DocketNumber： V-702
Judges： Price Daniel
Filed Date： 7/2/1948
Status： Precedential
Modified Date： 2/18/2017
Hon. Gee. H. Sheppard Comptroller of F-‘ublic Accounts Austin, Texas Opinion No, V-702 Re: The effect of condemna- tion of land by the Fed- eral Government upon State and County taxes for the year in which the land was taken. Dear Mr. Sheppard: You request our opinion upon the question presented in your letter as follows: “On or about Aug. llth, I talked to you about whether or not taxes on certain property located in Taylor County should be paid for the year 1944. You suggestdd that I obtain certain information in ,regard to the property from Hon. Wiley Caffey, County Judge, Taylor County, and then submit the question to you* “We are, therefore, enclosing 2 exhibits in regard to the matter. One of the exhibits Skteg that the Federal Government filed the petition con- demning certain lands in Taylor County on Sept. i, 1943, and a judgment as to Tract B R -4 was enter- ed during the year 1945. The exhibit referring to the judgment States that the petitiener filed its Declaration of Taking No. 1 on July 25, 1944 on certain pnopertios beionging to M. A. Horton and wife, Minnie D. Hori:on. “For your further information we are encIoS* ing a copy of a letter written to us by Judge Caffey on Augi 6th, 194g1 “You will please advise uS whether or not the taxes oki the p~opecty mentioned in Judge Caffeyis letter should be paid for the year 1944. Hon. Geo. H. Sheppard, Page 2 (V-702) The question reduced to simple terms is whether the own- er of real property sought to be condemned by the Federal Govern- ment by petition filed September 1, 1943, but title to which was not acquired by the Government in such proceedings until July 25, 1944, by filing a declaration of taking, is liable for the 1944 State and County taxes:40 U.S. C
. A., 258a provides: “Upon the filing said declaration of taking and of the deposit in the court, to the use of the person en-‘. titled thereto, of the amount of the estimated compen- sation stated in said declaration, title to the said lands in fee simple absolute, or such less estate or interest therein as is specified in said declaration, shall vest in the United States of America, and said lands shall be deemed to be condemned and taken for the use of the United States, and the right to just compensation for the same shall vest in the persons entitled there- to.. . *” Immediately upon the filing of a declaration of taking by the Federal Government and the deposit of the estimated award in the registry of the court, in compliance with the foregoing statute, the fee simple title becomes immediately vested in the Govern- ment. Saucier v. Crighton, 147 Fed. (Zd) 430 (5th Cir.); City of Oakland v. United States, 124 Fed, (2d) 959 (9th Cir.); United States v. Sunset Cemetery Co., 132 Fed. (2d) 163 (2nd Cir.). It therefore follows from the foregoing statute and author- ities that the owner was not divested of the title to the land in the instant situation until July 25, 1944, and was the owner on January 1 of said year, and as such owner was liable for the taxes regular- ly and legally assessed against him on said property for the year 1944. We need not multiply authorities in support of this, but the following are noted: State of Texas v. Moody Estate, 156 Fed. (2d) 698; Winters v. Ind. School Dist. of Evant, 208 S.W. (Civ. App.) 574; Childers County v. State, 92 S.W. (2d) 1011 (Sup, Ct.). This brings us to the practical result as applied to the question presented. The owner is personally liable for the 1944 taxes if assessed against him, But the lien securing the same can,not be enforced agai~nst the Federal Government as long as it remains t:he owner. This is consistent withi the opinion of Jus- tice Brewster in the case of State v. City of San Antonio, et al, 209 S. W. (2d) 756 (Sup. Ct.), expressed as follows: Hen. Cf4e4 I-i, Sheppard, Page 3 @IG82) “Althou8h the state and c.eunty did have a lien against the lot for taxes due them while the lot was p,rivatcly ewnezd by Barnes and others, the lien be- came unenforceable after the city and school dis- tr’fct acquired title to it by the tax sale, in, 1938 and while they continued to hold it for public ,purposcs; a$id the lot, whil,e so held, was not subject to seizure OT %sle to satisfy a judgment for taxes levied by the state and county during the time it was so private& own&; end any proceeding attempted a acc,ornpEis K this is voidd, n Therefore. the owx~er of tbie property is personally lia- ble fer the 1944 State and Cou&y taxes, bqt the t;iea $ec%&ng the same is unenkrceable so lon8 as then Fad&al Csverment rt- mains the owner, We consider next the effect of the judgment rendered by the Court in the condemnation praceedings based upon a dis- claimer filed by the Tax Collector of Taylor County tc the ef- fect that there were no taxes due for the year i944. The judg- ment merely recites that the Tax Collector take nothing based upon this disclaimer. This disclaimer by the Tax Collector af- fords no support for a j:udgment against the State and County for the 1944 taxe,s ,even if the judgment be construed to have that ef- fect. This for the obvious reason that&e, State, and County can- not be bound by the unauthorized acts of their efficers in the per- formance of the sovereign power 5f &Nation, clearly a govern- mental function. This is made quite olear by Justice Brewster in the case of State v. City of San Antonfa, supro, from which we quote: “The stipulation was a,nullity, therefore it af- forded no suppart whatever for the judgment against . the city bnd scheol district for taxes due the state and ceunty for the years 1930-1948. It is well settled by repeated decisions 0-f this court that in the collec- r tion of taxes the city and $chocl district, an arm of the government, are dischnrging a governmental function and cannot be baund or estopped by any un- authorizeel acte of their officers in the perfcrmance of that function. City of San Angelo v. Deutsch,126 Tex. 532
, 91 S,W. (2d) 388; Republic Ins. Co. v. High- land Park Ind. .&heel Dist.,141 Tex. 224
, 171 S.W. (2d) 342; City of San Antonio v. Earne&,,144 Tex. 83
, 188 S.W. (Zd) 775; Rolksen et al v. Puckett et al,145 Tex. 366
, 198 S.W. (2d) 74.” - Hon. Geo. H. Sheppard, Page 4 (V-702) We therefore conclude that the “take-not&&ig” judgment against the Tax Collector does not have the effect to extinguish the State and County taxes for the year 1944 or that the Tax Col- lector’s disclaimer would constitute a legal,basis for such a judgment. In reaching the foregoing conclusions we are not un- mindful of the amendment to Article 7151, V.C.S. by ~the 48th~ Legislature; but we have heretofore held this amendment un- constitutional in our Opinion o-5290, a copy of which is herewith ,enclosed, and we have notchanged our views therein expressed. SUMMARY Where land was condemned by the Federal Gov- ernment and title was acquired July 25, 1944, the owner of such land as of January 1, 1944, is liable for the 1944 taxes. But the lien therefor was unen- forceable as long as the Federal Government re- mained the owner. A take-nothing judgment against a tax collector upon a disclaimer filed in a condemnation proceed- ing reciting no taxes were due for 1944, does .not re- lease the owner as of January 1, 1944, for the 1944 State and County taxes, A disclaimer filed by the tax collector, reciting that there were no taxes due, was erroneous. And since he was acting in a gov- ernmental capacity, such disclaimer would not work an estoppel or constitute the basis for a judgment against the State and County as to said taxes for said year. Yours very truly APPROVED: ATTORNEYGENERALOFTEXAS BY LPL/JCP ENCS. (3) .