Summary
In Rusk County v. Maloney, 38 S.W.2d 868 (Tex.Civ.App.-Texarkana 1931, writ ref'd), the court stated that the tax collector's statutory authority to receive and collect taxes meant that he was "to demand and enforce in the ordinary way" the payment of taxes on the assessment roll, but he did not have exclusive authority over the collection of delinquent taxes.
Summary of this case from Opinion No. JM-1015Opinion
No. 3962.
May 6, 1931. Rehearing Denied May 21, 1931.
Appeal from District Court, Rusk County; Reuben A. Hall, Judge.
Suit by Rusk County against R. H. Maloney and others. From the judgment, plaintiff appeals.
Affirmed.
The suit was brought by the county of Rusk, by authority of the county commissioners' court, against the county tax collector and the sureties on his official bond to recover from the officer $802, and the sum of $20.90 collected under receipt, as school taxes, alleged to have been collected and not turned over or accounted for "by error or mistake," and the total sum of $7,390.70 as delinquent ad valorem taxes, alleged to have been held and applied during a period of six years from 1922 to 1928, inclusive, in excess of the annual maximum amount of fees allowed by law as compensation. The tax collector answered, specially pleading that he fully accounted for, and actually turned over to the county, and the county received the possession and benefit during each year mentioned of, all moneys collected and coming into his hands and authority as school taxes and ad valorem taxes, and that he never retained or held to his own benefit as compensation or fees either the school taxes or delinquent ad valorem taxes sued for or any part thereof. The tax collector further pleaded that beginning in 1922, and in each year thereafter, including 1928, when the delinquent tax rolls were made up and approved, the county commissioners contracted with L. T. Standard to collect the delinquent taxes and to be paid as his compensation therefor "the excess fees of the tax collector's office," and that L. T. Standard performed the services of collecting such delinquent taxes under such contract and not as his deputy or employee; that the money paid to L. T. Standard was paid over to him as a contractee on order therefor made by the commissioners' court; that the tax collector did not receive nor apply to his own benefit any part of the fees or compensation directed to be paid over to L. T. Standard for collecting delinquent taxes. The tax collector further pleaded, in the alternative, in the nature of estoppel, that L. T. Standard collected the delinquent taxes, and the money paid out of the delinquent taxes to L. T. Standard for such services was done in good faith, for an authorized purpose, and on the order of the commissioners' court, and the county received the benefit of the expenditures so made.
The sureties pleaded substantially as did the tax collector.
The county of Rusk, by supplemental petition, pleaded in reply to the defendant's answer, in substance, that there was no contract of employment of L. T. Standard made by the commissioners' court entered in the minutes of the court, and that the only order of record in the minutes of the court provided that the tax collector himself should make the collection of the delinquent taxes; that the tax collector appointed L. T. Standard as his delinquent tax deputy, and he was paid compensation as such deputy each year; that any contract of the commissioners' court with L. T. Standard to collect the delinquent taxes was without authority and contrary to the statutes, as he was not a practicing attorney.
It was proven that R. H. Maloney was the duly elected and qualified tax collector of Rusk county from January 1, 1922, until December 31, 1928. The other defendants were the sureties on his official bond. According to the census of 1920, Rusk county reached the population that under the law limited the tax collector to the maximum annual compensation of $2,400 and one-fourth of the excess fees. His first deputy was entitled to $1,800, and his second deputy would be entitled to $1,500, annually, if he had a second deputy.
There is evidence in behalf of the county tending to show that there was neglect or omission on the part of the tax collector to make report of school taxes approximately in the total sum sued for during the period of the years 1922 to 1928, inclusive. There was shown a tax receipt, No. 1420, for a district tax of $21, and the amount thereof was unreported. The evidence in behalf of the tax collector goes to show that the tax collector did duly report and account for all the school taxes collected during the period of the years 1922 to 1928. As respecting the tax receipt No. 1420, the collector testified: "I did not receive the money represented by tax receipt No. 1420. We issued some receipts (No. 1420 being one of them) on personal checks that were bad and that was the only one (receipt) that had not been cancelled. I am sure that I did not get the money."
It was shown that, beginning with the year 1922, the commissioners' court determined to specially enforce collection of the delinquent taxes appearing on the delinquent tax roll. To that end the commissioners' court in regular session formally made a special agreement in August, 1922, with L. T. Standard to collect the delinquent taxes. He was to receive as his compensation for the work, as expressly provided, all excess fees earned by the tax collector's office during the year. An order was passed by the commissioners' court and ordered to be entered in the minutes, but it appears that such order was not spread at large upon the minutes of the court. Again in 1923 and in 1924 the commissioners' court renewed the same agreement with Mr. Standard. In March, 1925, the commissioners' court passed and entered in the minutes of the court the following order: "It is hereby ordered by the Commissioners' Court that R. H. Maloney, tax collector of Rusk County, shall receive as his ex officio salary a sum equal to the amount of his excess fees, and he, the said R. H. Maloney, shall collect the delinquent taxes, furnishing his own car or cars and all expenses thereto without any cost to Rusk County whatever."
It appears that in the August term, 1925, and again in 1926, the commissioners' court continued the special employment of L. T. Standard to collect the reported delinquent taxes at the same compensation as before done. At a special session in June, 1927, the commissioners' court passed and entered in the minutes of the court an order in the words of the order passed in March, 1925, directing the tax collector to collect the delinquent taxes. At the August term of the commissioners' court in 1927 and again in 1928 the court continued the employment of L. T. Standard to collect the delinquent taxes at the same compensation as before. It appears that, during the period of six years in evidence, L. T. Standard collected delinquent taxes above the sum of $250,000. Mr. Standard was paid for such services approximately a total amount of fees sued for.
The county judge and members of the commissioners' court all testified that the commissioners' court made the contract as explained in the evidence with Mr. L. T. Standard to annually collect the delinquent taxes from 1922 to 1928, and for the compensation that has been stated. The county judge said that the order employing Mr. Standard to make collection of the delinquent taxes was by the commissioners' court "ordered to be placed on the Minutes." It was proven that Mr. Standard was not a lawyer.
The evidence in behalf of the county went to show that on the collector's written reports Mr. Standard appeared named as "delinquent tax deputy," and that such reports showed payment as "deputy hire" for two deputies of the total sum of $3,300.
Mr. Standard testified, as need be stated, viz.: "In 1922 the Commissioners' Court of this County made the contract with me. They sent for me and made the proposition that I collect the delinquent taxes for the excess fees of the tax collector's office and the expenses to be taken out of whatever excess fees there were. I went to work for them on that proposition. I did this work for six years of the time during which Mr. Maloney was tax collector, of collecting the delinquent taxes. There never was any renewal of that contract that I know of; it was just a continuation of the contract from year to year as I understand it. I collected (as delinquent taxes) somewhere between $240,000.00 and $250,000.00 during the six-year period. I got my pay for work in this way: the tax collector would advance me money for my salary and expenses. * * * I was employed by the Commissioners' Court independent of Mr. Maloney. Mr. Maloney had nothing to do with any part of my employment. The Commissioners' Court employed me to collect the delinquent taxes. I was to collect the taxes and Mr. Maloney was to issue the receipts. When I collected the delinquent taxes I sent the people to Mr. Maloney for the receipts. I had my authority from the Commissioners' Court to collect those taxes or I had a contract with the Court. * * * I did not term myself a deputy tax collector. I never took any oath of office nor did I make any bond as deputy. * * * When Mr. Maloney got bogged down with work and had overwork, I did some of the work. Mr. Maloney did not pay me anything extra for my work done at those times. There was not a regular deputy in that office except Miss Ballinger."
The county judge testified: "The Commissioners' Court ordered Mr. Maloney to pay Mr. Standard the excess fees, and he was acting under orders of the Commissioners' Court when he did that. * * * The Commissioners' Court of Rusk County never paid to R. H. Maloney as tax collector of Rusk County any fees above the fees of his office."
The tax collector testified, as pertinent, that: "I did not employ Mr. Standard. He was employed by the Commissioners' Court and he worked under that contract during my three terms of office. When those taxes were collected they were brought into the office and proportioned out to the different parts of the Government that were entitled to receive them. All the taxes that were collected, delinquent taxes and otherwise, were surely all paid to the tax collector's office and placed in the County depository. I paid Mr. Standard all along as he needed it. I was paying him that money under the orders of the Commissioners' Court. * * * I had paid into the common school and the independent school funds, and the tax collector's commissions and the assessor's commissions every dollar due them, and refunded (turned over) every dollar I have ever collected for the fund."
The tax collector further said: "I was using Miss Lois Ballinger as my deputy. She was the only deputy I had. I carried Mr. Standard in the reports I made as a delinquent tax deputy as a matter of bookkeeping. I made a report to the Commissioners' Court each year showing the condition of the tax rolls and the amount of the delinquent taxes and how much was collected. I always had a settlement with the Commissioners' Court at the end of each year. My accounts and my claims were all approved by the Commissioners' Court."
The case was tried before the court without a jury, and the following findings of fact were made by the trial court:
"I find that R. H. Maloney was the duly elected and qualified Tax Collector of Rusk County, Texas, from January 1, 1922, until December 31, 1928, and that during said time he fully accounted to and settled with the Commissioners' Court of Rusk County, Texas, for all monies due by him to said Court.
"I find further that in August or September, 1922, the Commissioners' Court of Rusk County, Texas, entered into a contract with L. T. Standard whereby the said Standard was to assist R. H. Maloney, the duly elected Tax Collector, in the collection of the delinquent taxes then due Rusk County. That the said Standard was to receive for his services under said contract all excess fees earned by the Tax Collector's office during the period for which he was employed, to-wit: Six Years.
"I find further that L. T. Standard complied with his part of the contract and collected, or assisted in collecting, delinquent taxes in excess of $250,000.00, which were paid into the treasury of Rusk County. Texas, and that Rusk County paid to the said Standard the excess fees earned by the Tax Collector's office. In this connection, I find that the only connection R. H. Maloney had with the contract between the Commissioners' Court of Rusk County and L. T. Standard was the keeping account of excess fees due by his office and paying same over to the said L. T. Standard as directed by the County Commissioners of Rusk County, Texas.
"I find further that R. H. Maloney accounted for all monies due by him to the Common and Independent School Districts of Rusk County, Texas."
The above findings have evidence to support them, and are here adopted.
The court concluded that under the facts the doctrine of estoppel was applicable to the county as to the excess fees in suit, and that Mr. Maloney had duly accounted for all school taxes, and accordingly entered judgment in favor of the defendants. The court's conclusion of law, in substance, was that the county, acting through the commissioners' court, "had the legal right and it became its duty to collect all the delinquent taxes due it and the State for the six-year period covered by this suit," and the county was bound by the contract with L. T. Standard, and "ought not to recover against the said R. H. Maloney and his bondsmen even though the contract `was irregular' because the contract `was executed and fully complied with by both parties' and `the County received the benefit of Standard's work' and R. H. Maloney's connection with this contract was only that of paymaster for the County, and he did not receive any of the money for his own benefit."
Chas. L. Brachfield and V. W. McDavid, both of Henderson, for appellant.
Futch Cooper, John Arnold, Victor A. Smith, and Smith, West Gladney, all of Henderson, for appellees.
We are called upon to chiefly determine the point, broadly stated, of whether or not the county was entitled to have recovery for the amount of excess or delinquent tax fees in suit. Upon the evidence, the trial court made the affirmative finding of fact that the commissioners' court contracted with Mr. L. T. Standard to assist the tax collector in the collection of delinquent taxes. There is necessarily involved in the further findings of the court the facts that Mr. Standard performed the services, not for the tax collector as his deputy tax collector, but apart therefrom and in the capacity of a private person specially acting for the county government as a contractee of the county, and that he was merely paid the contract price by the tax collector out of the delinquent taxes received into the possession of the tax collector as specially ordered to be done by the commissioners' court. We do not feel authorized from the record to disturb the findings of fact. In view of these special facts, the appeal must be determined. Was the power in the county government to enter into the contract involved in the suit, or was it ultra vires? There is no express or implied absolute prohibition of law against the county government's entering into such character of contract. And the power to do so is deducible from the law. The law expressly confers the power upon the county government, to be exercised by the commissioners' court, of general authority over all county business, to hold and dispose of its property, to make such contracts as may be necessary to the exercise of its powers, to levy and collect taxes, to cause the tax collector to make delinquent tax records, and to employ attorneys to bring about the collection of delinquent taxes through judicial proceedings and to pay for such services a percentage of the taxes. The power to levy taxes involves the power to enforce collection. While the statute has designated the tax collector as the person who "shall be the receiver and collector of all taxes assessed upon the tax list in his county" (article 7254, R.S.), yet the authority intended by this article to be exclusively conferred upon the tax collector was to demand and enforce in the ordinary way the payment of all the taxes of the original assessment roll or amended or supplemental list committed to him. Article 7255, R.S. But that authority does not also confer exclusive authority upon the tax collector to collect delinquent taxes. By further statutory requirement, the tax collector shall return a list of delinquent taxpayers, both for the purpose of claiming exoneration or credit for taxes on the rolls originally committed to him which he has not been able to collect, and as a basis for further compulsory proceedings against the persons or property. Articles 7263, 7271. And it is in this particular regard of collecting the delinquent taxes that a positive and official duty or authority may not be regarded as exclusively confided or cast upon the tax collector. For the accomplishment of this end and of doing this work for the benefit of the public in its organized capacity, there arises, as to delinquent taxes, general authority in the commissioners' court to employ other agencies at public expense to enforce, or assist in enforcing the collection of delinquent taxes. Bailey v. Aransas County, 46 Tex. Civ. App. 547, 102 S.W. 1159. The case of Von Rosenberg v. Lovett (Tex.Civ.App.) 173 S.W. 508, considers quite exhaustively the decisions upon the subject. The case of Stringer v. Franklin County, 58 Tex. Civ. App. 343, 123 S.W. 1168, may not be regarded as contrary authority bearing upon the precise point here now being considered. In that case the contract passed "all of the taxes shown on the delinquent lists," and the real and intended ruling was that the effect of such contract was "to barter to private individuals all the County's sources of revenue," and this the commissioners' court had no authority to do.
The appellant, though, further points out that the commissioners' court is authorized to contract only with an "attorney" to enforce or assist in enforcing the collection of the delinquent taxes, and that Mr. Standard was not an attorney. Article 7335. That is only one added method to the line of general authority of providing assistance in collection of delinquent taxes, and is not intended to be the only and exclusive authority such court may exercise in respect to enforcing the collection of delinquent taxes. That article of statute contains no words of exclusion of any other method or means of collection. The article provides no further than that, should the commissioners' court "deem it necessary or expedient," they "may contract with any competent attorney" to enforce collection through "suits" or judicial proceedings. Summary proceedings nor personal solicitation as means for collection were not therein dealt with at all. Therefore the exercise of discretion in the selection and appointment of a person who is not an attorney to enforce or bring about collection otherwise than through judicial proceedings would, as properly held by the trial court, at most be merely an "irregular" exercise of authority of selection and appointment in furtherance of the authorized purpose.
Therefore, concluding that there is no express or implied prohibition of law against the county government's entering into the contract in evidence, can estoppel, in view of the contract and the facts, be invoked against the county government? It is believed that in so holding the trial court has correctly ruled. In the facts the county is in the attitude of suing to recover back from the tax collector the contract price which by order of the commissioners' court has been once actually paid over to Mr. Standard under his contract and in complete performance thereof. The tax collector manifestly would suffer injury by the denial of such pleaded rule of law. It is the settled rule in this state that estoppel may be invoked against a county where the power to contract exists and is irregularly exercised. Grimes County v. Slayton Co. (Tex.Civ.App.) 262 S.W. 209. The case of Flowers v. Logan County, 138 Ky. 59, 127 S.W. 512, 137 Am.St.Rep. 347, deals with thoroughness with the aspect of estoppel of a county where there is an illegal expenditure for a legal purpose. A very similar case is Clark v. Logan County, 13S Ky. 676, 128 S.W. 1079.
It is pointed out by appellant that there was error in refusing judgment to the county for the school taxes in suit. It is thought the point must be overruled, in view of the finding of the court "that R. H. Maloney accounted for all monies due by him to the common and independent school districts." Since there was evidence before the court going to support that finding, this court would not be warranted in disturbing such finding of fact.
The appellant objected to oral proof of the contract in evidence. The commissioners' court actually passed the order contracting with L. T. Standard, and the contract was acted upon and performed, but the order was never spread at large upon the minutes of the court. The contract was not ineffective because the order was not spread at large on the minutes and can be shown by parol. Ewing v. Duncan, 81 Tex. 230, 16 S.W. 1000. Such proof would not operate to legally set at variance or vacate the separate order as recorded in the minutes directing the tax collector to also collect delinquent taxes. The contract with Mr. Standard was apart from and distinct from the order as to the tax collector and in aid or assistance to the tax collector. There is a difference in the present points made from the points made in the cases cited of King v. Marion County (Tex.Civ.App.) 202 S.W. 1052; Gano v. Palo Pinto County, 71 Tex. 99, 8 S.W. 634; Mosler Safe Co. v. Atascosa County (Tex.Civ.App.) 184 S.W. 324.
We have considered all of the assignments of error, and conclude that they should be overruled.
The judgment is affirmed.
I think it appears from the language used in article 7335, R.S. 1925, that the power the Legislature intended to confer upon the commissioners' court was to contract with an attorney at law (and with no other person) "to enforce or assist in the enforcement of the collection" of delinquent taxes. The forced collection contemplated could have been accomplished in no other way than by suits in the courts, and only such attorneys could prosecute such suits. Baxter v. City of Venice, 271 Ill. 233, 111 N.E. 111; Kerr v. Regester, 42 Ind. App. 375, 85 N.E. 790. It follows, I think, the commissioners' court was without power to contract with Standard to enforce, or assist in enforcing, the collection of the delinquent taxes. If it was, appellee Maloney was chargeable with knowledge of the fact, and estoppel as against the county was not available as a defense against the recovery sought by the county. In that view, the judgment should not be affirmed.