Lockhart v. Mayor of Houston

Gould, Associate Justice. The city of Houston was the party beneficially interested in the collection of the taxes sued for, and, unless section 30 of its charter requires such suits to be in the name of the assessor and collector, this action was properly brought in the name of the city. That section ‘directs the assessor and collector, upon failure of payment, “ to turn over to the city recorder the assessment rolls; ” makes it the duty of the latter officer “ thereupon to issue a ^summons to the party against whom any tax may have been assessed,” and goes on to prescribe the subsequent proceedings .down to judgment, without directing in whose name as plaintiff the proceedings shall be had. If the sum be beyond [323] the jurisdiction of the justice of the peace, it directs that “then the city assessor and collector shall file suit against him, her, or them in the District Court of Harris county.” There is no express direction that the suit in either the recorder’s or District Court shall be in the name of the assessor and collector; and that officer might on general principle* file the suit in the name of the city. The other ground assumed in support of the general exceptions to the petition is, that under the act of October, 22, 18G6, the city might, through its officers, have proceeded to seize and sell the property “the tax on which had not been paid,” and that an action would only be authorized by showing that this special remedy could not be pursued. At the time this suit was brought, the Constitution prohibited the sale of “landed property for taxes due thereon except under a decree of some court of competent jurisdiction.” (Const., art. XII, sec. 21.) The taxes sued for were due on landed property, and as that, under the Constitution, could no longer be seized and sold, it does not appear that there' was at that time any special remedy rendering a suit unnecessary, and therefore unauthorized. There were also special exceptions to the petition, which were overruled by the court. Though this ruling is assigned as error, it has not been discussed in the brief of counsel for appellant. It is only deemed necessary to say that the averment that the property was assessed for taxes was sufficient, without specifying the officer by whom it was assessed, and without stating all the facts constituting 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 removed in their nature from mere conclusions of law to admit of being averred, like the protest of a bill of exchange, without specifying what acts were done, or by what officer. The charge of the court, however, was to the effect, that [324] the plaintiff wag entitled to recover the taxes prior to 1870, on proof' of the ownership of the property and the amount oí tax at the rate levied, thus dispensing with the necessity of an assessment, and of any other demand than the filing of the petition. This subject'is considered in the case of Clegg v. The State, 42 Tex., 611, decided since this case was tried. It was held in that case, that to authorize a suit for taxes, not brought under statutory authority, the property must first be assessed; and further, that the tax-payer must also first be in default by his failure to pay his taxes as prescribed by law. The charge of the court was erroneous; and as an examination of the statement of facts does not enable us to say that either the fact of the assessment for each year, or the fact that Lockhart was in default after being assessed, were so clearly established as to make it apparent that the error in the charge was not material, this error requires a reversal of the cause. It is not deemed necessary to pass on any other question raised. The judgment is reversed and the cause remanded. Reversed and remanded.