Llano Cattle Co. v. Faught , 69 Tex. 402 ( 1887 )

Willie, Chief Justice.

The appellant company was owner of a stock of cattle in Garza county, its principal office being in the county of Tarrant. The taxes to which the cattle were -liable had been duly assessed, and the sheriff of Scurry county, to which Garza was attached for judicial purposes, was proceeding to collect these taxes when restrained by a writ of injunction sued out in this case. Upon final hearing this injunction was dissolved, and from this judgment of the court the present appeal is taken. The only question is as to the right of the tax collector of Scurry county to enforce the payment of taxes due upon property in Garza county, it being admitted that the property had bien duly and legally assessed.

Our Constitution and statutes provide that every kind of property situated within the State and not specially exempted by law should be taxed according to its value; and they lay down the general rule that the assessment and collection of taxes upon property shall take place in the county where it is-situated. (Const., art. 8, secs. 1 and 11; Rev. Stats., arts. 4669, 4673, 4676; Laws of 1879, chap. 50, sec. 1.)

The Constitution, however, allows the Legislature by a two-thirds vote to authorize non-residents of counties to pay their taxes at the office of the Comptroller of Public Accounts, and positively requires that non-residents of unorganized counties-shall have their lands lying in such counties assessed and the taxes thereon paid at the office of the Comptroller. (Art. 8, secs. 11 and 12.)

The Constitution also requires that . property subject to-taxation and owned by residents of unorganized counties, shall be assessed and the taxes thereon paid in the counties to which such unorganized counties are attached - for judicial purposes.

This provision, as well as that relating to lands lying in such-counties and belonging to non-residents thereof, the Legislature-carried out by an act approved April 22, 1879.

Ko special provision of either organic or statutory law prescribes the place where personal property belonging to a nonresident individual, or corporation such as the appellant, shall be assessed and the taxes thereon collected. Such property is therefore left to be governed by the general rule that all property must be taxed in the county where situated. Indeed, it would require special legislation, adopted by a two-thirds vote, to authorize the payment of such taxes at any other place, and then only at the office of the Comptroller; and the power to-have the assessment done elsewhere than in the county where the property is situated is withheld from the Legislature.

The requirement that the property shall be assessed and ,the taxes thereon paid in the county where it is situated can not be literally complied with in case of an unorganized county, if by being taxed in the county is meant an assessment and collection! by officers who reside and have their offices therein. This duty must necessarily be performed by the officer of some other county authorized to -discharge these functions in the unorganized county. The Constitution itself recognizes the propriety of having the taxes of an unorganized county assessed and paid in the county to which it is attached for judicial purposes. It requires the taxes of residents of such counties to be there •assessed and paid, doubtless for the convenience of the taxpayer as well as the benefit of the county entitled to receive •and disburse the tax money.

The reason it did not specially require the taxes of non-residents upon personalty to be paid there also was, no doubt, because it wished to leave the Legislature free as to them to exercise the power granted in the first section, i. e., to authorize the payment of these taxes at the office of the Comptroller. The Legislature, however, has not thought proper to exercise this power, and the collection must take place where the assessment Is required to be made, viz., in the county where the property is situated.

Our Legislature has almost uniformly treated an unorganized •county as part of the county to which it is attached for judicial purposes, so far as the exercise of local governmental powers •over it is concerned. For instance, it has given to the commissioners court of the latter county power to appoint a justice of the peace and a constable for. the county so attached to it. (Laws 1879, p. 89.) It has formed the unorganized county into an election precinct, and given the commissioners court of the •other the same supervision over its elections as over those in their own county. (Laws 1881, p. 97.) It has provided that a ■county attached to another for judicial purposes shall be also •attached for election purposes to some one of the precincts of the organized county, and be entitled to vote for the commissioner of that precinct. (Laws 1885, p. 89.) It gives the superintendence of the organization of such a county into the hands of the commissioners court of the county to which it is •allotted for judicial purposes. (Rev. Stats., art. 672.) And in the latter county it requires all conveyances of lands lying in the unorganized county to be recorded. (Laws 1881, p. 72.)

These are legislative recognitions of the right of the county to which the unorganized county is attached for judicial purposes to exercise powers over the other than those of a stridtly judicial character. For all the purposes mentioned in the above acts the unorganized county becomes under the jurisdiction of that to which it is attached, and the officers of the latter exercise the same authority over its citizens and property as over those of their own county, and the two counties are subjected to the same local government. But the Legislature has gone-further. It has recognized the right of the tax officers of one county to assess and collect taxes due upon property lying in-the other. It has enacted that when an unorganized county-may become organized, it shall be the duty of the person in charge of the assessor’s roll in the county to which such unorganized county has been attached for judicial purposes to allow such person as the commissioners court of the new county may appoint for that purpose access to such rolls for the purpose of making-a transcript therefrom. And it is made the duty of the-person so appointed to make two transcripts of the unpaid assessments, both on person and property, in that portion of the-county included within the limits of the former unorganized county. These rolls must be .verified by the collector of the-county to which the unorganized county has been attached. The collector of the new county from these rolls collects the-taxes on property situated therein. (Acts 1885, chap. 112.)

Thus it was in the contemplation of the Legislature that the-assessor of the one county would assess the taxes of the other;: would list the taxes of both upon the same rolls, and the collector of the same county would have these rolls in possession-for the collection of the taxes. It is true that the same act-contemplates that the rolls for the unorganized county may be in the county from which it was detached. This would be the case-■where the taxes assessed upon property lying in the unorganized county when it formed a part of the parent county had never-been collected before the former was severed from the latter.

But after it has been attached for judicial purposes to another county, the statute evidently intends that the assessment shall take place in the latter. We find no provision of law for taking transcripts from the rolls of any other county for the benefit of" the new county; hence it was not contemplated that any other-county should assess and collect taxes upon its personal property.

In the case of Hardesty v. Fleming, 57 Texas, 395, this court" subjected the personalty of a non-resident situated in an unorganized county to assessment and a collection of the taxes due upon the same in the county to which it was attached for judicial purposes. It is true no point was raised as to this, all parties seeming to concede that the taxes, if due at all, were due to that county; but, if they were not, it was a fundamental, error, and, as this court did not notice the point, that decision may be treated as authority on the question. We think that the constitutional provision requiring all property not specially exempted to be taxed, and all personalty to be taxed in the county where it is situated, can not be fulfilled as to this species of property situated in unorganized counties, without an assessment and collection in the county to which the unorganized county is attached for judicial purposes. We think, further, that the statutes contemplate this as the place of its taxation. The judgment below, being in accordance with these views, is affirmed.

Affirmed

Opinion delivered October 21, 1887.