Mast v. Nacogdoches County

Stayton, Chief Justice. This action was brought by Nacogdoches county against M. Mast and the sureties on his bond [384] as tax collector for that county, to recover taxes alleged to have been collected and not paid over. The petition alleged the facts which showed that Mast was tax collector, and that he, as such officer, had collected the sum sued for. A general demurrer to the petition was overruled, and this is assigned as error. It is urged that the petition should have alleged that the taxes were .levied by the commissioners court when all its members were present; that the taxes were assessed by the tax assessor of the county, and that the tax rolls authorizing the collection of the sum alleged to have been collected were delivered to the collector. If the county based its action on the fact that a valid tax roll had been placed in the hands of the collector and his failure to account for the sum which it was his duty to collect under it, it would be incumbent on it to allege the facts that would create the liability arising from a failure to account. If a valid tax roll is placed in the hands of a tax collector for collection, it is his duty to collect the sum shown to be due by it, and if he fails to do this without showing some reason valid in law for not doing so, within the time provided by law, then he and his sureties are liable for the sum he ought to have collected, though he may not have collected any part of it. In such a case the petition should allege the facts that made it the duty of the collector to collect the taxes claimed. The petition in this case, however, alleges that the sum claimed was actually collected by the collector as taxes due the county, and that he collected them by virtue of his office. In such cases it is not necessary to show the legality of the tax, its valid levy or assessment, nor that the tax roll was placed in the hands of the collector. As said in Webb County v. Gonzales (69 Texas, 456): “If it had been shown that no levy in fact was made for either year, after the collector had received the taxes, neither he nor his sureties can be heard to set up their illegality in defense of an action for not paying them over. The collector himself is clearly estopped. The sureties have bound themselves for the faithful performance, on his part, of the duties of his office as tax collector, and when taxés have been voluntarily paid, though illegal, it is the duty of the collector to pay them over to the treasurer of the county. It has been accordingly held by this and other courts that in such case the sureties, as well as principal, are bound.” [385] In the case here referred to, cases are cited illustrating the rule. There was no error in overruling the general demurrer, nor in rendering judgment against the collector and the sureties on his bond without proof of the facts which, it is claimed would have been alleged, if the proof offered was admissible and sufficient to show that the collector had collected and failed to pay to the treasurer the sum claimed. The taxes alleged to have been collected consisted of ad valorem, poll, road and bridge and occupation taxes. The proof as to the collection of occupation taxes consisted of reports of taxes so collected filed by the collector with the clerk of the county court, one of these reports being signed and certified by the collector, and the others not. This evidence was supplemented by the testimony of the deputy of the collector, who attended to the tax business, and stated that the reports showed correctly the taxes collected. The collector of taxes is required by law to make quarterly report of occupation taxes .collected for the State and county, which is required to be filed with the county clerk as were the reports of Mast. (Rev. Stats, arts. 4763, 4764.) Such reports filed by a collector of taxes, as required by law, are admissible in evidence against him, though they may not be subscribed by him. When shown to have been filed by him as reports of taxes collected, they were admissible against him and his sureties as admissions made in the course of his official business, as well as reports required by law to be made. These, with the testimony of the deputy were sufficient to show that he collected in his official capacity the occupation taxes sought to be recovered against him. (Webb County v. Gonzales, 69 Texas, 456.) Proof that the collector had actually collected the other taxes for which judgment was rendered was made through reports filed by him, similar to those filed in reference to occupation taxes, some signed and some unsigned; and this was also supplemented by the deputy of the collector, who attended to the tax business of the collector’s office, who stated that the reports filed showed truly the sums collected. We have not been referred to any statute requiring collectors to make quarterly reports of taxes' collected other than occupation taxes, but in the absence of such a law, we are of the opinion that the reports filed, which were admitted in con [386] nection with the evidence of the deputy collector, were admissible against principal and sureties, and, unrebutted, sufficient to establish their liability. The petition alleged that the bond executed by the collector and his sureties was .for six thousand dollars, but a certified copy of the bond was made a part of the petition, and that showed that the bond was- for six thousand five hundred dollars. When the bond was offered it was objected to on the ground of a variance in the petition and bond offered, which was for six thousand five hundred dollars. The objection was overruled, and, we think, correctly; for with the correct copy of the bond made a part of the petition, the defendants could not have been misled or surprised as to the bond made the basis of the action. The other assignments of error relate to matters already considered, although raised on the refusal of the court to give instructions asked. There is no error in the judgment, and it will be affirmed. Affirmed. Opinion delivered October 12, 1888.