Land and Cattle Co. v. Board, Tax Collector ( 1891 )

This action was brought by appellant against Board, tax collector, to recover from him sums alleged to have been illegally collected by him for the State and county for the years 1885 and 1886.

It is alleged that appellant had rented county school lands from several counties for a term of years, and that these were assessed at a valuation based on the value of the fee in the land, and that upon the assessment thus made the collector was proceeding to enforce payment by levy on personal property when, to avoid this, appellant paid the sums for which he was assessed under protest.

There is no averment that the tax roll was not in due form, nor that the collector was doing or threatening to do any act which under the law it did not, in effect, command him to do, but tile ground of complaint is that the assessment was at too high a valuation, resulting from the fact that this was not based on the value of the leasehold estate but upon the value of the fee. The complaint might go further, for such lands, in the hands of a lessee, have been held not to be subject to taxation at all. Daugherty v. Thompson, 71 Tex. 192.

The pleadings show that an assessment was made and that the collector was acting under that when he received the money; and this being true, in the absence of averment that the process under which he was acting was not in the form prescribed by law, did not come from the tribunal or body authorized to issue it, or for some other reason was not entitled to obedience, it must be held that the court did not err in sustaining a demurrer to so much of the petition as sought to recover the sums paid, unless it be that a tax collector is not entitled to that protection which process apparently legal usually gives to ministerial officers who act in obedience to it.

The rule upon this subject is thus clearly stated: "In general, any officer whose duties are merely ministerial, and to whom process is issued which is apparently in due form of law, and which neither in its recitals not in its omissions apprises him that it is issued without legal right, will be protected in serving it, even though in fact it was issued without authority of law. This is a rule not only essential to the protection of such officers, but absolutely required also for the due dispatch of public business. It would seem to be impolitic in a very high degree to compel such an officer to ascertain at his peril the illegalities that might lie back of a process apparently legal, and it might be justly expected to force prudent men to decline the office altogether, or to proceed with such hesitation and circumspection as sometimes to render the process of little or no avail. The general rule is that such an officer is legally protected against any illegalities except those committed by himself, and it is not illegal for him to execute process which comes to him as a ministerial officer from other officers whose actions he has no authority to revise or review." Cooley on Taxation, 797, where will be found a full citation of cases illustrating the application of the rule.

The tax collector had neither the right nor power to revise the action of the County Commissioners Court, nor of the board of equalization, nor was it his duty to ascertain under what tenure appellant was holding lands exempt from taxation only so long as they remained the property of the several counties to which they were originally granted for school purposes.

Appellant could not have been compelled to pay the illegal tax if he had used the means to prevent its collection which the law gave him, but having paid it to an officer holding process which commanded him to collect it, he can not now look to that officer for reimbursement.

In Hardesty v. Fleming, 57 Tex. 399, it was suggested that a suit might be brought against a tax collector to recover taxes illegally collected if paid under protest, provided suit was brought before the money was paid over by the collecting officer, but the decision of such a question was not necessary, and we are of opinion that, in all cases in which the process under which a collection of a tax is made is in the form prescribed by law and issued by proper authority, the better rule is that the collecting officer is exempt from liability to the taxpayer, who should seek relief from the State, county, or municipality on whose account the tax was collected.

Cases may be found which deny the liability of municipal divisions of a State to refund sums illegally collected as taxes unless suit or other demand be made therefor before the money so collected is applied to municipal purposes, but no such question arises in this case.

The assessor of taxes was also made a defendant, but it is too clear that no liability rests on him to refund the sums collected.

One purpose of the suit, however, seems to have been to restrain the collection of the tax for the year 1887, which the petition shows had been assessed on the lands in question in the same manner as for former years. No temporary injunction was sued out, however, nor is there averment of any fact other than the fact of assessment for 1887 tending to show that such relief would become necessary.

There is no averment that the tax roll containing the particular assessment had been approved, authenticated, or placed in the hands of the collector, nor of any other fact showing such threatened injury as would justify the issuance of a writ of injunction to prevent it.

Finding no error in the judgment, it will be affirmed.

Affirmed.

Delivered April 14, 1891.