Winters v. Independent School Dist. of Evant

^* Writ of error dismissed for want of jurisdiction, Mar. 19, 1919. This was a suit to contest an election held in the independent school district of Evant, Coryell county, to determine whether or not said district should levy an additional school tax of 25 cents on the $100.

At said election there were cast for the tax 41 votes, against the tax 39 votes. Appellants alleged that 3 of the votes cast for the tax were illegal. The case was tried before the court, without a jury, and judgment rendered for appellee. The court filed its findings of fact, to which no complaint is made, but appellants assign error as to the conclusions of law reached by the trial court.

One vote contested is that of Mr. Jones, whose only disqualification is alleged to be that he was not a qualified property holding, taxpaying voter. The court found that Mr. Jones was 70 years old; therefore was not subject to poll tax; that he owned property in the school district subject to taxation, which property had not been assessed for taxes. The amount of property that he owned was small; and he testified that he had never been called upon to list his property for taxation.

The ownership of property on the 1st day of January of any year creates a liability on the part of the owner for taxes levied upon such property for that year. Hillsman v. Faison, 23 Tex. Civ. App. 398, 57 S.W. 921; Rhomberg v. McLaren, 2 Tex. Civ. App. 391, 21 S.W. 571. A taxpaying voter, who is otherwise qualified, does not mean that his property must have been assessed for taxes, but only that he is liable for the payment of such taxes. This liability is created by assessment of taxes by the commissioners' court. If the owner of property does not render the same for taxation, it should be put on the unrendered roll. If this is not done for any year or series of years, back taxes may be collected on such unrendered property for such time as the same is not barred by limitation.

The vote of Frank McCauley is challenged by appellants' assignment, on the ground that he had not paid poll tax for the year 1915. The election was held in January, 1916. Article 6, § 2, of the Constitution; of this state, after prescribing certain qualifications as to citizenship and residence, reads as follows:

"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 holds a receipt showing his poll tax paid before the first day of February next preceding such election."

McCauley did not become a citizen of Texas until about the 1st of November, 1915; and therefore he was not "subject to pay a poll tax under the laws of the state of Texas" for that year.

Appellants assign error in counting the vote of Austin Sawyer, upon the ground that he did not vote until after the polls were closed. The facts as found by the court with reference to this voter are that the judges of the election were under the impression that the hour for closing the polls was 6 o'clock p. m., and that at that hour one of the judges left the voting place, but no public announcement had been made that the polls were closed. A few minutes after 6 o'clock, Sawyer presented himself, and demanded his right to vote, and was permitted to do so by the other judges. This, at most, was only an irregularity. For the views of this court as to the effect of irregularities upon the legality of an election, see the opinion in C. O. Moore v. C. H. Plott, 206 S.W. 958, written by Mr. Justice Brady, and filed today.

We overrule each and all of appellants' assignments of error, and affirm the judgment of the court below.

Affirmed.