 101 Tex. 376. ' Insurance Companies. 535 Rev. St. 1895, Art. 3084, Subd. 7, providing that the annual report of a fire insurance company shall exhibit the company's income, stating the amount received for premiums, deducting re-insurance, and the amount received tor interest and from all other sources, in so far as it is in conflict with Laws 1907, p. 482, Chap. 18, Sec. 8, providing that "every fire insurance company * * * at the time of filing its annual statement shall report * * * the gross amount of premiums received in the state," etc., is su- perseded by the later act. Fire Assn. of Philadelphia v. Love, 108 S. W. 810, 101 Tex. 381. § 928. Gross receipts. Act May 17, 1907 (Laws 1907, p. 483, Chap. 18), Sec. 8, im- posing a tax upon the gross receipts of insurance companies and other corporations, provides that any life insurance company which shall comply with Act April 24, 1907 (Laws 1907, p. 316, Chap. 170), requiring the investment and deposit of 75 per cent of the reserve on policies of insurance upon the lives of citizens of the state, shall pay an annual tax of 1 per cent upon its gross receipts so long as such investments and deposits are made. Sec- tion 6 (page 318) of the Act of April 24, 1907, provides that an insurance company of another state wherein by law such company' must deposit with state officers securities covering the entire re- serve upon the business transacted in such state and all other states in such manner as to secure equally all policy holders of the company, shall have two years after the act takes effect in which to comply with Section 3 (page 317), thereof. Section 3 requires the securities of an insurance company in which is vested 75 per cent of its reserve fund for policies on the lives of persons living in the state to be deposited in the state treasury or depository. Held, that a corporation of another state, which in compliance with the laws of that state has deposited in the proper office securities covering the entire reserve upon business trans- acted in such state and in all other states, is not therefore en- titled to the 1 per cent tax rate on its gross receipts; the fact that it is exempt for two years from complying with the Act of April 24, 1907, not being a compliance with the act, so as to en- title it to the 1 per cent tax rate on its gross receipts ; the fact that it is exempt for two years from complying with the Act of April 24, 1907, not being a compliance with the act, so as to entitle it to the 1 per cent rate. 536 Taxation in Texas. Act May 17, 1907 (Laws 1907, p. 479, Chap. 18), provides for the levy of occupation taxes for the year 1908 and annually there- after ; the tax each year to be levied on the gross receipts for the preceding year. Such act went into effect August 14, 1907. Held, that the tax assessed for 1908 on an insurance company was not a tax upon the gross receipts of the company for 1907, during which year, up to August 14th, the rate prescribed by a previous law prevailed, but that it was an occupation tax for 1908, merely based upon the receipts of 1907, and affected in no way by the tax payable in 1907. Kansas City Life Ins. Co. v. Love, 109 S. W. 863, 101 Tex. 531. CHAPTER XLVII. IMPROVEMENT DISTRICTS. Sec. 929. Law regulating the mode of establishing same and levying and collecting taxes in same. § 929. Law regulating the mode of establishing same and levying and collecting taxes in same. Section 1. The commissioners' court of the several counties of this state may hereafter create, establish and define one or more improvement districts in their respective counties in the manner hereinafter provided, and may or may not, include within the boundaries and limits of such districts, villages, towns and mu- nicipal corporations, or any portion thereof, but no land at the same time shall be included within the boundaries of more than one improvement district created under the provisions of this act. Such improvement districts, when so created, established and defined, may build and construct, or cause to be built and con- structed and maintained, levees or other improvements on all riv- ers, creeks, and streams within such district, or which may border on the same, to prevent overflows thereof, and issue bonds in pay- ment therefor, and the maintenance thereof, and levy and collect taxes for the payment of said bonds and interest thereon, as here- inafter provided; and may acquire by grant, condemnation or otherwise, such levees or other improvements as may have been already constructed in such district. Sec. 2. Upon the presentation of the commissioners' court of any county in the state of a petition signed by twenty-five of the resident property taxpayers in the proposed district, or in the event there are less than seventy-five resident property taxpayers in the proposed district, then by one-third of such resident prop- erty taxpayers of such district, praying for the establishment of an improvement district, the issuance of bonds and levy of a tax in payment thereof, and setting forth the necessity and feasibil- ity and proposed boundaries thereof, and designating the name 538 Taxation in Texas. for such, the name to inckide the name of the county, the said commissioners' court shall, if in session when said petition is pre- sented, at said session of the court set said petition down for a hearing at some regular or special session of the court called for that purpose, not less than thirty nor more than sixty days from the date of the presentation of said petition, and shall order the clerk of said court to give notice of the filing of the said peti- tion, and of the date and place of hearing, by posting written or printed notices thereof in five public places in said county, one of which shall be at the courthouse door of the said county, and four of which shall be within the limits of the proposed improve- ment district. Such notices shall be posted for twenty days prior to the time set for such hearing. Said clerk may deputize some other person to perform such service, and the affidavit of such clerk or his deputy that such notices have been so posted shall be held conclusive thereof. Said clerk shall receive as com- pensation for such service $1.00 for each of such notices and five (5) cents per mile for each mile necessary to be traveled in post- ing same. Should said commissioners' court not be in session, at the time of the filing of said petition, it may be filed with the county judge of the county, who shall thereupon make and enter an order upon the minutes of said commissioners' court, setting said petition for hearing at some regular or special term of said commissioners' court, called for that purpose not less than thirty nor more than sixty days from the filing of said petition, and shall order the clerk of the said commissioners' court to give said notice as is herein provided for in this section, and which notice shall be posted for the time and as is provided for in this section. Sec. 3. At the time set down for the hearing of said petition any person who would be afifected by the creation of said district may appear before the said court and contest or contend for the creation of said district and may offer testimony to show that the said district is or is not necessary and would or would not be of public utility, and the creation of said district would or would not be feasible or practicable. Said commissioners' court shall have exclusive or final jurisdiction to hear and determine all con- tests and objections to the creation of such districts, and all mat- ters pertaining to the same, and said court shall have exclusive jurisdiction over all subsequent proceedings of said district, when Improvement Districts. 539 organized, except as herein provided, and may adjourn hearings on any matter connected therewith from day to day ; and all judg- ments, orders or decrees, rendered by said court in relation there- to, shall be final except as hereinafter provided. Sec. 12. Notice of said election stating the time and place or places of holding the same shall be given by the clerk of the county commissioners' court by posting written or printed notices thereof in five public places in such proposed improvement dis- trict, and one at the courthouse door of the county in which such district is situated. Such notices shall contain the propositions to be voted upon as set forth in Section 11 of this act, and shall also state the estimated cost of such improvement as reported by the engineer, and approved by the commissioners' court, and also the amount of bonds proposed to be issued, together with the rate of interest the same shall bear, and when the said bonds shall be due, and for a tax to be levied and collected to pay said bonds and interest thereon. Sec. 13. The manner of conducting said election shall be gov- erned by the election law of the state of Texas, except as herein otherwise provided. None but resident property taxpayers who are qualified voters of the said proposed improvement district shall be entitled to vote at any election on any question submitted to the voters thereof by the county commissioners' court at such election. The commissioners' court shall name the polling place or places for such election within the proposed improvement dis- trict and shall also select and appoint judges and other necessary officers of the election and shall provide one and one-half times as many ballots for said election as there are qualified resident taxpaying voters within such district as shown by the tax rolls of the county. Such ballots shall have printed thereon these words and none others : "For the improvement district and issu- ance of bonds and levy of taxes in payment therefor." "Against the improvement district and issuance of bonds and levy of taxes in payment therefor." Sec. 14. Every person who olTers to vote in any election held under the provisions of this act shall first take the following oath before the presiding judge of the polling place where he ofifers to vote, and the presiding judge is hereby authorized to admin- ister same : "I do solemnly swear (or affirm) that I am a qualified voter of County, and that I am a resident property 540 Taxation in Texas. taxpayer of the proposed improvement district voted on in this election, and I have not voted before at this election." Sec. 15. Immediately after the election the presiding judge at each polling place shall make returns of the result in the same manner as provided for in elections for state and county officers and return the ballot boxes to the county clerk, who shall keep the same in a safe place, and deliver them, together with the re- turns from the several polling places, to the commissioenrs' court at its next regular session, or special session called for the pur- pose of canvassing the votes and the county commissioners' court shall at such session canvass the vote, and if it be found that a two-thirds of all of the resident property taxpayers voting there- on shall have been cast in favor of the improvements, and the issuance of bonds and levy of taxes, then the court shall declare the result of the election to be in favor of the said improvement district, and bonds and taxes, and shall enter the same in the min- utes of the said court as follows : "The County Commissioners' Court of County, Texas, Term, A. D , in the matter of the petition of and others, praying for the establishment of an improvement district, the issuance of bonds and the levy of a tax in payment thereof, in said petition fully described and designated by the name of Improvement District " Be it known that at an election held for said purposes [in] said district on the day of , A. D , a two-thirds of all of the resident property taxpayers voting at said election, voted in favor of the creation of said improvement district and the issu- ance of bonds and the levy of taxes. Now, therefore, it is con- sidered and ordered by the court that said improvement district be and the same is hereby established by the name of Improvement District within the following named metes and bounds, towit: (Giving boundaries of the district.) Sec. 22. After the establishment of any such improvement dis- trict and after the making and filing of such maps and profiles and estimates, as herein provided for, and after said election au- thorizing the issuance of bonds and levy of tax, the commission- ers' court shall make an order directing the issuance of improve- ment bonds for such district, sufficient to pay for such proposed Improvement Districts. 541 improvements, and the maintenance thereof for a period of not exceeding two years; provided, however, that said bonds shall not exceed in the amount one-fourth of the assessed value of the real property of such district, as shown by the last annual assess- ment thereof made for the state and county taxation, and shall not exceed the estimate made by such engineer made before the election, and voted on at the election in this act provided for ; pro- vided, however, that if after an election has been held establish- ing the district, levying a tax and issuance of bonds, it should become necessary for said improvement district to make further improvements, or alterations in the improvements already consti- tuted or to repair or maintain the improvements so created and there shall be no sufficient funds in the construction and main- tenance funds, with which such improvements, alterations, repairs and maintenance may be made, then the improvement commis- sioners may apply to the commissioners' court for an election to be ordered by said court to issue additional bonds, stating the necessity therefor and the amount of bonds necessary, and the character of such improvements, repairs and maintenance, and the estimated cost therefor as made by such engineer, which shall ac- company said application and upon the filing of such application the commissioners' court shall set same down for hearing at some future regular or special session and cause the county clerk to give notice of such hearing, which notice shall state the character of such improvements, etc., together with the estimated cost there- for and the amount of such bonds and the rate of interest thereon, and the date when due. Said written or printed notices shall be posted in the same manner and places and for the same length of time as required by this act for the original petition for the cre- ation of such district. If, upon said hearing, the court should find that the necessity for the issuance of such additional bonds and that the taxable values of the real property of the said district as shown by the last annual assessment rolls for state and county taxes, will admit of an additional bond issue, then the court shall order an election within said district for the purpose of voting on said proposed bond issue and the levy of taxes to pay said bonds and the interest thereon. The manner of holding such election and making returns, and the notices for said election, manner and time of giving notice thereof and the qualifications of the persons entitled to vote therein, shall be the same as, and in 542 Taxation in Texas. all things governed by the provisions of this act for the election held for the issuance of bonds and levy of tax in the first instance, and the commissioners' court shall meet and canvass the returns of such election as in the said first election, and if it be found that two-thirds of the resident property taxpayers voting at said elec- tion vote in favor of the issuance of said additional bonds and the levy of said tax then the said commissioners' court shall enter an order reciting the result of said election, and ordering the issu- ance of said additional bonds and issuance and sale and registra- tion of such additional bonds and levy of said tax, and the issu- ance and sale and registration of such additional bonds shall in all things be governed by the provisions of this act in regard to the bonds first issued. Sec. 23. All bonds issued under the provisions of this act shall be issued in the name of the improvement district, and shall be signed by the county judge and attested by the clerk of the county court with the seal of the county court affixed thereto, and such bonds shall be issued in denorninations of not less than $100 nor more than $1,000 each and shall bear interest at a rate of interest not to exceed 5 per cent per annum, payable semi-annually at such times as may be specified therein. Such bonds and interest shall be made payable at the county treasurer's office of the county in which such improvement district is located, or in the city of Austin, and no bond shall be made payable for more than forty years after its date. Sec. 24. Any improvement district in the state of Texas de- siring to issue bonds in accordance with this act shall, before such bonds are offered for sale forward to the attorney general of this state a copy of the bond to be issued, a certified copy of the order of the commissioners' court levying the tax to pay inter- est and providing a sinking fund for the payment of such bonds, and a statement of the total bonded indebtedness of such im- provement district. Sec. Z2. The county commissioners' court shall provide all necessary additional books for the use of the assessor and collec- tion [collector] of taxes and the county clerk for such improve- ment district, and charge the cost of same to the said district. It shall be the duty of the county tax assessor, when ordered to do so by the commissioners' court, to assess all property within such improvement district and list the same for taxation in the Improvement Districts. 543 books or rolls furnished by the said commissioners' court for that purpose and return said books or rolls at the same time when he returns the other books or rolls of the state and county taxes for correction and approval ; if the said commissioners' court shall find said books or rolls correct, they shall approve the same and order the county clerk to issue a warrant against the county treas- urer in favor of said tax assessor to be paid from the funds of said improvement district. The tax assessor shall receive for his services such compensation as the said county commissioners' court shall deem proper to compensate him for the amount of work done, provided that the said county assessor shall in no event be allowed less than what he is now allowed by law for like services. Should the tax assessor fail or refuse to comply with the orders of the commissioners' court requiring him to assess and list for taxation all property in such improvement district as herein provided, he shall be suspended from the further dis- charge of his duty by the commissioners' court of his county, and he shall be removed from office in the mode prescribed by law for the removal of county officers. Sec. 33. The tax collector of the county shall be charged by the county commissioners' court with the assessment rolls of the improvement district and he shall be allowed for such compensa- tion for the collections of such taxes as he is now allowed for the collection of other taxes. The county commissioners' court shall require the tax collector of the county to give an additional bond of security in such sum as they may deem proper and safe to secure the collection of said taxes, and should any collector of taxes fail or refuse to give such additional bond or surety as here- in provided when required by the commissioners' court within the time prescribed by law for such purposes, he shall be sus- pended from office by the commissioners' court of his county, and immediately thereafter be removed from office in the mode pre- scribed by law. Sec. 34. It shall be the duty of the tax collector to make a cer- tified list of all delinquent property, upon which the improvement taxes have not been paid, and return the same to the county com- missioners' court, and said court shall proceed to have said taxes collected by the sale by the collector, or by suit, in the same man- ner as now provided for the collection of delinquent state and 544 Taxation in Texas. county taxes, and at any sale of such property for such delinquent improvement taxes, the improvement commissioners may become the purchasers of the same for the benefit of the improvement district. Sec. 36. All taxes levied or authorized to be levied by this act shall be payable and shall mature and become delinquent as is pro- vided by the laws of this state for state and county taxes and upon the failure to pay such taxes when due, the same penalties shall accrue and be collected as provided by the laws of the state of Texas for the non-payment of state and county taxes. All taxes shall be a lien upon the property for which said property is assessed. In the assessment and collection of the taxes levied or authorized to be levied by this act, the assessor and collector of taxes shall, respectively, have the same powers and shall be gov- erned by the same rules and regulations as provided by the laws of the state of Texas for the assessment and collection of state and county taxes, unless herein otherwise provided. Acts 31st Leg., pp. 140 to 151. CHAPTER XLVIII. DRAINAGE TAX. Sec. 930. Acts of 31st Legislature, showing mode of levying and collecting. § 930. Acts of 31st legislature showing mode of levying and collecting. Section 1. That Sections Nos. 2, 11, 12, 13, 16, 17, 22, 23, 29, 30, 35, 41 and 44, of Chapter XL of the General Laws of Texas, enacted by the Thirtieth Legislature of the State of Texas, being an act entitled, "An act to authorize the commissioners' courts of the several counties of Texas to create and establish drainage districts, to construct canals, drains and ditches, to make levees, improve streams and water courses and make other improvements for the purpose of drainage; to order and hold elections for the purpose of voting on drainage propositions, and authorizing the issuance of bonds and levy of tax, and to issue bonds in payment for such drainage improvements and the maintenance thereof, and to levy and collect taxes for the payment of such bonds, to appoint drainage commissioners and all other necessary officers of such drainage districts for the purpose of carrying into effect the provisions of this act; granting the' right of eminent domain to such drainage districts, and authorizing the drainage commis- sioners to acquire by purchase, gift or grant, for such district, title to any right of way and other property, and generally au- thorizing the county commissioners' court and the drainage com- missioners to do all things necessary for the establishing and maintenance of such districts according to the provisions of this act; repealing all laws or parts of laws in conflict herewith and declaring an emergency," be and the same are hereby amended so as to read as follows, to wit: Sec. 2. Upon the presentation to the county commissioners' court of any county in this state of a petition (accompanied by the deposit provided for in Section 29 of this act), signed by twenty-five of the freehold resident taxpayers, or in the event there are less than seventy-five freehold resident citizen taxpayers 35 546 Taxation in Texas. in the proposed district, then by one-third of such freehold resi- dent citizen taxpayers of any proposed drainage district, whose lands may be affected thereby, praying for the establishing of a drainage district, and setting forth the necessity, public utility and feasibility and proposed boundaries thereof, and designating a name for such drainage district, which name shall include the name of the county, the said commissioners' court shall at the same session when said petition is presented, set said petition down for hearing at some regular or special session of said court, called for the purpose, not less than thirty nor more than sixty days from the presentation of said petition, and shall order the clerk of said court to give notice of the date and place of said hearing by posting a copy of said petition, and the order of the court thereon, in five public places in said county, one of which shall be at the court house door of said county, and four of which shall be within the limits of said proposed drainage district. The said clerk shall receive as compensation for such service one dol- lar for each such notice and five cents per mile for each mile nec- essarily traveled in posting such notices. Such notices shall be posted for twenty days prior to the date of said public hearing. Provided, however, that in all cases wherein drainage districts have heretofore been established, or wherein a hearing has been heretofore had on the petition and action thereon has been taken by the county commissioners' court, or wherein a public hearing is now pending upon a petition for a drainage district, and the notices thereof and therefor have been so posted for twenty days, in either or all of such cases, the notices for such public hear- ing as well as the notices for the hearing upon the engineer's re- port provided for in Section 10 of this law, shall be and they are hereby held, deemed and declared to be and to have been due and legal and valid notices of such public hearing or hearings under the full meaning, intent and purpose of this law. Sec. 11. If there should be no objection to said report, or if there should be objection thereto, and the court should find that the objections are not well taken, the report shall be approved, and the fact of such approval entered of record on the minutes of said court ; but the commissioners' court shall not be confined to the number of drains, ditches, canals or levees or to the initial point or outlets of same, as located and shown by said report of Drainage Tax. 547 the engineer, and may change the location of any of said improve- ments, or may add to the number of same or reduce the number of same and order the engineer to locate any additional canals, drains, ditches or levees, which levees may be constructed for the purpose of conducting waters from the lands of said district, or to prevent the overflow of waters from streams or otherwise onto the lands of said district proposed to be drained, or otherwise in aid of said purpose, as directed by the court, and the commis- sioners' court, if it deem it necessary, may refer the entire report back to the engineer for a compliance with the orders of the court and require a further report, provided, that notices shall be given as provided in Section 10 of this law, and shall state that the public hearing shall be upon such report of the engineer and also upon any changes or modifications that may be made by the county commissioners' court. Provided, further, that in all such public hearings heretofore had under said Sections 10 and 11 of this law, wherein twenty days or more notice was given, such notices and hearings shall be, and the same are hereby held, deemed and declared to be and to have been legal, regular and valid notices and hearings in all respects under the full intent, meaning and purpose of this law. Sec. 12. After the approval of the report of the engineer as presented, or as modified by the county commissioners' court, as provided for in the preceding section of this act, the county com- missioners' court shall order an election to be held within such proposed drainage district at the earliest possible legal time, at which election there shall be submitted the following propositions, and none other: "For the drainage district and the issuance of bonds and levy of tax in payment therefor." "Against the drain- age district and the issuance of bonds and levy of tax in payment therefor." Sec. 13. Notice of such election, reciting the establishment of the drainage district, stating the amount of bonds, which shall not exceed the engineer's estimate and the cost of any additional work which may become necessary by any change or modification made by the commissioners' court as provided for in Section 11 of this act, stating the time and place or places of holding the election, shall be given by the county clerk by posting notices thereof in four public places in such proposed drainage district and one at the courthouse door of the county in which such district is situ- 548 Taxation in Texas. ated. Such notices shall be posted for twenty days previous to the date of the election, and shall contain the proposition to be voted upon as set forth in Section 12 of this act, and shall also specify the purposes for which said bonds are to be issued. Provided that the said notices of election in all drainage districts wherein such elections have heretofore been held or are now pending, and wherein twenty days notice was had, shall be and the same are hereby held, deemed and declared to be and to have been legal and valid notices of such elections, under the full meaning, intent and purpose of this law. Sec. 16. Immediately after the election the presiding judge at each polling place shall make return of the result in the same manner as provided for in general elections for state and county officers, and return the ballot boxes to the county clerk who shall keep same in a safe place and deliver them together with the returns from the several polling places to the commissioners' court at its next regular session or special session called for the purpose of canvassing the vote, and the county commissioners' court shall at such session canvass the vote, and if it be found that two-thirds majority of the resident property taxpayers voting thereon shall have been cast in favor of the drainage district and the issuance of bonds and levy of tax, then the court shall declare the result of said election to be in favor of said drainage district, the levy of tax, issuance of bonds, and shall enter the same in the minutes of the court substantially as follows : "In the matter of the petition of and others, praying for the establishment of a drainage district in said peti- tion described and designated as County Drainage District No , be it known that an election called for that purpose in said district held on the day of A. D. 19. . . ., a two-thirds majority of the resident property tax- payers voting thereon, voted in favor of the creation of said drainage district, and the issuance of bonds and the levy of a tax, now, therefore, it is considered and ordered by the court that said drainage district be, and the same is hereby established by the name of County Drainage District No within the following metes and bounds," which field notes shall be copied into the record. All drainage districts hereafter created shall bear the name of the county in which they may be located, as a part of their names, Drainage Tax. ' 549 and shall be numbered consecutively as created and established by order of the commissioners' court. Provided, how^ever, that all districts heretofore established and otherwise named, but v^hich have not, so far, issued bonds, may by an order of the county com- missioners' court of such county, have such district or districts renamed and numbered in accordance with the requirements of this act. Sec. 17. After the establishment of any drainage district as herein provided, the commissioners' court shall appoint three drainage commissioners, all of whom shall be residents of the pro- posed drainage district, who shall be freehold taxpayers and legal voters of the county, and shall have resided in such county for at least three years, whose duty, shall be as hereinafter provided, and who shall each receive for their services a sum of not more than two dollars and fifty cents ($2.50) per day for the time ac- tually engaged in the work of said district; provided, the com- pensation (if any), shall have been definitely fixed in the order of the court; and before any amount shall be paid said commis- sioners, or either of them, they shall make a detailed report to the commissioners' court of the time actually consumed in the work for said district, and of the work done, and such report shall be audited and approved by the commissioners' court. Said drainage commissioners shall hold office for the term of two years and until their successors have qualified, unless sooner removed by a majority vote of the county commissioners for malfeasance or nonfeasance in office. Upon expiration of the term of office of said drainage commissioners or in the case of the resignation of any such commissioners the commissioners' court shall appoint their successors by a majority vote ; provided, that after the elec- tion establishing a drainage district, if a majority of the real property taxpayers of such district residing in such county, pre- sent a petition to the county commissioners' court, praying for an election in said district for the purpose of electing three drain- age commissioners therefor, the county commissioners' court shall immediately order an election to be held in said district for said purpose at the earliest legal time, and an election shall be held and the returns thereof made as hereinbefore provided for other elections, and the same qualifications here- inbefore provided for voting at other elections shall apply in said election. The commissioners' court shall canvass said returns 550 Taxation in Texas. and declare the result at their next regular or special session; and the three persons receiving the highest number of votes shall be declared elected. In the event the third highest vote be tied, the commissioners' court shall elect the third drainage commis- sioner from among those receiving the third highest vote. Provided further, that in districts wherein drainage commis- sioners have been heretofore appointed whenever a majority of the real property taxpaying voters of such district shall file a pe- tition with the county clerk of the county in which such district is situated requesting an election for drainage commissioners, the commissioners' court shall at its next session, regular or special, order an election to be held in said district for said purpose in ac- cordance with the provisions of this act. Such commissioners so elected when duly qualified as required by this act shall be the legal and rightful drainage commissioners for such district within the. full meaning, intent and purpose of this law. All drainage district commissioners elected as herein provided shall hold their offices until the next regular election for state and county officers, and shall then and thereafter be elected every two years at such general election. Sec. 22. After the establishment of any such drainage district, and after making and filing of such maps, profiles and estimates as provided for in Section 21 of this act, the commissioners' court shall make an order directing the issuance of drainage bonds for such district, sufficient in amount to pay for such proposed im- provements, together with all necessary, actual and incidental ex- penses connected therewith, provided, however, that said bonds shall not exceed in amount one-fourth of the assessed value of the real property in such district, as shown by the last annual as- sessment thereof, made for state and county taxation, nor exceed- ing the amount specified in said order and notice of election. Provided, however, that if after an election has been held es- tablishing the district, the tax authorized o% levied, and bonds authorized to be issued, or have been issued, as provided in this act, the commissioners' court shall consider it necessary to make any modification in the said drainage district or in any of the improvements therein, and issue additional bonds, upon the report of the engineer appointed by the drainage commissioners, as au- thorized by this act, or upon the report of said drainage commis- sioners, or upon its own motion, shall have the right to order a Drainage Tax. 551 hearing for said purposes, or either or any of them, and notice thereof shall be given as for original hearings, as in this act pro- vided, and upon the hearing of said matters, or any or either of them, the said commissioners' court shall make such orders as it deems proper in the premises ; and if such drainage district is modified or changed, or if the improvements therein proposed are changed or altered, and if additional bonds are considered neces- sary, the said commissioners' court shall so find, and such find- ings entered of record, and a notice of an election for such changes in said district and improvements and the issuance of said bonds shall be held within such time and the returns of elec- tions made as heretofore provided for in case of an original elec- tion, and if two-thirds majority of the property taxpaying voters of the district voting thereon in favor of such change in such dis- trict, or improvements and issuance of bonds, the court shall enter the same of record and order such bonds to be issued as in the manner otherwise provided in this act. Sec. 23. All bonds issued under the provisions of this act shall be issued in the name of the drainage district, signed by the county judge and attested by the derk of the county court, with the seal of the county commissioners' court affixed thereto, and such bonds shall be issued in denominations of not less than one hundred nor more than one thousand dollars each, and such bonds shall bear interest at the rate not to exceed 5 per cent per annum, payable annually or semi-annually. Such bonds shall by their terms, provide the time, place or places, manner and condition of their payment and the interest thereon, as may be determined and ordered by the county commissioners' court, but none of such bonds shall be made payable more than forty years after the date thereof. Provided, however, in all drainage districts heretofore created and which have issued and registered bonds with the comptroller under Chapter 40 of the Acts of the Thirtieth Legislature of Texas, approved March 23, 1907, that all proceedings had and done in connection with and leading up to the creation of such districts and the issuance of such bonds so registered except such bonds that were issued and registered with the comptroller under Chapter 40 of the Acts of the Thirtieth Legislature of Texas in excess of the estimate before the commissioners' court, when the election was ordered and held, be and the same are hereby held, 552 Taxation in Texas. deemed and declared to be, and to have been regular, valid and legal proceedings under the full intent, purpose and meaning of this law; and all such bonds so issued thereunder are hereby held, deemed and declared to be valid and binding obligations upon such drainage districts. Sec. 29. All expenses, debts, and obligations, after the filing of the original petition, necessarily incurred in connection with the creation, establishment and maintenance of any drainage dis- trict organized under the provisions of this act shall be paid out of the "Construction and Maintenance Fund" of such drainage district, which fund shall consist of all money received by said district from whatever source except such portion of the tax col- lection necessary to be applied to the sinking fund and payment of interest on the drainage bonds. Provided, that should the proposition of the creation of such drainage district and the issu- ance of bonds be defeated, at the election called to vote upon the same, then all expenses up to and including said election shall be paid in the following manner: When the original petition pray- ing for the establishment of a drainage district is filed with the county commissioners' court, it shall be accompanied by two hun- dred dollars in cash, which shall be deposited with the clerk of said commissioners' court, and by him held until after the result of the election for the creation of said drainage district has been declared and entered of record by the commissioners' court, as hereinbefore provided, and should the result of said election be in favor of the establishment of said district, then the said two hundred dollars shall be by said clerk returned to the signers of said original petition or their agent or attorney; but should the result of said election be against the establishment of said drainage district, then th.e said clerk shall pay out of the said two hundred dollars, upon vouchers signed by the county judge, all costs and expenses pertaining to the said proposed drainage dis- trict up to and including the said election, and shall return the balance, if any, of said two hundred dollars to the signers of said original petition or their agent or attorney. Sec. 30. Whenever any such district drainage bonds shall have been voted, the commissioners' court shall levy and cause to be assessed and collected, taxes upon all property within said drainage district, whether real, personal, mixed or otherwise, and sufficient in amount annually to pay the interest on such bonds as Drainage Tax. 553 it shall fall due, together with an additional amount to be annu- ally placed in a sinking fund sufficient to discharge and redeem said bonds at their maturity. If advisable, the sinking fund shall, from time to time be invested in such county, municipal, dis- trict or other bonds as shall be approved by the attorney general of the state for the benefit of such drainage district. Provided, that in the assessment and collection of the taxes authorized by this act, and in all matters pertaining thereto or connected there- with, said assessor and collector shall have the same powers and shall be governed by the same rules, regulations and proceed- ings as are provided by the laws of this state for the assessment and collection of taxes for state and county purposes, unless oth- erwise provided for in this act. The taxes levied or authorized to be levied by this act, shall be a lien upon the property for which said taxes are assessed and it shall be the duty of the com- missioners' court, and the said court shall have authority to fix and determine when said taxes shall mature, and upon the fail- ure to pay said taxes when due the penalty provided by the laws of Texas for the failure to pay state and county taxes at maturity shall in every respect apply to taxes herein authorized to be as- sessed and levied. Sec. 35. The county treasurer shall be the treasurer for such districts and shall execute a good and sufficient bond, payable to the drainage commissioners of such district in a sum equal to the amount of bonds issued, conditioned for the faithful per- formance of his duty as treasurer of such district, which bond shall be approved by the said drainage commissioners and the treasurer shall be allowed as compensation for his services as treasurer, one-half of one per cent upon all moneys by him so paid out upon orders of such districts. Provided, that the county judge, county treasurer, contractor, and all bonded officers of such district or districts may be officially bonded in some surety company approved by said drainage commissioners. Sec. 41. Contracts for making and constructing canals, drains, ditches, and levees, straightening and cleaning water courses and other necessary work in connection with any drainage district, shall be let by the drainage commissioners to the lowest bidder, after giving notice by advertising the same in one or more news- papers o^ general circulation in the state of Texas, once a week for four consecutive weeks, and by posting notices for at least 554 Taxation in Texas. twenty days, in five public places in the county, one of which shall be at the courthouse door and at least two of which shall be within said drainage district, and the contract for each drain, canal, ditch, or levee, may be let separately or all together ; pro- vided, that all the improvements included in the report of the drainage engineer and adopted by the county commissioners' court, as provided for in Sections 20 and 21 of this act, shall be constructed. Acts 31st Leg., pp. 23 to 30. CHAPTER XLIX. TAX FOR CAUSEWAYS. Sec. 931. Tax for causeways, § 931. Tax for causeways. Section 1. Whenever the county commissioners of any county in the state of Texas, having a population in excess of fifty thousand inhabitants, according to the last preceding census taken by the United States, deem it expedient so to do, they may order an election to ascertain the will of the qualified voters of such county to determine the propriety of a bond issue to provide for the construction and maintenance of causeways, viaducts, bridges, and approaches across any rivers and bottoms within the limits of such county, irrespective of any municipal boundaries. Sec. 2. The commissioners' court of such county shall, prior to ordering any such election as referred to in Section 1 thereof, provide for preliminary surveys and estimates for such work, and shall in the order for such election prescribe the amount and terms of such bond issue. Sec. 3. Whenever the commissioners' court of such county deem it necessary or expedient to order such election, the resolu- tion therefor shall be recorded in the minutes of the commission- ers' court and the resolution shall be submitted to the property- owning qualified voters of said county, at any regular or special election which may be ordered by said court for that purpose, and if at such election a majority of the votes cast thereon shall be for such resolution, the same shall be deemed to be adopted, but if a majority of the votes cast thereon at such election shall be against said resolution it shall be deemed to be rejected. Said election shall be governed in all respects by the law gov- erning elections in this state and the returns shall be made and canvassed in the same manner and the results declared by proc- lamation of the county judge of said county, which proclamation shall be posted in at least three public places in said county, and, at the option of said county judge, published in some newspaper in said county. 556 Taxation in Texas. Sec. 4. No person shall be permitted to vote at any election provided for in the next preceding section of this act, unless he is a property owner and taxpayer, and qualified voter of said coun- ty. Those desiring to vote for the resolution shall have written or printed on their tickets the words, "For the Resolution to Is- sue Bonds to " (here insert purpose of the proposed bond issue as set forth in said resolution), and those desiring to vote against the resolution shall have written or printed on their tickets the words, "Against the Resolution to Issue Bonds to " (here insert such purpose of the proposed bond issue, as set forth in said resolution). Such tickets shall be writ- ten or printed on plain white paper with black ink or pencil and shall contain no distinguishing mark or device, except as above provided, and if printed, shall be in type of uniform size and face. Sec. 5. If, at the election herein provided for, a majority of the qualified voters voting thereon at such election shall vote in favor of the resolution provided for in Section 3 of this act, and after the commissioners' court has canvassed said vote and de- clared the result, and after the proclamation of said county judge, declaring the result, it shall be the duty of said court, under the supervision and direction of the comptroller of this state, to pre- pare and execute the bonds of the county for such sums as may be deemed advisable by said court, not exceeding the amount stipulated in said resolution, said bonds to bear not exceeding five per cent interest, payable annually, and which shall be re- deemable in not less than five years and not more than forty years from the date thereof, the time of maturity to be expressed on the face of the bonds, and shall have such bonds registered or en- rolled as in case of other county bonds, and the same shall not be sold nor negotiated at less than their par value ; provided, that in no case shall said court issue bonds under this act for a greater sum or amount than that a levy for this purpose of five cents on the one hundred dollars property valuation of said county will yield sufficient revenue to pay such interest, as it accrues, and will at the same time create a sinking fund sufficient to pay the prin- cipal of such bonds at maturity. Sec. 6. When the bonds of the county are issued and sold under the provisions of this act, it shall be the duty of said com- missioners' court to levy an annual ad valorem tax on all prop- Tax for Causeways. 557 erty of the county, which tax, when collected, shall be used only for the purpose of paying interest on said bonds and creating a sinking fund to pay the principal of same. Sec. 7. The commissioners' court of such county is authorized to contract with individuals, firms or corporations for the privi- lege of using such causeways, viaducts, bridges and approaches, or constructing and maintaining and using tracks, telegraph lines or other such privileges as said commissioners may deem expedi- ent, but shall make no exclusive nor preferenrial contracts, and be- fore executing any such contracts shall give notice by posting at the courthouse door and in three other public places in said county the full terms and nature of such proposed contracts before exe- cution of same. Sec. 8. Any revenues that may accrue from any contract or contracts made in accordance with the provisions of the preceding section may be appropriated by the commissioners' court to the maintenance and repair of such structure or structures, and such court shall have the authority to make adequate provision for such maintenance and repair as in the case of any other structure under its control. In the event the revenues accruing from the use of any such structure shall exceed the expenditures for its maintenance and repair, any such excess shall be applied to the road and bridge fund of the county. Acts 31st Leg., pp. 46 and 47. CHAPTER L. NAVIGATION DISTRICTS. Sec. 932. Act of the 31st Legislature providing for navigation district and prescribing mode and manner of collecting taxes in same. § 932. Act of the 31st legislature providing for navigation district and prescribing mode and manner of collect- ing taxes in same. Section 1. One or more districts may hereafter be established in the several counties of this state to be known as navigation districts, in the manner hereinafter provided, and such districts may, or may not, include within their boundaries and limits vil- lages, towns and municipal corporations, or any parts thereof. Such navigation districts when so established may make improve- ment of rivers, bays, creeks, streams and canals running or flow- ing through such districts or any part thereof and may construct and maintain canals and waterways to permit of navigation or in aid thereof, may issue bonds in payment thereof as hereinafter provided. Sec. 2. Upon the presentation to the county commissioners' court of any county of this state of a petition (accompanied by the deposit provided for in Section 22 of this act) signed by twenty-five of the resident property taxpayers, or in the event there are less than seventy-five resident property taxpayers in the proposed district, then by one-third of such resident property taxpayers of any proposed navigation district, praying for the establishment of a navigation district, and setting forth the bound- aries of the proposed district accompanied by a map thereof, the general nature of the improvement or improvements proposed, and an estimate of the probable cost thereof, and praying for the issuance of bonds and levy of tax in payment thereof and desig- nating a name for such navigation district, which name shall in- clude the name of the county, said petitioners shall make affidavit to accompany said petition of their said qualification and 'the said commissioners' court, shall, at the same session when said petition Navigation Districts. - 559 is presented, set same down for hearing at some regular term of said court, or at some special session of said court, called for the purpose, not less than thirty, nor more than sixty days from the presentation of said petition, and shall order the clerk of said court to give notice of the date and place of said hearing by post- ing a copy of said petition, and the order of the court thereon, in five public places in said county, one of which shall be at the courthouse door of said county, and four of which shall be within the limits of said proposed navigation district, which said notices shall be posted not less than twenty days prior to the time set for the hearing. The said clerk shall receive as compensation for such services, one dollar for each such notice and five cents per mile for each mile necessarily traveled in posting such notices. In the event the boundaries of the proposed district shall in- clude a city or cities, or a part or parts thereof, acting under special charter granted by the legislature, the hearing of said petition hereinafter provided for, shall be had before the county judge and members of the commissioners' court and the mayor and aldermen or commissioners, as the case may be, of said city or cities, and said persons shall constitute a board to be known and designated as the navigation board, to pass upon the petition aforesaid. Each individual member of the said board shall be en- titled to a vote. A majority in number of the individuals com- posing said board shall constitute a quorum, and the action of a majority of the quorum shall control. In the event the hearing of said petition shall be had before the navigation board, the commissioners' court of said county shall set the petition down for hearing not less than thirty, nor more than sixty days from the date of the presentation of said petition without reference to any term of the commissioners' court, but said hearing shall be held at the regular place of meet- ing of the commissioners' court and notice shall be given of the hearing in the manner and for the time as hereinbefore provided. The county clerk shall enter and record the proceedings of the navigation board in a record book kept for this purpose, which record shall be a public archive. The duties and powers herein conferred upon the county judge and members of the commissioners' court and upon the mayor and aldermen or commissioners of cities and upon the county clerk and other officers, are made a part of the legal duty of said 560 Taxation in Texas. officials which they shall render and perform without additional compensation, unless otherwise provided herein. Sec. 3. Upon the day set by said county commissioners for the hearing of said petition, any person who has taxable property within the proposed district or who may be affected thereby, may appear before the said court or navigation board, as the case may be, and contest the creation of said district, or contend for the creation of said district, and may offer testimony in favor of or against the boundaries of the said district, to show that the pro- posed improvement or improvements would or would not be of any public utility and would or would not be feasible or prac- ticable and the probable cost of such improvement or improve- ments, or as to any other matter pertaining to the proposed dis- trict. Said county commissioners' court or navigation board, shall have exclusive jurisdiction to hear and determine all con- tests and objections to the creation of such districts, and all mat- ters pertaining to the creation and establishment of the same and shall have exclusive jurisdiction in all subsequent proceed- ings of the district when organized, except as hereinafter pro- vided, and may adjourn hearing on any matter connected there- with from day to day and all judgments or decisions rendered by said court or navigation board in relation thereto shall be final, except as herein otherwise provided. Sec. 4. If at the hearing of said petition it shall appear to the commissioners' court or navigation board as the case may be, that the proposed improvement is feasible and practicable, that it would be a public benefit and a public Utility, and if the court or navigation board as the case may be shall approve the boundaries of the proposed district as set out in said petition, then the court or navigation board shall so find and shall also find the amount of money necessary for said improvement or improvements and for all expenses incident thereto, and shall determine whether to issue bonds for said full amount or in the first instance for a less amount, and shall specify the amount of bonds to issue, the length of time the bonds shall run and the rate of interest said bonds shall bear and cause its findings to be recorded in the records of the commissioners' court or minutes of the navigation board as the case may be. If the court or navigation board shall find that the proposed improvement is feasible and practicable, that it Navigation Districts. 561 would be a public benefit and a public utility, but does not approve the boundaries of the proposed districts as set forth in the peti- tion, the court or navigation board shall so find and shall also find the amount of money necessary for said improvement, or im- provements and for all expenses incident thereto and shall de- termine whether to issue bonds for said full amount or in the first instance for a less amount and shall specify the amount of bonds to issue, the length of time the bonds shall run and the rate of interest said bonds shall bear and cause its findings to be entered of record, together with a map thereof. Providing, however, that before any change is made by said court or navigation board as the case may be of the boundaries, notice and a hearing thereof shall be given and had as provided for in Section 2 of this act. If the court or navigation board shall find that the proposed im- provement is not feasible or practicable or that it would not be a public benefit or public utility and that the establishment of such navigation district is therefore unnecessary, then the court or navigation board shall enter such findings of record and dismiss the petition at the cost of petitioners, but the order dismissing said petition shall not prevent or conclude the presentation at a later date of a similar petition. Sec. 5. After the hearing upon the petition, as herein provided, if the court or navigation board, as the case may be, shall find in favor of the petitioners for the establishment of a navigation dis- trict according to the boundaries as set out in said petition, or as changed or modified as above provided by the said court or navi- gation board, the commissioners' court of said county shall order an election in which order provision shall be made for submitting to the qualified property taxpaying voters resident in said dis- trict whether or not such navigation district shall be created and whether or not a tax shall be levied sufficient to pay the interest and provide a sinking fund sufficient to redeem said bonds at ma:- turity, said order specifying the amount of bonds to be issued to- gether with the length of time the bonds shall run and the rate of interest said bonds shall bear as said matters have been deter- mined by the commissioners' court or navigation board as the case may be under the provisions of Section 4 of this act. Said election to be held within such proposed navigation district at the earliest legal time, at which election there shall be submitted the following propositions and none other : "For the navigation dis- 36 562 Taxation in Texas. trict, and issuance of bonds and levy of tax in payment thereof." "Against the navigation district, and issuance of bonds and levy of tax in payment thereof." Provided that said bonds shall not exceed in amount one-fourth of the assessed valuation of the real property of such district as made by the last annual assessment thereof for state and county taxation. Sec. 6. Notice of such election stating the time and place of holding the same, shall be given by the clerk of the county court by posting notices thereof in four -public places in such pro- posed navigation district and one at the courthouse door of the county in which such district is situated, for thirty days prior to the date set for the election. Such notices shall contain the prop- osition to be voted upon as set forth in Section 5 of this act, and shall also specify the purpose for which said bonds are to be issued, and the amount of said bonds and shall contain a copy of the order of the court ordering the election. Sec. 7. The manner of conducting said election shall be gov- erned by the election laws of the state of Texas, except as herein otherwise provided. None but resident property taxpayers who are qualified voters of said proposed district shall be entitled to vote at any election on any question submitted to the voters thereof by the county commissioners' court at such election. The county commissioners' court shall create and define by an order of the court the voting precincts in the proposed navigation district and shall name a polling place or places within said precincts taking into consideration the convenience of the voters in the proposed navigation district, and shall also select and appoint the judges and other necessary officers of the election, and shall pro- vide one and one-half times as many ballots as there are quali- fied resident property taxpaying voters within such navigation district. Said ballot shall have printed thereon the words and none others : "For the navigation district, and issuance of bonds and levy of tax in payment thereof." "Against the navigation district, and issuance of bonds and levy of tax in payment there- of." Sec. 8. Every person who offers to vote in any election held under the provisions of this act shall first take the following oath before the presiding judge of the polling place wherein he offers to vote, and the presiding judge is hereby authorized to adminis- ter same. "I do solemnly swear (or affirm) that I am a qualified Navigation Districts. 563 voter of County, and that I am a resident property taxpayer of the proposed navigation district voted on at this elec- tion and I have not voted before at this election." Sec. 9. Immediately after the election the presiding judge at each polling place shall make return of the result in the same manner as provided for in election for state and county officers and return the ballot boxes to the county clerk, who shall keep same in a safe place and dehver them, together with the returns from the several polling places to the commissioners' court at its next regular session or special session called for the purpose of canvassing the vote and the county commissioners shall at such session canvass the vote and if it be found that a two-thirds ma- jority of those voting at such election shall have been cast in favor of the navigation district and the issuance of bonds and levy of tax, then the court shall declare the result of said election to be in favor of said navigation district, and shall enter same in the minutes of the court as follows : "Commissioners' Court of County, Texas, term, A. D , in the matter of petition of and others, praying for the establishment of a naviga- tion district, and issuance of bonds and levy of taxes in said pe- tition fully described and designated by the name of Navigation District Be it known that an election called for that purpose in said district, held on the day of , A. D , a two-thirds majority of the resi- dent property taxpayers voting thereon voted in favor of the creation of said navigation district, and the issuance of bonds and the levy of a tax. Now, therefore, it is considered and or- dered by the court that said navigation district be, and the same is hereby established by the name of Navigation District, and that the bonds of said district in the amount of dollars be issued and a tax of cents on the hundred dollars of valuation, or so much thereof as may be nec- essary, be levied upon all property within said navigation district, whether real, personal, mixed or otherwise, sufficient in amount to pay the interest on such bonds and provide a sinking fund suf- ficient to redeem them at maturity and that if said tax shall at any time become insufficient for such purposes same shall be in- creased until same is sufficient. The metes and bounds of said district, being as follows, to-wit : 564 Taxation in Texas. Sec. 10. After the establishment of any navigation district as herein provided, the commissioners' court or navigation board, as the case may be, shall appoint three navigation and canal com- missioners, all of whom shall be residents of the proposed navi- gation district, who shall be freehold property taxpayers and legal voters of the county, whose duties shall be as hereinafter pro- vided, and who shall each receive for their services such compen- sation as may be fixed by the commissioners' court and made of record. Said navigation and canal commissioners shall hold office for the term of two years and until their successors have quali- fied unless sooner removed by a majority vote of the county com- missioners or navigation board as the case may be, for mal- feasance or nonfeasance in office. Upon the expiration of the term of office of said navigation and canal commissioners the commissioners' court or navigation board as the case may be, shall appoint their successors by a majority vote. Should any vacancy occur through the death or resignation or otherwise of any commissioner the same shall be filled by the commissioners' court or the navigation board as the case may be. Sec. 11. Before entering upon their duties all navigation and canal commissioners shall take and subscribe before the county judge an oath to faithfully discharge the duties of their office without favor or partiality, and to render a true account of their doings to the court or navigation board by which they are ap- pointed whenever required to do so, which oath shall be filed by the county clerk and preserved as a part of the records of said navigation district. Sec. 12. Before entering upon their duties each of the navi- gation and canal commissioners shall make and enter into a good and sufficient bond in the sum of $1,000 payable to the county judge for the use and benefit of said navigation district and con- ditioned upon the faithful performance of their duties. Sec. 13. The navigation and canal commissioners shall organ- ize by electing one of their number chairman and one secretary and two of the commissioners shall constitute a quorum and a concurrence of two shall be sufficient in all matters pertaining to the business of said district. Sec. 14. The navigation and canal commissioners shall have authority to employ a competent engineer whose term of office shall be at the will of the navigation and canal commissioners and Navigation Districts. 565 who shall receive such compensation as may be determined by the navigation and canal commissioners. It shall be the duty of the engineer to make all necessary surveys, examinations, investiga- tions, maps, plans and drawings with reference to the proposed improvements ; he shall make estimate or estimates of the cost of same, shall supervise the work of improvement and shall do and perform all such duties as may be required of him by the navi- gation and canal commissioners. Provided, that if the river, creek, stream, bay, canal, or waterway to be improved is navi- gable or the improvement proposed be of such nature as requires the permission or consent of the Government of the United States or any department or officer of the Government of the United States, the navigation and canal commissioners shall be author- ized to obtain the required permission or consent of the Gov- ernment of the United States or any proper office or department thereof; and in lieu of the employment of an engineer as herein provided or in addition thereto, the navigation and canal com- missioners shall have power to adopt any survey of the river, creek, canal, stream, bay, or waterway theretofore made by the Government of the United States or any department thereof and to arrange for surveys, examinations and investigations of the proposed improvement, and for supervision of the work of im- provement by the Government of the United States or the proper department or officer thereof ; provided that said navigation and canal commissioners shall have full power and authority to co- operate and act with the Government of the United States or any officer or department thereof, in any and all matters pertaining to or relating to the construction and maintenance of said canals and the improvement and navigation of all such navigable rivers, bays, creeks, streams, canals, and water ways, whether by survey, work or expenditure of money made or to be made either by said navigation and canal commissioners or by said Government of the United States or any proper officer or department thereof, or by both, and to the end that the said Government of the United States may aid in all such matters, the said commissioners shall have authority to agree and consent to the said Government of the United States, entering upon and taking management and control of said work, in so far as it may be necessary or permis- sible under the laws of the United States and the regulations and orders of any department thereof. 566 Taxation in Texas. Sec. 15. When the said navigation and canal commissioners shall have determined the cost of the proposed improvement or improvements, all of the expenses incident thereto and cost of maintenance thereof, the said navigation and canal commission- ers shall certify to the commissioners' court of the county in which such district is situated, the amount of bonds necessary to be issued, and thereupon the said court at a regular or special meeting shall make an order directing the issuance of naviga- tion bonds for such navigation district in the amount so certified ; provided that the amount of bonds shall not exceed the amount authorized by the election theretofore held. In the'event the pro- ceeds of bonds issued by such navigation district should be in- sufficient to complete the proposed improvement or construction, or in the event the navigation and canal commissioners shall de- termine to make other and further construction or improvements or s.hall require additional funds with which to maintain the im- provements made, they shall certify to the commissioners' court of the county in which such district is situated the necessity for an additional bond issue, stating the amount required and the purpose of the same ; the rate of interest of said bonds and the time for which they are to run, whereupon the corrimissioners' court shall issue such bonds unless the amount previously au- thorized shall have been exhausted, in which case the commis- sioners' court shall order an election on the issuance of said bonds, to be held within such navigation district at the earliest possible legal time, and in the manner hereinbefore provided for the orig- inal issue of bonds, at which election there shall be submitted the following propositions and none other : "For the issuance of bonds and levy of tax in payment thereof." "Against the issu- ance of bonds and levy of tax in payment thereof." Notices of such election shall be given as provided in Section 6 of this act and the election shall be held and conducted in the manner pro- vided in Sections 7 and 8 of this act. Only those who are quali- fied property taxpaying voters as provided in this act, shall vote at such election and the returns of such election shall be canvassed as provided in Section 9 of this act. [Sec] 15a. If upon a canvass of the vote, the commissioners' court shall determine that a two-thirds majority of the votes cast at said election shall have been cast in favor of the issuance of bonds and levy of tax the said court shall make an order directing \ Navigation Districts. 567 the issuance of said bonds, and levy of tax ; provided, however, that the outstanding bonds and the additional bonds so ordered shall not exceed in amount one-fourth of the assessed value of the real property in such district as shown by the last annual assessment thereof made for state and county taxation. Sec. 16. All bonds issued under the provisions of this act shall be issued in the name of the navigation district, signed by the county judge and attested by the clerk of the county court, with the. seal of the commissioners' court affixed thereto, and such bonds shall be issued in denominations of not less than $100 nor more than $1,000 each, and such bonds shall bear interest at a rate not to exceed five per cent per annum. Such bonds and in- terest shall by their terms be made payable at the county treas- urer's office of the county in which such navigation district is located, or elsewhere as may be fixed by said navigation and canal commissioners, and no bonds shall be made payable more than forty years after date. Sec. 17. Any navigation district in the state of Texas desiring to issue bonds in accordance with this act shall, before such bonds are ofifered for sale, forward to the attorney general a copy of the bonds to be issued, a certified copy of the order of the com- missioners' court levying the tax, copy of the order of the com- missioners' court levying the tax to pay interest and provide a sinking fund, and a statement of the total bonded indebtedness of such navigation district as such including the series of bonds proposed and the assessed value of property for the purpose of taxation, as shown by the last official assessment by the county, together with such other information as the attorney general may require, whereupon it shall be the duty of the attorney general to carefully examine said bonds in connection with the facts and the constitution and laws on the subject of the execution of such bonds, and if as the result of such examination the attorney gen- eral shall find that such bonds were issued in conformity with the constitution and laws, and that they are valid and binding obliga- tions upon such navigation district by which they are issued, he shall so officially certify. Sec. 18. When said bonds have been examined by the attorney general and his certificate issued to that effect they shall be reg- istered by the state comptroller in a book to be kept for that pur- pose, and the certificate of the attorney general to the validity of 568 Taxation in Texas. such bonds shall be preserved of record for use in the event of litigation. Such bonds, after being approved by the attorney gen- eral, and after having been registered in the comptroller's office as herein provided, shall thereafter be held in every action, suit or proceeding in which their validity is or may be brought in question, prima facie, valid and binding obligations. And in ev- ery action brought to enforce collection of said bonds or interest thereon, the certificate of the attorney general or a duly certified copy thereof shall be admitted and received as prima facie evi- dence of the validity of such bonds, together with the coupons thereto attached ; provided, that the only defense that can be ofifered against the validity of said bonds, or coupons shall be forgery or fraud. But this article shall not be construed to give validity to any such bonds or coupons as may be issued in excess of the limit fixed by the constitution, or contrary to its provisions, but all such bonds shall, to the extent of such excess be held void. Sec. 19. Before issuing any bonds under the provisions of this act the county commissioners' court shall provide a well bound book, in which a record shall be kept by the county clerk of all bonds issued, with their numbers, amount, rate of interest, and date of issue, when due, where payable and amount received for the same, and the annual rate per cent assessment made each year to pay the interest on said bonds and provide a sinking fund for their payment. And said book shall at all times be open to the inspection of all parties interested in said district, either as tax- payers or bondholders or otherwise, and upon the payment of any bond an entry thereof shall be made in said book. The county clerk shall receive for his services in recording all bonds and other instruments of the navigation district the same fees as provided by law for other like records. Sec. 20. When such bonds have been registered, as provided for in the preceding section of this act, the chairman of the navi- gation and canal commissioners shall 6flFer for sale and sell said bonds on the best terms and for the best price possible, but none of said bonds shall be sold for less than the face par value thereof and accrued interest thereon, and as fast as said bonds are sold, all moneys received therefor shall be paid to the county treasurer and shall by him be placed to the credit of such navigation dis- trict. Navigation Districts. 569 Sec. 21. Before the said chairman of the navigation and canal commissioners shall be authorized to sell any of the navigation bonds he shall execute a good and sufficient bond, payable to the county judge or his successors in office, to be approved by the county commissioners' court of said county for an amount not less than the amount of the bonds issued, conditioned upon the faithful discharge of his duties. Sec. 22. All expenses, of any kind, after the filing of the orig- inal petition necessarily incurred in connection with the creation, establishment and maintenance of any navigation district organ- ized under the provisions of this act shall be paid out of the "Con- struction and Maintenance Fund" of such navigation district, which fund shall consist of all moneys received from the sale of bonds and all other amounts received by said district from what- ever source, except the tax collections applied to the sinking fund and payment of interest on the navigation bonds. Provided, that should the proposition of the creation of such navigation district and issuance of bonds be defeated at the election called to vote upon same, then all expenses up to and including said election shall be paid in the following manner: When the original peti- tion praying for the establishment of a navigation district is filed with the county commissioners' court it shall be accompanied by $500 in cash, which shall be deposited with the clerk of said county commissioners' court, and by him held until after the result of the election for the creation of said navigation district has been declared and entered of record by the commissioners' court, as hereinbefore provided, and should the result of said election be in favor of the establishment of said district then the said $500 shall be by said clerk returned to the signers of said original pe- tition or their agent or attorney; but should the result of said election be against the establishment of said district, then the said clerk shall pay out of the said $500, upon vouchers signed by the county judge, all costs and expenses pertaining to the said pro- posed district up to and including the said election, and shall re- turn the balance, if any, of said $500, to the signers of said orig- inal petition or their agent or attorney. Sec. 23. Whenever any such navigation district bonds shall have been voted, the commissioners' court shall levy and cause to be assessed and collected improvement taxes upon all property within said navigation district, whether real, personal, mixed or 570 Taxation in Texas. otherwise, and sufficient in amount to pay the interest on such bonds, together with an additional amount to be annually placed in a sinking fund sufficient to discharge and redeem said bonds at their maturity. If advisable the sinking fund shall from time to time be in- vested by the commissioners' court of the county, in such county, municipal, district or other bonds as shall be approved by the attorney general of the state. Sec. 24. The county commissioners' court shall provide all necessary additional books for the use of the assessor and col- lector of taxes and the county clerk for such navigation district, and charge the cost of same to the said navigation district. It shall be the duty of the county tax assessor, when ordered to do so by the commissioners' court, to assess all property within such navigation district and list the same for taxation in the books or rolls furnished him by said commissioners' court for that pur- pose, and return said books or rolls at the same time when he returns the other books or rolls of the state and county taxes, for correction and approval ; and if the said commissioners' court shall find said books or rolls correct, they shall approve the same, and in all matters pertaining to the assessment of property for taxation in said districts, the tax assessor and board of equaliza- tion of the county in which said district is located, shall be au- thorized to act and shall be governed by the laws of Texa^ for assessing and equalizing property for state and county taxes, ex- cept as herein provided. All taxes authorized to be levied by this act shall be a lien upon the property upon which said taxes are as- sessed and said taxes may be paid and shall mature and be paid at the time provided by the laws of this state for the payment of state and county taxes and all the penalties provided by the laws of this state for the non-payment of state and county taxes shall apply to all taxes authorized to be levied by this act. The tax assessor shall receive for said services such compensation as the said navigation and canal commmissioners shall deem proper, provided that said county assessor shall in no event be allowed more than he is now allowed by law for the like services. Should the tax assessor fail or refuse to comply with the orders of the commissioners' court requiring him to assess and list for taxation all the property in such navigation districts as herein provided, Navigation Districts. 571 he shall be suspended from the further discharge of his duties by the commisssioners' court of his county, and he shall be removed from office in the mode prescribed by law for the removal of county officers. Sec. 25. The tax collector of the county shall be charged by the county commissioners' court with the assessment rolls of the nav- igation district, and he shall be allowed no more compensation for the collection of said taxes than he is now allowed for the col- lection of other taxes, same to be fixed by the navigation and canal commissioners. The county commissioners' court shall re- quire the tax collector of the county to give an additional bond or security in such a sum as they may deem proper and safe to secure the collection of said taxes, and in all matters pertaining to the collection of taxes levied under the provisions of this act the tax collector shall be authorized to act and shall be governed by the laws of Texas for the collection of state and county taxes except as herein provided, and suits may be brought for the col- lection of said taxes and the enforcement of the tax liens created by this act. Should any collector of taxes fail or refuse to give such additional bond or security as herein provided, when re- quested by the commissioners' court, within the time prescribed by law for such purposes, he shall be suspended from office by the commissioners' court of his county, and immediately there- after be removed from office in the mode prescribed by law. Sec. 26. It shall be the duty of the tax collector to make a cer- tified list of all delinquent property upon which the navigation tax has not been paid and return the same to the county commission- ers' court, which shall proceed to have the same collected by the sale of such delinquent property in the same manner both by suit and otherwise as is now provided for the sale of property for the collection of state and county taxes, and at the sale of any prop- erty for any delinquent tax the navigation and canal commis- sioners mdy become the purchasers of the same for the benefit of the navigation district. Acts 3 1st Leg., pp. 32 to 42. CHAPTER LI. INHERITANCE TAX. Sec. 933. An Act to tax property passing by will or by descent or by grant or gift; taking effect on the death of the grantor or donor. § 933. An act to tax property passing by will or by descent or by grant or gift ; taking effect on the death of the grantor or donor. Section 1. All property within the jurisdiction of this state, real or personal, corporeal or incorporeal, and any interest there- in, whether belonging to inhabitants of this state or not, which shall pass, absolutely or in trust, by will, or by the laws of de- scent of this or any other state, or by deed, grant, sale or gift, made or intended to take effect in possession or enjoyment after the death of the grantor or donor, shall upon passing to or for the use of any person except the father, mother, husband, wife or direct lineal descendants of the testator, intestate, grantor or donor, or any public corporation or charitable, educational or re- ligious organization within this state when such bequest, gift or devise is to be used for charitable, educational or religious pur- poses within this state, be subject to a tax for the benefit of the state, as follows : (1) If passing to or for the use of a lineal ascendant or a brother or sister, or a lineal descendant of a brother or sister, the tax shall be two per cent on any value in excess of two thou- sand dollars, and not exceeding ten thousand dollars ; two and one-half per cent of any value in excess of ten thousand dollars, and not exceeding twenty-five thousand dollars ; three per cent on any value in excess of twenty-five thousand dollars, and not ex- cieeding fifty thousand dollars ; three and one-half per cent on any value in excess of fifty thousand dollars, and not exceeding one hundred thousand dollars ; four per cent on any value in excess of one hundred thousand dollars, and not exceeding five hundred thousand dollars ; and five per cent on any value in excess of five hundred thousand dollars. Inheritance Tax. 573 (2) If passing to or for the use of an uncle or aunt, or a lineal descendant of an uncle or aunt of the decedent, the tax shall be three per cent on any value in excess of one thousand dollars, and not exceeding ten thousand dollars; four per cent on any value in excess of ten thousand dollars, and not exceeding twenty-five thousand dollars ; five per cent on any value in excess of twenty-five thousand dollars, and not exceeding fifty thousand dollars ; six per cent on any value in excess of fifty thousand dol- lars and not exceeding one hundred thousand dollars ; seven per cent on any value in excess of one hundred thousand dollars, and not exceeding five hundred thousand dollars, and eight per cent on any value in excess of five hundred thousand dollars. (3) If passing to or for the use of any other person, natural or artificial, the tax shall be four per cent of any value in excess of five hundred dollars, and not exceeding ten thousand dollars ; five and one-half per cent on any value in excess of ten thousand dollars, and not exceeding twenty-five thousand dollars ; seven per cent on any value in excess of twenty-five thousand dollars and not exceeding fifty thousand dollars ; eight and one-half per cent on any value in excess of fifty thousand dollars, and not ex- ceeding one hundred thousand dollars ; ten per cent on any value in excess of one hundred thousand dollars and not exceeding five hundred thousand dollars, and twelve per cent on any value in excess of five hundred thousand dollars. Sec. 2. If the property passing as aforesaid shall be divided into two or more estates, as an estate for years or for life and a remainder, the tax shall be levied on each estate or interest sep- arately according to the value of the same at the death of the de- cedent. The value of estates for years, estates for life, remainders and annuities shall be determined by the "Actuaries' Combined Experience Tables," at 4 per cent compound interest. Sec. 3. If a testator bequeaths or devises to his executor or trustee, property in lieu of the latter's commission, the value of such property in excess of reasonable compensation, as determined by the county judge on his own motion, or on the application of any officer on behalf of the state, shall be subject to taxation under this act. Sec. 4. Every executor, administrator and trustees of the es- tate of a decedent leaving property subject to taxation under this act, whether such property passes by will or by the laws of de- 574 Taxation in Texas. scent or otherwise, shall, within three months after his appoint- ment, make and file an inventory thereof in the county court hav- ing jurisdiction of the estate of the decedent. Any executor, ad- ministrator or trustee refusing or neglecting to comply with the provisions of this section shall be liable to a penalty not exceed- ing one thousand dollars, to be recovered in an action brought in behalf of the state by the district or county attorney upon notice from the judge of the county court. Sec. 5. If within three months after the death of a decedent leaving property subject to taxation under this act no application for letters testamentary or of administration shall be made, it shall be the duty of the county court to appoint an administrator. It shall be the duty of the county attorney to report to the judge of the county court all such estates, whether the property subject to taxation passes by will or by laws of descent or otherwise. For each decedent's estate thus reported the county attorney shall receive a compensation of ten per cent of the tax payable, but not to exceed twenty dollars in any one estate. Such payment shall be made by the collector of taxes, on the certificate of the county judge, out of the taxes paid him on property belonging to such estate. - Sec. 6. Said tax shall be assessed upon the actual or market value of the property. The judge of the county court having jurisdiction of the estate of the decedent shall, as often as and whenever occasion may require, appoint two competent disinter- ested persons as appraisers to fix the value of property subject to said tax. The appraisers, being first sworn, shall forthwith give notice to all persons known to have a claim or interest in the property to be appraised, including the executor, administrator or trustee, and the collector of taxes of the county, of the time and place when they will appraise the same. At such time and place they shall appraise such property at its actual or market value at the time of the death of the decedent, and shall thereupon make report thereof in writing to said county judge, who shall file such report. Each appraiser shall be paid, on the certificate of the county judge, two dollars for each day employed in such appraisal, together with his actual necessary expenses incurred therein, which payments shall be made by the collector of taxes out of any moneys in his hands received under this act; provided, however, that upon the agreement of the parties interested to dispense with Inheritance Tax. 575 the appointment of appraisers the county judge shall himself appraise the property and make and file a report thereof. If the same decedent shall leave property subject to this tax to more than one person, a separate appraisal and report shall be made for the property of each person. Sec. 7 . Immediately upon the filing of the report of the ap- praisement, the county judge shall calculate and determine the amount of tax due on such property under this act, and shall in writing certify such amount to the collector of taxes, to the exec- utor, administrator or trustee, and to the person to whom or for whose use the property passes. Said tax shall be a lien upon such property from the death of the decedent until paid, and shall bear interest from such death until paid, unless payment shall be made within six months after such death, in which case no inter- est shall be charged. Sec. 8. If such property be in the form of money, the executor, administrator or trustee shall deduct the amount of the tax there- from before paying it to the party entitled thereto ; if it be not in the form of money, he shall withhold the property until the pay- ment by such party of the amount of the tax ; in any case the executor, administrator or trustee shall be liable for the amount of the tax and shall have the right, in case of neglect or refusal after due notice of the party entitled to the property to pay such amount, to sell, at public sale, after due notice to such party, the property, or so much thereof as may be necessary. Out of the sum realized on such sale, the executor, administrator or trustee shall deduct the amount of the tax and the expenses of the sale, and shall pay the balance to the party entitled thereto. Sec. 9. Whenever any legacy subject to said tax shall be charged upon or payable out of real estate, the heir or devisee, be- fore paying the legacy, shall deduct the amount of the tax there- from, and pay the amount so deducted to the executor, admin- istrator or trustee; the amount of the tax shall remain a charge on such real estate until paid, and the payment thereof shall be enforced by the executor or trustee in the same manner as the payment of the legacy itself could be enforced. Sec. 10. All taxes received under this act by any executor, administrator or trustee, shall be paid by him within thirty days thereafter to the collector of taxes of the county whose county court has jurisdiction of the estate of the decedent. Upon such 576 * Taxation in Texas. payment, the collector shall make duplicate receipts thereof; he shall deliver one to the party making payment, the other he shall send to the comptroller of public accounts, who shall charge the collector with the amount thereof, and shall countersign and affix his seal of office to such receipt and transmit same to the party making payment. Sec. 11. In case such tax shall not be paid to the collector of taxes within six months after the county judge has notified the amount thereof as hereinbefore provided, the collector shall com- mence an action to recover the amount of such tax against the executor, administrator or trustee, and the party to whom or for whose use the property has passed; provided, that the county judge may by certificate to the collector extend such time of pay- ment whenever the circumstances of the case require. Sec. 12. The collector of taxes of each county shall, on or before the fifteenth day of each month, pay to the state treasurer all taxes received by him under this act before the first day of that month, deducting therefrom all lawful disbursements made by him under this act, and also his compensation at the rate of one per cent of all taxes collected under this act. Sec. 13. The moneys received by the state treasurer under this act shall be deposited in the state treasury to the credit of the fund now there existing and known as the general revenue fund. Sec. 14. Whenever any debts shall be proven against the estate of a decedent after the distribution of property on which the tax has been paid, and a refund is made by the distributee, a due pro- portion of the tax so paid shall be repaid to him by the executor, administrator or trustee, if still in his hands, or by the collector of taxes if it has been paid to him. The collector shall pay such sums upon the order of the county judge out of any money in his pos- session under this act ; and the comptroller of public accounts shall credit the collector with all sums so paid out by him. Sec. 15. No final account of an executor, administrator or trustee shall be allowed by the county judge unless such account shows, and said judge finds, that all taxes imposed under this act on any property or interest passing through his hands as such have been paid ; and the receipt of the collector of taxes for such taxes shall be the proper voucher for such payment. Sec. 16. If for any reason administration of the estate of a decedent leaving property subject to taxation under this act, shall Inheritance Tax. 577 not be necessary in this state, except in order to carry out the provisions of this .act, it shall be in the discretion of the county judge upon the filing of a satisfactory inventory of the taxable property by the trustee or owner, to dispense with the appoint- ment of an administrator. Upon the filing of such inventory, the appraisement and other proceedings required by this act shall be had as in other cases. Acts 30th Leg., pp. 496 to 500. 37 CHAPTER LII. INTANGIBLE ASSETS. Sec. 934. Providing for taxing intangible assets of certain corporations. § 934. Providing for taxing intangible assets of certain corpo- rations. An act for the taxation of the intangible assets of certain cor- porations, associations and individuals, and to provide for the creation of a state tax board, for the valuation of such intangible assets, and for the distribution of said values for local taxation, and for the assessment of said assets, and the levy and collection of taxes thereon ; and to provide for the repeal of all laws and parts of laws laying taxes on the gross incomes of the corpora- tions, associations and individuals affected by the provisions of this act. Section 1. Be it enacted by the legislature of the state of Texas : That each and every incorporated railroad company, ferry company, bridge company, turn-pike or toll road company, wharf company, telegraph company, inter-urban railroad company, ex- press company, chair car company, refrigerator car company, stock car company, tank car company, and every other car com- pany except sleeping car, dining car and palace car companies which are especially excepted from the provisions of this bill, and every packing house company and pipe line company doing business wholly or in part within the state of Texas, whether incorporated under the laws of this state or of any other state, or of any territory or foreign country, and every other company, corporation or association doing business of the same character in this state, and every individual or association of individuals doing such business shall in addition to the ad valorem taxes on on their unrendered intangible assets and property, and local taxes tangible properties which are now imposed upon them by law, an- nually, beginning with the first day of January, A. D. 1906, pay a tax to the state for the year 1906, and for each year thereafter thereon to the counties in which its business is or shall hereafter Intangible Assets. , 579 be carried on, which additional tax shall be assessed and levied upon such assets and property in the manner hereinafter pro- vided. The place or places where such local taxes are to be paid, and the manner of the apportionment of the same in cases where more than one jurisdiction is entitled to a share of such tax, shall be determined in accordance with the provisions of this act. Sec. 2. Between the second day of January and the first day of March of each year, every company, corporation and associa- tion embraced within the provisions of the first section of this act, or coming otherwise within its scope and intent, shall make out and deliver into the possession of the comptroller of public accounts of the state of Texas a statement containing the informa- tion hereinafter prescribed, which statement shall be duly verified by the affidavit of one of the officers of the company, corpora- tion or association in whose behalf it is made. Sec. 3. Each such statement shall show the following items and particulars as the same stood on the next preceding first day of January, to wit: (1) The name of the company, corporation or association making the statements, and the character of its business. (2) The authority by which it was incorporated, and the pur- poses of its incorporation as expressed in its charter or articles of association. (3) The locality of its principal office and the amount and kind of business done by it in this state, and the total gross re- ceipts derived from its business therein, including a due propor- tion of its inter-state business, if it has done any business of that character. (4) Its total capital stock and the number of shares which have been issued and are outstanding, and the par or face value of each such share. (5) The market value of the said shares of stock, or, if they have no market value, then the statement must show the actual value thereof. (6) A brief description of each tract of real estate and of the improvements thereon, and of the buildings, structures, ma- chinery, fixtures, appliances and other tangible property and as- sets owned and assessed or liable to assessment for the same year within this state, and the location and assessed value thereof, and the county, city or town wherein the same is assessed for 580 Taxation in Texas. taxation for state and county purposes, or is liable to assessment. (7) A brief description of each tract of land and of the im- provements thereon, and of the buildings, structures, machinery, fixtures, appliances, and of the other tangible property and as- sets owned and held outside of this state, and of all other property and assets having a fixed situs outside thereof, and the location of each item of such property, and the purpose for which it is used, and whether or not it is specifically used in the business of the company, corporation or association making the report, and its true and fair market value, and the sum or value at which it is assessed for taxation, and the locality in which it is assessed. (8) A statement of each and every lien, mortgage and other charge upon the whole or any part of the property of said com- pany, corporation or association, with a statement of the prop- erty encumbered or charged thereby and of the amount of unpaid debt secured by each such mortgage, lien or charge, and of the interest charged thereon, and to what extent interest has been paid, and the true and fair market value of every such debt. (9) A statement of the gross and net incomes and earnings for the next preceding twelve months, including therein all in- terest on investments, and all rents, fruits, revenues and receipts from every source whatsoever, and a statement of the income used for repairs and of the amount used for betterments and the amount used for extensions; and each pipe line company shall include as a part of its gross receipts such sum or sums as it would have been compelled to pay out for conveying its own product, if another company had conveyed same for it. (10) Every railroad company and every telegraph company, and every pipe line company shall show in each statement made by it the following particulars, which are in addition to the fore- going requirements, to wit : (a) the total length of all of the lines of said company, whether within or outside of this state, and (b) the total length of so much of said lines as are within this state, and (c) the length of its lines in each of the counties of this state into which its lines extend. The length of the lines of the telegraph companies shall be estimated and stated according to its mileage of poles, conduits and cables, or either. (11) Every refrigerating car company, chair car company, stock car company, tank car company and every other car com- pany, except sleeping car companies, dining car companies and Intangible Assets. 581 palace car companies, which are especially excepted from the provisions of this bill, and except railroad companies under the control of the Texas Railroad Commission, shall also and in ad- dition to the said foregoing requirements, show by each of its said statements, (a) the total mileage traveled by the cars of said company during the next preceding twelve months, whether within this state or beyond its borders, and (b) the total mileage traveled by such cars within the state during the same period, and (c) the mileage traveled by such cars within each county in this state during said period. ' (12) Every express company shall also, in addition to the foregoing requirements having application to such companies, show (a) its total gross receipts for all business done under its charter, whether within this state or outside of it, during the next preceding twelve months, and (b) its total gross receipts within this state for the same kind of business done during the same period, including a due proportion of receipts from interstate business, and (c) its total gross receipts in each county in this state for the same kind of business done during the same period. Sec. 4. The state comptroller of public accounts shall receive all tax statements oflfered to him under the provisions hereof, and he shall endorse upon each the date upon which he received it, signing the endorsement officially. He shall examine the state- ments as soon as may be practicable, and if any of them are in- sufficient, or if he shall believe other or further information to be necessary, he shall at once demand such additional statements and information as he may think proper. Sec. 5. On the first Monday after the first day of March of each year, or as soon thereafter as may be practicable, the said comptroller shall place all facts and statements, and all informa- tion relating thereto which he has received, before a state tax board, which is hereby created, and which shall consist of the comptroller of public accounts and the secretary of state and of a third member, to be known as the tax commissioner of the state of Texas, who shall be appointed by the Governor, with .the ad- vice and consent of the senate, subject to the provisions of Sec- tion 12 of Article 4 of the State Constitution. The tax commis- sioner shall hold office for two years, and until his successor is 582 Taxation in Texas. appointed and qualified, and shall receive an annual compensa- tion of two thousand five hundred dollars ($2,500), in equal in- stallments, payable at the end of each month. Sec. 6. Said state tax board shall carefully examine and con- sider the said statements and information, and shall hear evidence and secure further and additional information so far as may be in their power, to show the true value of the properties afore- said, and the true value of that portion of every such property, which is situated within this state, and within the respective coun- ties, and each interested company, corporation and association may appear and introduce material and relevant testimony before the said board, touching the true value of its said property within this state, and the apportionment thereof, and the board shall have full power to summon and swear witnesses. From the state- ments, evidence and information adduced before it, the state tax board shall ascertain, fix and determine the true value of each such property, and of the portion thereof which is situated within this state, and the respective values of the several portions within the different counties thereof, in which any such portions are tax- able, and for that purpose said board may require and compel any person or persons, or the officers and agents, or atiy of them, of any company, corporation or association embraced within the terms of this act, to appear before it with such books, papers, doc- uments and information as the board may require, and to submit themselves to examination by the board. Sec. 7. In so far as the other evidence and information ad- duced before them does not make it appear to the members of the said state tax board improper or unjust for them to do so, said board shall, in fixing the true cash value of the entire property of any company, corporation or association embraced within the provisions hereof, take as a basis therefor the aggregate market or true value of all its shares of stock, adding thereto the aggre- gate market or true value of all indebtedness secured by any mortgage, lien or other charge upon its property or assets, and the sum so produced shall be deemed and treated as the true cash value of said entire property. And, in cases where the company, corporation or association does business and has property both within this state and outside of it, in ascertaining the true cash value of its property within this state, said state tax board shall next ascertain from the said statements, or otherwise, the market Intangible Assets. 583 or true value in the locality where the same is situated, of each of the several pieces of real estate situated outside of this state, and of its other properties, if any, outside thereof, and not spe- cifically used in the business of said company, corporation or as- sociation, and the aggregate of said values shall be deducted from the gross value of the property as above ascertained, and the result of the said deduction, and the sum or value thereby pro- duced, shall be deemed and treated as the true cash value of all the property of the said company, corporation or association in actual use in its business. The said state tax board shall then fix the value of the property within this state, using as a basis and beiag guided so far as it shall not believe it unjust to do so, by the proportion which it finds to exist between the total lines or total receipts, both within this state and outside of it, and the lines controlled or operated, or the receipts obtained entirely with- in this state, so that there shall be apportioned to this state, as the true value of the property within its borders of each company, corporation, person and association doing business within and outside of its limits, such a portion of the cash value of all of the property of such company, corporation, individual or associa- tion which is specifically used in its business, as is borne by its total lines or total receipts within this state, when compared with the total lines or total receipts both inside and outside of the state of Texas. From the entire value of the property within this state, when ascertained as directed by this act, the said state tax board shall deduct the assessed value for taxation of all the property and assets of said company, corporation or association, as the same is found to be assessed for state and county taxation, in the locality wherein the same is legally taxable, and the residue and remainder of value shall be by the said board fixed and determined as the true value of the unassessed franchises and intangible prop- erties owned and held by said company, corporation or associa- tion within this state. The said state tax board shall apportion the sum of the said total taxable values within the State, among and between the counties in which such company, corporation or association does business, in proportion to the amount of busi- ness done in and the receipts derived from each locality, except that in case of a railroad company, or of a car company, or of a telegraph company, then the apportionment to each county shall be in proportion to the line or car mileage therein; provided, 584 Taxation in Texas. however, that the said Tax Board shall have the right and it is hereby declared to be its duty to make use of all evidence put before it, and of all material facts at its command in valuing and in apportioning the values of the aforesaid properties, and if it shall believe some other method of calculation than that herein specifically prescribed is necessary in order to produce just and lawful results, it shall follow the method which under all the circumstances it believes best calculated to bring about a fair and equitable valuation and apportionment of such prop- erty. Sec. 8. Whenever any person or association of persons, not being a corporation, nor having a capital stock, shall engage in this State in any character of business embraced within this act, then the capital and property, or the certificates or other evi- dences of the rights or interests of the persons engaged in such business shall be deemed and treated as the capital stock of such person or association of persons, for the purposes of taxation, and for all other purposes under this act, and shall be estimated and valued, and the unassessed intangible property values thereof when ascertained shall be apportioned and distributed and as- sessed and taxed under the provisions hereof in like manner as if such person or association of persons were a corporation, and each such person and association of persons shall annually within the time and in the manner herein provided, make the statements and reports and give the information required by this act of the aforesaid companies, corporations and associations, and shall be subject to all penalties herein fixed, and to all the terms and provisions of this act. Sec. 9. The State Tax Board, after having first determined and fixed the true cash value of the unassessed intangible prop- erty within the State of Texas of the before-mentioned individ- uals, companies, corporations and associations, in accordance with the provisions hereof, shall, annually, on or before the thirtieth day of May of each year, report to the tax assessor of every county in this State in which any of said intangible and unas- sessed property is taxable under this act, a description of the property taxable therein, and the value thereof apportioned to said county, and the name and residence or place of business of the owner, and all other necessary particulars, and the said prop- erty shall thereupon be assessed by the assessor for taxation in Intangible Assets. ' 585 like manner as other property, and shall be equalized and taxed, and the taxes collected as in the case of other property. And so long as any corporation, company or association shall pay all ad valorem taxes required by law, the individual stockholders shall not be required to list its shares for taxation, or to pay ad valorem taxes on said shares, nor shall any company, corporation, association, person or persons, complying with the provisions of this act, be required to pay any other state or county ad valorem taxes on any of its intangible assets in Texas. Sec. 10. Every person and association of persons, and every company, corporation or association, embraced within the pro- visions of this act, which shall fail to make the returns and state- ments, or any of them, herein provided, within the time herein limited, or which, after reasonable notice, shall fail to give any additional evidence, or to furnish any additional information re- quired by the said State Tax Board, or by said State Comptroller, by authority hereof, shall forfeit and pay to the State two hun- dred dollars ($200) for each and every day during which it shall continue in default, which shall be recovered by suit by the Attorney-General of the State of Texas, and the venue of every such suit is hereby fixed within the county of Travis, in said State, and the courts of the said county are hereby vested with jurisdiction of the said causes. Sec. 11. If the property of any individual, company, corpora- tion or association shall be in the hands of any receiver, assignee, trustee in bankruptcy, or other person holding under any court or for the benefit of any creditor, or creditors, then the statements, reports, information, books and papers aforesaid shall be fur- nished by said receiver, assignee, trustee or other person, or by some officer or agent acting under him, in the same manner and to the same extent as is hereinbefore provided in cases where the individual or the company or association is in possession. Sec. 12. That upon the taking eflfect of this act, and upon com- pliance with its provisions by the individuals, companies, corpo- rations and associations hereby affected, and upon the payment of the taxes imposed hereunder, if any are imposed, all laws and parts of laws laying taxes upon the gross receipts of said individ- uals, companies, corporations and associations, shall be and the same are hereby repealed. Acts 1905, p. 351. 586 Taxation in Texas. "Laws 1905, p. 351, Ch. 146, provides for an ascertainment by a state board of the value of intangible property of certain cor- porations and individuals with quasi public functions. Sec. 9 (p. 355) provides that the board, after having determined such value, shall report to the assessors of the counties in which any of such property exists a description thereof, and the value ap- portioned to the county, 'and the said property shall be assessed * * * as other property and shall be equalized * * * as in the case of other property.' The act nowhere expressly binds the local assessor to accept the valuation so reported. Held, not unconstitutional as requiring property to be assessed and its values equalized elsewhere than locally in the various counties. "Laws 1905, p. 351, Ch. 146, is declared to be in its caption an act 'for the taxation of the intangible assets of certain cor- porations and individuals,' 'and for the assessment of said as- sets.' Section 1 provides that the corporations and individuals named shall 'pay a tax' on such intangible assets, to be levied and assessed under the act. The act, however, in effect, only provides for an ascertaining of the value of the intangible assets by a state board, leaving the assessment to the local assessors. Sec. 9 (p. 355) thereof provides that no person complying with its provisions shall be required to pay other taxes on intangible property. Held, that, since local assessors are obliged in any event to assess intangible property, the law could not be consid- ered as unconstitutional as exempting from 'taxation intangible assets not mentioned therein. "Laws 1905, p. 351, Ch. 146, making the Secretary of State and State Comptroller members of the State Tax Board, which has power to ascertain the valuation of intangible property and report it for assessment to the local assessors, is not void as vest- ing judicial power in executive officers, especially since the board is not vested with power to itself make the assessment. "Laws 1905, p. 351, Ch. 146, provides a state board for ascer- taining the value of the intangible property of certain corpora- tions and individuals engaged in quasi public functions, but does not bind the local assessors to accept the valuation reported to them by the board. Held, that the fact that assessors had habitu- ally undervalued property, and would probably continue to do so, did not authorize an injunction restraining the board from Intangible Assets. 587 fulfilling its function on an assumption that, under the new law, assessors would fix property reported by the board at a propor- tionately higher figure than other property. "Laws 1905, p. 351, Ch. 146, provides a method whereby the State Tax Board therein created may ascertain the value of the intangible property of certain corporations, and provides that such method shall be adopted 'in so far' as other evidence does not make it appear unjust, and that if the board shall deem it necessary to produce just results it shall follow the method best adapted to that end. Held, that it could not be contended that the method provided was exclusive, depriving the owners of due process of law. "Laws 1905, p. 351, Ch. 146, provides for an ascertainment by a state board of the value of intangible property of certain cor- porations and individuals with quasi public functions. Sec. 9 (p. 355) provides that the board, after having determined such value, shall report to the assessors of every county in which any of such property exists a description of the property, and the value apportioned to the county, 'and the said property shall be assessed * * * jig other property and shall be equalized * * * as in the case of other property.' Held, that the local assessors were not bound to accept the valuation reported to them in assessing the property so as to deprive the owners thereof of due process of law." AT., K. & T. Ky. Co. v. Shannon, 97 S. W. 527, 100 Tex. 379. Right to enjoin collection under invalid act. "Where the petition in a suit to restrain officers of a state from taking any action under a statute relating to the assess- ment of intangible assets of corporations prays that they be enjoined from taking action generally under the statute, and the officers will, unless enjoined, proceed to value the property re- ferred to in the statute for the present and for subsequent years, equity has jurisdiction to forbid future acts by the officers, pro- vided the statute is unconstitutional." M., K. & T. Ry. Co. v. Shannon, 100 S. W. 138, 100 Tex. 379. Not unconstitutional as dividing powers of government. "The intangible assets act (Act April 17, 1905, p. 351, Ch. 146), which makes the Secretary of State and the Comptroller, required by Const., Art. 4, Sees. 21, 23, to perform prescribed executive duties and such others as may be prescribed by law, 588 Taxation in Texas. members of a state tax board, with power to value the intangible assets of railroads, and for the distribution of the values for local taxation, is not void as vesting in them judicial power, in conflict with Const., Art. 2, Sec. 1, dividing the powers of gov- ernment into the legislative, executive and judicial departments, as the word 'judicial,' as used in the section and Art. 5, creating the judicial department, when strictly construed, means courts with power to determine causes between parties affecting the rights of persons as to their life, liberty and property." M., K. & T. Ry. Co. V. Shannon, 100 S. W. 138, 100 Tex. 379. Act constitutional as to assessments. "The intangible assets act (Act April 17, 1905, p. 351, Ch. 146), providing for the taxation of the intangible assets of rail- roads, and for the creation of a state tax board for the valuation of such assets, and for the distribution of such values for local taxation, is not in conflict with Const., Art. 8, Sees. 8, 11, 14, providing for the assessment of railroad property in the counties where the same is situated, and for the election of a county as- sessor, especially in view of Sec. 17, providing that the specifi- cation of the objects of taxation shall not deprive the Legislature of the power to require other objects to be taxed, etc. "Const., Art. 8, Sec. 14, providing for the election of an as- sessor of taxes for each county, does not deprive the Legislature of the power to devolve the duty on another officer to assess property in some special case where the county assessors are unable to ascertain with any reasonable degree of approximation the value of the property to be assessed, especially in view of Section 1, providing that taxation shall be equal and uniform, in proportion to the value of the property ascertained as provided by law. "The intangible assets act (Act April 17, 1905, p. 351, Ch. 146), providing for the taxation of the intangible assets of railroads, and the creation of a state board for the valuation thereof, and authorizing the board to adopt the aggregate market value of the stocks and bonds of a railroad as the test of true cash value of its entire property, and to deduct the assessed value of the physical property from the value of the entire property, to ar- rive at the value of the intangible assets, does not prescribe an artificial and arbitrary rule is not in conflict with the due process of law provisions of the state and federal Constitutions. Intangible Assets. 589 "The intangible assets act (Act April 17, 1905, p. 351, Ch. 146), providing for the taxation of the intangible assets of railroads, and for the creation of a state tax board for the valuation of such assets and for the distribution of such values for local taxation, is not invalid because expressly excepting from its operation sleeping, dining, and palace car companies, on the ground of un- lawfully discriminating against the railroads, for, if the exempted companies have tangible assets, the same may be reached by Rev. St., Art. 5076, as amended by Gen. Laws 1905, p. 357, Ch. 147. "The fact that county assessors of counties through which a railroad line is operated assess property at less than its true value does not operate to make the taxes imposed pursuant to the intangible assets act (Act April 17, 1905, p. 351, Ch. 146), providing for the taxation of the intangible assets of railroad, and for the creation of a state tax board for the valuation for such assets, unequal." M., K. & T. Ry. Co. v. Shannon, 100 S. W. 138; 100 Tex. 379. Act valid as to uniformity of Taxation : "The method prescribed for ascertaining the value of the in- tangible assets does not violate Const., Art. 8, Sec. 1, requiring taxation to be equal and uniform." M., K. & T. Ry. Co. v. Shan- non, 100 S. W. 138; 100 Tex. 379. Not in conflict with Bill of rights : "The fact that county assessors of counties through which a railroad line is operated assess property at less than its true value does not operate to make the taxes imposed pursuant to the in- tangible assets act (Act April 17, 1905, p. 351, Ch. 146), pro- viding for the taxation of the intangible assets of railroads, and for the creation of a state tax board for the valuation for such assets, unequal." M., K. & T. Ry. Co. v. Shannon, 100 S. W. 138; 100 Tex. 379. "The intangible assets act (Act April 17, 1905, p. 351, Ch. 146), provides for the taxation of the intangible assets of rail- roads, and in section 12 (page 356) provides that on the taking effect of the act, and on compliance with its provisions by the railroads affected, and on the payment of the taxes imposed, laws imposing taxes on the gross receipts of railroads shall be repealed. At the same session a statute imposing a tax on the gross incomes 590 Taxation in Texas. of railways was passed, and provided that the same should not be collected from railroads paying the tax on its intangible assets. Held, that the intangible assets act is not in conflict with Bill of Rights, Art. 1, Sec. 28, declaring that no power of suspending laws shall be exercised except by the Legislature ; the purpose of the Legislature being to provide that the gross earnings taxes should cease on railroads paying the taxes on their intangible assets." M., K. & T. Ry. Co. v. Slummn, 100 S. W. 138, 100 Tex. 379. Cannot restrain on unfair assessment. "The intangible assets of a railroad company in a county were assessed at their full value, and its tangible property was assessed at 50 per cent, of its value, while the property of other taxpayers was assessed at 75 per cent, of its value. If all the property of the railroad company in the county had been assessed at 75 per cent, of its value, the amount of property on which it was taxed would have been increased. Held, that it could not restrain the collection of taxes on its intangible property because of an unfair basis of taxation, as, so long as a property owner is only called upon to pay on the same valuation as others, he is not enti- tled to equitable relief, although one piece of his property is val- ued above another, if there be a sufificient decrease in such other to make him pay the same proportion of taxes on what he owned as every other citizen is required to pay." M., K. & T. Ry. Co. v. Hassell, 123 S. W. 190. Assessments : "Act 30th Leg. (Laws 1907, p. 469, Ch. 17), amending Act 29th Leg. (Laws 1905, p. 351, Ch. 146), providing for the taxing of the intangible assets of certain corporations, is not violative of Const., Art. 8, Sec. 11, requiring all property to be assessed in the county in' which it is situated, nor section 14, empowering the tax collector to assess the value of property, in so far as it relates to the intangible assets of a railroad company; such con- stitutional provisions being applicable only to property having a fixed situs within a given county. "The Legislature, having authority to create a state board to assess the intangible assets of corporations, as it did by Act 30th Leg. (Laws 1907, p. 469, Ch. 17), it was also authorized Intangible Assets. 591 to prohibit an interference with the assessment made by the board of local officers of counties to which a portion of the assessment was apportioned. "Under Act 30th Leg. (Laws 1907, pp. 475, 476, Ch. 17, sec- tions 16, 17), forbidding the county assessor and board of equali- zation from interfering with the assessment of intangible property of corporations by the state board, a county board of equalization had no power to grant relief to a railroad company for an un- equal assessment of its intangible assets in proportion to the assessment of other property within the county, and hence a rail- road company was not required to apply to such board for relief before suing to restrain the enforcement of the tax. "Where the property of individuals in a county was assessed at 66 2-3 per cent, of its real value, in accordance with a de- liberately adopted policy, an assessment of the intangible assets of a railroad company apportioned to that county at full value constituted a violation of Const., Art. 8, Sec. 1, requiring all property to be taxed in proportion to its value. "Such assessment is violative of Const., Art. 8, Sec. 1, requir- ing equality and uniformity of taxation. "Such assessment is violative of Fed. Const., Amend. 14, Sec. 1, as denying to railroad companies the equal protection of the Constitution and laws of the state." Lively v. M., K. & T. Ry. Co., 120 S. W. 852. "Where the property of the individuals in a county was as- sessed at 50 per cent, of its real value in accordance with a de- liberately adopted plan, an assessment of intangible property of a railroad situated in the county at full value violated Const, Art. 8, Sec. 1, requiring equality and uniformity of taxation. "Such assessment was violative of Const. U. S., Amend. 14, guaranteeing equal protection of the laws." M., K. & T. Ry. Co. V. Kone, 122 S. W. 424. Act of Thirtieth Legislature creating intangible tax board : Section 1. That Chapter 146 of the Acts of the Twenty- ninth Legislature, approved April 17, 1905, being an act entitled "An act for the taxation of the intangible assets of certain corporations, associations and individuals, and to pro- vide for the creation of a state tax board, for the valuation of such intangible assets, and for the distribution of said values 592 Taxation in Texas. for local taxation, and for the assessment of said assets, and the levy and collection of taxes thereon ; and to provide for the repeal of all laws and parts of laws laying taxes on the gross incomes of the corporations, associations and individ- uals affected by the provisions of this act," be amended so as to read hereafter as follows : Section 1. There is hereby created a state tax board, which shall be composed of the comptroller of public accounts, the secretary of state and a third member to be known as tax commissioner of the state of Texas. Except as herein other- wise provided, such tax commissioner shall be appointed by the Governor in accordance with and subject to the provisions of Section 12 of Article 4 of the Constitution of Texas, and shall hold his office for two years and until his successor shall be appointed and qualified and shall receive an annual salary of two thousand five hundred dollars, in equal installments payable at the end of each month. The present tax commis- sioner, heretofore appointed, shall hold his office until the expira- tion of the time for which he was originally appointed and until his successor shall have been appointed and qualified. A majority of said board shall constitute a quorum to do business. A record of the proceedings of said board shall be kept at the state capitol, and shall be open to the inspection of the public. Sec. 2. Before the tax commissioner shall enter upon or proceed with the discharge of his 'official duties he shall exe- cute a bond payable to the state of Texas, at Austin, in Travis County, Texas, in the sum of ten thousand dollars, with two or more good and sufficient sureties, to be approved by the Governor, conditioned for the faithful discharge of his official duties as such tax commissioner and shall take and subscribe the oath of office prescribed by the constitution of this state, which bond and oath shall be filed in the office of the secre- tary of state. Sec. 3. The state board may employ for not more than four months in each year a secretary who shall be an expert stenographer, and who shall receive for his services as secre- tary and stenographer a salary of one hundred dollars per month. Sec. 4. It shall be the duty of said tax board (a) to make such rules and regulations as said board shall deem proper Intangible Assets. 593 with respect to its own meetings and procedure, and to effect- ually carry out the purposes for which said board is con- stituted. (b) To examine all books, papers and accounts and to in- terrogate under oath, or, otherwise, any and all persons whom said board, or any member thereof, may desire to examine for the purpose of obtaining or acquiring any and all information that may in any manner aid in securing a compliance with any tax law or revenue law of this state by any and all per- sons, companies, corporations or associations liable to taxa- tion or to pay any license fee under any law of this state, which is now in force or which may hereafter be enacted. (c) To make diligent investigation and inquiry concern- ing the revenue laws and systems of other states and countries, so far as the same are made known by published reports, or statistics, or can be ascertained by correspondence with offi- cers thereof, and with the aid of information thus or other- wise obtained, together with experience and observation of the operation of the laws of this state, to recommend to the legisla- ture, at each regular session thereof, such amendments, changes or modifications of the laws of this state, and such additional laws as may to said board, or any member thereof, seem necessary or proper to remedy injustice or irregularity in taxation, and to facilitate the assessment of taxes and collection of public revenues. (d) To report to the legislature, at each regular session thereof, the whole amount of state revenues collected in this state for all purposes, and the sources thereof, the amount of such revenues which may be lost to the state through failure to make collection and. the cause of such losses, a summary of the proceedings of said board since the date of its last report, and such other matters concerning the public revenues as said board, or any member thereof, may deem to be of public interest. Sec. 5. Said tax board, or any member thereof, or the state revenue agent under the direction of said board, or of the Governor of Texas, shall, at least once in each year, visit such counties of the state as said board or the said Governor may direct, for the purpose of investigating into and aiding in the 38 594 Taxation in Texas. enforcement of all revenue laws of this state, and especially those concerning the rendition, assessment and collection of taxes. Sec. 6. Each member of said state tax board shall have power to administer oaths and to subpoena and examine wit- nesses, and to issue subpoenas duces tecum, and shall have access to and power to order the production before such board, or any member thereof, of any and all books, docu- ments and papers which may be in the possession or under the control of any person, company, corporation or receiver assignee, trustee in bankruptcy, or bailee, whenever such board or any member thereof, may consider same necessary or proper in the prosecution of any injury under or in the execution of any provision of this act ; and all such process shall be served under the provisions of law governing the service of process in civil cases, in so far as applicable. Sec. 7. Any person who shall disobey any such subpoena or subpoena duces tecum, issued by any member of said board, or any such order of said board, or who shall fail or refuse to attend as by such subpoena directed or to testify when so required to do so by any member of said board under the provisions of this act, shall be deemed guilty of contempt, and may be punished therefor by said board under the provisions of laws applicable to the district courts in such cases. Sec. 8. Each and every incorporated railroad company, ferry company, bridge company, turn-pike or toll company doing business wholly or in part within the state of Texas, whether incorporated under the laws of this state, or of any other state, territory or foreign country, and every other indi- vidual, company, corporation or association doing business of the same character in this state, shall, in addition to the ad valorem taxes on intangible properties which are now or which may hereafter be imposed upon them, respectively, by law, annually, beginning with the first day of January, A. D. 1906, pay a tax to the state for the year 1906, and for each year thereafter on their intangible assets and property, and local taxes thereon to the counties in which its business is or shall hereafter be carried on, which additional tax shall be assessed and levied upon such intangible assets and property in the manner provided in this act. The county or counties in which Intangible Assets. 595 such taxes are to be paid, and the manner of the apportion- ment of the same, shall be determined in accordance with the provisions of this act. Sec. 9. Between the second day of January and the first day of March of each year, every individual, company, corporation and association embraced within the provisions of the next preceding section of this act, or coming within its scope and intent, shall make out and deliyer into the possession of said tax commissioner a statement containing the information re- quired of it by this act, which statement shall be duly verified by the affidavit of the individual, or one of the officers of the company, corporation, or association in whose behalf it is made, or by the receiver, assignee, or trustee in bankruptcy thereof. Sec. 10. Each such statement shall show the following items and particulars as the same stood on the first day of January next preceding, to-wit : (a) The name of the individual, company, corporation, or association making such statement and the character of its business. (b) If incorporated, the authority by which it was incorpo- rated and the purposes of its incorporation as expressed in its original or amended articles of incorporation or articles of association. (c) The locality of its principal office and the amount and kind of business done by it in this state and the total gross receipts derived from its business within this state, including a due proportion of its interstate business, if it has done any business of that character. (d) Its total authorized capital stock and the number of shares thereof which have been issued and are outstanding and the par face value of each such share, and the amount of the capital actually employed in the aforesaid business within the state. (e) The market value of said shares of stock, or, if they have no market value, the actual value thereof. (f) The assessed value and also the true value of all the tangible property owned by such individual company, corpo- ration or association in each county in this state and the total assessed value and also the true value thereof. 596 Taxation in Texas. (g) The assessed value and also the true value of the tangible property of such individual, company, corporation or association, outside of this state, and not specifically used in the business of such individual, company, corporation, or asso- ciation, same to be given by states, and the total assessed value and also the true value of the same. (h) A statement of each and every existing lien, mortgage or other charge, upon the whole or any part of the property of such individual, company, corporation or association, and of the property thereby charged or encumbered, and of the amount of unpaid debt secured by each such mortgage, lien or charge, and of the interest charged thereon, and to what extent such interest has been paid, and of the true and fair market value of every such debt. (i) A statement of the gross receipts and net income and earnings for the' next preceding twelve months, including therein all interest on investments, and all rents, fruits, reve- nues, and receipts from every source whatsoever, and a state- ment of the income used for repairs, and of the amounts used for betterments, and the amount used for extensions within that period of time. (j) Every such railroad company shall also show in each statement made by it (1) The total length of all lines of said company, whether within or without this state. (2) The total length of such lines as are within the state. (3) The length of its lines in each of the counties in this state into which its lines extend. Sec. 11. The tax commissioner shall receive all tax state- ments rendered to him under the provisions of this act, and shall endorse upon each the date of receipt thereof, signing such endorsement officially. Said state tax board shall examine all such statements as soon as may be practicable and if said board shall deem any of them insufficient or shall believe other or further information necessary or proper, said board shall at once demand of such individual, company, or corporation or association, such additional statement and such further in- formation as it may think proper. Sec. 12. On the first Monday after the first day of March of each year, or as soon thereafter as may be practicable, said Intangible Assets. 597 tax commissioner shall place before said state tax board all such statements, facts and information as may have come into its possession or knowledge under the provisions of this act. Sec. 13. Said state tax board shall thereupon carefully ex- amine and consider the said statements, facts and information, and, if they deem it advisable to do so, shall hear evidence, and shall require such individual, company, corporation or association to make such additional reports, if any, as such board may deem proper, and shall otherwise secure further additional information so far as may be in their power, to show the true value of the properties aforesaid and the true value of that portion of every such property which is situated within the state and within the respective counties thereof, sufficient to enable said board to make the preliminary estimate herein provided for, and for that purpose as well as for the purpose of carrying into effect any and all the provisions of this act, said board and each member thereof, may require and compel, as provided in this act, any and all such individuals, compa- nies, corporations and associations and the officers and agents thereof, and such receivers, trustees in bankruptcy, assignees and bailees, to appear before such board at a time or times to be designated by said board, with any and all such books, papers, documents and information as said board may require and to submit themselves to examination by said board. Upon consideration of such statements and information and such additional evidence, books, papers, documents and information, if any, said state tax board shall make in accordance with the provisions of this act, a preliminary estimate, valuation and ap- portionment of the true value of the intangible property within this state, of each of said individuals, companies, corporations or associations and shall, on or before the 31st day of May of each year, by registered mail, notify each and every such individual, company, corporation or association, receiver or assignee, trustee in bankruptcy, or other person holding such property for the benefit of creditors, of such preliminary esti- mate, valuation and apportionment, and the amounts thereof; and all such individuals, companies, corporations, associations, receivers, assignees, trustees and other persons shall have fif- teen days from the time of mailing such notice by registered mail to appear before such state tax board, at Austin, in Travis 598 Taxation in Texas. County, Texas, on a date to be fixed in such notice, and request of such board a change or changes, in such valuation and ap- portionment, or either, or a cancellation of such valuation and apportionment; and said individuals, companies, corporations, associations, receivers, assignees, trustees and other persons may appear before such board, in person or by attorney, or in person and by attorney, and introduce evidence. Said board, may upon its own motion, or upon the written request of any inter- ested party, and each member of said board may summon, swear, and examine witnesses under the same rules which govern the summoning, swearing and examination of wit- nesses in the district courts of this state ; and such board shall have the same jurisdiction, authority and power, under the same penalties to require the production and to secure the examination of any and all books, documents, and papers of such individuals, companies, corporations and associations, re- ceivers, assignees, trustees and other persons as is now or may hereafter be conferred by the laws of this state upon the railroad commission of Texas. Upon or after such hearing said board may change such valuation and apportionment, or either, or cancel such valuation and apportionment, as said board may deem just and proper in the premises. Sec. 14. In so far as the other evidence and information adduced before said state tax board does not make it appear to the members of said board to be improper or unjust to do so, said board shall, in fixing the true value of the entire prop- erty of such individual, company, corporation or association embraced within the provisions of this act, take as a basis therefor, the aggregate market or true value of all its shares of stock, adding thereto the aggregate market or true value of all indebtedness secured by any mortgage, lien or other charge upon its property or assets, and the sum so produced shall be deemed and treated as the true value of said entire property. And where the individual, company, corporation or association does business and has property, both within this state and outside of it, in ascertaining the true value of its property within this state, said tax board shall next ascer- tain from said statements, reports and evidence, if any, or otherwise the true value, in the locality where the same is situ- ated, of each such several pieces of real estate situated outside Intangible Assets. 599 of this state, and of its other properties, if any, outside thereof, and not specifically used in the business of said individual, com- pany, corporation or association, and the aggregate of said value shall be deducted from the gross value of the property as above ascertained ; and the result of said deductions and the sum or value thereby obtained shall be deemed and treated as the true value of all property of such individual, company, corporation or association in actual use in its business. Said tax board shall then fix the true value of the property of such individual, company, corporation or association w^ithin this state, using as a basis and being guided so far as it shall not believe it unjust to do so, by the proportion which it finds to exist betv^een the total lines or total receipts v^ithin this state and outside of it, and lines controlled or operated, or the receipts obtained, entirely v^ithin this state,- so that there shall be apportioned to this state, as the true value of the property within its borders of each individual, company, cor- poration and association doing business within and outside of its limits, such proportion of the true value of all the prop- erty of such individual, company, corporation or association which is specifically used in its business, as is borne by its total lines or total receipts within this state when compared with the total lines or total receipts both inside and outside of the state of Texas. From the entire value of the property within this state, when ascertained as directed by this act, said state tax board shall deduct the true value of all the tan- gible property of such individual, company, corporation or as- sociation within this state, as so ascertained by said state tax board, and the residue and remainder of value shall be by said state tax board fixed, determined and declared as the true value of the intangible properties owned and held by such individ- ual, company, corporation or association within this state. Said state tax board shall apportion the sum of the said total taxable values within this state to the counties in which such individual, company, corporation or association does business, in proportion to the amount of business done in and the receipts derived from each such county, except that in case of a rail- road company, the apportionment to each county shall be in proportion to the line or lines of such individual, company, corporation or association therein. 600 Taxation in Texas. In apportioning the value of the aforesaid properties said state tax board shall have the right and it shall be its duty to make use of and consider all evidence which may be put before it and all material facts at its command, and if it shall believe that some method of calculation other than that specifically prescribed in this act is necessary in order to produce just and lawful results, said board shall follow that method of calcula- tion which it believes best calculated, under all circumstances, to bring about a just, fair, equitable and lawful valuation and apportionment of such property. Sec. 15. Whenever any person, or association of persons, not being a corporation, nor having a capital stock, shall en- gage in this state in any character of business embraced within the provisions of section 8, of this act, then the capital and property, or the certificate or other evidences of the rights or interests of such person or association of persons engaged in such business shall be deemed and treated as the capital stock of such person or association of persons, for the purpose of taxation, and for all other purposes, under this act, and shall be estimated and valued and the intangible property of such person or association of persons, when ascertained shall be apportioned, distributed, assessed and taxed under the provi- sions of this act, in like manner as if such person or associa- tion of persons were a corporation ; and each such person and association of persons shall, annually, within the time and in the manner provided in this act, make the statements and re- ports and furnish and supply the information required by this act of the aforesaid companies, corporations, and associations, and shall be subject in like manner as the aforesaid companies, corporations and associations, to all the terms and provisions of this act, including penalties. Sec. 16. Thereafter, and not later than the 20th day of June of each year, said state tax board shall make, in accordance with the provisions and requirements of this act, a final valua- tion and apportionment of the intangible assets aforesaid, of each and every such individual, company, corporation, and association, and shall as soon after such 20th day of June as practicable, certify to the tax assessor of each county in this state to which any portion of such intangible assets of any. such individual, company, corporation or association is found Intangible Assets. 601 by said board to be apportionable for taxation and so appor- tioned, the amount thereof, as fixed, determined and declared by said board, and thereunto apportioned by Said board, to- gether with the name and place of residence or place of busi- ness of the owner or owners of the property embraced in such valuation and apportionment ; provided, that such final valua- tion and apportionment of such intangible assets properly apportionable and apportioned by such state tax board to any unorganized county, shall be by said board so certified to the tax collector of the county to which such unorganized county is attached for judicial purposes. It shall be the duty of the tax assessor of such county upon receiving such certifi- cate or certificates of said state tax board, to place, set down and list, upon forms prescribed by the comptroller of public accounts for, such purpose, upon the tax rolls of his county, and of each unorganized county which is attached to his coun- ty for judicial purposes, as the case may be, any and all such intangible assets, at the value so fixed, determined, declared and certified by said state tax board. Such county tax assessor shall extend and prorate upon said rolls the state and county taxes upon all such intangible assets in the same manner as taxes upon other property are extended and prorated. Said assessment, valuation and apportionment of such intangible assets so fixed, determined, declared and certified by such state tax board shall not be subject to review, modification or change by the tax assessor of such county, nor by the board of equalization of such county ; and the state and county taxes thereon shall be collected by the tax collector of such county and accounted for by him in the same manner and under the same penalties as taxes upon other property. All state and county ad valorem taxes upon all tangible property in this state belonging to any individual, company, corporation or association embraced by this act, shall be as- sessed under its provisions and not otherwise; but ad valorem taxes upon all other property of any and all such individuals, companies, corporations and associations shall be assessed as is now or as may hereafter be provided by law. Sec. 17. Any county tax assessor who shall violate or in any respect fail to comply with any of the provisions of this act, and any member of any board of equalization and any 602 Taxation in Texas. county tax assessor who shall modify or change or vote to modify or change in any manner whatsoever the fmding, val- uation or apportionment of any of said intangible assets as so fixed, determined, declared and certified by said state tax board, shall be deemed guilty of a misdemeanor and upon con- viction thereof shall be fined not less than one hundred nor more than one thousand dollars. Sec. 18. Every individual, company, corporation and asso- ciation embraced within the provisions of this act which shall fail to make any return, statement and report provided for by this act, within fifteen days after the day on which it is re- quired by this act to be made, or to make any additional report or statement, or to furnish any additional information which may be required by said state tax board, or any member there- of, under the provisions of this act, within fifteen days after the mailing of a registered notice or demand therefor, in writ- ing, signed by any member of said board and addressed to such individual, company or corporation or association, at its proper postoffice address or principal place of business, shall forfeit and pay to the state of Texas, not more than five thousand dollars, which amount may be recovered by suit which may be brought therefor in behalf of the state by the attorney-general ; and venue of such suits is hereby fixed within the county of Travis, in said state, and the courts of said .county are hereby vested with jurisdiction of said causes. Sec. 19. If the property of any such individual, company, corporation or association shall be in the hands of any receiver, assignee, trustee in bankruptcy or other person holding under any court, or for the benefit of any creditor or creditors, then the statements, reports, information, books and papers afore- said shall be furnished by such receiver, assignee, trustee, or other person, by some officer or agent acting under him, in the same manner and to the same extent as is hereinbefore pro- vided in cases where an individual, company or association is in possession ; and as to such receiver, assignee, trustee in bankruptcy or other person, officer or agent, all of the provi- sions of this act, in so far as they are applicable, shall apply and govern. Intangible Assets. 603 Sec. 20. This act shall not in any manner impair or effect any finding, judgment, proceeding, assessment, apportionment or order of the said state tax board under any of the provisions of said Chapter 146 of the General Laws of the Twenty-ninth Legislature which shall have been made, found, had, entered or begun when this act shall take effect, or any vested or in- choate right or any remedy under said Chapter 146; but any and all findings, judgments, proceedings, assessments, appor- tionments, reports and orders of the state tax board heretofore made, found, had, entered or begun under the provisions of said Chapter 146, prior to the taking effect of this act, shall shall remain valid and the same are hereby expressly continued in full force and effect after this act shall take effect, to all intents and purposes, the same as heretofore; and any and all such findings, judgments, proceedings, assessments, apportion- ments, reports and orders of such state tax board shall be car- ried out and executed after this act shall take effect, in the same manner and to the same extent, and with the same force and effect as though made and done under the provisions of this act. Sec. 21. Whenever any individual, company, corporation or association embraced within the preceding section 8 of this act shall pay in full, and within the year for which same may be assessed, all its state and county taxes for that year upon all its intangible properties as determined, fixed and assessed under the provisions of this act, such individual, company, cor- poration or association shall thereby be relieved from liability for and from payment of any and all occupation taxes meas- ured by gross receipts for or accruing during that year under any law of this state ; but no such individual, company, corpo- ration or association shall be entitled to any such exemption except for the year for which it shall, before same shall become delinquent, pay all its aforesaid intangible state and county taxes for that year. Sec. 22. To carry the provisions of this act into effect, there is hereby appropriated out of any money in the state treasury not heretofore appropriated, to be expended within two years, and to be paid out upon itemized accounts approved by the Governor, but not otherwise, the following amounts, viz. : 604 Taxation in Texas. For salary of secretary and stenographer for not more than four months in each year, eight hundred dollars. Sec. 23. Section 12 of said Chapter 146 of the General Laws of the Twenty-ninth Legislature is hereby expressly repealed. Acts of Thirtieth Legislature, pp. 469 to 478. CHAPTER LIII. \ FRANCHISE TAX. Sec. Sec. 935. Act of 1905 amending articles 939. Failure to pay does not for- of statute in regard to fran- feit charter. chlse tax of corporations do- 940. Corporation proper defendant. ing business in Texas. 941. "Wharf privileges. 936. An Act to define the method 942. Double taxation. of computing the franchise 943. Street railroad. tax. 944. Delinquent may be placed in 937. Franchise of corporation hands of receiver. property. 945. Contract over foreign corpo- 938. Insufficient description, rations. 946. Act of the 30th Legislature. § 935. Act of 1905 amending articles of statute in regard to franchise tax of corporations doing business in Texas. Section 1. Be it enacted by the legislature of the state of Texas : That Articles 5243i and 5243j of an act entitled "An act to amend Articles 5243i, 5243 j, and 5243k of an act entitled 'An act to amend Articles 5243e, 5243i, 5243j and 5243k, of Chapter 9, Title 104, of the Revised Civil Statutes, relating to the taxation of insurance, telephone, sleeping and dining car and other cor- porations, and to provide for forfeiting the charters of domestic corporations and permits of foreign corporations to do business in this state, for failure to pay the franchise tax levied by this act, and to define and prescribe the notice to be given to said cor- porations previous to said forfeiture, and to provide adequate penalties for a violation of this act,' passed at the present session, and approved April 30, 1897," said act being Chapter 120 of the General Laws of the State of Texas, passed at the Regular Ses- sion of the 25th Legislature, be amended so as to hereafter read as follows: Art. 5243i. Each and every private domestic corporation here- tofore chartered, or that may hereafter be chartered, under the laws of this state shall, on or before the first day of May of each year, pay to the secretary of state the following franchise tax for 606 Taxation in Texas. the year following, to-wit : One dollar on each two thousand dol- lars or fractional part thereof, of the authorized capital stock of the corporation, up to and including one hundred thousand dol- lars, and one dollar on each ten thousand dollars or fractional part thereof of such stock in excess of one hundred thousand dollars and up to and including one million dollars; and one dollar on each twenty thousand dollars or fractional part thereof of such stock in excess of one million dollars, and up to and including ten million dollars ; and one dollar on each fifty thousand dollars or fractional part thereof of such stock in excess of ten million dollars ; but such tax shall not be less than ten dollars in any case. And each and every foreign corporation heretofore au- thorized, or that may hereafter be authorized, to do business in this state, shall, on or before the first day of May of each year, pay to the secretary of state the following franchise tax for the year following, to-wit : One dollar on each one thousand dollars or fractional part thereof of the authorized capital stock of the corporation up to and including one hundred thousand dollars ; and one dollar on each five thousand dollars or fractional part thereof of such stock in excess of one hundred thousand dollars, and np to and including one million dollars ; and one dollar on each twenty thousand dollars or fractional part thereof of such stock in excess of one million dollars, and up to and including ten million dollars ; and one dollar on each fifty thousand dollars of such stock in excess of ten million dollars ; but such tax shall .not be less than twenty-five dollars in any case. Whenever a corporation is chartered or authorized to do business in this state, it shall pay the proportional part of such annual franchise tax corresponding to the length of time before the next following first day of May, and if such tax be not then paid, no such char- ter shall be filed, or permit issued. The franchise tax herein pro- vided for shall be computed upon the basis of the total amount of the capital stock issued and outstanding, plus the surplus and undivided profits of the corporations, instead of upon the author- ized capital stock, whenever such total amount is different from the authorized capital stock. Affidavit of the head of the corpora- tion and secretary thereof to these facts may be filed with the secretary of state, or may be required whenever in his judgment the same is necessary to protect the interests of the state. Any corporation, either domestic or foreign, which shall fail to pay Franchise Tax. 607 the tax provided for in this article at the time specified herein shall immediately become liable to a penalty of twenty-five per cent on the amount of the tax due by it, and if the amount of said tax and penalty be not paid in full on or before the first day of July thereafter, such corporation shall, for such default, forfeit its right to do business in the state, which forfeiture shall be con- summated without judicial ascertainment, by the secretary of state entering upon the margin of the ledger kept in his ofiice relating to such corporation the word "Forfeited," giving the date of such forfeiture; and any corporation whose right to do business may be thus forfeited shall be denied the right to sue or defend in any of the courts of this state, and in any suit against such corporation on a cause of action arising before such for- feiture, no affirmative relief may be granted to such corporation unless its right to do business is revived, as provided in Article 5243 j. All insurance, surety, guaranty and fidelity companies, all transportation companies, and all sleeping, palace and dining car companies now paying an annual income tax on their gross receipts in this state shall be exempted from the franchise tax above imposed. Art. 5243 j. The secretary of state shall, during the month of May of each year, notify each private domestic and foreign cor- poration subject to a franchise tax under any law of this state, which has failed to pay such tax on or before the first day of May, that unless such defaulted tax, together with the penalty thereon, be paid on or before the first day of July following, its right to do business in the state will be forfeited without judicial ascertainment. Such notice may be either written or printed, and shall be mailed to the postoffice named in its articles of in- corporation as the principal place of business of such corporation, or to any other known place of business of such corporation, addressed in its corporate name, and a record of the date of mail- ing shall be kept by the secretary of state. Such notice and the said record thereof shall constitute legal and sufficient notice for all the purposes of this act. Any corporation whose right to do business may have been thus forfeited, shall be relieved from such forfeiture by paying to the secretary of state, at any time within six months after its forfeiture, the full amount of the franchise tax and penalty due by it, together with an additional amount of five per cent of such tax (in no case to be less than 608 Taxation in Texas. five dollars) for each month or fractional part of a month which shall elapse after such forfeiture. When such tax and all such penalties are fully paid to the secretary of state, he shall revive and reinstate the right of the corporation to do business, by can- celing the word "Forfeited" from his ledger, and substituting therefor the word "Revived," giving the date of such revival. But nothing in this act shall be construed to repeal any law pre- scribing fees to be collected by the secretary of state, provided the provisions of this act shall not apply to corporations having no capital stock organized for the exclusive purpose of promoting the public interest of any city or town. Acts 1905, pp. 21, 22, 23. § 936. An act to define the method of computing the fran- chise tax. That the annual franchise tax, payable to the state by private domestic corporations heretofore chartered or that may hereafter be chartered under the laws of this state, and foreign corporations heretofore authorized or that may hereafter be authorized to do business in this state, shall be computed upon the basis of the authorized capital stock of the corporation, as stated in its articles of incorporation, or certified copy thereof, unless the aggregate amount of the capital stock issued, plus the surplus and undivided profits of the corporation exceeds the authorized capital stock, in which case the franchise tax shall be computed upon the basis of such aggregate amount. For the purpose of making such computations, the secretary of state is authorized to require affi- davits of the president, secretary, treasurer and other officers of any such corporation to show the amount of its capital stock issued and its surplus and undivided profits, whenever in his judg- ment the same may be necessary, or he may ascertain such facts from other sources. Should an officer of any corporation sub- ject to the payment of an annual franchise tax, fail or refuse to give under oath full and accurate information of the amount of the capital stock issued by the corporation, or of the amount of its surplus or undivided profits, when required so to do by the secretary of state, he shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not more than five hundred dollars. Acts 1905, p. 100. Franchise Tax. 609 § 937. Franchise of corporation j)roperty. The franchises of a corporation, exercised and enjoyed by it in a city, are property, within the provision of the city's charter requiring a tax on all property in it. Soiithzwstern Telegraph & Telephone Co. v. City of San Antonio, 7Z S. W. 859, 32 Tex. Civ. App. 101. § 938. Insufficient description. The description on the assessment roll of a city, "the * * =•< Company franchise," is not sufficient. Southive stern Telegraph & Telephone Co. v. City of San Antonio, 73 S. W. 859, 32 Tex. Civ. App. 101. § 939. Failure to pay does not forfeit charter. The failure of a corporation to pay the franchise tax imposed by Sayles Ann. Civ. St. 1897, Art. 5243i, does not authorize the secretary of state to declare a forfeiture of its franchise, the prop- er remedy for such forfeiture being an action by the state for that purpose. Rippstein v. Haynes Medina Valley Ry. Co., 85 S. W. 314. § 940. Corporation proper defendant. Until a corporation has been dissolved by proceedings for that purpose, the corporation is the only proper party to defend an action brought against it, though it has failed to pay its franchise tax, and its directors have no right to intervene as defendants. Rippstein v. Haynes Medina Valley Ry. Co., 85 S-. W. 314. § 941. Wharf privileges. Under Gen. Laws Tex. 1874, p. 214, requiring that "wharf privileges," as well as wharves, shall be taxed, such privileges are to be taxed as a thing separate and distinct from the real and personal property with which the business of a wharfinger , is conducted. Galveston County v. Galveston Wharf Co., 10 S. W. 587, 72 Tex. 557. § 942. Double taxation. Where a telegraph company has paid taxes on its real and per- sonal property a taxation of its franchise is double taxation. 5. W. Tel. & Tel. Co. v. Meerscheidt, 65 S. W. 381. 39 610 Taxation in Texas. § 943. Street railroad. The franchises of a street railroad appurtenant to the use of its property held subject to a separate tax. Dallas St. Ry. Co. v. City of Dallas, 66 S. W. 835, 95 Tex. 268. § 944. Delinquent may be placed in hands of receiver. Under Rev. St. 1895, Art. 1465, which provides that a receiver may be appointed for a corporation which has forfeited its cor- porate rights, the court was warranted in placing in a receiver's hands the property of a corporation which had failed to pay its franchise tax. Ripy v. Redwater Lumber Co., 106 S. W. 474. § 945. Contract over foreign corporations. The fact that a foreign corporation has obtained a permit to do business in the state under an existing statute, and has paid the franchise tax required thereby, does not preclude the state from imposing a further franchise tax and an additional burden, and such a change does not violate the constitution forbidding the impairment of obligations of contracts, especially in view of Const., Art. 8, Sec. 4, providing that the power to tax corpora- tions shall' not be suspended by contract. A state has the absolute right to exclude or permit a foreign corporation from doing business within its limits, and may im- pose such conditions as it may see fit in granting permission. A state may impose on a foreign corporation a franchise tax for the privilege of doing business within the state, and such tax is a mere license or privilege tax, and is not a property tax, though the amount of it is determined by the capital stock of the corporation. A foreign corporation paying a franchise tax for the privi- lege of doing business within the state, under protest that the tax is illegal because of the unconstitutionality of the statute imposing it, is not entitled to recover the same on the ground that it was only doing an interstate business, and was not subject to the franchise tax, since the payment of the tax in response to the demand under the statute is a voluntary payment. Acts 29th Leg., 1905, pp. 21, 100, Chaps. 19, 72, imposing a franchise tax on domestic and foreign corporations, impose a like tax on all foreign corporations, and are not invalid as dis- criminating in favor of domestic corporations subject to a less Franchise Tax. 611 tax ; the classification being based on legitimate distinctions and the burden being equal within the class. Gaar, Scott & Co. v. Shannon, 115 S. W. 361. § 946. Act of the 30th legislature. Section 1. Except as herein provided each and every private domestic corporation heretofore chartered, or that may hereafter be chartered under the laws of this state, shall, on or before the first day of May of each year, pay in advance to the secretary of state a franchise tax for the year following, which shall be com- puted as follows, viz : Fifty cents on each one thousand dollars, or fractional part thereof, of the authorized capital stock of such corporation, unless the total amount of capital stock of such cor- poration issued and outstanding, plus its surplus and undivided profits, shall exceed its authorized capital stock, and in that event the franchise tax of such corporation for the year following shall be fifty cents on each one thousand dollars of capital stock such corporations issued and outstanding, plus its surplus and undi- vided profits ; provided, that such franchise tax shall not in any case be less than ten dollars. Provided, that where the author- ized capital exceeds one million dollars such franchise tax shall be fifty cents for each one thousand dollars up to and including one million dollars and for each additional one thousand dollars, in excess of one million dollars, it shall be twenty-five cents. Sec. 2. Except as -herein provided, each and every foreign corporation authorized or that may hereafter be authorized to do business in this state, shall on or before the first day of May of each year pay in advance to the secretary of state a franchise tax for the year following, which shall be computed as follows, viz : One dollar on each one thousand dollars or fractional part thereof of the authorized capital stock of the corporation up to and including one hundred thousand dollars ; and two dollars on each five thousand dollars or fractional part thereof of such stock in excess of one hundred thousand dollars and up to and includ- ing one million dollars ; and two dollars on each twenty thousand dollars or fractional part thereof of such stock in excess of one million dollars, and up to and including ten million dollars, and two dollars on each fifty thousand dollars of such stock in excess of ten million dollars ; unless the total amount of the capital stock of such corporation issued and outstanding, plus its surplus and 612 Taxation in Texas. ♦ undivided profits, shall exceed its authorized capital stock, and in that event the franchise tax of such corporation for the year fol- lowing shall be : two dollars on each one thousand dollars or frac- tional part thereof, of the authorized capital stock of such cor- poration, issued and outstanding, plus its surplus and undivided profits, up to and including one hundred thousand dollars; and two dollars on each five thousand dollars, or fractional part thereof of such stock, surplus and undivided profits in excess of one hundred thousand dollars, and up to and including one mil- lion dollars ; and two dollars on each twenty thousand dollars, or fractional part thereof of such stock, surplus and undivided profits in excess of one million dollars, and up to and including ten million dollars ; and two dollars on each fifty thousand dol- lars of such stock, surplus and undivided profits in excess of ten million dollars ; provided that such franchise tax shall not in any case be less than twenty-five dollars. Sec. 3. Whenever a private domestic corporation is chartered in this state, and whenever a foreign corporation is authorized to do business in this state, and such corporation shall be required to pay in advance to the secretary of state, as its franchise tax from that time down to and including the 30th day of April next following, only such proportionate part of its annual franchise tax, as herein above prescribed, as the period of time between the date of filing of its articles of incorporation or the issuance of its permit to do business, as the case may be, and on the first day of May next following, bears to a calendar year. Nothing in this act shall affect the amount of the franchise tax to be paid by any corporation for the period of time ending with April 30, 1907, excepting only such domestic corporations as may be chartered after this act shall take eflfect and such foreign cor- porations as may, after this act shall take effect, apply to the secretary of state for a permit to do business within this state. Sec. 4. For the purpose of determining the amount of the first franchise tax payment required by this act of any domestic corporation which may be hereafter chartered, or of any foreign corporation which may hereafter apply for a permit to do business within this state, and also for the purpose of determining the cor- rectness of any report which is provided for in this act, the sec- retary of state may, whenever he may deem it necessary or proper to protect the interests of the state, require any one or more of the Franchise Tax. 613 officers of such corporations to make and file in the office of the secretary of state an affidavit or affidavits in writing, which shall be subscribed by such officers, and by him sworn to before some officer who is by law duly authorized to administer oaths, and .verified by his seal of office, setting forth fully the facts concern- ing the amount of the surplus and undivided profits, respectively, if any, of such domestic or foreign corporation; and until the secretary of state shall be fully satisfied as to the amount of such surplus and undivided profits, respectively, if any, he shall not file the articles of incorporation of such proposed domestic cor- poration, or issue such permit, or accept such franchise tax. Sec. 5. For the purpose of ascertaining and determining the amount of any annual franchise tax prescribed by this act, ex- cepting only the first tax to be paid by any domestic corporation which may hereafter be chartered, or of any foreign corporation which may hereafter be authorized to do business in this state ; the president, vice-president, general manager, secretary, treas- urer and superintendent of each and every domestic or foreign corporation embraced within the provisions of this act, shall an- nually and between the first and tenth days of March, and also, whenever called upon by the secretary of state to do so, report to the secretary of state, in writing, and under oath, as required by Sec. 4 of this act, the total amounts of the capital stock issued and outstanding, and the surplus and undivided profits, respective- ly, if any, of such corporation on the first day of March next pre- ceding; and the secretary of state may ascertain such facts from other sources ; and if the true aggregate of such amounts shall exceed the authorized capital stock of such corporation as dis- closed by its then current original or amended articles of incor- poration, the amount of its annual franchise tax for the year be- ginning the first day of May, next thereafter shall be thereon collected and paid ; otherwise, its annual franchise tax shall be calculated and paid upon the amount of its authorized capital stock as shown by its aforesaid original or amended articles of incorporation. The making and filing by any one of such officers of such corporation of the record required by this section shall relieve the other officers of such corporation from the duty of making any report required by this section, except such report or reports as may be required by the secretary of state. 614 Taxation in Texas. Sec. 6. In the event of increase in the authorized capital stock or any domestic or foreign corporation, it shall also pay, in ad- vance, a supplemental franchise tax thereon for the remainder of the year down to and including the 30th day of April next there- after, the amount of which shall be determined as is provided in Section 3 of this act in case of the first franchise tax payment to be made under this act by a domestic corporation which may be hereafter authorized to do business within this state. Sec. 7. Every person required by tliis act to make any annual report to the secretary of- the state, who shall for a longer period than five days, and every person who shall for more than ten days after the maiHng by the secretary of state demand upon him for any other report, which the secretary of state is by this act authorized to require, fail or refuse to make such report shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than fifty dollars and not more than two hundred dollars, and each day of such failure or refusal after the expiration of said five days or said ten days, as the case may be, shall constitute a separate offense. The secretary of state shall keep a record of the mailing of any and all notices and demands for reports provided for by this act. Sec. 8. Any corporation, either domestic or foreign, which shall fail to pay any franchise tax provided for in this act when the same shall become due and payable under the provisions of this act, shall thereupon become liable to a penalty of twenty- five per cent of the amount of such franchise tax due by such corporation, and if the amount of such tax and penalty be not paid in full on or before the 1st day of July thereafter, such cor- poration shall for such default forfeit its right to do business in this state, which forfeiture shall be consummated without judi- cial ascertainment by the secretary of state entering upon the mar- gin of the record kept in his office relating to such corporation, the words "right to do business forfeited," and the date of such forfeiture, and any corporation whose right to do business shall be thus forfeited shall be denied the right to sue or defend in any other courts of this state, except in a suit to forfeit the charter of such corporation, and in any suit against such cor- poration on a cause of action arising before such forfeiture no affirmative relief shall be granted to such corporation unless its right to do business in this state shall be revived as provided by Franchise Tax. 615 this act. And each and every director and officer of any cor- poration whose right to do business within this state shall be so forfeited, shall as to any and all debts of such corporation which may be created or incurred, with his knowledge, approval and consent, within this state, after such forfeiture by any such di- rectors or officers, and before the revival of the right of such corporation to do business, be deemed, and held liable thereon in the same manner and to the same extent as if such directors and officers of such corporation were partners. Sec. 9. The secretary of state shall, during the month of May of each year, notify each domestic and foreign corporation which may be or become subject to a franchise tax, under any law of this state which has failed to pay such franchise tax on or before the 1st day of May that unless such overdue tax together with said penalty thereon shall be paid on or before the 1st day of July next following the right of such corporation to do business in this state will be forfeited without judicial ascertainment. Such notice may be either written or printed and shall be verified by the seal of the office of the secretary of state, and shall be addressed to such corporation and mailed to the postoffice named in its articles of incorporation as its principal place of business or to any other known place of business of such corporation, and a record of the date of mailing such notice shall be kept by the secretary of state. Such notice and said record thereof shall constitute legal and sufficient notice thereof for all the purposes of this act. Any corporation whose right to do business may have been forfeited as provided in this act, shall be relieved from such forfeiture by paying the secretary of state any time within six months after such forfeiture the full amount of the franchise tax and penalty due by it, together with an additional amount of five per cent of such tax for each month or fractional part of a month which shall elapse after such forfeiture ; provided that such amount shall in no case be less than five dollars. When such tax and all such penalties shall be fully paid to the secretary of state he shall revive and re-instate the right of the corporation to do business within this state by cancelling the words "right to do business forfeited," upon his record and endorsing thereon the word "revived," and the date of such revival. If any domestic corporation whose right to do business within this state shall hereafter be forfeited under the provisions of this act, shall fail 616 Taxation in Texas. to pay the secretary of state on or before the first day of Janu- ary next following the revival amounts necessary to entitle it to have its right to do business revived under the provisions of this act, such failure shall constitute sufficient grounds for the for- feiture by a judgment of any court of competent jurisdiction of the charter of such domestic corporation. Sec. 10. Every private corporation heretofore chartered under the laws of this state, and every foreign corporation whose right to do business within this state has heretofore been forfeited as provided by law solely because of its failure to pay within the time provided by law any franchise or franchise tax and penalty or penalties prescribed by law, shall be permitted and authorized to pay to the secretary of state on or before the first day of Sep- tember, 1907, the aggregate amount of its franchise tax or taxes and the penalty thereon as provided by law, calculated for the entire period of time beginning with the day upon which the first unpaid franchise tax payment became due and ending the day of said payment, and upon such payment being made to the secre- tary of state he shall cancel such previous forfeiture of the right of such corporation to do business within this state and shall en- dorse upon the margin of the record kept in his office relating to such corporation the word "Revived," and the date of such re- vival. Failure of any such domestic corporation to pay such aggregate amount on or before the first day of May, 1907, shall constitute sufficient grounds for the forfeiture by a judgment of any court of competent jurisdiction of the charter of such domestic cor- poration ; it being provided, however, that none of the provisions of this section shall apply to any corporation whose right to do business within the state, or whose charter may have been legally forfeited for any other reason than those mentioned in this sec- tion. Sec. 11. Should any foreign corporation which may have or hereafter obtain a permit to do business within this state desire at any time to withdraw from doing business in this state it may surrender such permit to the secretary of state, who shall there- upon mark or stamp such permit "Surrendered," dating and sign- ing same officially, and shall endorse upon the record of such permit in his office the word "Surrendered" and the date thereof, and thereafter such corporation may by complying with the pro- Franchise Tax. 617 visions of this act secure a new permit to do business in this state without having made any further payment of franchise tax under such old permit. Sec. 12. In any and all cases in which the charter or right to do business of any private domestic corporation heretofore or hereafter chartered under the laws of this state or the permit of any foreign corporation or its right to do business within this state shall have been or shall hereafter be forfeited it shall be unlawful for any person or persons who were or shall be stock- holders, or officers of such corporation at the time of such for- feiture to do business within this state in or under the corporate name of such corporation or to use signs or advertisements of such corporation or similar to the signs or advertisements which were used by such corporation before such forfeiture, and each and every person who may violate any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon con- viction thereof shall be fined in any sum not less than one hun- dred dollars and not more than one thousand dollars; provided, the inhibition and penalties prescribed by this section shall not apply where the right of such corporation to do business within this state has been revived in the manner provided by law and is at the time in good standing. Sec. 13. The franchise tax imposed by this act shall not apply to any insurance company, surety, guaranty, or fidelity company or any transportation company or any sleeping, palace car and dining car company which now is required to pay an annual tax measured by their gross receipts, or to corporations having no capital stock and organized for the exclusive purpose of promot- ing the public interest of any city or town or to corporations or- ganized for the purpose of religious worship ; or for providing places of burial not for private profit ; or corporations organized for the purpose of holding agricultural fairs and encouraging agricultural pursuits, or for strictly educational purposes, or for purely public charity. Sec. 14. The attorney general shall be authorized and it shall be his duty to bring suit therefor against any and all such cor- porations which may be or become subject to or liable for any and all franchise tax or taxes or penalties under this or any former law, and in case there may now be or shall hereafter ex- ist valid grounds for the forfeiture of the charter of any domestic 618 Taxation in Texas. private corporation or failure to pay any franchise tax or fran- chise taxes or penalty or penalties to which it may have become or shall hereafter be or become subject or liable under this or former law it shall be his duty to bring suit for a forfeiture of such charter and for the purpose of enforcing the provisions of this act by civil suits, venue is hereby conferred upon the courts of Travis County concurrently with the courts of the county in which the principal office of such corporation may be located as shown by its articles or amended articles of incorporation. Such courts, shall also have authority to restrain and enjoin a violation of any and all of the provisions of this act. In any and all cases in which any court having jurisdiction thereof shall make and enter judgment forfeiting the charter of any such cor- poration the court may appoint a receiver thereof and may admin- ister such receivership under the laws regulating receiverships. Sec. 15. Upon the rendition by the district court of any judg- ment or forfeiture under the provisions of this act the clerk of that court shall forthwith mail to the secretary of state a certified copy of such judgment, and upon receipt thereof he shall endorse upon the record of such charter in his office the words "Judg- ment of forfeiture" and the date of such judgment. In event of an appeal from such judgment by writ of error or otherwise the clerk of the court from which such appeal is taken shall forth- with certify to the secretary of state the fact that such appeal has been perfected and he shall endorse upon the record of such char- ter in his office the word "Appealed" and the date upon which such appeal was perfected. When final disposition of such ap- peal shall be made the clerk of the court making such disposi- tion thereof shall forthwith certify such disposition and the date thereof to the secretary of state, who shall briefly note same upon the record of such charter in his office and the date of such final disposition. Sec. 15a. In case a corporation is actually in process of liquida- tion such corporation shall only be required to pay a franchise tax calculated upon the difference between the amount of stock actually issued and the amount of liquidating dividends actually paid upon such stock ; provided, that the president and secretary of such corporation shall make affidavit as to the total amount of Franchise Tax. 619 capital stock issued and as to the amount of liquidating dividends actually paid and that such corporation is in an actual bona fide state of liquidation. Sec. 16. Articles 5243i, and 5243j, Chapter 9, Title 104, of the Revised Civil Statutes of Texas, as amended by Chapter 19 of the General Laws of the Twenty-ninth Legislature of Texas, and Chapter 72, of the General Laws of the Twenty-ninth Legislature and any and all laws in conflict with any of the provisions of this act shall be, and the same are hereby repealed. Acts 30th Leg., pp: 502 to 508. CHAPTER LIV. UNORGANIZED COUNTIES. Sec. Sec. 947. Property in unorganized .957. Deed shall vest good title counties. when. 948. Lands of non-residents in un- 958. County taxets to be paid organized counties. when. 949. Lands in unorganized coun- 959. Comptroller to keep taxes of ties. unorganized counties, etc. 950. Duties of comptroller in re- 960. Same subject. lation thereto. 961. Special deposit to be made by 951. May appeal from comptrol- comptroller. ler's assessment. i62. Taxes upon lands of non-resi- 952. May levy upon and sell when. dents in unorganized coun- 953. Sale. ties. 954. Redemption. 963. Personal property where tax- 955. Tax deed. able. 956. List of purchasers to be kept 964. Newly organized county. in office. § 947. Property in unorganized counties. All property subject to taxation in, and owned by residents of unorganized counties, shall be assessed and the taxes thereon paid in the counties to which such unorganized counties shall be at- tached for judicial purposes ; and lands lying and owned by non- residents or unorganized counties, and lands lying in the ter- ritory not laid off into counties, shall be assessed and the taxes thereon collected at the office of the comptroller of the state. St. Const., Art. 8, Sec. 12. Construing this section and Section 11 of this Article, held that the collection of taxes on personalty of a resident of an un- organized county may be made by the collector of the organized county. Llano County v. Fcnight, 5 S. W. 494. There is not a constitutional provision as tf the place, where taxes on personal property in an unorganized county and owned by a non-resident thereof, shall be collected and assessed. Id. § 948. Lands of non-residents in unorganized counties, etc. Lands lying in and owned by non-residents of unorganized counties, and lands lying in the territory not laid off into coun- Unorganized Counties. 621 ties, shall be assessed by the comptroller of public accounts in accordance with such regulations as he may adont and estab- lish for that purpose. Sayles R. S., Art. 5137. § 949. Lands in unorganized counties. All lands and other property situated in the unorganized coun- ties of this state, owned by residents of such unorganized coun- ties, shall be assessed by the assessor of the organized county to which such unorganized county is attached for judicial pur- poses, and the taxes collected by the collector of such organized county ; and the same remedies for the enforcement of the assess- ment and collection of such taxes shall apply as the law directs for the assessment and collection of the taxes on land situated in organized counties of this state. Sayles R. S., Art. 5138. § 950. Duties of comptroller in relation thereto. The comptroller of state is authorized, empowered, and re- quired to assess and collect the state and county taxes on all lands in this state which are situated in unorganized counties thereof and owned by non-residents thereof, in the manner here- inafter provided. Sayles R. S., Art. 5139. The comptroller may at any time prior to the return of the assessment rolls to his office of the organized county to which such unorganized county or counties are attached for judicial purposes, receive the assessment of and collect the taxes on any lands situated in such unorganized county or counties which are owned by non-residents thereof. Sayles R. S., Art. 5140. As soon as the tax rolls of the organized counties to which un- organized counties are attached for judicial purposes shall have been received by the comptroller, he shall by comparing the lands rendered to the assessor of the organized county by the residents of such organized county or counties with those previously ren- dered to him by non-residents, make out a list of all unrendered lands situated in such vmorganized county, and place such value upon the lands thus found to be unrendered as he, as a sworn officer, may deem just and fair ; provided, nothing in this law shall be so construed as to prevent the comptroller from receiving the assessment and taxes due at any time prior to the completion of the unrendered list of such unorganized county. Sayles R. S. 5141. 622 Taxation in Texas. After the completion of the unrendered list provided for in this chapter, the owner or owners must pay according to the value and assessment made thereon by the comptroller. Sayles R. S., Art. 5142. § 951. May appeal from comptroller's assessment. Assessment of lands rendered to the comptroller under the pro- visions of this chapter shall be made by the party rendering the same under oath as to their value ; but if the comptroller thinks the valuation too low he shall object, and if the comptroller and the party rendering the land can not agree then the comptroller shall assess the same at such value as he as a sworn officer may think it is worth; and if the party rendering feels that the as- sessment is too high he may appeal to the board of equalization, which for such purposes shall consist of the governor, attorney general and the secretary of state, and their decision shall be final. Sayles R. S., Art. 5141. § 952. May levy upon and sell when. Three months after the completion of the unrendered list of each unorganized county, respectively, the comptroller shall pro- ceed to levy upon and advertise all lands in such counties upon which the taxes are due and unpaid, giving notice of the amount due upon each separate tract of land, and giving such description of the land upon which taxes are due and unpaid as he may be in possession of ; such notice to be given by publication in some weekly newspaper published in the state for four consecutive weeks; said notice to state that on a certain diy therein named the comptroller will proceed to sell the land therein described, or so much thereof as may be necessary to pay the state and county taxes due, and the cost of advertising the same. Sayles R. S., Art. 5144. § 953. Sale. The sale shall commence on the day named in said notice and may continue from day to day (Sundays and legal holidays ex- cepted) until completed; such sale shall be had in front of the comptroller's office in the city of Austin, between the hours of eight and nine o'clock A. M., and four o'clock P. M. of each day. Sayles R. S., Art. 5146. Unorganized Counties, 623 § 954. Redemption. Should the lands bid in by the comptroller for the state not he redeemed by the owner thereof or his agent within two years, by the party redeeming the same paying double the amount for which the said land was sold, then the said lands thus sold and unredeemed shall become vacant and revert to and become a part of the public free school fund to be sold and disposed of as other lands belonging to the public free school fund are to be sold and disposed of by law. Sayles R. S., Art. 5147. §955. Tax deed. The comptroller shall give to the purchaser of any lands the sale of which is provided for in this chapter, a deed to the same, giving in such deed such description as he may be in possession of. Sayles R. S., Art. 5148. § 956. List of purchasers to be kept in office. The comptroller shall keep a list of the purchaser or pur- chasers of all such lands in his office, showing the name and post office of the purchaser or purchasers, together with the amount and description of the land sold and the amount for which it was sold, and the date of sale. Sayles R. S., Art. 5149. § 957. Deed shall vest good title when. The deed given to the purchaser or purchasers by the comp- troller under the provisions of this chapter shall vest a good and sufficient fee-simple title in the purchaser or purchasers, subject to be impeached only for actual fraud ; provided, the former owner or owners thereof do not redeem the same within two years from the date of the deed either by paying to the purchaser or purchasers double the amount for which said land was sold, or by making a tender of the same to him or his agent, or by de- positing with the comptroller before the expiration of the two years double the amount for which such land was sold, to be paid by the comptroller, when called upon, to the purchaser or pur- chasers thereof. Sayles R. S., Art. 5150. § 958. County taxes to be paid when. All county taxes collected under the provisions of Article 5147 shall be paid into the county treasury of the organized county to which the unorganized county is attached for judicial purposes. Sayles R. S., Art. 5151. 624 Taxation in Texas. § 959. Comptroller to keep taxes of unorganized counties, etc. All county taxes other than taxes to pay pro rata of indebted- ness to parent county, due unorganized counties, collected by the comptroller, shall be kept by him to the credit of such unor- ganized county until the total sum to the credit of the county shall reach the sum of five thousand dollars. Then he shall, upon the demand of the treasurer of the former unorganized county, when the same shall have organized, pay said sum, or whatever amount is held to the credit of said county, over to said treasurer. And all county taxes collected by the comptroller after the amount to the credit of such unorganized county shall reach the amount of five thousand dollars, shall be paid into the county treasury of the organized county to which the unorganized county is attached for judicial purposes. Sayles R. S., Art. 5152. § 960. Same subject. Where the amount to the credit of any unorganized county now exceeds five thousand dollars, the comptroller shall keep said sum to be paid to the treasurer of such unorganized county when the same shall organize ; and all county taxes, other than taxes collected to pay pro rata of indebtedness to parent county, here- after elected by the comptroller in such counties, shall be paid into the county treasury of the organized county to which such county is attached for judicial purposes. Sayles R. S., Art. 5152a. § 961. Special deposit to be made by comptroller. All money received by the comptroller on deposit for the re- demption of land sold and bought by individuals shall be by him deposited in the state treasury as a special deposit, subject to the order of the party to whom the conditional deed to such land was given. So also shall all county taxes collected by the comptroller under the provisions of this law be deposited in the state treas- ury as a special fund, subject to the order of the comptroller, to be paid to the county treasurers as provided in this chapter. Sayles R. S., Art. 5153. § 962. Taxes upon lands of non-residents in unorganized counties. The taxes upon lands lying in and owned by non-residents of unorganized counties, and upon lands situated in the territory not laid off into counties, shall be paid and collected at the office of Unorganized Counties. 625 the comptroller of public accounts, under such regulations as he may adopt for that purpose. Sayles R. S., Art. 5209. § 963. Personal property where taxable. By Const. Tex., Art. 8, Sees. 1, 11, and Rev. St., Arts. 4669, 4673, 4676, and Laws 1879, Chap. 50, Sec. 1, every kind of prop- erty situated within the state, and not specially exempted by law, is to be taxed, and the assessment and collection of taxes on property are to take place in the county where it is situated. The constitution and laws of the state provide for the assessment and collection of taxes on property, both real and personal, of resi- dents of unorganized counties, and on real property of non-resi- dents, by the taxing officers of the counties to which they are at- tached for judicial purposes. But there is no provision as to the place where taxes on personal property, situated in an unor- ganized county and owned by a non-resident thereof, shall be assessed and collected. Held, that an unorganized county being in effect a part of the county to which it is so attached, the col- lection of taxes on such personalty of a non-resident may be en- forced by the tax collector of the latter county. Llano Cattle Co. V. Faught, 5 S. W. 494, 69 Tex. 402. § 964. Newly organized county. The acceptance by the comptroller of land rendered for tax- ation by a non-resident, in an unorganized county, as provided in Const., Art. 8, Sees. 11, 12 (Sayles Civil St., Arts. 4728, 4728a, et seq.), does not prevent the county, upon its subsequent organ- ization, from collecting the taxes, where the same have not been actually paid to the comptroller, and the organization is effected prior to June 1 of that year. Magnolia Cattle & Land Co. v. Love, 21 S. W. 574, 2 Tex. Civ. App. 385. 40 CHAPTER LV. TAX COLLECTOR. Sec. Sec. 965. Collector to keep books. 992. 966. Tax collector to be furnished books, etc. 967. Unlisted property — Supple- mental roll. 993. 968. Election and term of collec- tor. 969. Vacancies— How filled. 994. 970. Sheriff as collector— When. 971. Bonds and oaths of collector. 995. 972. Liability of tax collector and evidence against. 973. New bond. 996. 974. Bond for county taxes. 975. All bonds to be first approved. 997. 976. May appoint deputies. 977. Rolls to be warrant. " 978. Collector for all taxes. 998. 979. Collections — When to begin. 980. Shall keep ofllce at county seat. 999. 981. Tax receipt and its requi- sites. 1000. 982. Quarterly reports — Requisites of — Duties of collector. 983. Make report to commission- 1001. ers' court. 984. List of delinquents and Insol- 1002. vents to be made out. 1003. 985. Collector to endeavor to col- 1004. lect delinquent taxes. 986. Non-residents. 1005. 987. Forced collections to begin — When. 1006. 988. Collector to file complaint — When. 989. Compensation. 990. For occupation tax. ^^07. 991. Fees to be retained. Fees less than maximumi — Statements of fees collect- ed — Excess to be paid into county treasury. Deputies and assistants — Ap- pointment and compensa- tion. Collection of delinquent fees — Fees not to be remitted. Penalty for failure to charge up fees, or for remission of fees, etc. Payment for ex-officio ser- vices. Officers to keep a correct statement — Accounts to be examined by the grand jury. Certain officers not required to make a report or keep a statement. Statement by tax collector and assessor. Fiscal year — At what times reports must be made and by whom. Compensation for one levy only, etc. Payments of moneys. Notification to pay, etc. Tax collector to prepare de- linquent tax record. Collector's fees under delin- quent tax acts. Duty of the tax collector to collect and prepare lists each year under the delin- quent tax act. Must account for taxes col- lected whether valid or not. Tax Collector. 627 Sec. 1008. Application of payment. 1009. Duty of tax collector when delinquent has no property in county out of which taxes can be collected. 1010. Receipts to creditors. 1011. City bonds. 1012. Rolls must be delivered. 1013. Parties to suit on bond. 1014. Evidence in suit on bond. 1015. Suit against defaulting — Pleadings — Interest. 1016. Collection by authorized party is collection by coun- ty. 1017. Suspension. 1018. Additional bond. 1019. Removal from office. 1020. Cities — Action on bond: — Proof necessary. 1021. Successor of sheriff. 1022. No release of sureties — When. 1023. Practice in suit against what must be shown. 1024. Sureties not released until new bond approved. 1025. Suit on bond — Letter from comptroller admissible. 1026. No liability as to county or sureties on bond on taxes collected without authority. Sec. 1027. 1028. 1029. 1030. 1031. 1032. 1033. 1034. 1035. 1036. 1037. 1038. 1039. 1040. 1041. Suit on delinquent sheriff bond. Cannot question validity of act to avoid payment of moneys collected, (a) Not entitled to fees from State when land is bid in by State unless re- deemed by owner. Liability of surety not lim- ited — When. Interest on amount in de- fault. Suit against to recover tax on illegal valuation. Collection on municipal bonds. Entitled to one dollar for each correct assessment. Rights of surety. Limitation as to collecting. Not liable to county under bond to State. Cannot deny officer's elec- tion. A trespasser — When. Right to emoluments. Authority to tax collector. Tax collector alone can col- lect. § 965. Collector to keep books. The collector of taxes shall keep a book of such size and character as may be necessary, in which shall be entered quar- terly at the following dates, to-wit, January 1, April 1, July 1, and October 1, or within ten days thereafter, in which to re- quire the returns to be made under the provisions of this chap- ter, the several amounts as shown by such returns for which and upon which any person, firm or association of persons is or may be liable to a tax upon occupations under article 5049, and within fifteen days from the time of receiving and making up the several amounts and the sums due upon such amounts as occupation tax, the collector shall forward to the comp- 628 . Taxation in Texas. troller of public accounts a transcript or duplicate of the re- turn and the amount as shown by his record, this transcript and record from which it is taken to show the amount of such quarterly returns and the tax due thereon from every person, firm or association of persons liable to such tax; pro- vided, that nothing contained in this article is intended to af- fect the liability, which in the absence of this statute, would be incurred under any special enactment of this state. (Acts 1879, p. 143.) Sayles R. S., Art. 5052. § 966. Tax collector to be furnished books, etc. The comptroller of public accounts shall be authorized and required to furnish tax collectors the necessary books and blanks required to be used by such collectors under the provi- sions of this chapter. Sayles R. S., Art. 5053. § 967. Unlisted property — Supplemental roll. Collectors of taxes of counties, cities and towns, when any taxpayer applies to them for the purpose of ascertaining the amount of his taxes, and the collector finds that his name or his property does not appear on the tax roll, shall, and it is hereby made their duty to assess said taxpayer then and there, collect the taxes and enter the same upon a supplemental tax roll to be made by him. He shall make out on forms to be fur- nished by the comptroller, three copies of such supplemental roll, one copy to be delivered to the comptroller of public accounts, and one to be delivered to the county clerk, and one to be filed in the collector's office. Said supplemental tax roll shall be made out and delivered to the county commis- sioners' court with all other papers pertaining to the final settlement of said tax collector, and the same shall be ex- amined and approved by the county commissioners' court, in like manner as upon the tax roll of the tax assessor. The collectors of taxes are hereby authorized and empowered to administer all oaths necessary to obtain a full and correct assessment of all taxable property assessed by them under this act. The oath shall be the same as is administered by tax assessors under existing law. The collector of taxes shall re- ceive the following compensation for his services on all assess- ments made by him under this act, to-wit: For assessing the state and county taxes, four cents for each one hundred dollars Tax Collector. 629 of property so assessed, and for assessing the poll tax, five cents for each poll, which fee shall be paid in the same way as the tax assessor's fee in Article 5133. (Acts 1895, p. 103.) Sayles R. S., Art. 5121a. § 968. Election and term of collector. In each county having ten thousand inhabitants, to be de- termined by the last preceding census of the United States, there shall be elected by the qualified voters, at the same time and under the same law regulating the election of state and county officers, a collector of taxes, who $hall hold his office for two years and until his successor is elected and qualified. Sayles R. S., Art. 5154. § 969. Vacancies — How filled. Should the ofifice of collector of taxes from any cause be- come vacant before the expiration of said term, it shall be the duty of the commissioners' court in the county in which such vacancy shall occur, to appoint a collector of taxes, who shall be qualified in the same manner and subject to like bonds as the collector of taxes elected, and the collector of taxes so appointed shall hold his office for and during the unexpired term of his predecessor and 'until his successor shall have been qualified ; and the collector of taxes so appointed shall have all the rights and perform all the duties required by law of the collector of taxes elected. Sayles R. S., Art. 5155. § 970. Sheriff as collector when. In each county having less than ten thousand inhabitants the sheriff of such county shall be the collector of taxes, and shall have and exercise all the rights, powers and privileges, be sub- ject to all the requirements, restrictions and perform all the duties imposed by law upon collectors ; and he shall also give the same bonds required of a collector of taxes elected. (Const., Art. 8, 16.) Sayles' R. S., Art. 5156. In determining whether a sheriff elected in 1880 was, under Sec. 16, Art. 8, of the Constitution of 1876, also ex officio col- lector of taxes by reason of his county containing less than ten thousand inhabitants, "under the last preceding census of the United States," the list of the enumerator taking the tenth census for the county, if duly certified as such and filed in the office of the county clerk, prior to his election, will govern. Nelson v. Edwards, 55 Tex. 389. 630 Taxation in Texas. § 971. Bonds and oaths of collector. Every collector of taxes, within twenty days after he shall have received notice of his election or appointment, and before entering upon the duties of his office, shall give a bond based upon unincumbered real estate of the sureties subject to execu- tion, payable to the governor and his successors in ofhce, in a sum which shall be equal to the whole amount of the state tax of the county as shown by the last preceding assessment, with at least three good and sufficient sureties, to be ap- proved by the commissioners' court of his county, which shall be further subject to the approval of the comptroller, and shall take and subscribe the oath prescribed by the constitution, which, together with said bonds, shall be recorded in the office of the clerk of the county court of said county and be for- warded by the county judge of the county to the comptroller to be deposited in his office. Said bond shall be conditioned for the faithful performance of the duties of his office as col- lector of taxes for and during the full term for which he was elected or appointed, and shall not become void upon the first recovery, but suit may be maintained thereon until the whole amount thereof be recovered, ^ayles R. S., Art. 5157. § 972. Liability of tax collector and evidence against. In a suit by a county against the sheriff who was ex officio collector of the county to recover taxes alleged to have been col- lected by him and not paid over, reports of taxes collected, indorsed by his deputy in his name as sheriff and collector, when produced from the proper custody and attached as ex- hibits to the petition are admissible in evidence, though not sworn to. Webb County v. Gonzales, 69 Tex. 455, 6 S. W. 781. § 973. New bond. The collector of taxes may be required to furnish a new bond or additional surety whenever, in the opinion of the commis- sioners' court or comptroller of public accounts, it may be ad- visable. Should any collector of taxes fail to give a new bond or additional security when required, he shall be suspended from office by the commissioners' court of his county, and immediately thereafter be removed from office in the mode pre- scribed by law. R. S., Art. 5158. Tax Collector. 631 § 974. Bond for county taxes. Collectors of taxes shall give a like bond, with like condi- tions to the county judges of their respective counties and their successors in office, in a sum not less than the whole amount of the county tax of the county, as shown by the last preceding assessment, with at least three good and sufficient sureties to be approved by the commissioners' court of his county, which bond shall be recorded and deposited in the office of the clerk of the county court. A new bond and addi- tional security may be required, and for a failure to give such new bond or additional security the collector of taxes may be removed from office in the manner prescribed by law. Sayles R. S., Art. 5159. § 975. All bonds to be first approved. No collector of taxes shall enter upon the discharge of the duties of the office until all the bonds required of him by law for the collection of any taxes, state, county or special, shall have been given and approved. Sayles R. S., Art. 5l60. § 976. May appoint deputies. Each collector of taxes may appoint one or more deputies to assist him in the collection of taxes, and may take such bond and security from the person so appointed, as he deems neces- sary for his indemnity, and the collectors, in all cases, shall be liable and accountable for his proceedings and misconduct in office. See Art. 2495e. Sayles R. S., Art. 5161. § 977. Rolls to be warrant. When the collector of taxes of any county shall have re- ceived the assessment rolls or books of the county, he shall receipt to the commissioners' court for the same, and said rolls or books shall be full and sufficient authority for the county collector of taxes to receive and collect the taxes there- in levied. Sayles" R. S., Art. 5162. § 978. Collector for all taxes. The collector of taxes shall be the receiver and collector of all taxes assessed upon the tax list in his county, whether assessed for the state or the county, school, poorhouse or other purpose, and he shall proceed to collect the same according to 632 Taxation in Texas. law, and place the same when collected to the proper fund, and pay the same over to the proper authorities, as hereinafter provided. § 979. Collections — When to begin. The collector of taxes of each county shall begin the col- lection of taxes annually on the first day of October, or so soon thereafter as he may be able to obtain the proper assessment rolls, books or data upon which to proceed with the business ; and he shall post up notices — not less than three — at public places in each voting or magistrate's precinct in his county, at least twenty days previous to the day said taxpayers are required to meet him for the purpose of paying their taxes, stating in said notice the times and places the same are required to be paid ; and it shall be the duty of said collector, or his deputy, to attend at such times and places for the pur- poses aforesaid, and shall remain at each place at least two days ; and if the collector shall, from any cause, fail to meet the taxpayers at the time and place specified in the first notice, he shall, in like manner, give a second notice. Sayles R. S., Art. 5164. § 980. Shall keep office at county seat. The collector of taxes shall keep his ofifice at the county seat of his county and it shall be the duty of every person who has failed to attend and to pay his taxes at the times and places in his precinct named by the collector, as provided in the preceding article, to call at the office of the collector and pay the same before the last day of December of the same year for which the assessment is made. Sayles R. S., Art. 5165. § 981. Tax receipt and its requisites. The collector of taxes or his deputy, whenever any tax is paid, shall give to the person paying the same a receipt there- for, specifying the amount of state ad valorem tax, amount of state and poll tax, the amount of county ad valorem tax, the amount of county poll tax. and the year or years for which such tax was levied ; said receipt shall also show the number of acres of land in each separate tract, number, abstract and name of the original grantee ; the said receipt shall have a duplicate stub showing the name of the person, the date, the amount of Tax Collector. 633 each separate tax and the date of payment. The collector of taxes shall provide himself with a seal, on which shall be in- scribed a star with five points surrounded by the words "Col- lector of tax, county" (the blank to be filled with the name of the county), and shall impress said seal to each receipt given by him for taxes collected on real estate, and said receipt having the seal attached shall be admissible to record in the county in which the property is situated in same manner as deeds duly authenticated, and when so recorded shall be full and complete notice to all persons of the payment of said tax. Sayles R. S., Art. 5166. § 982. Quarterly reports — Requisites of — Duties of collector. 1. At the end of each month the collector of taxes shall, on forms to be furnished by the comptroller of public accounts, make an itemized report under oath to the comptroller, show- ing each and every item of ad valorem, poll and occupation taxes collected by him during said month, accompanied by a summarized statement showing full disposition of all state taxes collected. 2. He shall present such report, together with the tax re- ceipt stubs to the county clerk, who shall, within two days, compare said report with said stubs, and if same agree in every particular as regards names, dates, and amounts, he (the clerk) shall certify to its correctness for which examination and cer- tificate he shall be paid by the commissioners' court twenty- five cents for each certificate and twenty-five cents for each two hundred taxpayers on said report. 3. The collector of taxes shall then immediately forward his report^ so certified to the comptroller, and shall pay over to the state treasurer all moneys collected by him for the state during said month, excepting such amounts as he is allowed by law to pay in his county, reserving only his commissions on the total amount collected ; and to enable him to do so he may, at his own risk, send the same to the state treasurer at the least cost to the state, on which he shall be allowed credit by the comptroller upon filing receipts showing actual amount of exchange paid ; provided, that the state treasurer shall ac- cept no payment other than money orders or direct cash pay- ments, which may be made through express companies, banks, 634 Taxation in Texas. or any other source. The state treasurer whenever he may receive a remittance from a collector of taxes shall promptly pay the money so remitted to the state treasury on the deposit warrant of the comptroller, and the money when so deposited •shall be a credit to the said collector of taxes. Sayles R. S., Art. 5167. 4. The collector of taxes shall pay over to the state treas- urer all balances in his hands belonging to the state, and finally adjust and settle his account with the comptroller on or before the first day of May of each year ; and to enable him to do so the commissioners' court shall convene on or before the third Monday in April for the purpose of examining and ap- proving his final settlement papers. 5. The allowance of a delinquent and insolvent list to the collector in accordance with Article 5170 shall not absolve any taxpayer or property thereon from the payment of taxes, but it shall be the duty of the collector to use all necessary dili- gence to collect the amounts due thereon after it is allowed by the commissioners' court, and he shall issue special tax re- ceipts therefor, to be furnished by the comptroller, which blank receipts shall be numbered and charged to the collector who shall account for same at his next annual settlement, in the same manner as occupation tax receipts ; he shall also make itemized monthly reports of such collections, using special blanks for that purpose. 6. To enforce the prompt and speedy collection and remit- tance of taxes and to provide for the proper accounting of sale, the comptroller shall prescribe and furnish the forms to be used by collectors of taxes and the mode and manner of keep- ing and stating their accounts, and shall adopt such regula- tions as he may deem necessary in regard thereto. It shall be his imperative duty to enforce a strict observance of all the provisions of these articles. 7. It shall be the duty of the comptroller to notify the district attorney of the district, or the county attorney of the county in which the collector resides, and the sureties on the bond of the collector of any failure to comply with any of the provisions of this article. Sayles R. S., Art. 5168. Tax Collector. 635 § 983. Make report to commissioner's court. 1. The collector of taxes shall, at the end of each month, make like reports to the commissioners' court of all the collec- tions made for the county, conforming as far as applicable and in like manner to the requirements as to the collection and report of taxes collected for the state. The county clerk shall likewise, within two days after the presentation of said report by the collector, examine said report and stubs, and certify to their correctness as regards names, dates and amounts, for which examination and certificate he shall be paid by the col- lector of taxes fifty cents each month, which amount shall be allowed to the collector by the commissioners' court. 2. The clerk shall file said report intended for the commis- sioners' court, together with the tax receipt stubs, in his office for the next regular meeting of the commissioners' court. 3. The collector of taxes shall immediately pay over to the county treasurer all taxes collected for the county during said month after reserving his commissions for collecting the same, and take receipts therefor, and file with the county clerk. 4. At the next regular meeting of the commissioners' court, the collector of taxes shall appear before said court and make a summarized statement, showing the disposition of all moneys, both of the state and county, collected by him during the previous three months. Said statements must show that all taxes due the state have been promptly remitted to the state treasury at the end of each month, and all taxes due the county have been paid over promptly to the county treas- urer, and shall file proper vouchers and receipts showing same. 5. The commissioners' court shall examine such statement and vouchers, together with the itemized report and tax re- ceipt stubs filed each month, and shall compare the same with the tax rolls and tax receipt stubs. If found correct in every particular, and if the collector of taxes has properly accounted for all taxes collected, as provided above, the commissioners' court shall enter an order approving said report, and the order approving same shall be recorded in the minutes, as other pro- ceedings of said court. 6. The collector of taxes shall finally adjust and settle his account with the commissioners' court for the county taxes col- lected, at the same time and in the same manner as is pro- 636 Taxation in Texas. vided in the foregoing article in his settlement with the state. If any collector of taxes shall have failed at the end of each month, or within three days thereof, to promptly remit to the state treasurer, the amount due by him to the state, or pay over to the county treasurer the amount due by him to the county, the commissioners' court, at the next regular meeting, shall ascertain the facts, and if the collector of taxes fails or refuses to pay or remit the same and file proper vouchers there- for, as provided in the foregoing article, the commissioners' court shall not approve ihis reports and accounts, but shall ascertain the amounts due by him, both to the state and coun- ty, and enter an order requiring him to pay the same to the proper treasurers, as is provided in Articles 5210 and 5211 of the Revised Statutes and notify such collector as is provided for in Article 4769a, Section 3 (5212 infra), under penalty for failure to do so, in Section 4 of said article. Whenever the collector of taxes shall fail or refuse to remit to the state treasurer the amounts due the state, when re- quested, the comptroller shall notify him under Article 4769a, Sections 3, 4, 5 and 7. Sayles R. S., Art. 5169. § 984. List of delinquents and insolvents to be made out. The collector of taxes shall make out on forms, to be fur- nished for that purpose by the comptroller of public accounts, between April 1 and 15 of each year, lists of delinquent or in- solvent taxpayers, the caption of which shall be the "list of delinquent or insolvent taxpayers." In this list he shall give the name of the person, firm, company, or corporation from whom the taxes are due, in separate columns, and he shall post on€ copy of these delinquent or insolvent lists at the courthouse door of the county, and one list at the courthouse door, or where the court is usually held in each justice precinct in his county ; and the collector of taxes, upon the certificate of the commissioners' court that the persons appearing on the insolvent or delinquent lists have no property out of which to make the taxes assessed against them or that they have moved out of the county, and that no property can be found in the county belonging to such persons, out of which to make the taxes due, shall be entitled to a credit on final settlement of his accounts for the amounts due by the persons, firms, com- Tax Collector. 637 p. 90. Sayles R. S., Art. 5170. panics, or corporations certified to by the commissioners' court as above prescribed for. Acts 1887, p. 127; Amend. Acts 1893, § 985. Collector to endeavor to collect delinquent taxes. The allowance of any insolvent list to the collector in ac- cordance with the provisions of the preceding article, shall not absolve any taxpayer or property thereon from the payment of taxes, but it shall be the duty of the collector to use all necessary diligence to collect the amounts due on the insolvent list after it is allowed, and report and pay over to the proper officers all amounts collected on the same. Sayles R. S., Art. 5171. § 986. Non-residents. Non-residents of counties, owing state or county taxes, are hereby authorized to pay the same to the comptroller of public accounts ; provided, that all taxes due by said non-residents shall be paid at the comptroller's office on or before the first day of January next after the assessment of such taxes ; pro- vided further, that the collectors of taxes shall be entitled to the commissions of all moneys paid by the non-residents to the comptroller of public accounts, due their counties re- spectively. Sayles R. S., Art. 5172. § 987. Forced collections to begin when. If any person shall fail or refuse to pay the taxes imposed upon him or his property by law, until the first day of Jan- uary next succeeding the return of the assessment roll of the county to the comptroller, the collector of taxes, shall by virtue of his tax roll, seize and levy upon, and sell so much personal property belonging to such person as may be sufficient to pay his taxes, together with all costs accruing thereon; provided, there shall be no levy on property when the owner thereof has the right to pay at the comptroller's office, until a list of the persons who have paid their taxes at said office has been fur- nished the collector of taxes by the comptroller. The comp- troller shall forward said list of paid taxes on or before the first day of February of each year, and the tax collector shall immediately on receipt of said list from the comptroller, levy 638 Taxation in Texas. on and sell the property of suoh non-residents as have not paid their taxes, in accordance with the law regulating the sale of property for taxes. Sayles R. S., Art. 5173. § 988. Collector to file complaint when. It shall be the duty of the tax collector to make an affidavit before any justice of the peace against any person, firm or association of persons engaged in or pursuing any occupation on which, under the laws of this state, a tax is imposed, who fails or refuses to pay the same. Sayles R. S., Art. 5202. § 989. Compensation. There shall be paid for the collection of taxes, as compensa- tion for the services of the collector, beginning with the first day of December of each year, five per cent, on the first ten thousand dollars collected for the state, and four per cent, on the next ten thousand dollars collected for the state, and one per cent, on all collected over that sum. For collecting the county taxes, five per cent, on the first five thousand dollars of such taxes collected, and four per cent, on the next five thousand dollars collected, and one and one- fourth per cent, on all such taxes collected over that «um, and in counties owing subsidies to railroads, the collectors shall receive only one per cent, for collecting such railroad tax. And in cases where property is levied upon and sold for taxes, he shall receive the same compensation as allowed by law to sheriffs or constables upon making a levy, and sale in similar cases, but in no case to include commissions on such sales. (Acts 1895, p. 180; 1897 S. S., pp. 5, 9.) Sayles R. S., Art. 5206. § 990. For occupation tax. On all occupation and license taxes collected, five per cent. (Acts 1883, pp. 101, 102; 1897 S. S., p. 5, part of 9.) Sayles R. S., Art. 5207. § 991. Fees to be retained. The maximum amount of fees of all kinds that may be re- tained by the tax collector of state and county taxes shall be an amount not exceeding $2,000.00 per annum, and in addition thereto one-fourth of the excess of the fees collected by him. Sayles R. S., Art. 2495c ; Act 1897, p. 42. Tax Collector. 639 § 992. Fees less than maximum — Statements of fees collected — Excess to be paid into county treasury. The amounts allowed to each officer mentioned in Article 2495c may be retained out of the fees collected by him under existing laws; but in no case shall the state or the county be responsible for the payment of any sum when the fees col- lected by any officer are less than the maximum compensation allowed by this chapter, or be responsible for the pay of any deputy or assistant. Each officer mentioned in the preceding article, and also the sheriff, shall, at the close of each fiscal year, make to the district court of the county in which he resides a sworn statement showing the amount of fees col- lected by him during the fiscal year, and the amount of fees charged, and not collected, and by whom due and the number of deputies and assistants employed by him during the year and all the amounts paid or to be paid each ; and all fees col- lected by officers named in Article 2495c during the fiscal year, in excess of the maximum amount allowed and of the one- fourth of the excess of the maximum amount allowed for their services, and for the services of their deputies or assistants hereinafter provided for, shall be paid to the county treasurer of the county where the excess accrued ; provided, that any officer in Article 2495c who does not collect the maximum amount of his fees for any fiscal year, and who reports delin- quent fees for that year, shall be entitled to retain when col- lected, such part of such delinquent fees as is sufficient to com- plete the maximum compensation for the year in which delin- quent fees were charged, and also to retain the one-fourth of the excess belonging to him and the remainder of the delin- quent fees for that fiscal year shall be paid as hereinbefore pro- vided for when collected. Sayles R. S., Art. 2495d. § 993. Deputies and assistants, appointment and compensa- tion. Whenever any officer named in Article 2495c shall require the service of deputies or assistants in the performance of his duties he shall apply to the county judge of his county for author- ity to appoint same, and the county judge shall issue an order authorizing the appointment of such a number of deputies or assistants as in his opinion may be necessary for 640 Taxation in Texas. the efficient performance of the duties of said officer. The officer applying for appointment of a deputy or assistant or deputies or assistants, shall make affidavit that they are neces- sary for the efficiency of the public service, and the county judge may require, in addition, a statement showing the need of such deputies or assistants, shall make affidavit that they are necessary for the efficiency of the public service, and the county judge may require, in addition, a statement showing the need of such deputies or assistants, and in no case shall the county judge attempt to influence the appointment of any person as deputy or assistant in any office. The maximum amount al- lowed for deputies or assistants for their services shall be as follows, to-wit : First assistant or chief deputy, a sum not to exceed a rate of $1,200.00 per annum, others not to exceed a rate of $900.00 per annum. The county judge in issuing his order granting authority to appoint deputies or assistants, shall state in such order the number of deputies or assistants authorized and the amount to be paid each, and the amount of compensation allowed shall be paid out of the fees of office to which said deputies or as- sistants may be appointed, and shall not be included in esti- mating the maximum salaries of officers named in Article 2495c. Sayles R. S., Art. 2495e. § 994. Collection of delinquent fees — Fees not to be remitted. All fees due and not collected as shown in the report required by Article 2495d shall be collected by the officer to whose office the fees accrued and out of such part of delinquent fees as may be due the county, the officer making such collection shall be entitled to ten per cent, of the amount collected by him, and the remainder shall be paid into the county treasury, as provided in Article 2495d. It shall not be legal for any officer to remit any fee that may be due under the law fixing fees. Sayles R. S., Art. 2495f. § 995. Penalty for failure to charge up fees, or for remission of fees, etc. Any officer named in Article 2495c, and also the sheriff, who shall fail to charge up the fees or costs that may be due under existing laws, or who shall remit any fee that may be due under Tax Collector. 641 the laws, or wlio shall fail to make the report required in Article 2495d, or who shall pay his deputy or assistant a less sum than the amount specified in his sworn statement, or receive back any part of such compensation allowed such deputy or assistant as a rebate shall be deemed guilty of a misdemeanor and on conviction thereof shall be fined in any sum not less than $25 nor more than $500. Each act forbidden in this article shall constitute a separate offense. Sayles R. S., Art. 2495g. § 996. Payment of ex-officio services. It is not intended by this chapter that the commissioners' court shall be debarred from allowing compensation for ex-officio serv- ices to county officials not to be included in estimating the max- imum provided for in this chapter when in their judgment such compensation is necessary; provided such compensation for ex- officio services shall not exceed the amounts now allowed under the law for ex-officio services; provided further, the fees allowed by law to district and county clerks, county attorneys and tax collectors in suits to collect taxes shall be in addition to the max- imum salaries fixed by this chapter. Sayles R. S., Art. 2495h. § 997. Officers to keep a correct statement — Accounts to be examined by the grand jury. It shall be the duty of those officials, named in Article 2495c, and also the sheriffs, to keep a correct statement of the sums coming into their hands as fees and commissions, in a book to be provided by them for that purpose, in which the officer at the time when any fees or moneys shall come into his hands shall enter the same, and it shall be the duty of the grand jury (and the district judge shall so charge the grand jury) to examine these accounts at the session of the district court next succeeding the first day of December of each year, and make a report on same to the district court at the conclusion of the session of the grand jury. Sayles R. S., Art. 2495i. § 998. Certain officers not required to make a report or keep a statement. The officers named in Article 2495c, in those counties having a population of fifteen thousand, or less, shall not be required to make a report of fees as provided in Article 2495d, or to keep a statement provided for in Article 24951; the population of the 41 642 Taxation in Texas. county to be determined by the vote cast at the next preceding presidential election, on the basis of five inhabitants for each vote cast at such election ; provided, that all district attorneys shall be required to make the reports and keep the statements required in this chapter. Sayles R. S., Art. 2495 j. § 999. Statement by tax collector and assessor. The tax collector and tax assessor, at the time of their settle- ment of accounts with the comptroller, shall file with him a copy of the sworn statement required under Article 2495d. Sayles R. S., Art. 2495k. § 1000. Fiscal year — At what times reports must be made and by whom. A fiscal year within the meaning of this chapter shall begin on December 1, of each year, and each officer named in Article 2495c, and also the sheriff shall file the reports and make the settlement required in this chapter on December 1, of each year. Whenever such officer serves for a fractional part of a fiscal year, he shall nevertheless file his report and make a settlement for such part of a year as he serves, and shall be entitled to such proportional part of the maximum allowed as the time of his services bears to the entire year. However, an incoming officer elected at the general election, who qualifies prior to December 1 next following, shall not be required to file any report or make any settlement before December 1, of the following year, but his report and settlement shall embrace the entire period dated from his qualification. This act shall take effect and be in force from and after December 1, 1897. Sayles R. S., Art. 24951. § 1001. Compensation for one levy only, etc. In making levies upon different tracts of land belonging to the same individual, corporation or company, the collector shall be entitled to charge for only one levy ; and in all cases of adver- tisement of lands for tax sales shall be entitled to charge for any one tract the exact proportion of the amount paid for the whole advertisement which said tract bears to all other tracts advertised, and no more. And for any greater charge under this article the collector shall be deemed guilty of extortion and be punished as provided in the Penal Code. Sayles R. S., Art. 5208. Tax Collector. 643 § 1002. Payments of moneys. All tax collectors and other officers or appointees authorized to receive public moneys shall account for all moneys in their hands belonging to the state, and pay the same over to the state treasurer whenever and as often as they may be directed so to do by the comptroller of public accounts ; provided, that tax col- lectors shall have thirty days from the date of such direction within which to comply with the same. Sayles R. S., Art. 5210. All tax collectors and other officers or appointees authorized to receive public moneys shall account for all moneys in their hands belonging to their respective counties, cities or towns, and pay the same over to the respective county treasurers and city treasurers, whenever and as often as they may be directed so to do by the respective county judges, or county commissioners' courts, or mayor or board of aldermen ; provided that tax col- lectors shall have ten days from the date of such direction with- in which to comply with the same. Sayles R. S., Art. 5211. § 1003. Notification to pay, etc. The notification and direction provided for in the two preced- ing articles may be verbal, written, or by telegram ; and if written or by telegram, proof of the deposit in the postoffice or telegraph office of such notification and direction, with postage or charges duly prepaid and correctly addressed, shall be prima facie evi- dence of the fact of such notification and direction having been given, and of the time when the same was given. Sayles R. S., Art. 5212. § 1004. Tax collector to prepare delinquent tax record. It is provided by the Acts of 1895 and 1897 that it shall be the duty of the commissioners' court of each county in this state im- mediately upon the taking effect of the act to cause to be pre- pared by the tax collector at the expense of the county (the com- pensation for making out the delinquent tax record to be fixed by the commissioners' court) a list of all lands, lots or parts of lots sold to the state for taxes since the first day of January, 1885, and which have not been redeemed in their respective counties, and unorganized counties attached thereto, and to have such lists recorded in books to be called the "Delinquent Tax Record," showing when the lands or lots were reported delinquent or sold to the state for taxes, also the name of the owner at the time of such sale or delinquency, if known, the number of acres, the 644 Taxation in Texas. amount of taxes due, when first sold and the amount of all taxes assessed against the owner thereof and returned delinquent for each year as shown by the records of the tax collector's office and in making up the list or lists contemplated herein, corrections and omissions in the description of any real estate embraced in such lists or list shall be made, so that when the corrections are made and the omissions supplied, the description will be such as is given in the abstracts of all the titled and patented lands in the state of Texas, and it shall be required in bulk assessments, to apportion to each tract or lot of land separately, its pro rata share of the entire tax penalty and costs. Acts 1897, p. 132, Sec. 3 ; Sayles R. S., Art. 5232c. § 1005. Collector's fees under delinquent tax acts. The collector of taxes, for preparing the delinquent list and separating the property previously sold to the state from that reported to be sold as delinquent for the preceding year, and cer- tifying the same to the commissioners' court, shall be entitled to a fee of one dollar for each correct assessment of the land sold, said fee to be taxed as costs against the delinquent. Acts 1897, p. 136, Sec. 9; Sayles R. S., Art. 5232i. § 1006. Duty of the tax collector to collect and prepare lists each year under the delinquent tax act. If no personal property be found for seizure and sale as is pro- vided for, the collector shall, on the 31st day of March of each year for which the state and county taxes, for the preceding year only remain unpaid, make up a list of the lands and lots on which the taxes for such preceding year are delinquent, charging against the same all taxes and penalties assessed against the owner there- of. Said list shall be made in triplicate and shall be presented to the commissioners' court for examination and corrections of any errors that may appear, and when so examined and corrected by the commissioners' court, such lists in triplicate shall be ap- proved by said court, and one copy thereof shall be filed with the county clerk, and one copy retained and preserved by the col- lector, and one copy forwarded to the comptroller, with his an- nual settlement reports. When such list of lands and lots delin- quent for the preceding year only, is corrected, as provided for, then such list shall be advertised by the commissioners' court causing the same to be published in some newspaper published in Tax Collector. 645 the county, for three cons^ecutive weeks; but if no newspaper is published in the county then one outside of the county, and after such advertisement, suit shall be instituted against delinquents for all taxes and penalties due. Acts 1897, Sec. 10, p. 137; Sayles R. S., Art. 5232J. § 1007. Must account for taxes collected whether valid or not. When an officer has collected taxes for the state, under color of legal authority, or under pretense that he is authorized to do so, he will not be heard to controvert the validity of the law or authority under which he has acted, or dispute the right of the state to the money thus coming into his hands. Morris v. State, 47 Tex. 583. § 1008. Application of payment. The rule between parties acting in their own right does not obtain between the collecting officers of the state and their se- curities, and the accounting officer of the state, taxes collected and paid into the treasury can not lawfully be applied to the discharge of a pre-existing debt of the tax collector on a former account. The collector can not authorize it, nor can the comp- troller apply it to the injury of the sureties of the collector. That the comptroller was ignorant of the source from which funds have been received, which have been by him, without instruction from the collector, applied to his indebtedness for taxes for former years, does not deprive the sureties of the benefit of the payment of such funds into the treasury by their principal. The contract of the sureties upon a tax collector's bond is that the col- lector shall pay into the state treasury, either directly or indi- rectly, all funds which he might collect. State of Texas v. Mid- dleton Sureties, 57 Tex. 185. § 1009. Duty of tax collector when delinquent has no prop- erty in county out of which taxes can be collected. That whenever it shall appear to the collector of taxes in any county in this state that any person who is a delinquent in the payment of his or her taxes, has no property in his county out of which said amount of taxes can be collected, it shall be the duty of such collector to make out from the assessment list a true and complete list or schedule of the taxes due by said delinquent, which shall be certified to under the official seal and signature of 646 Taxation in Texas. said collector, and to forward the same to the collector of taxes of any county or counties where he shall have reason to believe said delinquent has property of any description, and if said prop- erty is in any of the unorganized counties of this state, then to the collector of the county to which said unorganized county is attached for judicial purposes, and when received by said col- lector, he shall at once proceed to the collection of said tax by seizure and sale, in the same manner as if said taxes were orig- inally assessed and due in his said county, and shall report to the collector from whom said list was received the taxes so collected by him. No tax collector in this state shall be allowed credit for lists of delinquent or insolvent taxpayers, as provided by Article 5170 of the Revised Statutes of this state, until he makes oath in writ- ing that he has exhausted all resources to collect said delinquent taxes under this act, and under Section 10 of Acts of the Twen- ty-fifth Legislature. Regular Session, Chapter 103 ; and under Articles 5173, 5174, 5175, and 5175a of the Revised Statutes of this state. Acts 1905, p. 317. § 1010. Receipts to creditors. Where a tax collector issued receipts to his creditors for taxes which he did not collect, the sureties on his bond were liable there- for. Ward V. Marion County, 62 S. W. 557, 26 Tex. Civ. App. 361. §1011. City bonds. Under Rev. St. 1895, Art. 5234, providing that all taxes for the payment of bonds issued by cities to aid in the construction of railroads and other internal improvements shall be assessed and collected by the officers whose duty it is to collect and assess other municipal taxes, and Article 5235, providing that such offi- cer shall give bond, with two or more sufficient sureties, payable to the state and conditioned for the faithful assessing, collecting and paying over of such tax into the state treasury as provided by law, a city has no right of action on the bond of its tax collector for a claim arising from the collection of such taxes. House et al. V. City of Dallas, 74 S. W. 901, 96 Tex. 594. § 1012. Rolls must be delivered. Under R. S. 1895, Arts. 5159 and 5164, held that the tax col- lector has no authority to collect taxes before the assessment Tax Collector. 647 rolls are delivered to him, and having done so and not turned them over to the county, the taxpayers are still liable. Orange Co. v. T. & N. O. Ry. Co., 80 S. W. 670, 35 Tex. Civ. App. 361. § 1013. Parties to suit on bond. Though the official bond of a county tax collector required to be given for the faithful discharge of his duties in regard to taxes due the county, is required by statute to be made payable to the county judge, no matter to whom it may through mis- take have been made payable, an action may be maintained in the name of such person for the use of the county for breach of its conditions. To maintain such an action, however, unless the bond on its face relates to taxes due the county, the mistake as to the name of the obligee must be alleged and proved. That it was made payable to the governor and filed in the county clerk's office, is not of itself sufficient evidence of such mistake. King V. Ireland, 68 Tex. 682. § 1014. Evidence in suit on bond. In a suit against a collector of taxes, the county ledger re- quired by the statute to be kept is not admissible in evidence to show the state of the collector's account with the county. The entries therein to the debit of the collector, made from the re- ceipts for the tax rolls, would be inadmissible, though his re- ceipts would be. In such a suit it is unnecessary for the plain- tiff to prove the election of the defendant as tax collector, when the bond, which is the basis of the action, recites that he is the tax collector; the signatures of the collector, and of the sureties to the bond, estop them from denying his official character. King V. Ireland, 68 Tex. 682. § 1015. Suit against defaulting — Pleadings — Interest. The proper practice in suits against defaulting officers, for a failure to pay over public funds that have come into their hands, where interest is sought to be recovered, is to state fully the facts, giving the specific amounts, and the dates of collection of the various sums of money upon which the claim for interest is based. By the twenty-third section of the Act of August 21, 1876 (R, S., Art. 4762), the tax collector is required to pay over to the county treasurer, reserving his commissions, whenever he has 648 Taxation in Texas. collected as much as $500. A judgment against a defaulting tax collector should recite the date from which interest is allowed is calculated on public money collected. Timon v. San Patricio County, 58 Tex. 263. § 1016. Collection by authorized party is collection by county. When a county places in the hands of the person by law au- thorized to collect and receive taxes process directing him to collect "and receive taxes for it, a collection made by such person is received by the county. Galveston County v. Galveston Gas Company, 10 S. W. 583, 72 Tex. 509. § 1017. Suspension. Such provision of the constitution, authorizing the district judge to remove a county officer only on the verdict of a jury, does not render a statute unconstitutional authorizing the judge to temporarily suspend a county officer without such verdict, pending proceedings for his removal. Where the district judge exercised the power conferred upon him by such statute, of suspending a county officer pending pro- ceedings for his removal, an appeal from a subsequent judgment of removal, and the execution of a supersedeas bond, had no ef- fect on the order of suspension. Poe v. State, 10 S. W. 737, 72 Tex. 625. § 1018. Additional bond. Under Rev. St. Tex., Art. 4733, providing that tne commis- sioners' court may require a tax collector to furnish a new bond, whenever such a proceeding is deemed advisable by the court, a tax collector may be required to give a new bond without first having been cited to appear and show cause. Poe v. State, 10 S. W. 737, 72 Tex. 625. § 1019. Removal from office. Const. Tex., Art. 5, Sec. 24, providing that county officers may be removed for incompetency, etc , upon the cause therefor be- ing set forth in writing, does noi prevent more than one ground for such removal being included in a petition filed therefor. Under Rev. St. Tex., Tit. 66, Chap. 2, providing that the trial- and all proceedings on a petition for the removal of a county officer for misconduct, etc., shall be conducted, so far as possible, in accordance with the practice in other civil cases, the petition Tax Collector. 649 may be amended under rules applying in other cases; and, where the cause of removal alleged is the failure of the officer to pay over money, the petition may be amended so as to charge such delinquency to have been willful. Poe v. State, 10 S. W. 7Z7, 72 Tex. 625. § 1020. Cities — Action on bond — Proof necessary. In an action on the bond of a city tax collector, for taxes col- lected and not paid over, the collector may testify that he only charged the usual fees. The city has the burden to show that the fees charged were excessive. The council may lawfully authorize the tax collector to receive one-fourth of the taxes in city scrip, and can not afterwards re- pudiate his exercise of such authority. The report of a council committee, that they have been in- formed that the collector's sale of land for taxes had not been made according to law, is no evidence that such collector did not do his duty. City of Ysleta v. Lomenstein, 25 S. W. 444. § 1021. Successor of sheriff. The assessor and collector, not the sheriff, under the state or- ganization, became the "successor" of the sheriff, as tax collector under the republic. Bryan v. Harvey, 11 Tex. 312. § 1022. No release of sureties when. The Act of April 22, 1871 (Pasch. Dig., p. 1605), did not op- erate as a release of the securities of the bond of a collector of taxes for the amount of school tax collected after that date, under a bond executed under the Act of 1871 ; nor did the action of the county court, in directing suit for a specific sum against the officer and his sureties, preclude the county from recovering the true amount due. Houston County v. Dwyer, 59 Tex. 113. § 1023. Practice in suit against what must be shown. In a suit against a tax collector and the securities on his offi- cial bond, for failing to pay over money collected as such, it should be shown that the tax collector received the tax rolls from the proper authorities, and that they were in his hands for col- lection. When he thus receives them, he is justly chargeable with the whole amount of the rolls. The burden is then, and not before, on the collector to show that he has collected and 650 Taxation in Texas. paid over, or to show lawful excuse for his failure to do so. Cordray v. The State, 55 Tex. 141 ; Szmn v. The State, 48 Tex. 121; Shaw v. The State, 43 Tex. 359; Allbright v. The Governor, 25 Tex. 695, and other cases, cited and followed. Houston County V. Dmyer, 59 Tex. 113. § 1024. Sureties not released until new bond approved. The sureties of a tax collector who procure, on their applica- tion to be released, an order of the commissioners' court requir- ing of the collector a new bond, are not relieved as sureties until a new bond is approved by the comptroller of the state, notwith- standing its approval by the commissioners' court. State v. Wells, 61 Tex. 562. § 1025. Suit on bond — Letter from comptroller admissible. In a suit by the state on the official bond of the assessor and collector to render liable him and his sureties, for a default in collecting taxes of a certain class, letters of instruction from the comptroller to him giving instructions to desist from the sale of property for the purpose of collecting said taxes until he should receive further instructions from the comptroller's office, such evidence is admissible and relevant, under an issue setting up said instructions as a defense. Allbright v. The Goz'ernor, 25 Tex. 687. § 1026. No liability as to county or sureties on bond on taxes collected without authority. When a county treasurer collects taxes without authority of law, he alone is responsible therefor; and an action can not be maintained either against his sureties or the county for the money so collected, even though the money be paid into the county treas- ury and disbursed as other funds of the county. Wood v. V . S. Stirman, 37 Tex. 584. § 1027. Suit on delinquent sheriff bond. A suit by the state against a delinquent sheriflf for failing to pay over taxes collected by him is a suit upon the bond, and the breach of the bond is the failure to pay over such taxes ; suit not being upon the stated account from the comptroller's office, it is not necessary that such account be made part of the petition. Shaiv V. The State, 43 Tex. 355. Tax Collector. 651 § 1028. Cannot question validity of act to avoid payment of moneys collected. 5'zeYm V. State, 48 Tex. 120. Not entitled to fees from state when land is bid in by state unless redeemed by owner. A tax collector, who, under the law, has bid in land sold for taxes to the state, is not entitled under the Act of 1876 (p. 259, Sec. 30), to retain to his settlement with the comptroller the same commissions, penalties and costs to which he would have been entitled had the land been bid off by an individual. When lands bid in at a tax sale, for the state, shall have been redeemed by the owner, the previously unpaid fees and costs, and which are included in the price of the redemption, would be held by the state for the benefit of the collector. Dean v. The State of Texas, 54 Tex. 313. § 1029. Liability of surety not limited when. The liability of sureties on the official bond of a tax collector, which by its terms binds the principal and sureties jointly and severally for its payment, subject to the condition that the prin- cipal will faithfully perform all the duties required of him by law as such collector, is not limited by writing opposite the sig- nature of each surety a specific amount, and causing the certifi- cate of their acknowledgment to recite that they had each ren- dered himself liable for such specific amount. Cordray v. The State of Texas, 55 Tex. 140. § 1030. Interest on amount in default. In a suit against a defaulting tax collector, in the absence of evidence showing when his collections were made, or that he was in default before the end of the fiscal year, interest, under the provisions of the Act of August 21, 1876 (Acts 15th Leg., 259), should be required of him on the amount for which he was in default, only, from the end of the fiscal year for which the collections were made. Cordray v. The State of Texas, 55 Tex. 141. § 1031. Suit against to recover tax on illegal valuation. In an action against a tax collector to recover taxes paid on an alleged illegal valuation, it was not error for the court to sustain a demurrer to the complaint, where the proceedings were 652 Taxation in Texas. regular on their face, and the tax rolls were in due form, and had issued from the proper authority, as such proceedings jus- tify the collector in his acts. Under Rev. St., Arts. 5157, 5159, requiring a tax collector to give bond to the state officers for the collection of state taxes, and Articles 5210, 5211, prescribing independent reports of the two remittances and collections, an action could not be main- tained against a county for the recovery of state taxes paid on an alleged illegal valuation of the property, as the county was charged with no duty relating thereto. Where the petition, in an action against a county to recover taxes paid on an alleged illegal assessment of property, did not separate the amounts paid for state and county taxes, the court could take judicial notice of the rate of taxation fixed by gen- eral law for state purposes, and thereby determine the amount of county taxes due, in controversy, for the purpose of determin- ing the jurisdiction of the county court. Texas Land & Cattle Co. V. Hemphill County, 61 S. W. 333. § 1032. Collection on municipal bonds. A city can not maintain an action against its tax collector, nor sureties on his bond to the city, to recover taxes collected by him upon assessment to meet the interest and sinking fund of municipal bonds. In making such collections he performs a duty to the state, makes payment to the state treasurer, and is re- quired to give bond to the state, and has no right to pay to the city. House v. City of Dallas, 96 Tex. 594. § 1033. Entitled to one dollar for each correct assessment. Under Acts 1897, Sees. 3, 9 (Sayles Civ. St., Arts. 5232c, 52321), requiring the collector to prepare a delinquent tax record, showing the amount of taxes assessed against each owner and returned delinquent for each year, and securing him a fee of $1 for each correct assessment, and securing to the county clerk for making out and recording each delinquent assessment and certifying the same, and noting the same on the delinquent tax record, a fee of $1, to be taxed as costs against the land in each suit, these officers are entitled to a fee of $1 each for each year taxes were delinquent. State v. Wolfe, 51 S. W. 657. Tax Collector. 653 § 1034. Rights of surety. The county tax collector having received taxes without au- thority and then defaulted, the attorney general was about to in- stitute suit against his bondsmen to recover the money, when they induced such officer to proceed against a taxpayer, offering to conduct the suit on behalf of the /state to a successful termina- tion, and to place in the hands of the attorney general an account equal to that due from the collector as taxes, to be held and turned into the state treasury in discharge of the bondsmen's liabiHty in case the state's suit was unsuccessful. This agree- ment was carried out. Held, that such payment to secure the state was not a satisfaction of the demand of the state against the taxpayer, so as to deprive the state of any interest in an ac- tion to enforce the same. Where, after a tax collector's default, his bondsmen induced the attorney general to sue a taxpayer to recover taxes misap- propriated by the collector, the bondsmen depositing an amount equal to the taxes so appropriated with the attorney general, to await the result of such suit and then either to be paid to the state or returned, on the state recovering judgment against the taxpayer, the bondsmen were not entitled to claim the same as recovered for their use. Texas & N. O. Ry. Co. v. State, 97 S. W. 142, 43 Tex. Civ. App. 580. § 1035. Limitation as to collecting. Where fees on delinquent taxes were collected by a deceased tax collector's successor in office, he held such fees in trust for the deceased collector's heirs, and hence limitations would not run against their right to recover the same, until they had notice that the collector repudiated relationship and claimed the fees adversely to them. Bond v. Poindexter, 116 S. W. 395. § 1036. Not liable to county under bond to state. A bond was given by a sheriff to "John Ireland, Governor of Texas," conditioned for the performance of the former's duty as tax collector of his county. The bond was in form such as is required to secure the state for the faithful collection of state taxes, another kind of bond in favor of the county judge being required to secure the county for the safe collection of its taxes. In an action upon this bond for the benefit of the county, no 654 Taxation in Texas. competent evidence being introduced to show that it was in- tended to secure the county for the faithful performance of the sheriff as to the collection of county taxes, held, that a recovery could not be sustained. King v. Ireland, 5 S. W. 499, 68 Tex. 682. § 1037. Cannot deny officer's election. A bond given by an officer, having recited his official charac- ter, in an action thereon against him and his sureties, it is un- necessary to prove his election to his office, as the sureties are estopped from denying it. King v. Ireland, 5 S. W. 499, 68 Tex. 682. § 1038. A trespasser when. A tax collector is liable in actual damages as a trespasser for the execution of void process in a foreign county. Wright v. Jones, 38 S. W. 249, 14 Tex. Civ. App. 423. § 1039. Right to emoluments. Where plaintiff was legally elected tax collector of a county, he became entitled to the office and the emoluments thereof as soon as he took the oath of office and qualified. Graves v. Bul- /^«, 115 S. W. 1177. § 1040. No authority to tax collector. Under the rule that public officers can not bind the state or county beyond their actual authority, a tax collector has no legal authority to agree with a taxpayer to substitute his responsibility of that of the taxpayer. Defendant, before retiring from the office of tax collector, exe- cuted, as paid, the tax receipts of a large number of taxpayers in the county, listed on his official tax rolls. The taxes had not been paid or tendered, defendant's purpose being to advance the money and pay the taxes, holding the receipts as a personal claim for the money so advanced against the taxpayers, and thus benefit by the commissions after his term. When plaintiff quali- fied as tax collector, these receipts had not been removed from the office nor delivered by defendant to the taxpayers, nor the taxes paid either by them or by defendant, who, after retiring from the office, paid the taxes in full. Held, that such transac- tion was without authority, and that plaintiff was entitled to re- cover commissions on the taxes so paid. Graves v. Bullen, 115 S. W. 1117. Tax Collector. ' 655 § 1041. Tax collector alone can collect. The duty of the tax collector to collect all taxes due the county and the state is one of the governmental ministerial functions which he alone can exercise, and a contract whereby the commis- sioners' court attempts to employ another to do the work is void. Stringer v. Franklin County, 123 S. W. 1168. CHAPTER LVI. SHERIFF. Sec. Sec. 1042. Sheriff tax collector. 1044. Fees on notices. 1043. Sheriff entitled to fee for 1045. Commission on sales, selling and making deed, 1046. Right of sheriff to withhold etc. his costs from proceeds of tax sales. § 1042. Sheriff tax collector. The sheriff of each county, in addition to his other duties, shall be the collector of taxes therefor. But in counties having ten thousand inhabitants, to be determind by the last preced- ing census of the United States, a collector of taxes shall be elected, to hold office for two years and until his successor shall be elected and qualified. St. Const, Art. 8, Sec. 16. In determining whether sheriff was under this section, also ex officio collector of taxes, the list of the enumerator taking the last census for the county, if duly certified and filed in the office of the county clerk, prior to his election, will govern whether or not the county has ten thousand inhabitants. Nelson v. Edivards, 55 Tex. 389. §1043. Sheriff entitled to fee for selling and making deed, etc. Under the Act of 1897, p. 136, Sec. 9, the sheriff shall be en- titled to a fee of one dollar for selling and making deed thereto to each purchaser of land that he sells under judgment for taxes, which fee shall be taxed as costs of suit, provided that if the de- linquent may pay the amount of the tax, interest, penalties, and all accrued costs to the county collector during the pendency of such suit and the sheriff shall receive as compensation therefor only one dollar in each case; but the fee shall be in lieu of fees provided for such officers where suits are brought. § 1044. Fees on notices. A sheriff is not entitled to compensation for services of notices 'of the sale of property for delinquent city taxes on parties and their attorneys. City of San Antonio v. Campbell, 56 S. W. 130. Sheriff. 657 § 1045. Commission on sales. Where the judgment foreclosing a city tax lien on several par- cels of land required an apportionment against each parcel, the sheriff was entitled to commissions on money collected on the sale of one of the parcels though he had received commissions on money collected under the same order without sale of the other parcels. City of San Antonio v. Campbell, 56 S. W. 131. § 1046. Right of sheriff to withhold his costs from proceeds of tax sales. It is urged by appellee that the matter of costs can not be con- sidered in this proceeding, but that motion to retax the costs should have been resorted to. The action was for the entire pro- ceeds of the sale, plaintiff denying the right of the sheriff to withhold any of it. The right of the sheriff to withhold from plaintiff all or any of the costs was not a question that could have been decided upon a mere motion to retax. Plaintiff wa§ obliged, by the position of the sheriff in withholding any of the collection which plaintiff claimed should be paid to it, to pro- ceed by petition, or motion to assert its right thereto. The law does not require or favor a multiplicity of actions, and the de- termination of what were proper sheriff's charges for costs not included in bill of costs issued with the writ was incidental to this action. City of San Antonio v. Campbell, 56 S. W. 131. 42 CHAPTER LVII. DISTRICT AND COUNTY CLERK. Sec. Sec. 1047. Fees under delinquent tax 1051. Fees under delinquent tax act of the district clerk. act. 1048. Delinquent lists to be re- 1052. Not entitled to fee when list corded by county clerk. is not recorded. 1049. Delinquent Tax Record. 1053. Entitled to fee under Act 1050. County clerk shall furnish 1897. copies, etc. § 1047. Fees under delinquent tax act of the district clerk. Under the Act of 1897, p. 136, Sec. 9, the district clerk shall be entitled to a fee of one dollar and fifty cents in each case to be taxed as costs of suit, provided the delinquent taxpayer may pay the amount of the tax, interest, penalties and all accrued costs, during the pendency of suit, the district clerk shall receive only one dollar in each case, but this fee shall be in lieu of the fees provided for such officer where suit was brought. § 1048. Delinquent lists to be recorded by county clerk. After the delinquent tax record provided for by the acts of 1895 and 1897 has been prepared it shall be the duty of the county clerk of each of the counties of the state, respectively, to certify the same to the commissioners' court for examination and correction, and shall thereafter cause the same to be recorded in a book, which book shall be labeled the "Delinquent Tax Record of County." The delinquent tax record shall be ar- ranged numerically as to abstract numbers and shall be accom- panied by an index showing the names of delinquents in alpha- betical order. Acts 1897, p. 132, Sec. 4; Sayles R. S., Art. S232d. The delinquent tax record above provided for shall be deliv- ered to and preserved by the county clerk in his office, and the commissioners' court shall cause a duplicate of the same to be sent to the comptroller. Acts 1897, p. 133, Sec. 3 ; Sayles' R. S., Art. 5232c. District and County Clerk. 659 § 1049. Delinquent tax record. On receipt of such delinquent tax record containing a complete list of the lands or lots that have been reported delinquent or sold to the state for taxes for any year or nuqiber of years since January 1, 1885, and containing, also, the data and infor- mation mentioned in Article 5232c, it shall be the duty of the county clerk of each of the counties of this state, respectively, to certify the same to the commissioners' court for examination and correction, and shall thereafter cause the same to be recorded in a book, which book shall be labeled "The Delinquent Tax Rec- ord of County," The delinquent tax record shall be arranged numerically as to abstract numbers, and shall be ac- companied by an index showing the names of delinquents in alphabetical order. Acts 1897, p. 133, Sec. 4; Sayles' R. S., Art. 5232d. § 1050. County clerk shall furnish copies, etc. County clerk shall furnish all affidavits, certified copies of rec- ords in his office and such other evidence as may be in his pos- session by virtue of his office as may be applied for by the county attorney. Acts 1897, p. 134, Sec. 6. § 1051. Fees under delinquent tax act. Under the Act of 1897, p. 136, Sec. 9, the county clerk, for making out and recording the data of each delinquent assessment, and for certifying the same to the commissioners' court for correction and for noting the same in the minutes of the com- missioners' court, and for certifying the same with corrections to the comptroller, and noting the same on his delinquent tax record, shall receive the sum of one dollar, to be taxed as costs against the land in each suit ; provided, that in no case shall the state or county be liable for such fees, buti in each case they shall be taxed as costs against the land to be sold under judg- ment for taxes and paid out of the proceeds of sale of same after the taxes, penalty and interest due thereon to the state are paid. § 1052. Not entitled to fee when list is not recorded. In the case of State of Texas v. Henry J. Scott, appeal from Clay County, the district judge before whom the case was tried held that the county clerk was not entitled to any fee because 660 Taxation in Texas. he did not record the list, and in an oral opinion oy Justice Hun- ter the judgment of the lower court was in all things affirmed on November 11, 1899, and a writ of error refused by Supreme Court on the 18th of January, 1900. § 1053. Entitled to fee under act 1897. "Under Acts 1897, Sees. 3, 9 (Sayles' Civ. St., Arts. 5232c, 5232i), requiring the collector to prepare a delinquent tax record, showing the amount of taxes assessed against each owner and returned delinquent for each year, and securing him a fee of $1 for each correct assessment, and securing to the county clerk for making out and recording each delinquent assessment and certifying the same, and noting the same on the delinquent tax record, a fee of $1, to be taxed as costs against the land in each suit, these officers are entitled to a fee of $1 each of the years taxes were delinquent." State v. Wolfe, 51 S. W. 657. CHAPTER LVIII. ATTORNEY. Sec. Sec, 1054. District and county attor- 1060. Effect of want of authority neys and attorneys em- on judgment. ployed. 1061, Right of city to employ 1055. Attorney to represent the council. State — Fees. 1062. Attorney's fees — When not 1056. Lots separately assessed and authorized. owned by one person — One 1063. Liable for reasonable tract as to costs. amount for services. 1057. Attorney general — Right to 1064. Failure to appoint attorney. represent State in tax 1065. County attorney may pur- suits, chase land sold at tax sale. 1058. Attorney's fees. 1066. County attorney must assist 1059. Salary incident to ofHce. In collecting taxes on con- tract. § 1054. District and county attorneys and attorneys employed to collect taxes. Duty of district and county attorneys to sue for taxes on per- sonal property. Hereafter it shall be the duty of the district or county attor- ney of the respective counties of this state, by order of the com- missioner's 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 so due and unpaid for which such delinquent tax- payer may be in arrears for and since the year 1886; and, pro- vided further, the state and county shall be exempt from liability from any costs growing out of such action; provided, all suits brought under this article for the recovery of taxes due on per- sonal 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 662 Taxation in Texas. 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. (Report Joint Com- mittee, Sen. Jour. 1895, p. 486, No. 113.) § 1055. Attorney to represent the state — Fees. In no case shall the compensation of said county attorney be greater than three dollars ^for the first tract in one suit, and one dollar for each additional tract, if more than one tract is em- braced in some suit to recover taxes, interest, penalty and costs ; provided, that those county attorneys who institute tax suits shall be entitled to an equal division with their successor in office of the fees allowed herein on all suits instituted by them, where the judgment has not been obtained prior to the vacation of their office, provided, that where two or more unimproved city or town lots belonging to the same person, and situated in same city or town shall be included in the same suit, and costs taxed against them collectively just as if they were one tract or lot; and, pro- vided further, that where suits have been brought by the state against delinquents to recover tax due by them to the state and county, the said delinquent may pay the amount of the tax, inter- est, penalties and all accrued costs to the county collector dur- ing the pendency of such suit, and the county attorney shall re- ceive as compensation therefor two dollars for the first tract and one dollar for each additional tract embraced in said suit. Acts 1897, p. 132, Sec. 9; Sayles' R. S., Art. 5332i. § 056. Lots separately assessed and owned by one person — One tract as to costs. Under Acts 1897, p. 136, Ch. 103, Sec, 9, providing that, where two or more unimproved town lots belonging to the same per- son are included in the same suit for taxes, the costs shall be taxed against the lots collectively as if they were one tract, the costs in a suit for taxes against unimproved town lots, owned by one person, but separately assessed in the name of an unknown owner, must be taxed on the basis of the lots being one tract. Raht i'. State, 106 S. W. 900. § 1057. Attorney-General — Right to represent state in tax suits. Constitution, Art. 5, Sec. 21, providing that the county attor- ney shall represent the state in all cases in the district and in- Attorney. 663 ferior courts in their respective counties, and if any county shall be included in a district in which there shall be a district attorney, the duties of the district and county attorneys shall be regulated by the Legislature, when construed in connection with Art. 4, Sec. 22, providing that "the attorney-general shall represent the state in all suits in the Supreme Court, and shall inquire into the charter rights of private corporations, etc., and shall perform such other duties as may be required by law," does not render invalid the provisions of Laws 1905, p. 338, Ch. 141, Sec. 5, mak- ing it the duty of the attorney-general on the request of the comptroller to sue in the name of the state for the taxes imposed on railroad corporations. Nor the provisions of Law 1905, p. 358, Ch, 148, requiring the attorney-g-eneral to sue in the name of the state for the taxes imposed on express companies, etc., and the county and district attorneys cannot prosecute such cases. Brady v. Brooks, 89 S. W. 1052 ; 99 Tex. 366. § 1058. Attorney's fees. A city charter provided that, in actions by the city for the collection of taxes due it, the city attorney shall be entitled to a fee of 5 per cent of the amount of the tax which should be taxed as costs against the property. Held, that the statute could not be given a retroactive effect, so as to charge the property of de- linquent taxpayers with an additional 5 per cent on the amount of taxes due prior to the passage of the statute. A city charter passed in 1897 provided that, in suits by the city for collection of taxes, the city attorney should be entitled to a fee of 5 per cent of the amount of the tax, which should be taxed as costs against the property, and thereafter the city council resolved that the city attorney should be allowed a commission of 10 per cent on all sums collected by action to enforce taxes prior to 1897. Held, that the city had authority to make such compensation. Under a resolution of a city council, providing that the city attorney should be allowed a commission on all sums collected by him for the city by action to enforce collection of taxes, the at- torney was entitled to commissions on taxes paid the city after he went out of office on judgments obtained by him. If the city, without the attorney's consent, arbitrarily released a portion of such judgments, or purchased any of the property 664 Taxation in Texas. in satisfaction of the judgment against it, it would be liable to the attorney for the full amount of his commission. The attorney was entitled to a pro rata share in commissions due on judgments collected by the city in suits brought by him, but not decided when he went out of office. City of Houston v. Stewart, 90 S. W. 52, 40 T. C. A. 499; James v. Turner, 78 Tex. 243, 14 S. W. 574; Raley v. Smith, 73 S. W. SA; Bright v. Heives, 18 La. Ann. 666; Atchison v. City of Owenshoro, (Ky.) 71 S. W. 864, 44 Tex. Crim. App. 441 ; City of El Paso v. Ashford, 3 Tex. 378, 22 S. W. 177. A city is liable for the reasonable value of the services of an attorney in the collection of its delinquent taxes, though the con- tract between the city and attorney for such services was in- valid. Brand v. City of Sam, Antonio, 37 S. W. 340; San Antonio V. French, 80 Tex. 575 ; Penn v. City of Laredo, 26 S. W. 636. Where* an attorney fee is for a percentage of the amount col- lected it is not necessary that he actually collect the money to entitle him to his percentage, where he has prosecuted the suit to final judgment. James v. Turner, 78 Tex. 243 ; Ry. Co. v. Scott, 28 S. W. 458. Where a city attorney recovered a money judgment for the city, the fact that the collection was delayed until after his term of office by appeal did not deprive him of his right to ten per cent of the amount so recovered. Atchison v. City of Ozuens- boro, 71 S. W. 864, 44 Tex. Crim. App. 441. An attorney's lien on a judgment exists notwithstanding the judgment is compromised. Covington v. Bass, (Tenn.) 12 S. W. 1033. Where the city attorney of New Orleans had obtained judg- ment against delinquent taxpayers, for taxes, and, before the judgments were satisfied, was removed from the office, it was held that he was entitled to receive from the sheriff the per- centage provided by law as the attorney's compensation in such cases, upon all sums actually collected on such judgments. Bright V. Hemes, 18 La. Ann. 666. Where the city received the benefit of the services of attor- neys, it is estopped from denying liability for the same, though the attorneys were employed without authority. City of Deni- son V. Foster, 28 S. W. 1052. Attorney. 665 § 1059. Salary incident to office. The salary or emolument annexed to a public office is inci- dent to the office, and not to its occupation and exercise. Beard V. City of Decatur, 64 Tex. 11. § 1060. Effect of want of authority on judgment. "Where the owner of land authorized her attorney to confess judgment for a given amount, and the attorney confessed judg- ment for a much larger amount, the authority of the attorney to confess being incorporated in the judgment, the landowner was not estopped from denying the validity of an execution sale under the judgment." Cordray v. Neuhaus, 61 S. W. 415, 25 Tex. Civ. App. 247. § 1061. Right of city to employ counsel. A city whose officers have failed to collect taxes may make such special contracts for the collection of its back taxes as it deems to the best interest of the city, and invest the party with whom it contracts with power to use such means and employ such counsel as may be necessary to perform his undertaking." City of San Antonio v. Raley, 32 S. W. 180. § 1062. Attorney's fees — When not authorized. In a suit by a city to collect taxes, a judgment for plaintiff for attorney's fees is unauthorized. Maddox v. City of Rockport, 38 S. W. Rep. 397. § 1063. Liable for reasonable amount for services. A city is liable for the reasonable value of the services of an attorney in the collection of its delinquent taxes, though the con- tract between the city and attorney for such services was invalid. Brand v. City of San Antonio, 37 S. W. 340; San Antonio v. French, 80 Tex. 575 ; Penn v. City of Laredo, 26 S. W. 636. § 1064. Failure to appoint attorney. In a tax collection suit, failure to appoint an attorney to repre- sent a defendant served by publication, and to direct the case to stand continued until the next term after return of citation, did not render the judgment absolutely void. Carr v. Miller, 123 S. W. 1158. 666 Taxation in Texas. § 1065. County attorney may purchase land sold at tax sale. Sayles' Ann. Civ. St. 1897, Art. 5232g, providing that, where there is no bidder for land offered for sale under a judgment foreclosing a lien for taxes, the county attorney shall bid the same off to the state, etc., does not render a purchase of the land by the county attorney for his own use void as contrary to public policy ; the state being a purchaser only when there are no bid- ders. Gibbs V. Scales, 118 S. W. 188. § 1066. County attorney must assist in collecting taxes on contract. Under Acts 29th Leg., p. 318, Chap. 130, authorizing the com- missioners' court to contract with any person for the enforce- ment of delinquent taxes, or to make up delinquent tax lists, and requiring the county attorney to assist the person with whom the county may contract to enforce the collection of the delinquent taxes, for a percentage thereof, the county attorney can not con- tract to prepare delinquent tax lists and collect delinquent taxes. Stringer v. Franklin County, 123 S. W. 1168. CHAPTER LIX. LOCAL IMPROVEMENTS BY ASSESSMENT. 1067. Act of 31st Legislature au- 1073. Suit against owner of prop- thorizing cities and towns erty for improvement tax- to construct street improve- When, etc. ments. 1074. Constitutional. 1068. Taxes for local improve- 1075. Valid street improvement ments. assessments. 10C9. Constitutional provisions as 1076. According to benefits derived, to taxation. 1077. Improvement districts. 1070. Power of cities incorporated 1078. Local improvements. under general law to have 1079. Refunding paving certifl- street graded, etc. cates. 1071. Estimate of cost of improve- 1080. Improvements of sidewalks ment shall be made. under police power. 1072. Property levied on and sold 1081. Street railroads. for taxes for improvements 1082. Contractor to look to proper- — When and how, etc. ty owner — ^Void assessment. § 1067. Act of 31st Legislature authorizing cities and towns to construct street improvements. Section 1. That towns, cities and villages incorporated under either general or special law, which shall accept the benefits of this act as herein provided, shall have power to improve any street, avenue, alley, highway, public place or square, or any por- tion thereof within their limits, by filling, grading, raising, paving or repaving the same in a permanent manner or by the construc- tion or reconstruction of sidewalks, curbs and gutters or by widen- ing, narrowing or straightening the same and to construct nec- essary appurtenances thereto, including sewers and drains. Sec. 2. That the term "city" whenever used herein shall in- clude all incorporated towns, cities and villages ; that the term "governing body" whenever used herein shall include the govern- ing or legislative bodies of all incorporated towns, cities or vil- lages, whether known as councils, commissions, boards of com- missions, common councils, boards of aldermen or city councils. 668 Taxation in Texas. or whatever name such bodies may be known or designated un- der general or special laws ; that whenever the term "highway" is used herein, it shall include any street, avenue, alley, high- way, or public place or square, or portion thereof dedicated to public use. Sec. 3. That the governing body of any city shall have power to order the improvement of any highway therein, or part thereof, and to select the materials and methods for such improvement, and to contract for the construction of such improvements in the name of the city, and to provide for the payment of the cost of such improvements out of any available funds of the city or as herein provided. Sec. 4. That the cost of making such improvements may be wholly paid by the city or partly by the city and partly by own- ers of property abutting thereon ; provided, that in no event shall more than three-fourths of the cost of any improvement, except sidewalks and curbs, be assessed against such property owners or their property; but the whole cost of construction of sidewalks and curbs in front of any property may be assessed against the owner thereof or his property. Sec. 5. Subject to the terms hereof the governing body of any city shall have power to assess against the owner of any railroad or street railroad occupying any highway ordered to be improved, the whole cost of the improvement between or under the rails and tracks of said railroad or street railroad and two feet on the outside thereof, and shall have power by ordinance to levy a special tax upon said railroad, or street railroad and its road- bed, ties, rails, fixtures, rights and franchises, which tax shall constitute a lien thereon superior to any other lien or claim ex- cept state, county and municipal taxes, and which may be en- forced either by sale of said property in the manner provided by law in the collection of ad valorem taxes by the city, or by suit against the owner in any court having jurisdiction. The ordi- nance levying said tax shall prescribe when same shall become due and delinquent, and the method or methods of enforcing the same. Sec. 6. Subject to the terms hereof the governing body of any city shall have power by ordinance to assess the whole cost of constructing sidewalks or curbs, and not to exceed three-fourths of the cost of any other improvement, against the owners of prop- Local Improvement by Assessment. 669 erty abutting on such improvement and against their abutting property benefited thereby, and to provide for the time and terms of payment of such assessments and the rate of interest payable upon deferred payments thereon, which rate of interest shall not exceed 8 per centum per annum, and to fix a lien upon the prop- erty and declare such assessments to be a personal liability of the owners of such abutting property, and such governing body shall have power to cause to be issued in the name of the city assign- able certificates, declaring the liability of such owners and their property for the payment of such assessments, and to fix the terms and conditions of such certificate. If any such certificate shall recite that the proceedings with reference to making such improvements have been regularly had in compliance with law and that all prerequisites to the fixing of the assessment lien against the property described in said certifi- cate, and the personal liability shall be prima facie evidence of the facts so recited and no further proof thereof shall be required in any court. The ordinance making such assessments shall provide for the collection thereof with costs and reasonable attorneys' fees if in- curred. Such assessments shall be secured by and constitute a lien on said property which shall be the first enforcible claim against the property against which it is assessed, superior to all other liens and claims, except state, county and municipal taxes. Sec. 7. Nothing herein contained shall be construed to em- power any city to fix a lien by assessment against any property exempt by law from sale under execution, but the owner of such exempt property shall nevertheless be personally liable for the cost of improvements constructed in front of his property which may be assessed against him. The fact that any improvement is omitted in front of exempt property shall not invalidate the lien of assessments made against other property on the highway im- proved, not so exempt. The lien created against any property or the personal liability of the owner thereof, may be enforced bv suit in any court having jurisdiction or by sale of the property assessed in the same manner as may be provided by law for the sale of property for ad valorem city taxes. The recital in any deed made pursuant to such sale, that all legal prerequisites to said assessment and sale have been complied with, shall be prima facie 670 Taxation in Texas. evidence of the facts so recited and shall in all -courts be accepted without further proof. Sec. 8. No assessment of any part of the cost of such improve- ment shall be made against any property abutting thereon or its owner, until a full and fair hearing shall first have been given to the owner of such property preceded by a reasonable notice thereof given to said owners, their agents, or attorneys. Such notice shall be by advertisement inserted at least three times in some newspaper published in the city, town or village where such tax is sought to be improved, [levied] if there be such a paper theref, if not the nearest to said city, town or village, of general circulation in the county in which said city is located, the first publication to be made at least ten days before the date of the hearing. The governing body may provide for additional notice cumulative of notice by advertisement. Said hearing shall be be- fore the governing body of such cities, at which hearing such own- ers shall have the right to contest the said assessment and per- sonal liability, and the regularity of the proceedings with refer- ence to the improvement, and the benefits of said improvement to their property, and any other matter with reference thereto. But no assessment shall be made against any owner of abut- ting property or his property in any event in excess of the actual benefit to such owner in the enhanced value of his property by means of such improvements as ascertained at such hearing. The governing body of any city making improvements under the terms hereof shall by ordinance adopt rules and regulations providing for such hearings to property owners, and for giving reasonable notice thereof. Sec. 9. The governing body of any city shall be empowered to correct any mistake or irregularity in any proceedings with reference to such improvement or the assessment of the cost thereof against abutting property and its owners, and in case of any error or invalidity to re-assess against any abutting property and its owner the cost or part of the cost of improvements subject to the terms hereof not in excess of the benefits in enhanced value of such property from such improvement, and to make reasonable rules and regulations for a notice to and hearing of property owners before such reassessment. . Sec. 10. Any property owner against whom or whose property Local Improvement by Assessment. 671 any assessment or reassessment has been made shall have the right within twenty days thereafter to bring suit in any court having jurisdiction to set aside or correct the same or any proceeding with reference thereto, on account of any error or invalidity there- in. But thereafter such owner, his heirs, assigns or successors shall be barred from any such action, or any defense of invalidity in such proceedings or assessments or reassessments in any ac- tion in which the same may be brought in question. Sec. 11. The benefits of this act shall apply to any city and the terms thereof extend to the same, when the governing body thereof shall submit the question of the adoption or rejection hereof, to a vote of the resident property taxpayers who are qual- ified voters of said city at a special election called for the purpose by said city. And said election shall be held as nearly as possible in compliance with the law with reference to regular city elections in said city; but said governing body is hereby empowered by resolution to order said election and prescribe the time and man- ner of holding the same. Said body shall canvass and determine the results of such election and if a majority of the voters voting upon the question of the adoption of this act at such election shall vote to adopt the same, the result of the election shall by said governing body be entered upon their minutes, and thereupon all the terms hereof shall be applicable to and govern such city adopt- ing the same. A certified copy of said minutes shall be prima facie evidence of the result of such election and the regularity thereof, and the facts therein recited shall in all courts be accepted as true. Whenever this act. has been adopted by any city the gov- erning body thereof shall have full power to pass all ordinances or resolutions necessary or proper to give full force and eflfect thereto and to every part thereof. Whenever one hundred qual- ified voters in any city shall in writing petition for an election to determine the adoption of this act, it shall be the duty of its gov- erning body to order such election. Sec. 12. This act shall not repeal any law, general or special, already in existence, pertaining to the making of such improve- ments, but the provisions of this act and of resolutions or ordi- nances passed pursuant thereto, shall be cumulative of and in addition to such existing laws ; provided, that in any case in which a conflict may exist or arise between the provisions of this act 672 Taxation in Texas. and the provisions of any law granting a special charter to any city in the state, the provisions of such special charter shall con- trol. Acts31stLeg., pp. 402to405. § 1068. Taxes for local improvements. The authority for making assessment for local improvements is desirable from, and an exercise of, the taxing power and not that of eminent domain. Roundtree v. City of Galveston, A2 Tex. 612. § 1069. Constitutional provisions as to taxation. It is clearly settled by the great weight of authority that the constitutional provisions having reference to taxes for general revenue, that they shall be equal and uniform, etc., are not ap- plicable to assessments for local improvements; and held that suit could be maintained by the city for the assessment for local im- provement against the adjoining lot owner, of one-third of the costs of such improvement. Roundtree v. City of Galveston, A2 Tex. 612. § 1070. Power of cities incorporated under general law to have street graded, etc. The city council shall be invested with full power and authority to grade, gravel, repair, pave or otherwise improve any avenue, street or alley, or any portion thereof, within the limits of said city, whenever, by a vote of two-thirds of the aldermen present, they may deem such improvement for the public interest ; pro- vided, the city council pay one-third and the owner of the prop- erty two-thirds thereof, except at the intersection of the streets, from lot to lot across the streets either way, shall be paid for by the city alone, and said costs shall be assessed on the property fronting on said street so improved, to be collected in equal an- nual payments, not less than five in number, and all moneys col- lected from these assessments shall be appropriated exclusively to the payment of the bonds issued for the payment of the cost of said improvement. Sayles R. S., Art. 544. City liable for defects in sidewalk if it have notice, either actual or constructive, and it is not material whether the sidewalk was built by the city or by a private person. The city is charged with notice if it could have discovered the defect by ordinary diligence. Klein v. City of Dallas, 71 Tex. 280, 8 S. W. 90; City of Austin Local Improvement by Assessment. 673 V. Kits, 72 Tex. 391, 9 S. W. 884. See City of Galveston v. Pos- nainsky, 62 Tex. 118; Phillips v. City of Dallas, 3 App. C. C. 294. A city or town incorporated under the general law is responsi- ble in damages for an injury inflicted under circumstances which would fix liability on a city or town incorporated under special enactment, clothed with the same power and charged with the same duties. Baugus v. City of Atlanta, 74 Tex. 629, 12 S. W. 750. When a city negligently allows a culvert to become stopped up, it is liable for damages caused thereby. Cif'\' of Dallas v. Schults, 27 S. W. 292. Where a street in an unfrequented part of a city is not opened for public use the city is not responsible for damages by reason of its defective condition. If used frequently by the public, the city is responsible. Klein v. City of Dallas, 71 Tex. 280, 8 S. W. 90; City of Galveston v. Posnmnsky, 62 Tex. 119; City of Austin v. Kits, 72 Tex. 391, 9 S. W. 884. See City of Texarkana v. Tal- bot, 26 S. W. 451, 7 C. A. 202. A thoroughfare in a city shown to be a street by its use, etc. City of Waxahachie v. Connor, 35 S. W. 692. The power must be exercised by ordinance or resolution. City of Waco V. Prather, 37 S. W. 312. § 1071. Estimate of cost of improvement shall be made. Whenever the city council shall determine to make any such improvement, they shall cause an estimate to be made of the probable cost thereof by the city engineer, or by some other offi- cer of the city, or by a committee of three aldermen ; and such engineer or other officer or committee shall also report a full list of all lots or fractional lots, giving number and size of the same, and the number of the block in which situated, and the names of the owners thereof if known, and such other information as may be required by the city council, and if there be any lot or frac- tional lot the owner of which is not known, the same shall be entered on said list as unknown ; it shall be the duty of the offi- cer or committee aforesaid to enter on said list opposite each lot or fractional lot lying and being on each side of the street, avenue or alley so to be improved as aforesaid, one-third of the estimated expense for such work or improvement on such avenue, 43 674 Taxation in Texas. street or alley, fronting, adjoining or opposite such lot or frac- tional lot ; and on the acceptance and approval of said report and list by the city council, said amount shall be imposed, levied and assessed as taxes and shall be a lien upon the property until the payment of the same. Sayles R. S., Art. 545. This article provides how the estimate of the cost of such im- provements shall be made, and declares that the amount imposed shall be levied and assessed as taxes and shall be a lien upon the property until the payment of the same. These grants of power must be strictly construed and the statute closely followed. Bor- dages V. Higgins, 1 C. A. 43, 19 S. W. 446, 20 S. W. 184, 726. The assessment, the report of the committee and its acceptance and approval by the council, are conditions precedent to the let- ting of the contract. City of Corsicana v. Kerr, 35 S. W. 794. The report is a condition precedent to the improvement the fail- ure to make which renders a levy and assessment void. Kerr v. City of Corsicana, 35 S. W. 694. § 1072. Property levied on and sold for taxes for improve- ments, when and how, etc. After such action on the part of the city council as above pro- vided for, such officer or committee shall give such notice as may be required by ordinance, of said tax being due and within what time payable, and shall commence forthwith to collect the same. And after the expiration of the period for payment of said tax, said officer or committee shall levy on so much of any property on said list on which said tax has not been paid as will be sufficient to pay the same, and the same notice of sale as is required in sales for other tax shall be given ; and if said tax be not paid before the day of sale, said officer or committee shall sell said property in the name and under the circumstances and to the ex- tent and subject to the same conditions which are or may be pro- vided by ordinance for sale of real estate in the city, charged with the payment of taxes imposed by said corporation; and said offi- cer or committee shall execute a deed to the purchaser at any such sale, and all other provisions of this title in reference to a deed drawn by the assessor and collector shall apply to the deed provided for in this article. Sayles R. S., Art. 546. Article 544, supra-, requires that the tax shall be collected in not less than five annual payments. The above article provides Local Improvement by Assessment. 675 that the levy shall be on so much property as shall be sufficient to pay the same, and like notice of sale as in sales for other taxes shall be given, and sale shall be subject to the same conditions provided by ordinance for .other tax sales. One of the important rights here secured to the owner is a sale of the smallest portion of the ground that any person will take and pay the taxes. Bor- dages V. Higgins, 1 C. A. 43, 19 S. W. 446, 20 S. W. 184, 726. § 1073. Suit against owner of property for improvement tax, when, etc. In addition to the power and authority granted to the city council to collect said assessment of taxes as aforesaid, they shall have the further power and additional remedy of instituting suit in the corporate name in any court having jurisdiction for the re- covery against any owner of property for the amount due for any such work so made as aforesaid ; and the city council shall pro- vide, by resolution or ordinance under the provisions of this title for carrying out and executing the powers in this chapter con- ferred, and may adopt such resolutions and enact such ordinances and make such regulations as they may deem necessary. Sayles R. S., Art. 547. This article authorizes suit as an additional remedy. It only authorizes personal suit and moneyed judgment against the owner for the amount due. It does not authorize a suit against the prop- erty, nor one against the owner and the property together. A lien is given by statute and the manner of its enforcement is provided. Suit may only be brought against the owner for the "amount due." Bordages v. Higgins, 1 C. A. 43, 19 S. W. 446, 20 S. W. 184, 726. § 1074. Constitutional. The fact that a statute authorizes the collection of an assess- ment for a street improvement before the work is done and before benefits can have accrued does not render it unconstitutional. City of Austin V. Nalle, 120 S. W. 996. § 1075. Valii street improvement assessments. Under the Paris city charter, giving the city council power to make street improvements, to assess so much of the cost as may be deemed proper against property specially benefited, and by ordinance or resolution prescribe the procedure for ordering and making such improvements, where a resolution was passed de- 676 Taxation in Texas. daring the purpose to make a street improvement, describing the portion of the street to be improved, the character of the improve- ment, and adopting complete plans and specifications with the es- timated cost, providing and giving the required notice to abutting property owners to be heard before assessments were levied and finally determined upon, and after the time of notice and hearing, the public advertisement, for bids, and the letting of the contract to the lowest bidder, and the determination of the proportionate cost to be borne by each property owner as his property was enhanced in value, and according to the frontage on the improve- ment, all the steps provided for and intended for the protection of the property owner were taken by the city council, and a levy made on property benefited to pay for a part of the improvement, made pursuant thereto, was valid. Paris City Charter, Sec. 138, empowering the city council to order public improvements, and Section 147, directing the method of procedure, are not unconstitutional, as depriving any person of property without due process of law, since the charter pro- vides for full hearing on all matters affecting the property and claims for liability against the person, and for notice to appear and object to the proposed amendments, and by Section 144 pro- vides that any person interested in any property claimed to be subject to assessment under the charter is entitled to full hearing before the city council on all matters aflfecting the property or personal liability. Paris City Charter, Sec. 138, empowering the city council to order public improvements and assess a part of the expense against the property specially benefited, and Section 147, pro- viding that they may by resolution or ordinance prescribe the method of procedure in making the improvement and assessing the benefits against the property benefited, are not violative of Const., Art. 1, Sec. 15, guaranteeing the right of trial by jury, since the assessment of property for the cost of improvements is a tax, as to which property owners are not entitled,to a jury. Const., Art. 1, Sec. 17, providing that private property shall not be taken for a public use without compensation, has no reference to proceedings under Paris City Charter, Sec. 138, empowering the city council to order public improvements, and Section 147, directing the method of procedure for making the improvement and assessing the benefits against property benefited Local Improvement by Assessment. ^77 Paris City Charter, Sec. 138, empowering the city council to order public improvements and assess the property benefited to pay the cost of part of the improvement, and Section 147, direct- ing the method of procedure, which provides for notice to the property owners assessed and hearing before the council, but makes no provision for appeal therefrom, do not contravene Const., Art. 1, Sec. 15, providing that the courts shall be open to every person for injury done to his lands, since taking of the prop- erty under the taxing power is taking under the process of law. Const., Art. 8, Sec. 1, providing that taxes shall be equal and uniform, does not apply to special assessments for public improve- ments. City of Paris v. Brenneman, 126 S. W. 58. § 1076. According to benefits derived. Considered as a city, the expense of paving a street may be lev- ied upon the whole city or a system of improvement may be re- sorted to analogous to that which is adapted in the construction and working of highways in general ; that is to say, the cost of any such work may be assessed on that part of the city which re- ceives peculiar benefits from it. The latter method would re- quire either a division of the city into taxing districts for several local improvements within it, or the creation of a special taxing district for each improvement, setting apart for the purpose that portion of the city which was believed to receive the special bene- fits. These special taxing districts are most common, and they are either fixed after the examination of the circumstances of each particular case, with a view of ascertaining how far the special benefits extend and what property shares in them, or they are determined by some general rule, which thodgh it may not be strictly just in any particular case, will, in the main it is supposed, apportion all such expenses with reasonable equality and fairness. Whether one course or the other shall be adopted must be de- termined by competent legislation. Cooley on Taxation (3d ed.), 234 ; Kettle v. City of Dallas, 80 S. W. 878, 35 Tex. Civ. App. 632. § 1077. Improvement districts. The power to determine what shall be a taxing district for any particular burden is purely a legislative power, and not to be in- terfered with or controlled, except as it may be limited or re- strained by constitutional provisions. The legislature judges final- ly and conclusively upon all questions of policy, as it may also 678 Taxation in Texas. upon all questions of fact which are involved in the determination of a taxing district. Such districts may be as numerous as the purposes for which taxes are levied. Kettle v. City of Dallas, 80 S. W. 878, 35 Tex. Civ. App. 632; Cooley on Taxation (3d ed.), 336. § 1078. Local improvements. The act of the Twenty-seventh Legislature, amending the char- ter of the city of Dallas and providing for the creation of im- provement districts by the city council, which districts are to in- clude the real estate deemed benefited by any local improvement and also providing for the assessment of such real estate for the improvement and for the issuance of bonds or assessments war- rants does not violate any provision of either the state or federal constitutions. In a suit brought against the city of Dallas and the Baker As- phalt Co. to enforce the assessment and collection of the tax upon a homestead situated within an improvement district upon the ground that the amendment of the charter upon which the pro- ceedings were had creating the improvement district, and the pro- ceedings of the council thereunder in taxing and changing any part of the cost of the improvement of the street against his home- stead, are unconstitutional and void, and cast a cloud upon his title to such property, the court of civil appeals in a case in which' a writ of error was denied by the supreme court says : "But to uphold the legislation under which the proceedings sought to be enjoined in this case were had it is not necessary that the power of the legislature be extended as far as it was sanctioned by the supreme court in Webster v. Fargo and other cases above cited. But it may, so far as this case is concerned be brought within the rule 'that the cost of a local improvement can be assessed upon particular property only, to the extent that it is specially and pe- culiarly benefited ; and since the excess beyond that is a benefit to the municipality at large it must be borne by the general treas- ury.' " 2 Dill Mun. Corp. (4th ed.), p. 935, Sec. 761. And this seems to be in accordance with the views expressed by the Su- preme Court of this state in Storrie v. Cortes, 90 Tex. 283, 38 S. W. 154, 35 L. R. A. 666. Upon the whole, to use the language of the Supreme Court of Indiana in Adams v. Shelbyville, 57 N. E. 118, 49 L. R. A. 802, 77 Am. St. 484: "We conclude * * * that Local Improvement by Assessment. 679 the principles applicable to assessments for local improvements are these : The legislature may create a local taxing district for local improvement purposes, which includes part only of the prop- erty within the municipality. The legislature may declare con- clusively that only the property within the taxing districts shall be separately assessed on account of the local improvement within that district. Each parcel of contributing property may be as- sessed only to the extent that it actually receives special benefits. The taxing district, as a whole, may be assessed only to the extent of the sum of the special benefits actually received by the special parcels of contributing property. The improvements so far as its costs exceeds the special benefits resulting to the several par- cels of property in the taxing district, is a benefit to the munici- pality at large and such excess must be borne by the general treas- ury. Prop'erty owners aflfected by the improvement within a tax- ing district are entitled to a hearing on the question of specific benefits." All the principles thus enunciated are present in the act of the legislature under consideration and everything required by the legislature in the act has been complied with by the city coun- cil. "The legislative power of the state means all the power of the people which may properly be exercised in the formation of laws against which there is no inhibition, expressed or implied, in the fundamental law. Since the municipal corporation can not exist except by legislative authority, and can exercise no power which is not granted by the legislature, it follows that the crea- tion of such corporations, and every provision with regard to their organization was the exercise of legislative power which inheres in the whole people but by the constitution is delegated to the leg- islature. Therefore it is within the power of the legislature to determine what form of government will be most beneficial to the public and the people in a particular community. It is well set- tled principle of constitutional construction that the power of the legislature can be restrained only by a prohibition expressed or implied, from some provision or provisions of the constitution it- self." Brown v. City of Galveston (Tex. Sup.), 75 S. W. 495, and authorities cited. We can not perceive that any constitutional provision, either state or national, is violated or trenched upon by the act amend- ing the charter of the city of Dallas, or the resolution of the city 680 - Taxation in Texas. in pursuance of such an amendment creating the improvement dis- tricts, or the proceedings had thereunder by the city council pro- viding for the improvement and the assessment and levy of the tax to pay therefor. The appellant's property within the district is enhanced rather than depreciated in value by the provision in the resolution that requires the street railway company to pay the costs of paving between the rails and tracks of its railway and for two feet on either side. This provision is expressly authorized by the original charter of the city, and not affected bv the amendment. The constitutionality of a similar provision in the charter of the city of Houston was upheld by the supreme court of this state in Storrie v. Street Railway Co., 92 Tex. 129, 46 S. W. 796, 44 L. R. A. 716. It does not deprive appellant of his property without due process of law. It does not and can not exceed the amount of the ad valorem tax limit on propeVty within cities exceeding 10,000 inhabitans. The tax within the improve- ment districts is equal and uniform upon all the real property in the district. The property upon which it is assessed is enhanced in value beyond the amount of taxes assessed against it, and, it being a tax, though it may be regarded as special, appellant's property, though it is his homestead, under Section 50, Article 16, of the Constitution, even as construed by the supreme court in Higgem v. Bordages, 88 Tex. 458, 31 S. W. 52, 803, 53 Am. St. 770, is subject to the levy and payrnent of such tax. If this be not so, then our homestead laws stand in the way and prevent gov- ernment from exercising the powers and functions for which it was inaugurated, and bars the way of progress and civilization. Kettle V. City of Dallas, 80 S. W. 878, 35 Tex. Civ. App. 632. § 1079. Refunding paving certificates. Houston City Charter, Sec. 40b (Special Laws 26th Leg., p. 192, Chap. 17), authorizing the city council to refund money previously paid for paving by persons in front of their property according to the front foot mile, and to provide how the same shall be paid was not unconstitutional, the sum to be refunded not being a debt within Const., Art. 11, Sees. 5 and 7, providing that no debt shall be created by the city unless at the same time pro- vision shall be made for payment by the creation of a sinking fund. It did not grow out of any contract between the parties, but originated from the collection of an assessment made by the Local Improvement by Assessment. 681 city upon the property of persons to whom it was to be returned and for sound reasons the city was authorized by the state to re- turn that sum (McNeal v. Waco, 89 Tex. 83, 33 S. W. 322). The assessment made for street improvements was based upon a poHcy which was thereafter abandoned, and the plan of improving streets of the city by taxation adopted. It would be a great injustice to property holders who had already paid for the improvements of streets in front of their property to subject them to taxation for a general system of such improvements, from which they could receive no benefit, without restoring to them that which they had already paid to the city for that purpose. It was within the power of the legislature to authorize the city to make an equitable adjustment of these matters so as to equalize the burden upon the property of the citizens. City of Houston v. Stewart, 87 S. W. 663, 99 Tex. 67. § 1080. Improvements of sidewalks under police power. Questioned whether the ruling in Hutcheson v. Storrie, 92 Tex. 685, and Norwood v. Baker, 172 U. S. 269, as to the constitu- tionality of local assessments for street improvements, applies to the construction of sidewalks at the expense of abutting owners, the latter rather falling under the city's power of police than that of taxation. Lents v. City of Dallas, 96 Tex. 258. § 1081. Street railroads. Under Houston City Charter, Sec. 23a, providing that the costs of a street improvement shall be a charge against abutters, and that a street railway company shall be liable for costs of paving between the rails and for six inches on each side, such company is liable for paving to the extent stated, notwithstanding a reso- lution of the city council providing that the cost of the improve- ments shall be wholly defrayed by the abutters as provided in Section 23a, the resolution referring to the cost of the portion to be paid for by the abutters. Houston City Charter, Sec. 23a, providing for street improve- ments at the cost of abutters, does not violate Const. 1895, Art. 3, Sec. 48, which provides that the legislature can not levy taxes or impose burdens except to raise revenue for the administration of the government, this provision not referring to the action of the legislature conferring authority on a municipal corporation to levy taxes. 682 Taxation in Texas. Under Const. 1895, Art. 1, Sec. 17, providing that no irrevoca- ble or uncontrollable grant of special immunities shall be made, but all privileges and franchises created under the authority of the legislature shall be subject to its control, the legislature had the right to amend Houston city charter so that a street car com- pany became liable for the cost of paving six inches on each side of its tracks in addition to its former liability of paving between the rails, and such law was not unconstitutional as imparing the obligation of a contract in reference to a prior mortgage executed while the constitutional provision was in force. Under Houston City Charter, Sec. 23a, requiring the city en- gineer to prepare a roll showing the number of lots or blocks fronting on a tract to be improved, the names of the owners, the number of feet frontage of such lot or block, and the propor- tionate cost, and the fotal to be borne by each ; and Section 23e, providing that delinquent assessments for such improvement shall bear 8 per cent interest, — a street car company is not excused from being placed on the roll and from paying 8 per cent interest by reason of its being mentioned among the item's of property to be placed on the roll of ownership, and because a part of the description required to be given could not be made to apply to it. Storrie v. Houston City St. Ry. Co., 46 S. W. 796, 92 Tex. 129. § 1082. Contractor to look to property owner — Void assess- ment. Where a city contracts for paving, limiting its liability to one- third of the cost, and providing that the contractors were to look to the abutting owners for the balance, an assessment by the city for such balance is void. The levy of an assessment for a public improvement should be made at the time of the contract, and based on estimates of the cost of the work in front of each abutting lot. The amount assessed against each abutting lot should be fixed by the amount of the cost of the work in front of each lot. City of Dallas v. Emerson, 36 S. W. 304. CHAPTER LX. POLL TAX— JURORS— QUALIFICATION OF VOTERS. 1083. Who are qualified voters. 1100. 1084. Who are qualified to vote in city, town, etc., election. 1101. 1085. Collection of poll tax. 1086. What poll tax receipt must 1102. show — Candidate can not 1103. pay poll tax for another. 1104. 1087. Persons exempt from pay- ment of poll tax to obtain 1105. certificate of exemption — 1106. Form of. 1107. 1088. Persons not 21 years old to 1108. get certificate of exemption. 1089. When one swears falsely— 1109. Duty of collector. 1090. Removing from one precinct 1110. to another county, 1091. Removing to another county. 1111. 1092. Collector to require proof of 1112. residence and of statement —When. 1093. Tax collector's fees. 1113. 1094. Tax collector giving receipt to fictitious persons. 1114. 1095. Tax collector giving receipt 1115. to wrong person. 1096. Failing to return tax receipt 1116. to owner. 1097. Selling poll tax receipt. 1117. 1098. Exemption. 1099. Delinquent may be com- pelled to work road. Manner of payment as to qualification to vote. Loaning money to pay poll tax. Equality and uniformity. Uniformity — Road law. Statutory provisions — Poll tax. Levy to pay jurors. Qualification of juror. County poll tax. City poll tax of cities of 10,- 000 inhabitants or over. Must pay to qualify as juror, if challenged. Must challenge as to dis- qualification. Qualification — Poll tax. Court may dispense with re- quirement of payment of poll tax — ^When. Who are disqualified — In general. Notice of election. Evidence as to who are tax- payers. Not necessary that taxpay- er's name appear on roll. Must be taxpayer in school district. § 108S. Who are qualified voters. Every male person subject to none of the foregoing disquali- fications who shall have attained the age of twenty-one years, and who shall be a citizen of the United States, and who shall have resided in this state one year next preceding an election, and the last six months within the district or county in which he 684 Taxation in Texas. offers to vote, shall be deemed a qualified elector ; and every male person of foreign birth, subject to none of the foregoing disqual- ifications, who not less than six months before an election at which he offers to vote shall have declared his intention to be- come a citizen of the United States, in accordance with the fed- eral naturalization laws, and shall have resided in this state one year next preceding such election and the last six months in the county in which he offers to vote, shall also be deemed a qualified elector; and all electors shall vote in the voting precinct of their residence ; provided, that electors living in an unorganized county may vote at any election precinct in the county to which such county is attached for judicial purposes ; and, provided, further, that any voter who is subject to pay a poll tax under the laws of the state of Texas shall have paid said tax before he offers to vote at any election in this state, and hold a receipt showing the payment of his poll tax before the first day of February next pre- ceding such election. Or if said voter shall have lost or mis- placed said tax receipt he shall be entitled to vote upon making affidavit before any officer authorized to administer oaths, that such tax was actually paid by him and that said receipt has been lost. Such affidavit shall be made in writing and left with the judge of the election ; provided, further, that at any election held only in a subdivision of a county for the purpose of determining any local question or proposition affecting only such subdivision of the county, then in addition to the foregoing qualifications the voter must have resided within said subdivision of the county for six months next preceding such election. Sec. 2, p. 133, Acts 1903. § 1084, Who are qualified to vote in city, town, etc., election. All qualified electors of this state, ^s described in the foregoing sections, who shall have resided for six months immediately pre- ceding an election within the limits of any city or corporate town, shall have the right to vote for mayor and all other elective offi- cers ; but in all elections to determine the expenditure of money or assumption of debt, or issuance of bonds, only those shall be qualified to vote who pay taxes on property in such city or incor- porated town ; provided, that no poll tax for the payment of debts thus incurred shall be levied upon the persons debarred from vot- ing in relation thereto. Sec. 3, p. 134, Acts 1903. Poll Tax — Jurors — Qualification of Voters. 685 § 1085. Collection of poll tax. The poll tax required by the constitution and laws in force shall be collected from every male person between the ages of twenty-one and sixty years who resides within this state on the first day of January preceding its payment ; Indians not taxed, persons insane, blind, deaf and dumb, and those who have lost a hand or foot, excepted, which tax shall be collected, and ac- counted for by the tax collector each year, and appropriated as prescribed by law. Sec. 9, p. 134, Acts 1903. Poll tax may be paid, when. The poll taxes required by law to be paid may be paid at any time between the first of October and the first day of February following, and the citizen shall be entitled to his poll tax receipt, even if his other taxes are not then paid. Sec. 12, p. 135, Acts 1903. § 1086. What poll tax receipt must show — Candidate can not pay poll tax for another. Each poll tax receipt shall bear on its face the name of the party for whom it was issued, the payment of the tax, the resi- dence of the party, his age, his race, the length of time he has re- sided in Texas, the length of time he has resided in the county, the voting precinct in which he lives, his occupation, if he lives in an incorporated city or town, the ward and street and number of his residence, and the length of time he has resided in such city or town. In all cases where the voter resides in a city of ten thousand inhabitants or more the tax must be paid in person by the owner of the receipt. If the owner does not reside within a city of ten thousand inhabitants or more, his poll tax must either be paid by him in person or by some one by him duly authorized in writing to pay the same, and to furnish the collector the in- formation necessary to fill out the blanks in the poll tax receipts. Where the poll tax is paid by an agent the collector shall retain on file the written authority of the agent and shall note on the receipt and on all duplicates thereof made by him under the pro- visions of this act, the fact that the same was paid by an agent, and the name of such agent. But in no event shall any candidate for office, nor any one who is actively espousing the cause of any candidate for office, be allowed to pay any poll tax for another, and any person violating any of the provisions of this section 686 Taxation in Texas. shall be guilty of a felony, and upon conviction shall be punished by confinement in the penitentiary for a term of not less than two nor more than five years. Sec. 22, p. 136, Acts 1903. § 1087. Persons exempt from payment of poll tax to obtain certificate of exemption — Form of. Every person who is exempted by law from the payment of a poll tax and who is in other respects a qualified voter, who resides in any city of ten thousand inhabitants or more, shall, before the first day of February of the year in which he offers to vote, obtain from the tax collector of the county of his residence a certificate showing his exemption from the payment of a poll tax. Such ex- empt person shall, on oath, state his name, county of his residence, occupation, race, age, the length of time he has resided in Texas, the length of time he has resided in the county, the length of time he has resided in the city and the ward and the voting precinct in which his residence is located and the ward and street and num- ber of his residence. He shall also state the grounds on which he claimed exemption from the payment of a poll tax. Such certificate shall be executed in duplicate, the original of which shall remain in the poll tax book, to be retained by the collector in his office, and a copy shall be detached and delivered, bearing its proper number, to the citizen in person to serve in identifying him in voting. Certificates of exemption for each precinct shall be numbered consecutively, beginning at one. They shall be in the following form : Certificate of exemption from poll tax. No State of Texas, County of I, Tax Collector for County, Texas, do hereby certify that i personally appeared before me on the A. D., , and, being sworn, says his name is ; that his occupation is ; that he has resided in Texas for years ; in .- County for and in the city of for ; that he now resides in Precinct No , in Ward No. on Street, and in house No, Poll Tax — Jurors — Qualification of Voters. 687 ,._. ; that he is exempt from the payment of a poll tax by reason of ; that he is a quali- fied voter under the constitution and laws of Texas. Signed (SEAL) Tax Collector County, Texas. Sec. 25, p. 137, Acts 1903. § 1088. Persons not 21 years old to get certificate of exemp- tion, when. Every person residing in a city of ten thousand inhabitants or more, not twenty-one years old until after the first day of Febru- ary, but who will be twenty-one years old before the next gen- eral or special election for that year shall, before the first day of February of the year in which he first ofifers to vote, procure such certificate of exemption which shall specify the day in the current year when he shall reach the age of twenty-one years. Sec. 26, p. 138, Acts 1903. § 1089. When one svs^ears falsely, duty of collector. Whenever the county collector shall have reason to believe that the citizen who has paid his poll tax or received his certificate of exemption has sworn falsely in obtaining the same, he shall report the facts to the next grand jury organized in the county. Sec. 27, p. 138, Acts 1903. § 1090. Removing from one precinct to another in county. If a citizen, after receiving his poll tax receipt or certificate of exemption, removes to another precinct in the same county before the next succeeding election, he may vote at any general election in the precinct of his new residence by presenting his poll tax receipt or certificate of exemption to the precinct election judges, or by making due affidavit. Sec. 28, p. 138, Acts 1903. § 1091. Removing to another county. If a citizen, after receiving his poll tax receipt or certificate of exemption, removes to another county he may vote at an elec- tion in the precinct of his new residence in such other county by presenting his poll tax receipt or certificate of exemption or his written affidavit of the loss of his poll tax receipt to the precinct election judges of election that he is the identical person described in such poll tax receipt or exemption certificate, and that he then 688 " Taxation in Texas. resides in the precinct where he offers to vote and has resided for the last six months in the district or county in which he offers to vote; but he shall not be allowed to vote for county or precinct officers, or in any special or local election confined to the limits of such precinct, unless he shall have resided for the last six months within the county in which he offers to vote. Sec. 29, p. 138, Acts 1903. § 1092. Collector to require proof of residence and of state- ment — When. If the county collector does not personally know one who ap- plies to pay his poll tax or procure his certificate of exemption from its payment as being a resident in the precinct which such person claims as that of his residence, it shall be the duty of such collector to require proof of such residence, and if he has reason to believe that such person has falsely stated his age, occupation, precinct of his residence, or length of his residence in the state and county, he shall require proof of such statement, and if on inquiry he is satisfied that said person has sworn falsely, he shall make a memorandum of the words used in such false statement and present the same to the foreman of the next grand jury. Sec. 30, p. 139, Acts 1903. § 1093. Tax colloctor's fees. The county collector shall be paid for making out each certifi- cate of exemption and each poll tax receipt contained in poll tax book No. 1 fifteen cents ; but this shall include duplicates and copies thereof in that book, and in the book filed with the county judge, and all in the poll tax rolls of receipts and certificates of exemption made out for the precincts ; for all of which no addi- tional sum shall be paid. Such amount shall be paid by the county commissioners' court on the presentation by the tax col- lector of an itemized statement, sworn to by him, and approved by the county judge. The compensation allowed the collector under this section shall be fees ex officio, and shall not be com- puted under what is known as the fee bill. Sec. 106, p. 152, Acts 1903. § 1094. Tax collector giving receipt to fictitious persons. Any collector of taxes who shall knowingly and willfully issue and deliver a poll tax receipt or certificates of exemption to a Poll Tax — Jurors — Qualification of Voters. 689 fictitious person shall be punished by confinement in the state penitentiary not less than three nor more than five years. Sec. 124, p. 155, Acts 1903. § 1095. Tax collector giving receipt to wrong person. Any collector of taxes, or clerk in his ofiice, who shall deliver any poll tax receipt or certificate of exemption to any other per- son than to the citizen whose name is written thereon and who is entitled thereto, is guilty of a misdemeanor. Sec. 125, p. 155, Acts 1903. § 1096. Failing to return tax receipt to owner. Any one to whom a tax receipt or certificate of exemption may be entrusted for safe keeping, who fails to return the same to the owner thereof at least three days before primary election day or primary convention day, and three days before any general elec- tion day, shall be guilty of a misdemeanor ; provided, that if the party so entrusted is unable to find the citizen who gave it to him, he may evade the penalty of this section by proving that he delivered it three days before such election day to the county col- lector of taxes of the county to be delivered to the owner. Sec. 126, p. 155, Acts 1903. § 1097. Selling poll tax receipt. Any person who shall sell, pledge, loan or deposit his poll tax receipt or certificate of redemption for money or any other thing of value, shall be deemed guilty of a misdemeanor, and the per- son who purchases, borrows or obtains possession of the same by way of pledge or loan, is guilty of a misdemeanor. Either of the parties to such wrongful act may be compelled to appear and testify in a proceeding against the other, but he shall not there- after be arrested or punished for his participation in such wrong- ful act. Sec. 127, p. 155, Acts 1903. § 1098. Exemption. The law exempting those from payment of a poll tax who have lost a hand or foot does not exempt one who has lost part of his fingers or whose foot is useless. Bighorn v. Cluhh, 95 S. W. 675, 42 Tex. Civ. App. 312. Failure to pay no disqualification for service on grand jury. Under the express provision of Acts 29th Leg., p. 207, Chap. 44 690 Taxation in Texas. 107, amending Rev. St. 1895, Art. 3139, failure to pay the poll tax as required by law does not disqualify a citizen for service on the grand jury. King v. State, 100 S. W. 387. § 1099. Delinquent may be compelled to work road. Const., Art. 3, Sec. 56, prohibits the passage of special laws, but Article 8, Section 9, as amended in 1890, provides that the legislature may pass local laws for the maintenance of public roads and highways. Held, that Acts 29th Leg. 1905, p. 262, Chap. 30, applicable specially to Ellis County, and requiring de- linquent poll tax payers to work the roads extra time or pay a certain sum in lieu thereof, is valid. Young v. State, 102 S. W. 117, 51 Tex. Crim, App. Z66. § 1100. Manner of payment as to qualification to vote. The constitutional right of suffrage does not depend upon the payment by the voter of his poll tax "in person," all that is re- quired being that he should pay his poll tax on or before a stip- ulated day, and hence, though the statute relating to the payment of poll taxes as a condition to the right of suffrage directs the voter to pay the tax in person or give a written order therefor, a voter would not be deprived of his right of suffrage by reason of the payment of his tax by another person without written or- der, where the receipt obtained by him from the tax collector was regular upon its face, and where the statute did not expressly provide that a failure to obtain his receipt in the manner directed by the statute would disfranchise the voter. Wallis v. Williams, llOS. W. 785. § 1101. Loaning money to pay poll tax. Const., Art. 6, Sec. 1, provides the qualifications of electors, one of which requires that he shall have paid his poll tax before the first day of February next preceding the election at which he oflfers to vote. Held, that Acts 1905 (Laws 1905, p. 561, Chap. 11), Sec. 170, providing that a person who loans money to an- other knowingly, to be used for paying the latter's poll tax, is guilty of a misdemeanor, is not unconstitutional as unduly re- stricting the right of suffrage, but is valid, under Const., Art. 6, Sec. 4, authorizing the legislature to make regulations to detect and punish fraud and preserve the purity of the ballot. Acts 1905 (Laws 1905, p. 561, Chap. 11), Sec. 170, prohibiting Poll Tax — ^Jurors — Qualification of Voters. 691 the lending of money knowingly for the payment of poll tax, in ord^r to qualify the borrower to vote, is not unconstitutional as a deprivation of rights without due process of law. Solon v. State, 114 S. W. 349, 54 Tex. Crim. App. 261. § 1102. Equality and uniformity. Rev. St. 1895, Art. 5048, provides for the levy of poll taxes on every male person between 21 and 60 residing in the state on January 1st of each year, except Indians, insane persons, the blind, deaf, and dumb, and those who have lost one hand or foot. Held, that such section provided a proper classification, and was therefore not unconstitutional for inequality and nonuniformity. Solon V. State, 114 S. W. 349, 54 Tex. Crim. App. 261. § 1103. Uniformity — Road law. Sayles' Ann. Civ. St. 1897, Art. 5048, requiring that every male between the ages of 21 and 60 years, with certain excep- tions, shall pay a poll tax, not being violative of Const., Art. 8, Sec. 1, requiring taxation to be equal and uniform, the classifi- cation being uniform and resting on a substantial basis and reason, Sp. Laws 1897, p. 155, Chap. 110, Sec. 15, amended by Sp. Laws 1905, p. 263, Chap. 30, Sec. 15, providing that any person in the county subject to payment of a poll tax who shall fail to pay it before a certain time shall be subject to road duty for a period of three days during the year, etc., is not violative of the section of the constitution. Bhiitt v. State, 121 S. W. 168. § 1104. Statutory provisions — Poll tax. There shall be levied and collected from every male person be- tween the ages of twenty-one and sixty years, resident within this state, on the first day of January of each year (Indians not taxed, and persons insane, blind, deaf and dumb or tho§e who have lost one hand or foot, excepted), an annual poll tax of one dollar and fifty cents, one dollar for the benefit of free schools, and fifty cents for general revenue purposes ; provided, that no county shall levy more than twenty-five cents poll tax for county purposes. (Acts 1882, p. 18.) Sayles R. S., Art. 5048. § 1105. Levy to pay jurors. Section 1. Be it enacted by the legislature of the state of Tex- as: That Article 1538, Title XXXII, Chapter 2 of the Revised Civil Statutes of the State of Texas, be amended so as to here- after read as follows: 692 ' Taxation in Texas. Article 1538. Said court shall have the power to levy and col- lect a tax for county purposes not to exceed twenty-five cents on the one hundred dollars valuation, and a tax not to exceed fifteen cents on the one hundred dollars valuation to supplement the jury fund of the county, and not to exceed fifteen cents for roads and bridges on the one hundred dollars valuation, except for the pay- ment of debts incurred prior to the adoption of the amendment to the constitution September 25, A. D. 1883 ; and for the erec- tion of public buildings, streets, sewers, water works and other permanent improvements, not to exceed twenty-five cents on the one hundred dollars valuation in any one year, and except as in the constitution otherwise provided ; provided however, the court may levy an additional tax for road purposes not to exceed fif- teen cents on the one hundred dollars valuation of the property subject to taxation under the limitations and in the manner pro- vided for in Article 8, Section 9, of the constitution, and in pur- suance of the laws relating thereto. Acts 30th Leg., pp. 39 and 40. § 1106. Qualification of juror. Revised Statute 1895, Art. 3139, provides that no person shall be qualified to serve as a juror unless he is a citizen and a quali- fied voter of the county, but that whenever it shall be "made to appear" to the court that the requisite number of jurors who have paid their poll tax cannot be found within the county the court may dispense with such requirement ; held, that such section did not authorize the court, in its discretion, to dispense with the tax requirement on the mere belief that facts existed which would make it improbable that qualified jurors could be found in the county to run all the courts of the county for a year, but only authorized such suspension in a particular case, when it was "made to appear" by evidence that sufficient qualified jurors could not be found to try such case. San Antonio & A. P. R. R. Co. v. Lester, 89 S. W. 752, 99 Tex. 214. § 1 107. County poll tax. A county poll tax levied by the act of the Legislature does not require an order of the county court levying it to authorize its collection. Labadie v. Dean, 47 Tex. 101. § 1108. City poll tax of cities of 10,000 inhabitants or over. The city council shall have power to levy and collect an annual poll tax, not to exceed one dollar, of every male inhabitant of Poll Tax — ^Jurors — Qualification of Voters. 693 said city over the age of twenty-one years (idiots and lunatics excepted), who is a resident thereof at the time of such annual assessment. Acts 1875, p. 256, Sec. 83. (1) A poll tax may be collected when authorized by an or- dinance under this article. Perry v. City of Rockdale, 62 Tex. 451 ; Sayles' R. S., Art. 489. § 1109. Must pay to qualify as juror, if challenged. "Under the recent constitutional amendment known as the 'Poll Tax Amendment,' making the payment of poll tax before the 1st of February of each year a prerequisite to the right to vote, and Code Crim. Proc, Art. 67 Z, providing that one not a qualified voter is subject to challenge as a juror in a criminal case, it is error to overrule a challenge to a juror who has not paid his poll tax for the preceding year." Carter v. State, 76 S. W. 437, 45 Tex. Crim. App. 430. § 1110. Must challenge as to disqualification. Under the statutes and constitution of this state, the fact that a juror has not paid his poll tax goes to his qualification. How- ever, as we understand the statute, this is made a ground of chal- lenge, and not an absolute disqualification of the juror. Art, 676, Code Crim. Proc. 1895, says that no one who is subject to the third, fourth or fifth clauses of challenge, under Art. 673, shall be impaneled as a juror. The poll tax requirement is subd. 1 of said article, and so is not included in either of said subdivisions which absolutely disqualify the juror. And this arti- cle, as amended by the last Legislature, which passed an act with reference to juries under the amendment of Art. 6, Sec. 2, of the Constitution, adopted by the people in 1901, leaves the subject of challenging a juror on the ground that he was not a legal voter exactly as it was before. See amendment to the Consti- tution (Gen. Laws 27th Leg., p. 322), and amendment relating to qualification of jurors (Acts Special Sess. 27th Leg. 1903, p. 15). Poole V. State, 76 S. W. 567, 45 Tex. Crim. App. 348. §1111. Qualification — Poll tax. "Under Rev. Stat. 1895, Art. 3139, as amended by the Acts of the 28th Legislature, Special Session, p. 16, Ch. 9, providing that no person shall be qualified to serve as a juror unless he is quali- fied to vote, but, when it shall be made to appear that the requisite 694 Taxation in Texas. number of jurors who have paid their poll taxes cannot be found, the court may dispense with that requirement, a defendant has the right to except to a juror who has not paid his poll tax, and, if it is shown that there are sufificient qualified jurors to try the case, he is entitled to qualified jurors only, and so, where the defendant showed that there were 3,000 qualified poll tax paying jurors in the county, the court could not dispense with that qualification." Taylor v. State, 81 S. W. R. 933, 47 Tex. Crim. App. 101. § 1112. Court may dispense with' requirement of payment of pyoll tax when. "Under the express provisions of Laws 1903, First Called Session, p. 15, Ch. 9, the court may dispense with the requirement of the payment of poll taxes as a qualification for service as a juror, whenever it is made to appear that the requisite number of jurors who have paid their poll tax cannot be found within the county." San Antonio & A. P. Ry. Co. v. Lester, 84 S. W. 401. § 1113. Who are disqualified in general. No person shall be qualified to serve as a juror who does not possess the following qualifications : He must be a citizen of the State and of the county in which he is to serve, and qualified under the Constitution and laws to vote in said county; but whenever it shall be made to appear to the court that the requisite number of jurors who have paid their poll taxes can not be found within the county, the court may dis- pense with the requirement of the payment of poll taxes as a qualification for service as a juror. Acts 1903, First Called Sess., p. 15. § 1114. Notice of election. 2 Sayles' Civil Stats., Art. 3733, in providing for a special election to vote taxes for the school district, states that "the com- missioners' court shall order the sheriff to give notice of such elec- tion by posting three notices in the district for three weeks before the election, and the sheriff shall obey such order." Held, that where the notices, though posted by the sheriff, are signed by the county judge, and there is nothing on the face thereof from which the electors could infer that either the sheriff or the com- Poll Tax — Jurors — Qualification of Voters. 695 missioners' court had ariything to do in summoning them to vote at the election such election is illegally called and the tax voted thereat is void. Swenson v. McLaren, 21 S. W. 300, 2 Tex. Civ. App. 331. § 1115. Evidence as to who are taxpayers. "If it is sought to invalidate a tax election on the ground that a portion of the signers to the petition for the election were not qualified, property holding, tax-paying voters of the district, the jury should not be compelled to examine the assessment roll to see if the names appear thereon, but the custodian of the roll should make a careful examination, and then testify whether it contains such names." Smenson v. McLaren, 21 S. W. 300, 2 Tex. Civ. App. 331. § 1116. Not necessary that taxpayer's name appear on roll. "Under Sayles' Civ. Stats., Art. 3733, providing for the order- ing of an election to determine whether a school tax shall be levied on the petition of twenty property holding, tax-paying voters residing in the district, it is not necessary that the names of such petitioners appear on the last assessment roll of the county, though Art. 3733b declares this to be one of the qualifica- tions of voters at the election." Rhomberg v. McLaren, 21 S. W. 571, 2 Tex. Civ. App. 391. § 1117. Must be taxpayer in school district. "Since, to be qualified to vote at an election held to determine whether a special school tax shall be levied, the person must not only be qualified to vote in general elections, but be a taxpayer within the district, a petition alleging that in such an election no one was allowed to vote except qualified voters and those who in addition to such qualification, were property taxpayers, is in- sufficient, as it does not allege that they were taxpayers within the district." Miller v. Crawford Independent School Dist., 63 S. W. 894, 26 Tex. Civ. App. 495. INDEX. ADVERSE POSSESSION. Sec. 864. Statutory provision. * 865. Tax deed. 866. Must pay taxes. 867. Payment of taxes not possession. 868. Presumptive possession. 869. Payment of taxes under forfeited survey. 870. Pleading possession. 871. Limitation. 872. Possession under void deed extends to wliat. 873. Payment of taxes by third person. 874. Void deed will not support limitation. 875. Tract inclosed with others and use of part. 876. Can not establish title by payment of taxes, when. 877. Invalid tax deed will not support limitation. 878. Must prove payment of taxes on all of tract claimed. 879. Tax roll evidence of payment. 880. Tax deed not good under three years statutes, when. 881. Tax deed must describe property. 882. Redemption period, not necessary to re-register after such period. 883. In whose name to be assessed. 884. Description of taxes — Failure to pay taxes. ' 885. Only title of owner at time of sale passed. 886. Payment shown without evidence of assessment. 887. Tax deed will not support limitation, when. 888. Not entitled to hold against purchaser at tax sale, when. 889. Not interrupted by tax suit. 890. Description in assessment. 891. Land must be defined. 892. Must pay taxes to acquire title under five-years statute of lim- itation. 893. Presumption of for whom paid. , 894. Voidable judgment to show three-years limitation. 895. Tenant and landlord. 896. Payment of taxes no proof of possession. 897. Payment of taxes on land different from location in deed. 898. Failure to pay taxes weakens claim on land. 899. Possession not adverse during time allowed for redemption. Index. 697 Sec. 900. Undivided interest. 901. Tax deed will support statute of limitation. ASSESSMENT. Sec. 73. Annual assessment a lien. 74. Assessment necessary. 75. Proceedings where lands can not be easily described. 76. What is an assessment? 77. Place of assessment. 78. Taxes not to be paid twice, etc. 79. Leasehold interests in public lands. 80. Should use formis of comptroller. 81. Irregularities free from fraud. 82. Manner of making out tax lists directory. 83. Tract or lot. 84. United States paper money taxable. 85. Assessed as money on hand. 86. Taxpayer to make oath. 87. When assessments to be made. • 88. Irregular assessments valid. 89. Mistake in name of owner. 90. Failure to list for taxation. 91. Collector's roll not part of assessment. 92. Assessment not on proper roll. 93. No presumption as to regularity after lapse of time. 94. Void asisessment — Remedies. 95. Property added to list valid. " 96. Credits assessed where. 97. Showing rate of assessment by custom. 98. Refused to render list. 99. Tax rolls — When admitted in evidence. 100. Double assessment. ASSESSMENT— DESCRIPTION IN. Sec. 154. Sufficiency of description. (a) Sufficient against owner good as to purchaser. 155. Description — Literal compliance not required. 156. Sufficiency of description in rolls no variance where full descrip- tion is given in petition. ^157. Rigid description not required where owner assesses. 158. Description — Failure to give abstract and survey number. 159. Description — Object and purpose of. 160. Omission of certificate or survey number. 161. Description, sufficiency of — ^Parol evidence to show property ad- missible. 698 Taxation in Texas. ASSESSMENT OF RENDERED PROPERTY. Sec. 101. When property to be rendered. 102. How to be rendered. 103. Where to be rendered. 104. To be rendered in but one county. 105. Live stock, when and how rendered. 106. Vessels, where listed. 107. Railroads, telegraphs, etc. 108. Listing for others. 109. Shall list under oath. 110. The statement and its requisites. 111. Certain credits and stocks not to be listed. 112. Rendition of real estate. 113. Assessment of personal property by rendition by banker, broker, etc. 114. No deductions in certain cases. 115. Assessments and collections of corporate property. 116. Assessments in owner's name. 117. Relating to the list of property given in by property owners. 118. Act of May 16th, 1907, relating to the listing and valuation of property. ASSESSMENT OF UNRENDERED PROPERTY. Sec. 119. Unrendered, how rendered. 120. Back taxes on unrendered lands. 121. Assessor to make rolls of unrendered property. 122. Tax sale of unrendered property — How it should be assessed. 123. Unrendered property shall be ascertained, etc., by assessor. 124. Unrendered property list in cities to be examined by board. 125. Assessment of property not assessed for taxes. ASSESSOR AND HIS DUTIES. Sec. 162. Assessor — Election of. 163. Duty of assessor and collector of cities to make lists of prop- erty, etc. 164. Unrendered property in cities shall be ascertained, etc., by city assessor and collector. 165. Election and term of assessor. 166. Vacancies, how filled. 167. Oath and bond. 168. Purview of the bond. 169. New bond. 170. Bond for county taxes. 171. May appoint deputies. Index. 699 Sec. 172. May administer oaths. 173. Tlie oath. 174. Where and how the list may be made. 175. Penalty for failure to attest oath, etc. 176. Fraud upon the public revenue. 177. Taxpayer to make oath. 178. When assessments to be made. 179. Irregular assessments valid. , 180. If taxpayer is absent, etc. 181. Or refuses to ist. 182. Duty of assessor. 183. Abstracts to be furnished. 184. Books to be furnished. 185. How to be filled. 186. Blocks and lots in cities. 187. Duties of assessor as to same. 188. To be kept in office. 189. Lands not on abstract. 190. Certificate from board of equalization. 191. Substitute to be employed. 192. Unorganized counties. 193. Manner and form of assessing. 194. Assessment of real estate for all previous years. 195. Assessor to follow instructions. 196. Duty to properly assess. 197. Assessor to furnish list of delinquents. 198. Assessor to furnish list to board of equalization. 199'. Assessor shall make out rolls in triplicate. 200. Also rolls of unrendered property. 201. Assessor to add up columns. 202. Return and oaths. 203. All lists and statements to be filed with the county clerk. 204. Rolls to be distributed. 205. Compensation of assessor of state and county taxes. 206. How paid by the state. 207. By the county. 208. Penalties for neglect of duty. 209. Assessor of taxes. 210. Fees less than maximum — Statements of fees collected — Excess to be paid into county treasury. 211. Deputies and assistants — Appointment and compensation. 212. Penalty for failure to charge up fees for remission of fees, etc. 213. Payment of ex officio services. 214. Officers to keep a correct statement — Accounts to be examined by grand jury. 215. Certain officers not required to make a report or keep a state- ment. 700 Taxation in Texas. Sec, 216. Statement of tax collector and assessor. 217. Fiscal year — At what time reports must be made, and by whom. 218. Commission on school district tax. 219. Compensation for funded indebtedness. 220. Duty of assessor as to unrendered property. ATTORNEY. Sec. 1054. District and county attorneys and attorneys employed. 1055. Attorney to represent the state — Fees. 1056. Lots separately assessed and owned by one person — One tract as to costs. 1057. Attorney general — Right to represent state in tax suits. 1058. Attorney's fees. 1059. Salary incident to office. 1060. Effect of want of authority on judgment. 1061. Right of city to employ council. 1062. Attorney's fees — When not authorized. 1063. Liable for reasonable amount for services. 1064. Failure to appoint attorney. 1065. County attorney may purchase land sold at tax sale. 1066. County attorney must assist in collecting taxes on contract. BANKS. Sec. 662. Sworn statement to be furnished by national banks — Penalty. 663. Money and notes defined. 664. Assessment of real estate by banks. 665. Only real estate on national banks subject to taxation. 666. Share of banking association liable for taxes. 667. Liability of bank stock. 668. National bank shares — Deducting indebtedness. 669. National bank. 670. What is subject to taxation. 671. Bank deposits — How taxable. 672. National bank stock. 673. Inequality of assessment of bank stock. 674. Assessment by city on stock. 675. President required to assess. 676. Deposits to be deducted as debts. 677. Not exejnpt, when. BOARD OF APPRAISERS. Sec. 221. Board of equalization — Their qualification and duties. 222. EJqualization of assessments. Index. 701 I Sec. 223. Boards may equalize without complaint. 224. Assessor to submit list to board of equalization. 225. Appointment and duties of board of equalization in cities or towns. 226. Annual meetings of said board. 227. Shall value property. 228. Values to be equalized by board. 229. Unrendered property list to be examined by board. 230. Notice to property owners. 231. Board to lower values when. 232. Approval of lists and rolls by board. ^33. Action of board final. 234. Compensation of board. 235. Oath to be taken. 236. Approval of board — SuflBlcient. 237. Excessive assessment — Fraud — Remedy. 238. Determining powers of board and assessor. 239. Deputy assessor sitting as member of board. 240. Fraud — Reduction — Failure to appear — Notice. 241. Appellate jurisdiction from city board valid. 242. De facto officers. 243. No power to add property to list. 244. Excessive assessment from fraudulent motives. 245. County commissioners not liable in civil action. 246. "Valuation must first be made by assessor. 247. Owner must have notice of increase of valuation. 248. List must be presented to board. 249. Action of board final. 250. Acts of two members valid. 251. Meeting of board after time. 252. Not required to classify property on minutes. 253. Valuation. 254. No criterion of value in condemnation. 255. Const., Art. 8, Sec. 18, applies to state and county taxes. 256. Board of appeals not necessary where. BULK ASSESSMENT. Sec. 143. Act of 1897 power to correct bulk assessments. 144. Tract or lot defined. 145. Where two lots belong to one owner and form one parcel of land, they may be assessed for taxation together. 146. If two lots are used as one assessment together good. 147. Assessment when approved by taxpayer is binding, although irregular. 148. Requisites as to tax roll, do not apply to assessment. 702 Taxation in Texas. Sec. 149. Lot must be separately assessed except when rendered by owner. 150. Contiguous tracts held by one title. 151. Taxes lien on each ' separate tract of land — City property no exception. 152. Owner estopped where his rendition is adopted on unrendered roll. 153. Assessment to be corrected — Bulk. CITIES AND TOWNS. Sec. 738. Cities and towns having a population of 10,000 or less. 739. Cities having more than 10,000 inhabitants. 740. Debts incurred prior to adoption of present constitution. 741. Counties and cities on the coast of the Gulf of Mexico. 742. School district. 743. Taxes due towns and cities. 744. Lands in cities and towns. 745. Power of city council to regulate tax lists — ^Assessment of taxes, etc. 746. Duty of taxpayers to render inventory of property, etc. 747. Abstract and survey not necessary, when. 748. May prescribe mode of assessment. 749. Burden of proof. 750'. Limitation on power to tax. 751. No ordinances necessary to empower with authority to sue. 752. Cities incorporated under general law may license certain oc- cupations. 753. May license, etc., peddlers, theaters, etc. 754. May license, etc., circuses, etc. 755. May license, etc., hackmen and prescribe their compensation, etc. 756. May license, etc., billiard tables, etc. 757. May authorize proper officer to grant license, etc. 758. May tax street railways. 759. Power over finances of city. 760. City bonds shall specify what. 761. Bonds form taxation and may be used to pay taxes. 762. Tax laws to remain in force. 763. Laws to enforce collection continued in force, and all defenses to bonds cut off. 764. Tax collector — Liability — Governor to appoint when, 765. Gulf cities may issue bonds for harbors, etc. 766. Tax to be levied, interest paid and bonds sold, etc. 767. Ad valorem tax. 768. To levy and collect tax and issue bonds for improvements, buildings, etc. Index. 703 Sec. 769. Cities of ten thousand inhabitants and over to levy and collect tax — ^Validating act. 770. Debt shall not be created unless provision be made to pay the same. 771. Power of city council to provide for collection of taxes. 772. Taxes for payment of indebtedness. 773. Board of aldermen may levy tax — How much — (Cities and vil- lages). 774. Taxes — By whom collected — Sale of property for. 775. Real estate may be redeemed. 776. When purchaser is a non-resident. 777. Where property is liable for taxes and owner is unknown. 778. Incorporations for school purposes. 779. Power of cities in general to levy taxes. 780. Tax can be collected when void portion ascertainable. 781. Duty of assessor and collector in regard to collection of taxes. 782. Property of taxpayer shall be levied and sold for taxes, when. 783. Assessor and collector shall make deed to purchaser to property sold for taxes — Effect of deed. 784. Sale may take place at another time than that first advertised, when. 785. Property shall be struck off to city when. 786. Levy of taxes. 787. Record of levy. 788. Resolution sufficient basis for suit, when. 789. Right to sue. 790. Mandamus — Purpose of tax may be shown. 791. Levy— Street. 792. Inquiry into legality of corporation of town. 793. Ordinance providing for the issuance of bonds — Sufficient, when. 794. Cities of over 10,000 may change rules of evidence, 795. Can not raise question of corporate existence in tax suits. 796. Re-incorporation or abolishing municipality. 797. Rev. Statutes 1895, Art. 487. 798. Right of cities to sue under charter provisions not taken away by general law. 799. City of Houston. 800. Bonds for existing debts. 801. Tax on bonds sold to city. 802. Majority of aldermen sufficient to pass tax-levying ordinance. 803. Interest. 804. Mandamus. 805. Ordinance not resolution, when. 806. Sufficiency of levy. 807. Right of town to maintain action. 704 Taxation in Texas. Sec. ' .. , ., r:r;|,-rj 808. Cities and towns may adopt general state law in regard to col- lecting taxes. 809. De facto corporation. 810. Bawdy house license. 811. Galveston. 812. Cities over 10,000 not within limit. 813. Tax for school purposes valid. 814. Implied authority to levy tax. 815. Limitations of power — Application of tax fund. 816. Towns which mar or have abolished their corporate existences. 817. Collection of taxes where corporation is abolished. 818. Relating to issuance of bonds and levy of taxes. COURTS. Sec. 313. Jurisdiction of courts. 314. Limited jurisdiction of court. 315. Jurisdiction of county court to issue injunction. 316. Foreclosing of lien on real estate — Amount does not control. DELINQUENT TAX ACT OF 1905 PROVIDING FOR THE ASSESS- MENT AND COLLECTION OF TAXES IN CERTAIN CASES. Sec. 136. Taxes — Providing for the assessment and collection. 137. Acts 29th Leg., Chap. 130, Sec. 7, valid. 138. Mandamus to turn over percentage need not be set out in detail. 139. Tax collector's duties in regard to paying percentage. 140. Adequate remedy. 141. Parties — Joinder. 142. County attorney can not contract. 142. (a) Who may be employed to make. 142. (b) Can not transfer tax as compensation. 142. (c) Compensation — Quantum meruit. DISTRICT AND COUNTY CLERK. Sec. 1047. Fees under delinquent tax act of the district clerV 1048. Delinquent lists to be recorded by county clerk. 1049. Delinquent Tax Record. 1050. County clerk shall furnish copies, etc. 1051. Fees under delinquent tax act. 1052. Not entitled to fee when list is not recorded. 1053. Entitled to fee under Act 1897. Index. 705 DRAINAGE TAX. Sec. 930. Acts 31st Leg., showing mode of levying and collecting. EFFECT OF REPEAL OF TAX LAWS. Sec. 858. Whether taxes are to be collected by law enforced at the time of levy and if repealed and when by subsequent legislation. 859. City's rights under repealed charter. 860. Deed. 861. Retroactive law taking away any right unconstitutional., 862. Redemption. 863. Repeal of former law. EVIDENCE. Sec. 376. Lists and books prima facie evidence. 377. Lists — ^Assessment rolls or books prima facie evidence. 378. Inventories as evidence. 379. Plats and maps as evidence. 380. Copies of records of public officers and courts to be prima facie. 381. Tax deed of city prima facie evidence. 382. Delinquent tax list. 383. Authority to make sale must be shown before tax deed can be admissible in evidence. 384. Assessment roll not admissible, when. 385. Admissions — Offer of compromise. 386. Prima facie tax rolls. 387. City ordinance — Admissibility of pamphlet. 388. Sworn pleadings not offered by general denial — Proof. 389. Sufficiency. 390. Admission in record. 391. Burden of proof. 392. Tax list alone not prima facie evidence. 393. Tax deed not evidence of title, when. 394. Tax deeds and rolls not evidence of levy. 395. Admission in pleadings. 396. To show valuation — Assessment. 397. Tax deed conclusive as to facts stated therein. 398. Sale for larger amount void. 399. Admission in pleadings. 400. Presumption of legality of levy. 401. Not necessary to show title, when. 402. Levy, prima facie evidence of facts. 403. Deed of tax collector at summary sale not evidence of title, when. 404. Parol testimony where tax rolls are lost. 45 706 Taxation in Texas. Sec. 405. Admission. 406. Competency, sufficiency of description. 407. List alone not evidence. 408. In prosecution for occupation tax, state must show amount of levy. 409. Tax receipts evidence of Rendition. 410. Assessment lacking affidavit of assessor not admissible. 411. Assessment and demand must be shown. 412. Payment of taxes as evidence of partition. 413. Allowed to prove notations on roll. 414. Copy of delinquent tax record admissible. 415. Owner's rendition admissible to show value of property in dam- age suit. 416. Payment of taxes to show extent of claim. 417. Payment of city tax no evidence of payment of state and county tax. 418. Tax rolls. EXEMPTIONS. Sec. 606. Constitutional provision. 607. 1250.00 furniture exempt. 608. Farm products. 609. Property exempt. 610. Act 1906. 611. Acts of 30th Leg. exempting certain properties from taxation. 612. Legislature may release when. 613. Private schools — ^Buildings — What included in the terms. 614. City council may provide for the exemption of property from taxation. 615. School property— What is exclusive use. 616. School house occupied by family not exempt. 617. Land connected with boarding school. 618. Aid in construction of railroad — Sale of same. 619. Leasehold not taxable against tenant, when. 620. Timber on school land sold not exempt. 621. Church publication not exempt. 622. Buildings owned by charitable institutions — ^Renting portions of. 623. Public property. 624. EJxemption by municipality void. 625. Vendee under executory contract not exempt from payment of tax, even when sold by county. 626. Property of municipal corporation. 627. Wharf company in which city owns interest property of city. 628. Right of exemption passed by sale. 629. Leased state lands. 630. State lands under contract. Index. 707 Sec. 631. School land — Title in state. 632. Property exempt from the operation of the Act of 1897. 633. To be construed in favor of state. FRANCHISE TAX. Sec. 935. Act of 1905 amending articles of statute in regard to franchise tax of corporations doing business in Texas. 936. An act to define the method of computing the franchise tax. 937. Franchise of corporation property. 938. Insufficient description. 939. Failure to pay does not forfeit charter. 940. Corporation proper defendant. 941. Wharf privileges. 942. Double taxation. 943. Street railroad. 944. Delinquent may be placed in hands of receiver. 945. Contract over foreign corporations. 946. Act of the 30th Legislature. GENERAL PROVISIONS, DEFINITIONS, TERMS, ETC. Sec. ■ 1. Taxes. (a) Refer to what. (b) Definition of. 2. Must be equal and uniform. 3. Nature and extent of power, 4. All property liable for taxes. 5. How levied and collected. 6. Legislative power and authority. 7. Legislature has no power to release taxes. 8. Real estate includes what. 9. Eminent domain, taxation not. 10. Money. 11. Farm products. 12. State releases mineral right but not taxes. 13. Federal Const, not violated by delinquent tax act. 14. Tax laws construed liberally. 15. Due course of law. 16. Official duty can not be delegative. 17. Partition — Allowance for taxes paid. 18. Property bought in held in trust, when. 19. Road and bridge a county tax. 20. Special fund not to be diverted. 21. Dedication. 22. Telegraph company, constitutional law. 708 Taxation in Texas. Sec. 23. Deed of trust providing for payment of taxes. 24. Payment will be enforced. 25. Non-payment of taxes presumption that right has reverted to state. 26. Rights not affected by failure to pay taxes, when. 27. Where mortgagee pays, what rights does he have? 28. Sale of one tract to pay taxes on another. 29. Disqualification of judge. 30. Courts of equity should not, except on clearest grounds, inter- fere with collection of taxes. 31. Where no provision is made as to source from which revenue is to be derived. 32. Taxable, when. 33. Vested rights in taxes. 34. De facto officers. 35. State shall have judgment, except when. ' 36. Tenant may purchase tax title. 37. Timber on public land. 38. Where tax can be divided. 39. Detached territory, liability for taxes. HOMESTEAD. Sec. ' 634. Liable only for taxes assessed against it. 635. Liable for taxes, costs and interest against it. 636. Not liable for special improvement assessments. 637. Court's costs. 638. Void tax sale — ^Repurchase by owner — ^Vendor's lien. 639. Sale of. 640. Wife need not be made party. 641. May be sold separately. 642. Redemption. 643. Executions and administrations. 644. Proceeds from fire insurance. 645. Judgment against husband good. I IMPROVEMENT DISTRICTS. Sec. 929. Law regulating the mode of establishing same and levying and collecting taxes in same. IMPROVEMENTS IN GOOD FAITH. Sec. 506. May claim improvements in good faith under tax title not void on its face; Index. 709 Sec. 507. Void tax. 508. Evidence of not sufficient. 509. Under tax deed must prove prerequisites. INHERITANCE TAX. Sec. 933. An act to tax property passing by will or by descent or by grant or gift; taking effect on the death of the grantor or donor. INSURANCE COMPANIES. Sec. 925. Act of 1905. " 926. Occupation tax on gross premiums. 927. Insurance companies. 928. Gross receipts. INTANGIBLE ASSETS. Sec. 934. Providing for taxing intangible assets of certain corporations. INTEREST AND PENALTIES. Sec, 838. Constitution. 839. Banks. 840. Interest can not be charged before tax is due. 841. From date of judgment — Except. 842. Not usurious. 843. Contract to pay taxes not usurious. 844. Damages in dissolution of injunction. 845. No right to charge interest without authority. 846. State entitled to interest. 847. Taxes improperly enjoined. 848. Penalty after January 31st. 849. Statute must provide for interest. 850. No interest without express provision. 851. Where part is illegal. JUDGMENT. Sec. 419. Conclusiveness as to all parties. 420. Judgment should be in favor of state and not its officers. 421. Res adjudicata. 422. Collateral attack. 710 Taxation in Texas. Sec. 423. Direct or collateral attack. (a) When direct attack. 424. Unknown owner — Not subject to collateral attack, when. 425. Recital of service. 426. Tax judgment must be void before it can be attacked collat erally. 427. Judgment against unknown defendants not valid, when. 428. Several parcels of land. 429. Judgment on lots in bulk. 430. Must fix lien on each lot. 431. Description of land sufficient. 432. Description insufficient. 433. Erroneous description in rolls. 434. Conclusiveness of judgment. 435. Errors of procedure can not be looked into. 436. Suit to set aside where brought. 437. Judgment for license tax. 438. Suit against unknown owner void, when. 439. Can not set impeach judgment, when. 440. May compel levy to pay. 441. Pendente lite. 442. Personal judgment may be recovered. 443. Personal judgment — Levy of city taxes. 444. No personal judgment can be rendered on an invalid assess- ment. 445. City entitled to personal judgment. 446. Recitals of placing in possession — Surplusage. LEVY. Sec. 40. State and county taxes, how levied. 41. Term of court, adjourned meeting. 42. Levy not full and explicit — How explained. 43. Levy valid if not sufficient. 44. Directory, when. 45. Must be a levy. 46. Levy by city or town. 47. Self-acting levy. 48. May compel levy by mandamus. 49. Levy must be made in the mode prescribed. 50. Levy based upon assessment roll — ^When to be made. 51. Time and manner of levy. 52. Power of counties to levy under Act of 1848. 53. Annual. 54. Debts existing prior to Constitution of 1876. 55. Purpose of levy must be stated. Index. 711 Sec. 56. Levy at call term of county court. 57. See order of commissioners' court held not to be general levy. 58. Road tax — Limitation of levy. 59. Partial illegality, 60. Levy of tax to provide for the payment of debts. 61. Not in excess, when. 62. Can not exceed limit — Excessive. 63. Mandamus will not lie when limit is reached. 64. Levy of city taxes for fifteen months valid, when. 65. Commissioners' court — ^Validity of tax levy — Collateral attack. 66. City of El Paso. 67. Sufllciency of levy. 68. Extra levy. 69. Levies for state and county taxes. 70. Certain tax rolls for 1905 validated. 71. Validating levies at special session of commissioners' court. 72. Acts 30th Leg., creating a board to calculate state taxes. LICENSE AND OCCUPATION TAX. Sec. 689. One-half state tax. 690. Tax shall be equal and uniform. 691. Levy for 1900. 692. Cities of 1900 inhabitants or over incorporated under general law shall have power to levy and collect occupation tax. 693. Occupations that are subject to taxation. 694. Occupation tax — liabilities. 695. Power of city council to provide for assessing, taxes, etc. 696. Collection of license tax, etc. 697. Act of 30th Legislature providing for the levy of occupation taxes on certain occupations. 698. Repealing taxes on certain occupations. 699. Act 30th Legislature providing occupation tax on dealers in malt liquors in local option districts. 700. Act 30th Legislature in regard to license and regulating sale of intoxicating liquors. 701. Relating to the payment of certain occupation taxes for remain- der of 1907. 702. Occupation tax upon persons engaged in the business of deal- ing in unearned wages of another. 703. Tax on dealers in non-intoxicating malt liquors. 704. Occupation tax on soliciting orders in local option districts. 705. Refunding unearned liquor dealer's license. 706. Cannon crackers or toy pistols. 707. Levy — Sufficiency. 708. Must show levy of tax. 712 Taxation in Texas. Sec. 709. Not liable, when. 710. Occupation not property. 711. Courts can not interfere, when. 712. Billiard table must be kept for profit. 713. Temporary closing does- not forfeit because, when. 714. Occupation and privileges. 715. Telegraph company — Interstate commerce. 716. State must first fix the tax before city can tax. 717. Photograph gallery. 718. Lightning rod agents — Interstate commerce. 719. Foreign corporation — Interstate commerce. 720. Commercial travelers. 721. Keeping pool-table without license. 722. Fine for violating license law. 723. Liquor property of firm no defense. 724. Vendor of medicine. 725. Barber. 726. Oil producers. 727. Indictment not bad for duplicity. 728. Letting wagon for hire. 729. Interstate commerce. 730. City ordinance — ^Vehicle not taxed by state, void. 731. Social club. 732. Real estate agent can collect commission, when. 733. Wild west shows. 734. Local option — Sale of liquors. 735. Banks — Uniformity of taxation. 736. Occupation — Flying-jenney. 737. Sufficiency of information. LIMITATION. Sec. 902. State law. 903. State and county taxes not barred since 1876. 904. City of Houston. 906. A retroactive law of limitation. 906. State and county taxes not barred. 907. Four-years limitation of action. 908. Limitation against action for taxes — Applies to municipal cor- poration and purchaser. 909. Suit to recover land sold for taxes. 910. Repeal of act not a bar to limitation. 911. Constitutional law, releasing debt to city. 912. Constitutionality of revocation law of limitation. 913. Installments on bonds barred in four years. Index. 713 Sec. 914. Reasonable time allowed after passage of limitation act in which to file suit. 915. Time act repeal not to be computed. 916. Mere lapse of time no defense. * 917. Limitation of action for money paid under protest. LOCAL IMPROVEMENTS BY ASSESSMENT. Sec. 1067. Act of 31st Legislature authorizing cities and towns to con- struct street improvements. 1068. Taxes for local improvements. 1069. Constitutional provisions as to taxation. 1070. Power of cities incorporated under general law to have streets graded, etc. 1071. Estimate of cost of improvement shall be made. 1072. Property levied on and sold for taxes for improvements, when and how, etc. 1073. Suit against owner of property for improvement tax, when, etc. 1074. Constitutional. 1075. Valid street improvement assessments. 1076. According to benefits derived. 1077. Improvement districts. 1078. Local improvements. « 1079. Refunding paving certificates. 1080. Improvements of sidewalks under police power. 1081. Street railroads. 1082. Contractor to look to property owner — ^Void assessment. NAVIGATION DISTRICTS. Sec. 932. Act of the 31st Legislature providing for navigation district and prescribing mode and manner of collecting taxes in same. PARTIES. Sec. 293. Parties. 294. Present owner of land proper party. 295. City of Houston. 296. Suit in name of city. 297. Bondholders necessary parties. 298. Heirs not necessary parties, when. 299. Husband necessary party. 300. County taxes delinquent collectible by state. 301. Unknown owners are not unknown where title is of record and residence shown. 714 Taxation in Texas. Sec. 302. Lien holders. 303. Cases in point only when party is in possession. 304. All persons claiming interest. 305. Action against state oflScer not against state. 306. State necessary party in action to restrain collection of taxes. 307. State officer's right to sue. 308. One in possession must be party. 309. Estate as defendant. 310. State and county not necessary parties, when. 311. Sale before death. 312. Community or separate property. PAYMENT. Sec. 524. Taxes payable in money or scrip. 525. Payment — How proved. 526. Where made. 527. Penalty of failure to pay taxes. 528. Taxes, etc., of cities less than 10,000 inhabitants collectible in current money only. 529. Action will not lie against tax collector, when. 530. What constitutes involuntary payment. 531. Not compulsory payment. 532. Payment — ^How made. 533. Payment in coupons must be before suit. 534. Receipts evidence to show payment. 535. Receipt no positive evidence of payment. 536. Right to rebut receipt and show that taxes were not paid. 537. Scrip not receivable. 538. Certificate of tax collector not sufficient evidence of payment of taxes. 539. Payment in warrant. 540. May compromise by deed. 541. In money, not in services. 542. Reduction of tax after payment. 543. Tender of part. 544. Must show payment of taxes before validity of taxes can be questioned. 545. Presumption of payment by one rendering. 546. Payment before taxes are due not binding on state. 547. Credit to tax collector not payment. PERSONAL PROPERTY. Sec. 646. Personal estate includes what. 647. Credits and securities — ^National bank stock — ^Non-residents. Index. 715 Sec. 648. Bonds and securities. 649. Duty of assessor and collector of cities and towns to make lists of personal property. 650. Separate value of each piece not required in assessment. 651. Assessment, description of property. 652. Cattle taxed in county where situated. 653. Non-residence of owner. 654. Sale of personal property. 655. Assessment of taxes of telegraph company. 656. Corn and cotton — Division of tax.\ 657. Cattle ranging in two counties. 658. Taxes on indebtedness of non-resident. 659. Fish— Acts 29th Leg., p. 128. 660. Vessels — Taxable where owner resides. 661. Vendor's lien notes owned by non-residents but within state. PLEADINGS. Sec. 317. Must be verified. 318. Sufficiency of verification of petition. 319. Verification of answer. 320. Answer not verified must be specially excepted. 321. Several defendants. 322. Exhibits. 323. Lien. 324. Against owner. 325. City of Galveston. 326. Purpose of tax. 327. Not necessary to plead details. 328. City ordinances must be plead before they can be introduced in evidence. 329. Duly assessed sufficient. 330. Description of real estate. 331. Answer of defendant. 332. Petition must allege ownership in assessment against unknown owner. 333. Allegations sufficient to arrive bulk assessment — Presumption of legality. 334. Amended petition must be verified. 335. Cross-bill asking relief — Invoice tax sale — Direct attack. 336. Fraud in assessment. 337. Allegations — What is necessary. 338. Pleading of ordinance sufficient. 339. Must state property within territory taxed. 340. Description of land. 716 * Taxation in Texas. Sec. 341. Answer must deny specifically. 342. Petition need not allege existence of debt, when. 343. Need not plead city charter when a public act. 344. Allegation that property was duly assessed sufficient. 345. Petition not demurrable, when. 346. Averment assessed for taxes sufficient. 347. Must state year. 348. Allegations of petition — Land in another county. 349. Allegation to enjoin irregular assessments. 350. School tax. 351. To enjoin illegal excess must allege what. 352. Not defective not to allege collector's failure to collect. 353. Must state purpose and amount of tax. POLL TAX— JURORS— QUALIFICATION OF VOTERS. Sec. 1083. Who are qualified voters. 1084. Who are qualified to vote in city, town, etc., election. 1085. Collection of poll tax. 1086. What poll tax receipt must show — Candidate can not pay taxes for another. 1087. Persons exempt from payment of poll tax to obtain certificate of exemption — Form of. 1088. Persons not 21 years old to get certificate of exemption. 1089. When one swears falsely, duty of collector. 1090. Removing from one precinct to another county. 1091. Removing to another county. 1092. Collector to require proof of residence and of statement, when. 1093. Tax collector's fees. 1094. Tax collector giving receipt to fictitious persons. 1095. Tax collector giving receipt to wrong person. 1096. Failing to return tax receipt to owner. 1097. Selling poll tax receipt. 1098. Exemption. 1099. Delinquent may be compelled to work road. 1100. Manner of payment as to qualification to vote. 1101. Loaning money to pay poll tax. 1102. Equality and uniformity. 1103. Uniformity — Road law. 1104. Statutory provisions — Poll tax. 1105. Levy to pay jurors. 1106. Qualification of juror. 1107. County poll tax. 1108. City poll tax of cities of 10,000 inhabitants or over. 1109. Must pay to qualify as juror, if challenged. 1110. Must challenge as to disqualification. Index. 717 Sec. 1111. Qualification, poll tax. 1112. Court may dispense with requirement of payment of poll tax, when. 1113. Who are disqualified in general. 1114. Notice of election. 1115. Evidence as to who are taxpayers. 1116. Not necessary that taxpayer's name appear on roll. 1117. Must be taxpayer in school district. PURCHASER AT TAX SALE. Sec. 492. Void sale — Conditions of relief. , 493. Sale for taxes — Notice. 494. Burden of proof different where party is in court. 495. Possession pending redemption. 496. Purchased by owner. 497. Equitable lien for taxes paid. 498. Not entitled to refund under void judgment. 499. Not innocent purchaser when. 500. Acquired no title against one in possession not a party to suit. 5Q1. Legality of partnership to purchase at tax sale. 502. Right to question title without payment of taxes. PURCHASER IN GOOD FAITH. Sec. 503. Right to have amount paid refunded. 504. Purchaser in good faith. 505. Purchaser of property with taxes due. RAILROADS. Sec. 678. Assessment by railroads. 679. Railroads to return sworn statements, when, etc. 680. Property shall be assessed. 681. Mode of assessment. 682. Municipal taxes. 683. Gross receipts. 684. Exemption I. & G. N. R. R. Co. ' 685. Exemptions of property — Pleadings. 686. Assessment as to bridges as roadbed. 687. Improper rendition — Double assessment. 688. Evidence of payment. 718 Taxation in Texas. RE-ASSESSMENT OF PROPERTY FOR TAXES, WHICH HAS NOT BEEN ASSESSED, OR WHICH HAS BEEN IM- PROPERLY ASSESSED. Sec. 126. State and county taxes. \ 127. Assessment of real property for previous years. 128. Back taxes on unrendered lands. 129. Comptroller to prepare list each year. 130. Comptroller to forward list. 131. The boards to value such lands. 132. Three rolls to be made. 133. Assessment of back taxes due cities and towns. 134. Re-assessment. 135. Act of 1897 did not validate assessment for back years. REDEMPTION. Sec. 580. Redemption under summary sale. 581. Land sold to state. 582. Land sold for city or town taxes. 583. An act to permit the owners of land or lots sold to the state or to any city or town for taxes to redeem the same. 584. Who may redeem. 585. Land sold to state, or city — Act 30th Leg. 586. Land sold to state or to any city or town. 587. Sec. 13, Art. 8, of Const, refers to summary sales. 588. Right to hold possession until period of redemption has expired. 589. No right to redeem under city charter containing no redemption provision. 590. Judgment — ^Writ of possession. 591. Property sold for taxes prior to 1895. 592. Persons entitled to redeem. 593. Under charter city of Houston. 594. Right to refuse redemption of part of tract. 595. Owner may redeem by paying to the purchaser, even if he had sold to another. 596. Title remains until time of redemption. 597. Right to redeem for taxes before law of redemption. 598. Tender may be made through agents. 599. Effect of tender. 600. Collector entitled to what fees. 601. Property of infant, feme covert or lunatic. 602. Judgment does not affect right to redeem. 603. After two years title perfect. 604. Right of redemption before sale. 605. Redemption after sale. Index. " 719 REMEDIES OF TAXPAYER. Sec, 557. Can not mandamus comptroller, when. 558. Injunction will not issue when. 559. May enjoin, when. 560. Must pay amount before injunction will issue. 561. May inquire into validity of taxes after sale of land. 562. Payment — When necessary. 563. Lapse of time. 564. Want of levy. 565. Extension of new limits. 566. Valuation of property. 567. Relief granted where other property is assessed with owners. 568. Burden of proof. 569. Irregularities of a tax-roll. 570. Tax collector's deed a cloud on title. 571. Must pay tax due, when. 572. Can not enjoin issue of bonds, when. 573. Taxes on void bonds, 574. Right of taxpayer to raise objections to legality of tax levy and bond issuance. 575. Certain defenses can not be raised in suit for taxes. 576. Not estopped by silence. 577. Taxpayer has interest to enjoin. 578. Relief from void sale. 579. Payment of taxes not a condition precedent to defense. RETROSPECTIVE AND EX-POST FACTO LAWS. Sec. 852. Omitted property. 853. Levy. 854. Mode of procedure. 855. EMdence. 856. Can not prescribe retroactive penalty. 857. Remedy pending litigation, RIGHT TO RECOVER TAXES PAID. Sec. 548. Not authorized may be recovered. 549. Taxes assessed without authority of law are void and may be recovered back. 550. . Illegal tax — Payment under protest. 551. Taxes paid to prevent sale are compulsory and can be recov- ered, 552. When taxes paid can be recovet'ed. 553. Right to recover taxes paid. 720 Taxation in Texas. Sec. 554. Voluntary and involuntary payments. 555. Action to recover taxes. 556. Right to recover tax paid at void sale, SALE OF PROPERTY UNDER DECREE OF FORECLOSURE. Sec. 447. Sale of property for taxes under decree of foreclosure. 448. Notice of place of sale must be stated. (a) Inadequacy of price. 449. Will not set aside for inadequacy where right to redeem exists. 450. In gross. 451. Taxation — Sale for delinquent taxes — ^Bona fide purchaser. 452. What is necessary to pass title. 453. Against unknown heirs and unknown owners. 454. Citation by publication. 455. Effect of reversal of judgment. 456. Order of sale must be shown. 457. Homestead — Sale of part of land — Costs — Misappropriation — Irregularity and inadequacy of price. 458. Collateral attack, when. 459. Failure to notify owner or attorney not error, when. 460. Notice to defendant necessary under Art. 2366, R. S. 1895. 461. Notice only necessary to be mailed. 462. Bona fide purchaser — ^Want of service — Costs. 463. Sale other than summary constitutional. 464. State's right to waiver of title and to sue for taxes. 465. Sale to state does not defeat tax lien. 466. Possession by purchaser. 467. Tax sale unorganized counties. SCHOOLS AND SCHOOL DISTRICTS. Sec. 819. Act of April 5th, 1907, fixing rate for free school purposes. 820. Local taxation for school purposes. 821. Levy for maintenance — Increase of levy — Lien. 822. Power to levy tax. 823. Levy once exercised is exhausted for years. 824. Levy of taxes vested in local boards. 825. Failure to designate levy by school districts only an irregularity. 826. Action on part of city required. 827. Qualification of voter. 828. Bondholders necessary parties, when. 829. Irregularities will not restrain the collection of tax. 830. Sufficiency of notice to impose tax. iNDEk. 721 Sec. 831. Separate roll not necessary. 832. Can not establish lien, when. 833. Defense — Not available. 834. Limitations on rate. 835. Incorporated city or town — Limitation of tax. 836. Excessive levy curative act. 837. School tax — City council must levy. SERVICE. Sec. 354. Service — How made. 355. Notice to non-residents — Unknown owners and other proceed- ings in suits for taxes. 356. Insufficient service — Judgment void. 357. What citation by publication should contain. 358. Personal judgment. 359. Jurisdiction of non-resident. 360. Citation by publication strictly construed. 361. Sufficiency of notice and publication against unknown owners. 362. Citation in tax cases different. 363. Date of filing. 364. Act of 1897 repealed all other laws. 365. Where one is in possession and title of record. 366. Appointment of attorney and statement of facts. 367. Proof of publication. 368. Void service against unknown owner. 369. Must describe land. 370. May be addressed directly to defendants. 371. Citation against unknown owners governed by the special stat- utes. 372. Proper affidavit must be filed or judgment is invalid. 373. May be collaterally attacked, when. 374. When good against unknown owners. 375. Liability of county to pay for citation by publication SHERIFF. Sec. 1042. Sheriff tax collector. 1043. Sheriff entitled to fee for selling and making deed, etc. 1044. Fees on notices. 1045. Commission on sales. 1046. Right of sheriff to withhold his costs from proceeds of tax sales. 46 722 Taxation in Texas. SUIT TO FORECLOSE TAX LIENS. Sec. 287. Suits to foreclose liens for state and county taxes. 288. The particular property must have been sold or reported delin- quent before suit for tax on same will lie. 289. Right to sue for taxes. 290. Consolidation for suits. 291. Delinquent record. 292. Action in rem. ' SUMMARY SALE OF PROPERTY FOR TAXES DUE. Sec. 257. Difference between sale of property under summary sale and sale under a regular judgment of foreclosure. 258. Constitutional provision. 259. Forced collection to begin, when. 260. Personal property may be pointed out. 261. Tax lien superior to assignment — Attachment — Inheritance or devise except when. 262. All property liable for taxes. 263. Sales of personal property — How made. 264. If the property levied upon be insufficient. 265. Sale of real estate when personal property is insufficient. 266. Notice of the sale of real estate for taxes — How made. 267. List to be posted. 268. Sale of real estate may be continued from day to day. 269. Sales of land — How made. 270. The tax deed and its requisites. 271. Sales to be reporte'd to the commissioners' court. 272. Redemption of land sold for taxes. 273. Redemption from private purchasers. 274. Receipt of collector's notice, when. 275. Relief, when. 276. Certificate of redemption from collector. 277. Lands to be bid in for state, when. 278. May redeem, how. 279. If not redeemed. 280. May redeem in what manner. 281. Commissioners' board to sit as a board of inquiry, when. 282. Sale for taxes due towns and cities. 283. Sheriff to execute deeds. 284. What must be proven. . 285. Summary sale not nullified. 286. Summary sale prohibited by Constitution of 1869. Index. 723 TAX COLLECTOR. Sec. 965. Collector to keep books. 966. Tax collector to be furnished books, etc. 967. Unlisted property — Supplemental roll. 968. Election and term of collector. 969. Vacancies, how filled. 970. Sheriff as collector, when. 971. Bonds and oaths of collector, 972. Liability of tax collector and evidence against. 973. New bond. 974. Bond for county taxes. 975. All bonds to be first approved. 976. May appoint deputies. 977. Rolls to be warrant. 978. Collector for all taxes. 979. Collections — When to begin. 980. Shall keep office at county seat. 981. Tax receipt and its requisites. 982. Quarterly reports — Requisites of — Duties of collector. 983. Make report to commissioners' court. 984. List of delinquents and insolvents to be made out. 985. Collector to endeavor to collect delinquent taxes. 986. Non-residents. 987. Forced collections to begin, when. 988. Collector to file complaint, when, 989. Compensation. 990. For occupation tax. 991. Fees to be retained. 992. Fees less than maximum — Statements of fees collected — Excess to be paid into county treasury. 993. Deputies and assistants, appointment and compensation. 994. Collection of delinquent fees — Fees not to be remitted. 995. Penalty for failure to charge up fees, or for remission of fees, 996. Payment for ex-officio services. 997. Officers to keep a correct statement — Accounts to be examined by the grand jury. 998. Certain officers not required to make a report, keep a statement. 999. Statement by tax collector and assessor. 1000. Fiscal year — At what times reports must be made and by whom. 1001. Compensation for one levy only. 1002. Payments of moneys, 1003. Notification to pay, etc. 1004. The collector to prepare delinquent tax record. 1005. Collector's fees under delinquent tax acts. 1006. Duty of the tax collector to collect and prepare lists each year under the delinquent tax act. 724 Taxation in Texas. Sec. 1007. Must account for taxes collected whether valid or not. 1008. Application of payment. 1009. Duty of tax collector when delinquent has no property in county out of which taxes can be collected. 1010. Receipts to creditors. 1011. City bonds. 1012. Rolls must be delivered. 1013. Parties to suit on bond. 1014. Evidence in suit on bond. 1015. Suit against defaulting — Pleadings — Interest. 1016. Collection by authorized party is collection by county, 1017. Suspension. 1018. Additional bond. 1019. Removal from office, 1020. Cities — ^Action on bond — Proof necessary. 1021. Successor of sheriff. ' 1022. No release of sureties, when. 1023. Practice in suit against what must be shown. 1024. Sureties not released until new bond approved. 1025. Suit on bond — Letter from comptroller admissible. 1026. No liability as to county or sureties on bond on taxes collected without authority. 1027. Suit on delinquent sheriff bond. 1028. Can not question validity of act to avoid payment of moneys collected, (a) Not entitled to fees from state when land is bid in by state unless redeemed by owner. 1029. Liability of surety not limited when. 1030. Interest on amount in default. 1031. Suit against to recover tax on illegal valuation. 1032. Collection on municipal bonds. 1033. Entitled to one dollar for each correct assessment, 1034. Rights of surety. 1035. Limitation as to collecting. 1036. Not liable to county under bond to state. 1037. Can not deny officer's election. 1038. A trespasser when. 1039. Right to emoluments. 1040. Authority to tax collector. 1041. Tax collector alone can collect. TAX DEED. Sec. 474. Assessor and collector shall make deed to purchaser to property sold for taxes — ^Effect of deed — Right of redemption, etc. 475. Collector's deed. Index. ^ 725 Sec. 476. No evidence of title. 477. Prima facie evidence of what. 478. Description of property. 479. Sufficiency of description. 480. Description in deed. 481. Deed of summary sale of lots in gross void, when. 482. Description void, when. 483. Invalid. 484. Land not described. 485. All prerequisites must be proved. 486. Deed of tax collector strictly construed — Reasons for so doing. 487. Validity of tax deed — Burden of proof. 488. Uncertainty in receipts in deed. 489. Levy must be shown to substantiate deed. 490. Acknowledgment. 491. Effect of the deed made by the city assessor and collector to property sold for taxes. TAX FOR CAUSEWAYS. Sec. 931. Tax for causeways. TAX LIEN. Sec. 515. Delinquent taxes lien on land. 516. Tax lien superior to assignment, attachment, inheritance or devise, except. 517. Foreclosure and sale for past releases all. 518. Purchaser under tax judgment. 519. Lien only on separate tracts. 520. Foreclosure of tax lien. 521. Priority of tax lien. 522. When lien attaches. 523. Tax lien — Public use. TAX SALE. Sec. 468. Illegal tax sale res adjudicata — Interest. 469. Law of 1866 requirements as to sale. 470. Condemnation of land for taxes under Act June 2d, 1873, must first show that there is no personal property. 471. Omission in list of number of certificate — Sale void. 472. Indefinite description of land in assessment conveys no title. 473. Tax sale — Condition precedent — ^Burden of proof. 726 Taxation in Texas. TAX UPON GROSS RECEIPTS. Sec. 918. Act providing for levying and collecting taxes upon the gross receipts of certain individuals, firms and corporations. 919. Gross receipts tax bill. 920. Injunction will not lie to restrain officers. 921. Not applicable where road is incorporated under Act ot Con- gress. 922. Taxes on corporate privileges. 923. Oil companies. 924. Interstate commerce does not apply. UNORGANIZED COUNTIES. Sec. 947. Property in unorganized counties. 948. Lands of non-residents in unorganized counties. 949. Lands in unorganized counties. 950. Duties of comptroller in relation thereto. 951. May appeal from comptroller's assessment. 952. May levy upon and sell, when. 953. Sale. 954. Redemption. 955. Tax deed. 956. List of purchasers to be kept in office. 957. Deed shall vest good title, when. 958. County taxes to be paid, when. 959. Comptroller to keep taxes of unorganized counties, etc. 960. Same subject. 961. Special deposit to be made by comptroller. 962. Taxes upon land^ of non-residents in unorganized counties. 963. Personal property, where taxable. 964. Newly organized county. , VENDOR AND VENDEE. Sec. 510. Purchaser under warranty deed. 511. Sale after January 1st. 512. Assumption of taxes by vendee. 513. Implied warranty against tax lien. 514. Cattle, sale of. TABLE OF CASES. Abney v. State (47 S. W. 1043) (20 T. C. A. 101) 53, 500 Acklin V. Paschal (48 Tex. 147) 311 Adams v. Shelbyville (57 N. E. 118) (49 L. R. A. 802) (47 Am. St. 484) 678 Adair v. Robinson (25 S. W. 734) (6 T. C. A. 275) 372 Albany Brewing Co. v. Meriden .(48 Conn. 243) 131 Alexander v. Helber, 35 Mo. 334 ) 59 Allbright v. The Governor of Texas (25 Tex. 687) 86, 650 Allen V. Courtney (58 S. W. 200) '(24 Tex. C. A. 86) 247, 283 Allen V. Smith (25 Ark. 495) 237 Allen V. Woodson (60 Tex. 651) ' 305 Allen V. Wyser (29 Tex. 151) 230 Almey v. Hunt (48 111. 45) 300 Altgelt V. City of San Antonio (81 Tex. 436) (17 S. W. 75) . . . .225, 347- Alvord Nat. Bank v. Ferguson (126 S. W. 622) 354 Amato V. Dreyfus (34 S. W. 450) 425 Ammons v. Dwyer (15 S. W. 1049) 283 Andrews v. Richardson (21 Tex. 297) 294 Aquilla State Bank v. Knight (126 S. W. 893) 214 Arnold v. Supervisors (43 Wis. 627) 247 Atcheson v. Hutchison (51 Tex. 223) 265 Atchison v. City of Owensboro (71 S. W. 864) (44 T. C. A. 441) . . 664 Auditor-General v. Supervisors (36 Mich. 70) 482 Audrey v. City of Dallas (35 S. W. 726) (13 T. C. A. 442) 58 Aulanier v. The Governor (1 Tex. 665) 47, 420 Austin V. Gas Company (69 Tex. 180) (7 S. W. 200) 339, 391 Ayer & Lord Tie Company v. Kentucky (50 L. ed. 1082) (26 Sup. Ct. 679) (202 U. S. 410) 364 Babcock v. Wolfarth (80 S. W. 642) (35 T. C. A. 512) 229, 232, 234, 238, 253 Bacon v. Hooker (83 A. St. R. 279) (58 N. E. 1078) (117 Mass. 335) 358 Bailey v. Aransas County (102 S. W. 1159) (46 T. C. A. 547) 122, 123, 124 Bailey v. White (13 Tex. 114) 294 Baker v. Panola County (30 Tex. 86) 60, 314, 315 Baldwin v. Travis County (88 S. W. 480) (40 T. C. A. 149) 238 Ball v. Carroll (92 S. W. 1024) (42 T. C. A. 323) 211, 251, 267 728 Taxation in Texas. Bank v. Fenno (8 Wall. 533) 46 Bank V. Terrell (78 Tex. 450) (14 S. W. 1003) 430 Bank v. United States (19 Wall. 227) 204 Barbee v. City of Dallas (64 S. W. 1018) (26 T. C. A. 571) 346 Bardsley v. Hines (33 Iowa 157) 237 Barnes v. State (72 S. W. 177) (44 T. C. A. 473) 249 Barrera v. Guerra (122 S. W. 902) 494 Barrett v. Spence (67 S. W. 921) (28 T. C. A. 244) 248 Bassett v. City of El Paso (88 Tex. 168) (28 S. W. 554).. 63, 433, 452 Bassett v. City of El Paso (30 S. W. 893) 63', 433, 452 Baugus V. City of Atlanta (74 Tex. 629) (12 S. W. 750) 673 Beals V. Hale (4 How. 37) 483 Bean v. City of Brownwood (T. C. A.) (43 S. W. 1036) (91 Tex. 684) 260, 269, 270, 289, 352, 353 Bean v. City of Browndood (45 S. W. 897) 260, 269, 270, 289, 352, 353 Beard v. City of Decatur (64 Tex. 11) 665 Beatty v. O'Harrow (109 S. W. 414) 495 Beckett v. Cuenin (Colo.) (25 Pac. 167) (22 Am. St. 399) 237 Belden v. The State (46 Tex. 103) 276 Bennison v. City of Galveston (78 S. W. 1089) (34 T. C. A. 382) 212, 483 Bente v. Sullivan (115 S. W. 350) 333, 354, 485 Berrendo Stock Company v. Kaiser (66 Tex. 352) 493 Berry v. City of San Antonio (92 Tex. 319) (46 S. W. 273) 219, 222, 245, 262, 324, 352, 353 Biddle v. City of Terrell (82 Tex. 335) (18 S. W. 691) 63 Bigham v. Clubb (95 S. W. 675) (42 T. C. A. 312) 689 Bingham et al. v. Matthews (86 S. W. 781) (39 T. C. A. 41) 207, 209, 210, 234, 260 Bingham et al. v. Matthews (12 T. C. A. 772) 207, 209, 210, 234, 260 Bird V. Perkins (33 Mich. 28) 451 Blackstone v. Miller (188 U. S. 206) 358 Blair v. Guaranty Savings, Loan & Investment Co. (118 S. W. 608) 210, 332 Bland v. Orr (90 Tex. 492) (39 S. W. 558) 238 Blanton v. Nunley (119 S. W. 881) 210, 332 Blessings v. City of Galveston (42 Tex. 642) 320 Bluitt V. State (121 S. W. 168) 691 Board v. Texas & Pacific R. W. Co. et al. (46 Tex. 317) 207 Boardman v. Beckwith (18 Iowa 292) 480 Boesch V. Byrom (83 S. W. 18) (37 T. C. A. 35) 472 Bollinger v. Chouteau (20 Mo. 89) 209 Bolton V. City of San Antonio (21 S. W. 64) 323, 439 Bond V. Garrison (127 S. W. 839) 488 Bond V. Poindexter (116 S. W. 395) 653 Boon V. Chamberlain (82 Tex. 480) (18 S. W. 655) 503, 504 Table of Cases. 729 Borciages v. Higgins (20 S. W. 184, 726) (1 T. C. A. 43) 204, 265, 451, 674, 675 Bordages v. Higgins (19 S. W. 448) 204, 265, 451, 674, 675 Borden et al. v. City of Houston (62 S. W, 427) (26 T. C. A. 29) 217, 218, 230, 257 Borden v. Houston (2 Tex. 594, 611, 613) 311, 478 Bowden v. Patterson (111 S. W. 182) 235 Boyd V. Miller (54 S. W. 411) (22 T. C. A. 165) 245 Boydston v. Rockwall (86 Tex. 234) 238 Brady v. Brooks (99 Tex. 366) (89 S. W. 1052) 663 Brand v. City of San Antonio (37 S. W. 340) 664, 665 Branham v. Water Co. (67 Tex. 554) 44£| Brennan v. Bradshaw (53 Tex. 330) 322, 451 Brewing Co. v. Hirsch (78 Tex. 192) 230 Bright V. Hewes (18 La. Ann. 666) 664 Bristol V. Washington County (177 U. S. 144) 45 Broiles v. State (68 S. W. 685) (44 T. C. A. 78) 419 Brokel v. McKechnie (69 Tex. 33) (6 S. W. 623) 223 Brooks V. State (58 S. W. 1032) 312, 387, 476 Brown v. City of Galveston (97 Tex. 1) (75 S. W. 488)..., 420 Brown v. City of Galveston (Tex. Sup.) (75 S. W. 495) 679 Brown v. O'Brien (33 S. W. 267) (11 T. C. A. 459) 490 Brummer v. City of Galveston (97 Tex. 93) (76 S. W. 429) 203 Bryan v. Harvey (11 Tex. 312) 485, 649 Bryan v. Page (51 Tex. 532) 238 B.ryan v. S^undberg (5 Tex. 423) 60, 311 Brymer v. Taylor (23 S. W. 635) (5 T. C. A. 103) '. 51 Bryson & Hartgrove v. Boyce (92 S. W. 820) (41 T. C. A. 415) 495 Buck V. Miller (22 Amer. Eng. Ency. of Law 747) (62 Am. St. 436) (37 L. R. A. 388) (45 N. E. 647) 357 Bullitt V. Coryell (85 S. W. 482) (38 T. C. A. 42) 301 Bummel v. Mayor of Houston (68 Tex. 10) (2 S. W. 740) . .261, 309, 431 Burbank v. People (90 111. 554) 242 Burnett v. Henderson (21 Tex. 590) 478 Burns v. Ledbetter (54 Tex. 383) 296, 334 Burton Lumber Co. v. City of Houston (101 S. W. 822) (45 T. C. A. 363) 250 Butler V. Saginaw County (20 Mich. 22) 480 Byrnes v. Sampson (74 Tex. 79) (11 S. W. 1073) 230, 235 Cage V. Nevill (3 W. Civ. 274) 318 Calder v. Ramsey (66 Tex. 218) 284 Campbell v. Riviere (22 S. W. 993) 382 Campbell v. Wiggins (2 T. C. A. 1) (20 S. W. 730) 97, 371, 382 Carr v. Miller (123 S. W. 1158) 254, 494, 665 Carswell v. Habberzettle (86 S. W. 738) (39 T. C. A. 493) 300 Carswell v. Habberzettle (87 S. W. 911) 300 Carter v. New Orleans (33 La. An. 816) 131 730 Taxation in Texas. Carter v. State (76 S. W. 437) (45 Tex. Crim. A. 430) 693 Cass County v. Wilbarger County (60 S. W. 988) (25 T. C. A. 52) . . 456 Cassiano v. Ursuline Academy (64 Tex. 673) 193, 280, 323, 343 Cattle Co. V. Faught (69 Tex. 402) (5 S. W. 494) 94 Cave V. City of Houston (65 Tex. 619) 203, 204, 258, 303, 431, 458, 477, 478, 481 City of Austin v. Gas Light & Coal Co. (7 S. W. 200) (69 Tex. 180) 347 City of Austin vs. Nalle (120 S. W. 996) 43, 675 • City of Austin v. Nalle (85 Tex. 520) (22 S. W. 668, 960) 439 City of Austin v. Ritz (72 Tex. 391) (9 S. W. 884) ' 673 City of Austin v. Walter (68 Tex. 507) 219 City of Brownwood v. Noel (43 S. W. 890) / 453 City of Corpus Christi v. Woessner (58 Tex. 462) 63 City of Corsicana v. Kerr (35 S. W. 794) 674 City Council of Crockett v. Board of Trustees (98 S. W. 889) (44 T. C. A. 428) 475 City of Dallas v. Emerson (36 S. W. 304) 682 City of Dallas v. Kruegel (64 S. W. 922) (95 Tex. 43) 505 City of Dallas v. Schultz (27 S. W. 292) 673 City of Dallas v. Western Electric Co. (83 Tex. 243) 241 City of Dallas v. Young (28 S. W. 1036) 242 City of Denison v. Foster (90 Tex. 22) (36 S. W. 401) 66, 664 City of Denison v. Foster (28 S. W. 1052) -. . .66, 664 City of El Paso v. Ashford (3 Tex. 378) (22 S. W. 177) 664 City of Fort Worth v. Boulware (62 S. W. 928) (26 T. C. A. 76) . . 304 City of Galveston v. J. M. Guffey Petroleum Oil Co. (113 S. W. 587) 364 City of Galveston v. Loonie (54 Tex. 525) 449 City of Galveston v. Posnainsky (65 Tex. 118) 673 City of Galveston v. iSydnor (39 Tex. 236) 316 City of Georgetown v. Jones (73 S. W. 22) (31 T. C. A. 623) 311 City of Henrietta v. ESustis (87 Tex. 14) (26 S. W. 619) 78, 203, 204, 213, 261, 262, 292, 456 City of Houston v. Bartlett (29 T. C. A. 27) (68 S. W. 730) 303 City of Houston v. Dooley (89 S. W. 777) (40 T. C. A. 371) 454 City of Houston v. Feeser (76 Tex. 365) 314 City of Houston v. Stewart (90 S. W. 53) (40 T. C. A. 499) (99 Tex. 67) 133, 172, 243, 244, 308, 309, 430, 499, 664, 681 City of Houston v. Stewart (87 S. W. 665) 133, 172, 243, 244, 308, 309, 430, 499, 664, 681 City of Houston v. Walsh (27 T. C. A. 121) (66 S. W. 106 252, 276 City of Laredo v. Lowry (20 S. W. 89) (4 'App. C. C, Sec. 320) 306, 389, 421 City of Louisville v. Anderson (79 Ky. 334) 314, 315 City of Louisville v. Johnson (24 S. W. 875) 242 City of Marlin v. Green (78 S. W. 705) (34 T. C. A. 421) 273, 352 Table of Cases. 731 City of Marshall v. Snediker (25 Tex. 471) 315 City of Marshall v. State Bank (127 S. W. 1083) 373 City of Newport v. Ringo (10 S. W. 2) .314, 315, 316 City of Paris v. Brenneman (126 S. W. 58) 677 City of Rockland v. Aimer (24 Atl. 949) 48 City of San Antonio v. Berry (48 S. W. 496) (92 Tex. 319) 64, 222, 247, 262, 330, 353, 454 City of San Antonio v. Campbell (56 S. W. 130) 656 City of San Antonio v. Hoefling (39 S. W. 918) (90 Tex. 511) 175, 178, 183 City of San Antonio v. Raley (32 S. W. 180) . .64, 88, 131, 153, 480, 665 City of San Antonio v. Routledge (102 S. W. 756) (46 T. C. A. 196) 261 City of San Antonio v. Schneider (37 -S. W. 767) 437, 457 City of San Antonio v. Seeley (57 S. W. 688) 343, 344 City of Sherman v. Langham (40 S. W. 140) (92 Tex. 13) 453 City of Sherman v. Smith (35 S. W. 294) 12 T. C. A. 580) 64 City of Sherman v. Williams (19 S. W. 606) (84 Tex. 421) 432 City of Terrell v. Dissaint (71 Tex. 770) (9 S. W. 593) 63, 430, 431 City of Texarkana v. Talbot (26 S. W. 451) (7 T. C. A. 202) 673 City of Tyler v. Coker (124 S. W. 729) 378 City of Tyler v. Tyler Building and Loan Ass'n (86 S. W. 750) .. . 309, 323, 324 City of Tyler v. Tyler Building & Loan Ass'n (98 Tex. 69) (81 S. W. 2) 309, 323, 324 City of Tyler v. Tyler Building & Loan Ass'n (82 S. W. 1066) (11 Tex. 48) 309, 323, 324 City of Waxahachie v. Conner (35 S. W. 692) 673 City of Waco v. Prather (37 S. W. 312) 673 City of Ysleta v. Lowenstein (35 S. W. 444) 649 Chisholm v. Adams (10 S. W. 336) (11 Tex. 678) 94, 173, 183, 225 Claiborne v. Elkins (79 Tex. 380, 280) (15 S. W. 395) 283, 488 Clampitt V. Johnson (42 S. W. 866) (17 T. C. A. 281) 359 Clark V. Elmendorf (78 S. W. 538) 50 Clarke v. Thompson (47 111. 25) (95 Am. Dec. 475) 255 Clawson Lumber Co. v. Jones (49 S. W. 909) (20 T. C. A. 208) 180 Clayton v. Rhem (67 Tex. 52) 284 Clegg V. Galveston Co. (1 S. W. Civ. 62) (1 App. C, Sec. 60) 49, 242, 250 Clegg V. State (42 Tex. 608, 609) 43, 53, 79, 81, 117, 127, 129, 132, 133, 219, 242, 257, 303, 482 Cockrell v. State (55 S. W. 579) (24 T. C. A. 568) 221 Coe V. Errol (116 U. S. 517) 45 Collins V. Ferguson (56 S. W. 225) (22 T. C. A. 552). .247, 266, 331, 353 Commissioners' Court v. Perkins (86 Tex. 348) (24 S. W. 794) 169 Commonwealth v. Erie R. Co. (98 Pa. St. 133) 483 732 Taxation in Texas. Conklin v. City of El Paso (44 S. W. 879) 57, 65, 91, 117, 222, 246, 321, 322, 323, 324, 331, 455, 471, 484 Connor v. City of Waxahachie (13 S. W. 30) 90 Continental Land & Cattle Co. v. Board (16 S. W. 312) (80 Tex. 489) 306 Conway v. Cable (37 111. §2) 482 Coogill V. Long (15 111. 202) 57 Cook V. De la Garza (13 Tex. 431) 265 Cook V. G. H. & S. A. Ry. Co. (24 S. W. 544) (5 T. C. A. 644) 169, 321, 382 Coons V. Throckmorton (25 Ark. 60) 237 Cooper Grocery Co. v. City of Waco (71 S. W. 619) (30 T. C. A. 623) 48, 137, 187 Cooper V. Savannah (4 Ga. 68) 59 Cordray v. Neuhaus (61 S. W. 415) (25 T. C. A. 247) 268, 458, 665 Cordray v. State (55 Tex. 141) 650, 651 County of Anderson v. John W. Kennedy (58 Tex. 617) 380 Court V. O'Connor (65 Tex. 334) 87, 94, 152, 362 Covington v. Bass (Tenn.) (12 S. W. 1033) 664 Covington v. Boyle (6 Bush [Ky.] 204) 296 Cowen V. McCutcheon (43 Miss. 207) 480 Crawford v. McDonald (88 Tex. 626) (33 S. W. 325) 209 Cresswell Ranch & Cattle Co. v. Roberts County (27 S. W. 737) . .65, 69 Crosby v. Bannowsky (29 T. C. A. 455) (69 S. W. 212) (95 Tex. 451) (68 S. W. 47) 54, 252, 259, 265, 270 Crosby v. Terry (41 T. C. A. 594) (91 S. W. 652) . .208, 229, 260, 289, 324 Crosley v. Hutton (98 Mo. 196) (11 S. W. 613) 209 Cruger v. Gennuth (3 Wilson Civ. Cases, Sec. 24) 300, 304 Crumbley v. Busse (32 S. W. 438) (11 T. C. A. 319) 193, 298, 489 Crystal City & U. R. Co. v. Isbell (126 S. W. 47) 185 Cummins v. Gaston (109 S. W. 476) 474 Dallas Elect. St. Ry. Co. v. State (120 S. W. 997) 405 Dallas St. Ry. Co. v. City of Dallas (95 Tex. 268) (66 S. W. 835) 610 Dallas Title & Trust Co. v. City of Oak Cliff (27 S. W. 1036) (8 T. C. A. 217) 131, 137, 450, 480 Daugherty v. Thompson (71 Tex. 192) (9 S. W. 99) 85, 86, 347, 349 Davidson v. New Orleans (96 U. S. 97) 46 Davie's Ex'rs v. City of Galveston (41 S. W. 145) (16 T. C. A. 13) 307 Davis V. Burnett (77 Tex. 3) (13 S. W. 613) 321, 349 Davis V. Burney (58 Tex. 569) '. 54 Davis V. Fames (26 Tex. 296) 284 Davis V. Hurst (14 S. W. 610) 492 Dawson v. Ward (71 Tex. 72) (9 S. W. 106) 61, 193, 194, 285, 292 Dean v. Lufkin (54 Tex. 265) (63 Tex. 437). .54, 60, 61, 70, 309, 432, 431 Dean v. State (54 Tex. 313) 478, 651 Deen v. Wills (21 Tex. 647) 310 De Treville v. Shaall (98 U. S. 517) 242 Table of Cases. 733 Devine v. McOullooli 15 Tex. 488, 491, 448). .192, 193, 201, 243, 280, 284 Dodd et al. v. the City of Hartford (25 Conn. 232) 52 Dodge V. Emmons (34 Kan. 732) (9 Pac. 951) 182 Donnebaum v. Tinsley (54 Tex. 362) 267 Downes v. State (3 S. W. 242) (22 T. Grim. A. 393) 373 Dows V. City of Chicago (11 Wallace 108) 52 Duck V. Peeler (74 Tex. 268) (11 S. W. 1111) 173, 184, 249 Dudley v. Little (2 Hammond 509) 293 Dunn V. Taylor (94 S. W. 347) (42 T. C. A. 241) 254^ 255, 501 Dutton V. Thompson (85 Tex. 115) (19 S. W. 1026) .- 305 Dwyer v. Hackworth (57 Tex. 245) 433 Dyer v. City of Brenham (65 Tex. 526) 63 Earle v. City of Henrietta (41 S. W. 728) 282 Earle v. City of Henrietta (91 Tex. 301) (43 S. W. 15) 245, 450 Earnest v. Glaser (74 S. W. 605) (7 Tex. 712) (32 T. C. A. 378) 232, 238, 255 Baston v. Savery (44 Iowa 656) 57 Edmonds v. City of San Antonio (36 S. W. 495) (14 T. C. A. 155) 339, 344 Edmondson v. City of Galveston (53 Tex. 157, 161) 127, 129, 132, 257, 303, 477, 479 Edwards v. Irvin (45 S. W. 1026) 301 Edwards v. Morten (92 Tex. 152) (46 S. W. 792) 454 Edwards v. Sims (19 Pac. 710) (40 Kan. 235) 132 Eels V. Blair (60 S. W. 462) 267 Egan V. State (68 S. W. 273) 388, 419 El Paso V. Conlkling (44 S. W. 988) (91 Tex. 537) 433 El Paso V. Ruckman (46 ,S. W. 27) 434 Engelke v. Schlender (12 S. W. 999) (75 Tex. 559) 84, 90, 100, 373 Eustis V. City of Henrietta {90 Tex. 468) (39 S. W. 567) 97, 131, 136, 138, 139, 141, 201, 288, 313, 325, 457 Eustis V. City of Henrietta (91 Tex. 325) (43 S. W. 259) 246, 321 Evans V. State (36 Tex. 323) 478 Ewing V. Helm (13 How. 23) (13 Serg. & Rawle 151) 285 Ex parte Jones (43 S. W. 513) (38 T. Crim. A. 482) 385, 386, 387 Ex parte Overstreet (46 S. W. 825) (39 T. Crim. A. 474) 386 Ex parte Terrell (48 S. W. 504) (40 T. Crim. A. 28) 425 Ex parte Yeger (8 Wall. 85) 483 Fahey v. State (27 T. Crim. A. 146) (11 S. W. 108) 386 Fales V. Wadsworth (23 Me. 553) 480 Fant V. Brannin (2 U. R. C. 323) 266 Faris v. Simpson (69 S. W. 1029) 265 Farmer v. State (94 Tex. 232) 145 Ferris v. Kimble (12 S. W. 689) (75 Tex. 476) 90, 94, 184, 456 Figures v. State (99 S. W. 412) 250, 313 Finn v. Haynes (37 Mich. 63) 482 734 Taxation in Texas. Fire Ass'n of Philadelphia v. Love (108 S. W. 810) (101 Tex. 376) 534, 535 Fire Ass'n of Philadelphia v. Love (108 S. W. 158) 534, 535 First Nat. Bank of Lampasas v. City of Lampasas (33 T. C. A. 530) (78 S. W. 42) 368 Fitch V. Boyer (51 Tex. 344) 252 Flanagan v. Boggess (46 Tex. 331) 193, 496 Flanniken v. Neal (67 Tex. 629) (4 S. W. 212) 267 Flemming v. Powell (2 Tex. 225) 267 Focke V. Garcia (Tex. Civ. App.) (41 S. W. 187) 282 Foote V. Sewell (81 Tex. 659) 230 Ft. Worth V. Davis (57 Tex. 225) 433-434 Francis Bros. v. Robinson (89 S. W. 803) (40 T. C. A. 328) 260 Free v. Scarborough (8 S. W. 490) (70 Tex. 672) 60, 61, 69, 70 Frence v. State (42 T. Crim. A. 222) (58 S. W. 1015) 422 French Piano Co. v. City of Dallas (2 Tex. 261) (61 S. W. 942) 355, 357, 362 French v. Edwards (13 Wall. 506) 57 French v. Grenet (57 Tex. 273) 195, 298 French v. Olive (3 S. W. 568) (67 Tex. 400) 491 Frosch V. City of Galveston (11 S. W. 402) (73 Tex. 409) 449 Gaar, Scott & Co. v. Shannon (115 S. W. 361) 611 Galbraith v. State (26 S. W. 502) (33 T. Crim. A. 331) 90 Gale V. Mead (2 Denio 160) ' 57 Galveston v. Mennard (23 Tex. 408) 500 Galveston v. Sydnor (39 Tex. 241) 314, 315 Galveston City Co. v. Galveston (56 Tex. 486) 307, 317 Galveston County v. Galveston Gas Co. (72 Tex. 509, 557) (10 S. W. 583, 587) 90, 173, 315, 609, 648 Galveston County v. Gorham (49 Tex. 301) 315, 316 Galveston Co. v. Wharf Co. (10 S. W. 587) (72 Tex. 557) 173 Galveston Gas Co. v. County of Galveston (54 Tex. 237) 317 Galveston, H. & S. A. Ry. Co. v. Davidson (93 S. W. 436) 211, 521 Galveston & W. Ry. Co. v. City of Galveston (33 T. C. A. 384) (77 S. W. 269) 382 Galveston & W. Ry. Co. v. City of Galveston (74 S. W. 539) (96 Tex. 520) 217, 218, 476, 484 Galveston Wharf Co. v. Galveston (63 Tex. 23, 13) 347, 348 Gardenshire v. Mitchell (21 Kan. 83) 483 Garvey v. State (88 S. W. 873) 229, 235 Gas Company v. Galveston County (54 Tex. 2) (54 Tex. 287).. 315, 320 Gearhart v. Dixon (1 Pa. St. 224) 57 Geid V. State (21 S. W. 190) (31 T. Crim. A. 514) 434 George v. Dean (47 Tex. 73) 43, 58, 81, 82, 153, 159, 320, 322, 361 Gerry v. Stoneham (1 Allen 319) 482 Gibbs V. Gale (7 Md. 76) 480 Gibbs V. Scales (118 S. W. 189) 210, 236, 255, 262, 666 Table of Cases. 735 Gillaspie v. Murray (66 S. W. 252) (27 T. C. A. 580)..! 487 Gillespie v. Gaston (4 S. W. 248) (67 Tex. 599) 100, 371 Gillespie v. Gulf C. & S. F. Ry. Co. (18 S. W. 474) 383 Gillette v. Webster (15 Ohio 623) 293 Gilmore v. Lampman (Minn.) (90 N. W. 1113) (91 Am. St. 376) ... 237 Glasscock v. T. P. Hughes (55 Tex. 461) 249 Gould V. 'Oity of Paris (4 S. W. 650) (68 Tex. 512) 430, 439 Grace v. City of Bonham (63 S. W. 158) (26 T. C. A. 161) 138, 215, 247, 456 Graham v. City of Greenville (2 S. W. 742) (67 Tex. 63).. 322, 451, 4i57 Graham v. Lasater (26 S. W. 472) 183, 184 Graves v. Bullen (115 S. W. 1177) 310, 654 Graves Co. v. First Nat'l Bank (56 S. W. 16) 315 Greenlaw v. City of Dallas (75 S. W. 812) (33 T. C. A. 100).. 503, 504 Greer v. Howell (64 Tex. 688) 56, 194, 201, 449 Greer v. Robertson (30 T. C. A. 236) (70 S. W. 345) 207, 255, 260, 266, 501 Griffin v. Heard (78 Tex. 607) (14 S. W. 892) 84, 100, 322, 373 Guerguin v. City of San Antonio (50 S. W. 141) (19 T. C. A. 98) ' 128, 130, 133, 256, 334 Gulf C. & S. F. Ry. Co. v. Poindexter (7 S. W. 316) (70 Tex. 98) 224, 243 Gutta Percha & Rubber Mfg. Co. v. City of Cleburne (107 S. W. 157) 456 Hadley v. Tankersley (8 Tex. 12) 192, 284 Hairston v. State (36 Crim. A. 470) (37 S. W. 858) 419 Hairston v. Stinson (13 Ared. 479) 132 Halbert v. Brown (9 T. C. A. 335) (31 S. W. 535) 489 Hall V. Hall (1 Mass. 101) 310 Hall V. Houston & Texas Central Ry. Co. (39 Tex. 286) 470 Hall V. Miller (110 S. W. 165) 363, 365 Hall V. Miller (115 S. W. 1168) 363, 365 Hamilton v. President, etc. (24 111. 22) 451 Hammons v. Cleer (127 S. W. 889) 488 barber v. Dyches (14 S. W. 580) ^ 391 Hardesty v. Fleming (57 Tex. 400) 94, 316, 317, 359, 361 Hardy v. Beaty (31 Am. S. 80) (84 Tex. 562) (19 S. W. 778) 237 Harle v. Langdon's Heirs (60 Tex. 555) 290 Harrington v. Galveston County (1 App. Civ., Sec. 794) 482, 485 Harris v. City of Houston (52 S. W. 653) (21 T. C. A. 432) . . . .133, 221 Harris v. Hill (117 S. W. 907) 236 Harris County v. Boyd (7 S. W. 713) (70 Tex. 237) 339, 346 Harrison v. Vines (46 Tex. 15) 320, 322, 369 Hart V. Plum (14 Cal. 155) 57 Haskins v. Wallet (63 Tex. 214) 265, 493 Hatchell v. Conner (30 Tex. 104) 193, 196 736 Taxation in Texas. Haynes v. State (99 S. W. 405) (44 T. C. A. 492) 88, 48, 122, 144, 140, 187, 291 Hayes v. Taylor (43 S. W. 314) (17 T. C. A. 449) 353, 351 Heirs of Logan v. Pierce (66 Tex. 126) (18 S. W. 343) 267 Heller v. City of Alvarado (20 S. W. 1003) (1 T. C. A. 409) 391 Henderson v. White (5 S. W. 374) (69 Tex. 103) . .117, 190, 195, 265, 286 Henry v. Horstick (9 Watts 412) 296 Herman v. Likens (39 S. W. 282) (90 Tex. 449) 282 Hernandez v. City of San Antonio (39 S. W. 1022) (15 T. C. A. 299) 46, 89, 136, 497, 500 Herndon v. Rice (21 Tex. 455) 295 Hicks V. Porter (85 S. W. 437) , (38 T. C. A. 334) 261 Higgins V. Bordages (28 S. W. 352) (88 Tex. 460) 252, 267, 352, 452, 680 ' Higgins V. Bordages (31 S. W. 52, 803) 252, 267, 352, 452, 680 Higgins V. Bordages (53 Am. St. 770) 680 Hill V. Wolf (28 Iowa 577) 57 Hilman v. Faison (57 S. W. 920) (23 T. C. A. 398) 472 Hindes v. State (67 S. W. 467) (68 T. C. A. 521) 350 Hirshfleld v. City of Dallas (15 S. W. 124) (4 App. C. C, Sec. 177) 389, 421 Hoefling v. City of San Antonio (20 ;S. W. 86) (15 T. C. A. 257) (84 Tex. 228) 182, 183, 385, 388, 389, 421 Hoefling v. City of San Antonio (38 S. W. 1127) (85 Tex. 229) 182, 183, 385, 388, 389, 421 Hoehn v. House (31 S. W. 83) 489 Hoencke v. Lomax (119 S. W. 842) 494 Holly V. Simmons (99 Tex. 230) (89 S. W. 776) 454 Hollywood V. Wellhausen (68 S. W. 329) (28 T. C. A. 541) (4 Tex. 965) , 207, 210, 214, 234, 259, 260 Holstein v. Adams (72 Tex. 485) (10 S. W. 560) 298 Homes v. City of Henrietta (41 S. W. 728) 282 Horan v. Wahrenberger (9 Tex. 313) 294 Hosner v. De Young (1 Tex. 764) ^ 3#1 House V. City of Dallas (96 Tex. 594) (74 S. W. 901) 652, 646 House V. Stone (64 Tex. 680) 11, 109, 193, 196, 298 Houssels V. Taylor (58 S. W. 191) (24 T. C. A. 72).... 259, 268, 353 Houston V. Washington (41 S. W. 135) (16 T. C. A. 504) 201 Houston County v. Dwyer (59 Tex. 113) 649, 650 H. E. & W. T. Co. V. State (93 S. W. 462) 521 H. & T. C. Ry. Co. V. State (5 Tex. 290) (51 Am. Dec. 769).. 86, 290 H. & T. C. Ry. Co. v. State (39 Tex. 148) 86, 29a H. & T. C. Ry. Co. V. Travis County (4 Tex. Law Riev. 22) 500 Howard v. Houston (59 Tex. 76) 204, 213 Howard v. North (5 Tex. 290, 317) 294 Howard v. Smith (38 S. W. 15) 440 Hubbard v. Arnold (2 U. R. C. 327) 282 Table of Cases. 737 Huffman v. State (115 S. W. 578) (55 T. Crim. A. 144) 424 Hull V. Woods (14 T. C. A. 590) (38 S. W; 256) 490 Humphrey v. Pegues (16 Wall. 249) 381 Hunter v. Hodgson (95 S. W. 637) 50 Hunter v. Malone (108 S. W. 709) 495 Hutchinson v. Patching (126 S. W. 1107) 475 Hutcheson v. Storrie (92 Tex. 685) 681 Hutchison v. Storrie (48 S. W. 785) 44 lams V. Root (Tex. Civ. App.) (55 S. W. 412) 237 Insurance Co. v. Roy (50 Tex. 511) 481 International & G. N. Ry. Co. v. State (12 S. W. 685) (75 Tex. 356) 381 I. & G. N. Ry. Co. V. Anderson County (59 Tex. 654) 381 I. & G. N. R. Co. V. Coolidge (62 S. W. 1097) (26 T. C. A. 595) .... 373 I. & G. N. R. Co. V. Smith Co. (54 Tex. 1) 178, 179, 320 I. & G. N. Ry. Co. V. Smith County (65 Tex. 21) 349 I. & G. N. Ry. Co. V. Stephens (93 S. W. 436) 521 Jackson v. Deslonde (1 U. R. C. 674, 691) 488 Jackson v. Maddox (117 S. W. 185) 331 Jackson v. State (55 T. Crim. A. 557) (117 S. W. 818) 424 James v. Turner (78 Tex. 243) 664 Jefferson Iron Co. v. Hart (18 T. C. A. 525) (45 S. W. 321) 62 Jeffrey's Heirs v. Hand's Heirs (37 Ky. 89) 237 Jeffries v. Clark (22 Kan. 448) 138 Jenkins v. DeWitt (115 S. W. 610) 475 Jenks V. State (29 Cr. App. 233) (15 S. W. 815) 434 Jennings v. Collins (99 Mass. 29) 127 Jergens v. Schiele (61 Tex. 255) 353, 355 Johnson v. Holland (17 T. C. A. 210) (43 S. W. 71) 182 Jones V. Driskell (Mo.) (7 S. W. Ill) 258 Jones V. Pratt (13 S. W. 887) ~ (77 Tex. 210) 265 Jones V. Taylor (7 Tex. 240) 276 Jordan v. Brown (94 S. W. 399) 305 Jordon v. City of Brenham (57 Tex. 655) . . . : 127, 132, 257, 303 Jordon v. Higgins (63 Tex. 150) 195, 493 Kansas City Life Ins. Co. v. Love (109 S. W. 863) (101 Tex. 531) . . 536 Keenan v. Slaughter (108 S. W. 703) 274 Kelly V. Medlin (26 Tex. 48) 192, 201, 241, 280, 284, 491 Kenson v. Gage (34 T. C. A. 547) (79 S. W. 605) 136, 209, 233, 234, 252, 334 Kerr v. City of Corsicana (35 S. W. 694) 674 Kettering v. City of Jacksonville (50 111. 41) 451 Kettle V. City of Dallas (35 T. C. A. 632) (80 S. W. 877) .46, 677, 678, 680 Kilpatrick v. Sisneros (23 Tex. 113) 194, 280 King V. Ireland (68 Tex. 682) (5 S. W. 499) 647, 654 King V. State (100 S. W. 387) 690 Kinney v. Zimpleman et al. (36 Tex. 554) 52, 470 738 Taxation in Texas. Klein v. City of Dallas (71 Tex. 280) (8 S. W. 90) 672, 673 Labadie v. Dean (47 Tex. 90, 102) 57, 69, 117, 153, 201, 290, 692 Lamberida v. Barnum (90 S. W. 699) 201, 298, 487 Lane v. Succession of March (33 La. 554) 131 Langley v. Smith (126 S. W. 660) 372 Latimer v. Logwood (27 S. W. 960) 283 League v. De Young (2 Tex. 497) 311 League v. State (93 Tex. 353) (56 S. W. 263) .' 207, 220, 223, 244, 246, 266, 272, 330, 478 League v. State (57 S. W. 34) . .207, 220, 223, 244, 246, 266, 272, 330, 478 Lentz V. City of Dallas (96 Tex. 258) 681 Lewright v. Love (95 Tex. 157) (65 S. W. 1089) 319, 388 Light & Power Co. v. Leferre (93 Tex. 607) 219 Limestone v. Rother (48 Ala. 43) 57 Link V. City of Houston (59 S. W. 566) (94 Tex. 378) 454, 498, 503, 504 Link V. City of Houston (60 S. W. 664) 454, 498, 503, 504 Linz V. City of Sherman (62 S. W. 71) 185 Litney v. Marshall (15 S. W. 586) (79 Tex. 513) 252 Lively v. M., K. & T. Ry. Co. (120 S. W. 852) 591 Llano Cattle Co. v. Faught (5 S. W. 494) (69 Tex. 402) 625 Llano County v. Faught (5 S. W. 494) 620 Lookhart v. City of Houston (45 Tex. 322) 201, 207, 218, 249 Lofton V. Miller (118 S. W. 911) .139, 494 Logan's Heirs v. Logan (72 S. W. 418) (31 T. C. A. 295) 333 Longenotti v. State (2 S. W. 620) (22 T. Crim. A. <61) 423 Louder v. Schulter (78 Tex. 103) (14 S. W. 205) 298 Love V. State (20 S. W. 978) (31 T. Crim. A. 469) 423 Lovenberg v. City of Galveston (42 S. W. 1024) (17 T. C. A. 162) 352 Lufkin V. Galveston (73 Tex. 343) (11 S. W. 342) 48, 50, 208, 321, 449, 476 Lufkin V. Galveston (58 Tex. 545) 351 Lufkin V. Galveston (63 Tex. 437) 458, 459 Lufkin Land & Lumber Co. v. Noble (127 S. W. 1093) 131, 185, 312 Lum V. City of Bowie (18 S. W. 142) 322, 453 Lumber Co. v. Hancock (70 Tex. 312) (7 S. W. 724).. 194 Lutcher v. Allen (95 S. W. 572) (43 T. C. A. 102) 495 Maomanus v. Orkney (91 Tex. 33) (40 S. W. 715) 282 Maddox v. City of Rockport (38 S. W. 397) 132, 218, 226, 665 Magnolia Cattle & Land Co. v. Love (21 S. W. 574) (2 T. C. A. 385) 625 Mann v. State (18 T. C. A. 701) (46 S. W. 652) 222 Mariposa Land & Cattle Co. v. Sullivan (27 S. W. 773) 489 Marshall v. Snediker (25 Tex. 472) 314 Martin v. McDiarmid (17 S. W. 877) 60, 450 Martin v. Robinson (67 Tex. 369) (3 S. W. 550) 252 Massie v. School District (105 S. W. 821) (47 T. C. A. 349).. 473, 474 Mass. Gen. Hospital v. Somerville (101 Mass. 319) > 343 Table of Cases. 739 Masterson v. State (17 T. C. A. 91, 94) (42 S. W. 1003) 47, 102, 127, 205, 208, 244, 256, 257, 290 Mateer v. Jones (102 S. W. 734) 48 Mayor v. Baldwin (29 Am. Rep. 713) (57 Ala. 61) 364 McClennan County Co. v. Frost (32 T. C. A. 617) 150 McCombs V. City of Rockport (14 T. C. A. 561) 130, 131, 132, 133, 176, 225, 256, 258, 434, 445, 473, 477, 479 McCormick v. Edwards (69 Tex. 106) (6 S. W. 32) . . .194, 201, 277, 291 McCrary v. City of Comanche (34 S. W. 679) 453, 456, 258 McCullough V. Maryland (4 Wheat. 316) 45 McDaniel v. Needham (61 Tex. 274) 201 McDonald v. Farmer (56 S. W. 555) (23 T. C. A. 39) 169 McDonough v. Cross (40 Tex. 285) 295 McFadden v. Longham (58 Tex. 579) 48 McKennon v. McGown (Tex. Sup.) (11 S. W. 532) 265 McLennan County v. Frost (75 S. W. 876) 150 McLeod V. State (16 S. W. 216) (33 T. C. A. 170) 420 McMickle v. Rochelle (125 S. W. 74) 91, 138, 254 McNeill V. City of Waco (33 S. W. 322) (89 Tex. 83) 62, 438, 681 McPhail V. Burris (42 Tex. 146) 482 Mellinger v. City of Houston (68 Tex. 42) (3 S. W. 251) 296, 485, 498, 499, 500, 501, 261 Meredith v. Coker (65 Tex. 31) 187, 284 Merriman v. Blalack (122 S. W. 403) 494 Meriwether v. Garrett (102 U. S. 472) 46 Middleton v. Bulin (18 Conn. 189) 80 Miller v. Brownson (50 Tex. 597) 298 Miller v. Crawford Independent School Dist. (63 S. W. 894) (26 T. C. A. 495) 223, 695 Miller v. State (69 S. W. 522) (44 T. Grim, 99) 456 Millican v. McNeil (92 Tex. 400) (49 S. W. 219) 223 Mills Co. V. Lampasas County (90 Tex. 506) (40 S. W. 403) 238 M., K. & T. Ry. Co. v, Hassell (123 S. W. 190) 590 M., K. & T. Ry. Co. v. Kone (122 S. W. 424) 591 M., K. & T. Ry. Co. v. Shannon (100 Tex. 379) (100 S. W. 138).. .• 589, 590, 588, 587 M., K. & T. Ry. Co. v. State (93 S. W. 462) 521 Mitchell Co. v. Bank (91 Tex. 361) (43 S. W. 880) 45, 58, 432, 433 Mock V. State (11 Tex. Grim. A. 56) 90 Montgomery v. Peach River Lumber Co. (117 S. W. 1061) 346 Moody V. Galveston (50 S. W. 482) (21 T. C. A. 16^ . . .176, 224, 322, 359 Moore v. Foote (32 Miss. 469) 247 Moreland v. Atchison (19 Tex. 303) 231 Morgan v. Smith (70 Tex. 637) (8 S. W. 528) 117, 160, 194, 277 Morris v. Cummings (91 Tex. 618) (45 S. W. 383) 320 Morris v. Hastings (7 S. W. 649) (70 Tex. 26) 290 740 Taxation in Texas. Morris v. Lone Star Chapter of Masons (68 Tex. 698) (5 S. W. 519) 338, 346, 350 Morris v. State (47 Tex. 583) 645 Morrison v. Loftin (44 Tex. 23) 276 Moses v. McFarlin (2 U. R. C. 291) 282 Moss V. Shear (85 Am. Dec. 97) Ill Muir's Adm'rs vs. City of Bordstown (Ky.) (87 S. W. 1096) 480 Muller V. City of Denison (21 S. W. 391) (1 T. C. A. 293) 459 Mullinnix v. State (60 S. W. 768) (42 T. Crim. A. 526) 388, 422 Mumme v. McCloskey (66 S. W. 853) (28 Tex. C. A. 83) 299, 318 Munson v. Hallowell (26 Tex. 475) 501 Murchison v. White (54 Tex. 78) 252 Murdock v. Hlllyer (45 Mo. App. 287) 237 Murphy v. Welder (58 Tex. 235) 492 Murphy v. Williams (56 S. W. 695) 247, 282 Nalle V. City of Austin (93 S. W. 141) (41 T. C. A. 423) .51, 180, 455, 477 Nalle V. City of Austin (91 Tex. 424) (44 S. W. 66) 62, 178 Nalle V. City of Austin (56 S. W. 954) (23 T. C. A. 595) 180, 247 Nalle V. City of Austin (21 S. W. 375) 51, 459 Nalle V. City of Austin (42 S. W. 780) 204, 446 Nat. Bank v. Rogers (51 Tex. 606) 361, 369 Needham v. State (103 S. W. 857) (51 T. Crim. A. 248) 418, 422, 427 Nelson v. Edwards (55 Tex. 389) 629, 656 Netzorg v. Geren (26 T. C. A. 119) (62 S. W. 791) 218, 230, 231, 298 New Orleans v. Stempel (175 U. S. 309) 45, 358 Nichols V. State (11 Tex. C. A. 327) (32 S. W. 452) 238 Niday v. Cochran (93 S. W. 1027) (42 T. C. A. 292) .' 291 Noel V. City of San Antonio (33 S. W. 263) 439 Nolan V. San Antonio Ranch Co. (81 Tex. 315) (16 S. W, 1064) . . 362 Norris v. City of Waco (57 Tex. 635) 46, 47 Norris v. W. C. Belcher Land Mortg. Co. (82 S. W. 500) 477 Norwood V. Baker (172 U. S. 269) 681 Nunley v. Blanton (126 S. W. 1110) 210 Oakland v. Whipple (44 Cal. 303) 482 Ochoa V. Miller (59 Tex. 460) 305 Ogden V. Bosse (86 Tex. 344) (24 S. W. 798) 220, 244 Old Dominion Steamship Co. v. Virginia (198 U. S. 299) (49 L. ed. 1059) (25 Sup. Ct.) 364 Olliver et al v. Carsner (39 Tex. 396) 470, 60 Ollivier v. City of Houston (54 S. W. 940, 943) (22 T. C. A. 55) (93 Tex. 201) 498, 503, 504 Ollivier v. City of Houston (41 T. C. A. 596) 498, 503, 504 O'Neal V. State (51 T. Crim. A. 100) (100 S. W. 919) 424 Openshaw v. Richmeyer (45 T. C. A. 508) (102 S. W. 467) 49 Oppenheimer v. Reed (32 S. W. 325) (11 T. C. A. 367) 434, 200 Orange Co. v. T. & N. O. Ry. Co. (35 T. C. A. 361) (80 S. W. 670) 647 Table of Cases. 741 Orr V. State (44 S. W. 1102) (39 T. Crim. A. 124) 425 Osburn v. Robson (13 Tex. 307) 293 Ostrum V. City of San Antonio (71 S. W. 304) (30 T. C. A. 462) 248, 307, 312 Owen V. City of Navasota (44 Tex. 522) 296 Owens V. State (112 S. W. 1075) (53 T. Crim. A. 105) 413 Ozee V. City of Henrietta (90 Tex. 334) 281, 283, 288, 290 Palmer v. Hayes (13 N. E. 882) (112 Ind. 290) 209 Parker v. City of Jacksonville (37 Fla. 352) 218 Patton V. Minor (125 S. W. 6) (117 S. W. 920) 494 Peareson v. Branch (87 S. W. 222) 207, 234, 259 Pearson v. Flanagan (52 Tex. 266) 265 Peay, Sheriff, v. E. W. Talbot & Bro. (39 Tex. 335) 60 Pendleton v. Ferguson (99 Tex. 296) (89 S. W. 761) 49 Penn v. City of Laredo (26 S. W. 636) 664, 665 Penn. Co. v. McCann (31 L. R. A. 651) (53 Ohio St. 127) 480 Pennoyer v. Neff (24 L. ed. 565) (95 U. S. 714) 230,- 237 People V. Allen (6 Wend. 486) 57 People V. Hastings (29 Cal. 449) 80 People V. Pearson (18 Pac. 424) (76 Cal. 400) 237 People's Nat. Bank v. City of Ennis (50 S. W. 633) 59, 445 Perry v. Rockdale (62 Tex. 454) 427, 433, 693 Perry v. Whiting (121 S. W. 903) 212 Peters v. Clements (52 Tex. 140) 295 Phillips V. City of Dallas (3 App. C. C. 294) 673 Piano & Organ Co. v. City of Dallas (61 S. W. 942) 45 Pierce v. Cambridge (2 Cush. 611) 343 Pillow V. Roberts (13 How. 472) 241 Pipkin V. Kaufman (62 Tex. 545) 230 Poe V. State (72 Tex. 625) (10 S. W. 737) 648, 649 Polk V. Rose et al. (25 Md. 153) 294 Pond V. Negus (1 Desty on Taxation) (3 Amer. Dec. 131) 57 Pons V. State (49 Mich. 1) 483 Pool V. Sanford (52 Tex. 635) 48 Poole V. State (76 S. W. 567) (45 T. Crim. A. 348) 693 Poteet V. State (41 T. Crim. A. 268) (53 S. W. 869) 386, 387 Potts V. State (45 T. Crim. A. 45) (74 iS. W. 32) 418, 419 .Pratt V. Jones (64 Tex. 694) 193, 280 President, etc., v. Thompson (20 111. 200) 451 Primm v. Fort (23 Tex. Civ. A. 605) (57 S. W. 86) 370 Producers' Oil Co. v. Stephens (44 T. C. A. 327) (99 S. W. 157) . . 211, 251, 424, 526 Pullman Car Co. v. Pennsylvania (141 U. S. 18) 45 Pullman Palace Car Co. v. State (64 Tex. 275) 385 Raht V. State (106 S. W. 900) 662 Railroad Co. v. Commonwealth (1 Burch 250) 80 Railway Co. v. City of Galveston (8 Tex. 372) (77 S. W. 269) .... 133 742 Taxation in Texas. Railway Co. v. Gay (86 Tex. 571) (26 S. W. 599) 501 Railway v. Poindexter (70 Tex. 98) (7 S. W. 316) 117, 193, 201 Railway v. Ragsdale (67 Tex. 27) (2 S. W. 515) 243 Railway v. Scott (28 S. W. 458) 664 Rainey v. State (41 T. Orim. A. 254) (53 S. W. 882) 387, 386 Raley v. Smith (73 S. W. 54) 664 Ramsey v. State (78 Tex. 602) (14 S. W. 793) 334 Raymond v. Kibbe (43 T. C. A. 209) (95 S. W. 727) 363 Red V. Johnson (53 Tex. 284) 317, 320, 344, 361 Red V. Morris (72 Tex. 554) (10 S. W. 681) 344 Reynolds Land & Cattle Co. v. McCabe (72 Tex. 57) (12 S. W. 165) 473 R. G. R. R. Co. V. Scanlan (44 Tex. 649) 320, 477 Rhomberg v. McLaren (21 S. W. 571) (2 Tex. C. A. 391) 473, 695 Rich V. Flonders (29 N. H. 304) '. 480 Ring V. Williams (13 T. C. A. 609) (35 S. W. 733) 45 Rippstein v. Haynes Medina Valley Ry. Co. (85 S. W. 314) 609 Ripy V. Redwater Lumber Co. (106 S. W. 733) 610 Robbins v. State (123 S. W. 695) 427 Robert Lookhart v. City of Houston (45 Tex. 317) 207, 224 Robson V. Osborn (13 Tex. 307).. 196, 201, 242, 280, 284, 297, 491, 496 Rogers v. Moore (97 S. W. 685) (100 Tex. 220) . .'. 266, 271, 289, 290 Rogers v. Moore (94 S. W. 113) 266, 271, 289, 290 Rosenberg v. Weekes (67 Tex. 578) (4 S. W. 899) 88, 89, 94, 321, 371, 478 Ross V. Drouilhet (80 S. W. 243) (34 T. C. A. 327).. 259, 260, 265, 271 Roundtree v. City of Galveston (42 Tex. 612, 626) 42, 672 Rouse V. State (54 S. W. 32) 245 Rucker v. Dailey (66 Tex. 284) (1 S. W. 316) : . 503 Rundell v. Lakey (40 N. Y. 513) 296, 300 Russel V. Cage (66 Tex. 428) (1 S. W. 270) 430 Ryan v. State (5 Neb. 276) 481 Ryle V. Davidson (116 S. W. 823) -. 313 Ryon V. Davis (32 T. C. A. 500) (75 S. W. 59) 254, 266, 270, 331 St. Auditor v. Jackson Co. (65 Ala. 157) 57 St. Edward's College v. Morris (17 S. W. 512) (82 Tex. 1) 339, 345 St. Mary's College v. Crowl (10 Kan. 451-2) 344 San Antonio & A. P. Ry. v. Lester (84 S. W. 401) 694 San Antonio & A. P. Ry. v. Lester (89 S. W. 752) (99 Tex. 214) . . 692 San Antonio v. Berry (92 Tex. 320) (48 S. W. 496) 187, 352 San Antonio v. French (80 Tex. 575) 664, 665 San Antonio St. Ry. Co. v. City of San Antonio (54 S. W. 907) (22 T. C. A. 341) 107, 181, 373 San Antonio v. Hoefling (90 Tex. 513) , 175, 183 Sanborn v. City of Amarillo (42 T. C. A. 115) (93 S. W. 473). . 49, 521 Sandmeyer v. Harris (7 T. C. A. 515) (27 S. W. 284) 451 Sansom v. Mercer (68 Tex. 488) (5 S. W. 62) 220, 223 Table of Cases. 743 Savings & Loan Ass'n v. Multnomah Co. (169 U. S. 426) 45 Scales V. Wren (127 S. W. 164) 210 Scanlan v. Campbell (22 T. C. A. 505) (55 S. W. 501) 222, 271 Schaffer v. Davidson (44 T. C. A. 100) (97 S. W. 858) 203, 291 Schleicher v. Gatlin (85 Tex. 270) (20 S. W. 120) • 129, 132, 286, 298, 299, 487, 488 School Trustees v. Dow (63 S. W. 1027) 324 Scollard v. City of Dallas (42 S. W. 640) (16 T. C. A. 620) 59, 88, 117, 137, 138, 140, 172, 185, 456 Scott V. Solomon (59 Tex. 593) 265 Scott V. State (47 T. Crim. A. 176) (82 S. W. 656) 418, 423 Scudder v. Cox (35 T. C. A. 416) (80 S. W. 872) 209 Sellers v. Simpson (115 S. W. 888) 209, 210, 212, 494 Selman v. Wolf (27 Tex. 72) 454 Sharpe v. Kellogg (116 S. W. 401) 494 Shaw V. State (43 Tex. 355) • 650 Sherman v. Crowley (11 Johns. R. 70) 310 Sherrill v. Hewitt (Sup. 13 N. Y.) 246 Showalter v. Brown (35 Miss. 423) .80 Silsbee v. Stockle (7 N. W. 160, 367) (44 Mich. 561) 247 Simpson v. Huff (74 S. W. 49). 253 Slaughter v. City of Dallas (103 S. W. 218) 41, 134 Slaughter v. City of Dallas (107 S. W. 48) 41, 134 Smeich v. York County (68 Penn. St. 439) 296 Smith V. Estill (87 Tex. 270) (28 S. W. 801) 305 Snead v. State (55 T. Crim. A. 583) (117 S. W. 983) 410 Snearly v. State (40 T. Crim. A. 507) (52 S. W. 547) 426 Snowden v. Rush (76 Tex. 197) (13 S. W. 189) 487 Snyder v. School District (111 S. W. 723) 474 Solon V. State (114 S. W. 349) (54 T. C. A. 261) 691 Southwestern T. & T. Co. v. City of San Antonio (32 T. C. A. 101) (73 S. W. 859) 609 Southwick V. Southwick (49 N. Y. 510) 480 State V. Austin Club (89 Tex. 20) (33 S. W. 113) 425 State V. Baker (49 Tex. 763) i 127, 129, 130, 132, 133, 160', 204, 257, 435, 436 State V. Bremond (38 Tex. 116) 53, 86, 88, 470 State V. Cody (120 S. W. 267) 426 State V. Colorado Bridge Co. (75 S. W. 818) 345 State V. Farmer (94 Tex. 232) (57 S. W. 84) (Tex. Sup.).. 79, 137, 261 State V. Farmer (59 S. W. 541) 79, 137, 261 State V. Fidelity & Deposit Co. of Md. (35 T. C. A. 214) (80 S. W. 553) 45, 357, 358 State V. Fulmore (71 S. W. 418) 64, 479 State V. G. H. & S. A. Ry. Co. (100 Tex. 153) (97 S. W. 71).... 524 State V. Gibson (27 T. C. A. 355) (65 S. W. 690) 504, 505 State V. Hannibal & St. J. R. Co. (13 S. W. 505) (101 Mo. 136) 246 744 Taxation in Texas. state V. Higgins Oil Co. (116 S. W. 617) 364 State V. Jones (5 Tex. 384) 360 ■State V. Kelley (43 Tex. 667) 470 State V. Lee (37 Amer. St. 649) (11 N. C. 681) 419 State V. Mantooth (49 S. W. 683) (20 T. C. A. 396) 221 State V. Mayor, etc. (8 Vroom 39) 481 State V. Middleton Sureties (57 Tex. 185) 645 State V. M., K. & T. Ry. Co. (100 S. W. 146) 524, 525, 526 State V. Quillen (115 S. W. 660) ». .217, 250 State V. St. Louis S. W. Ry. Co. (43 T. C. A. 533) (96 S. W. 69) . .376, 377 State V. Stephens (4 Tex. 137) 420 State V. Taylor (72 Tex. 297) (12 S. W. 176) 349 State V. Texas & P. Ry. Co. (100 Tex. 279) (98 S. W. 834) 525 State V. Trilling (62 S. W. 788) 213, 218 State V. Unknown Owner (103 S. W. 1116) 238 State V. Waterville Savings Bank (68 Me. 515) r. ., 483 State V. Wells (61 Tex. 562) 650 State V. W. U. Tel. Co. (4 Nev. 338) 57 State V. Wolfe (51 S. W. 657) 652, 660 Stegall V. HufE (54 Tex. 196) 230 Stephens v. Texas & P. Ry. Co. (100 Tex. 177) (97 S. W. 309) 525 Stephenson v. Railway Co. (42 Tex. 162) 230 Sterrett v. City of Houston (14 Tex. 153) 219 Stewart v. Kemp (54 Tex. 248) 196, 294 Stickney v. Higgins (10 Ala. 106) 57 Stone V. Tilley (100 Tex. 487) (101 S. W. 201) ^ .51, 261 Stone V. Tilley (95 S. W. 718) 51, 261 Stoneham v. Bilby (4^ T. C. A. 293) (96 S. W. 52) 237, 238 Storrie v. Cortes (90 Tex. 283) (38 S. W. 154) (35 L. R. A. 666) .218, 678 Storrie v. Ho. City St. Ry. Co. (46 S. W. 796) (92 Tex. 129) (44 L. R. A. 716) 680, 682 Stringer \. Franklin County (123 S. W. 1168) 48, 124, 125, 655, 666 Stringer v. Holley (105 S. W. 1146) 124 Sullivan v. Bitter (113 S. W. 193) 82, 181 Swan v. State (48 Tex. 120) 470, 650, 651 Swenson v. McLaren (2 T. C. A. 331) (21 S. W. 300) 225, 695 Swope V. Mo. Trust Co. (26 T. C. A. 133) (62 S. W. 947) 300 Sydnor v. Roberts (13 Tex. 598) (65 Amer. Dec. 84) 290 Taffinder v. Merrell (95 Tex. 95) 142 Tafft V. Buffalo (82 N. Y. 202) 480 Taliaferro v. Butler (77 Tex. 578) 230 Tallman v. White (2 N. Y. 66) 137 Tappon V. Mer. Nat'l Bank (19 Wall. 490) 45 Tarbrough v. Moody (106 S. W. 891) 495 Taylor v. Boyd (63 Tex. 534) (5 Tex. Law Rev. 202) 42, 241, 280 Taylor v. Robinson (10 S. W. 245) (72 Tex. 364) 350 Taylor v. State (81 S. W. 933) (47 Tex. Crim. App. 101) 694 Table of Cases. 745 Telfener v. Dillard (70 Tex. 139) (7 S. W. 847) 89, 194, 487, 491 Telfener v. Dillard (9 S. W. 847) 89, 194, 487, 491 Terrell v. Dessaint (71 Tex. 770) (9 S. W. 593) 433 Terrell v. Martin (64 Tex. 125) 192, 201, 280 Texarkana Water Co. v. State (35 S. W. 788) 290 Texas Banking & Ins. Co. v. State (42 Tex. 636) 386 Texas Co. v. Stephens (100' Tex. 628) (103 S. W. 481) 211, 528 Texas Land & Cattle Co. v. Hemphill County (61 S. W. 333) 652 T. & N. O. Ry. Co. v. State (97 S. W. 142) (43 T. C. A. 580) . . . .313, 653 Texas & Pacific Ry. Co. v. Harrison County (54 Tex. 124) 60, 69, 150, 178, 179, 432, 471 Texas & Pacific Ry. Co. v. Stephens (93 S. W. 436) 521 Texas Savings & R. B. Inv. Assn. v. Pierre's Heirs (31 S. W. 426) (10 T. C. A. 453) 241, 452 Texas Tram & Lumber Co. v. Gum (67 S. W. 892) (29 T. C. A. 1) . 487 Texas Trans. Co. v. Boyd (67 Tex. 153) 242 Thomas v. Morse (16 S. W. 48) (80 Tex. 291) 358 Thompson v. Commonwealth (81 Pa. St. 314) 483 Thomson v. Weisman (98 Tex. 170) (82 S. W. 503) 249, 492 Thornburgh v. City of Tyler (16 T. C. A. 439) (43 S. W. 1054). .52, 504 Tisdale v. Town of Minonk (46 111. 9) 451 Toepperwein v. City of San Antonio (124 S. W. 699) . .212, 296, 301, 352 Tomlinson v. Branch (15 Wall. 460) 381 Torbett v. City of Louisville (7 Tex. 602) (4 S. W. 346) 314, 315 Town of Decorah v. Gillis (10 Iowa 234) 451 Town of Elma v. Carney (4 Wash. 420) 218 Trade v. Benseman (31 Tex. 277) 420 Trammel v. Faught (12 S. W. 317) (74 Tex. 557) 85, 345 Traylor v. State (46 S. W. 81) (19 T. C. A. 86) 304, 272 Treadway v. Eastburn (57 Tex. 209) 255 Trinity Church v. Boston (118 Mass. 164) 343 Trinity v. Polk County (58 Tex. 321) 55 Troutman v. McCleskey (7 T. C. A. 561) (27 S. W. 173) 320, 453 Trust Co. V. City of Oak Cliff (8 T. C. A. 217) (27 S. W. 1036) (81 C. A. 220) 130, 203, 204, 359, 435, 436, 437 Turner v. City of Houston (21 T. C. A. 214) (51 S. W. 642) .130, 133, 257 Turner v. National Cotton Oil Co. (109 S. W. 1115) 310 Turner v. Smith (119 S. W. 922) 332, 333 United States v. Taylor (104 U. S. 216) 483 Unknown Owner v. State (118 S. W. 803) 225, 236 Vieno v. Gibson (21 S. W. 1028) (85 Tex. 432) 303 Voorhies v. City of Houston (70 Tex. 331) (8 S. W. 109) 431, 432 Voorhies v. City of Houston (7 S. W. 679) 431, 432 Wade V. State (3 S. W. 787) (22 T. Crim. A. 629) 418 Wagner v. Porter (56 S. W. 560) 312 Wall V. Club Land & Cattle Co. (88 S. W. 535) 487 Wallis V. Williams (110 S. W. 785) 690 746 Taxation in Texas. Ward V. Marion County (26 T. C. A. 361) (62 S. W. 557) 646 Warren Co. v. Klein (51 Miss. 807) 449 Waters v. SpofEord (58 Tex. 116) 283 Watl?ins v. State (61 S. W. 532) 204, 248 Watson V. Hopkins (27 Tex. 637) 305 Watson V. McClane (Tex. Civ. App.) (45 S. W. 176) 282 Waxahachie v. Brown (67 Tex. 519) (4 S. W. 209) 432, 439 Weaver v. Grant (39 Iowa 294) 128 Webb County v. Gonzales (6 S. W. 781) (69 Tex. 455) 630 Welsch V. Cook (97 U. S. 543) 483 Werner v. City of Galveston (12 S. W. 159) " 458 W. Tel. & Tel. Co. v. Meerscheidt (65 S. W. 381) 609 Western Union Telegraph Co. v. The State (55 Tex. 314) 421, 477 Wheeler v. Yenda (11 Tex. 562) 195 White V. Beal (45 S. W. 1060) 246 White V. Eavenson (101 S. W. 1029) (46 T. C. A. 158) 250 Williams v. Bradley (3 Tex. 968) (67 S. W. 170) 503 Williams v. Davidson (43 Tex. 34) 449 Williams v. School Dist. (32 Am. Dec. 243) 57 Williams et al. v. Young et al. (90 S. W. 940) (41 T. C. A. 212) .234, 266 Wilson V. City of New York (E. D. Smith 675) (4 N. Y.) 52 Wilson V. Seleynon (144 U. S. 41) 230 Winston v. City of Ft. Worth (47 S. W. 740) 322, 436 Witherspoon v. State (39 T. Crim. A. 65) (44 S. W. 164) . . , 417 WofEord V. McKenna (23 Tex. 36) 194, 195, 280, 284, 285, 298, 487, 493, -496 Wolf V. Gibbons (69 S. W. 238) 223 Wood V. City of Galveston (76 Tex. 132) (13 S. W. 227) 445, 449 Wood v. Stirman (37 Tex. 584) 650 Woodbridge v. Detroit (8 Mich. 301) 80 Woodside v. Wilson (32 Pa. St. 52) 137 Woody V. Strong (100 S. W. 801) (45 T. C. A. 256) 286 Wortham v. Boyd (66 Tex. 401) (1 S. W. 109) 298 Wren v. Scales (119 S. W. 880) 210, 258 Wright V. City of San Antonio (50 S. W. 407) 58, 223, 224, 244, 358 Wright V. Jones (38 S. W. 249) (14 T. C. A. 423) 182, 654 Wright V. Straub (64 Tex. 66) 651 W. U. T. Co. V. The State of Texas (62 Tex. 630) 49, 359 Yarbrough v. Whitman (110 S. W. 471) 496 Yenda v. Wheeler (9 Tex. 408) 193, 195, 201, 280, 284 York v. State (73 Tex. 651) 230 Young y. Jackson (110 S. W. 74) 48, 214, 217, 233, 235, 255 Young V. State (102 S. W. 117) (51 T. C. A. 366) 690 THIS BOOK IS DUiJ ON THE LAST DATE STAMPED BELOW AN INITIAL FINE OF 25 CENTS WILL BE ASSESSED FOR FAILURE TO RETURN THIS BOOK ON THE DATE DUE. THE PENALTY WILL INCREASE TO 50 CENTS ON THE FOURTH DAY AND TO $1.00 ON THE SEVENTH DAY OVERDUE. APR 16 1942 iMt "te^AiLii. ^^ A?I9^ 1 LD 21-100m-7,'39(402s;