
    Texas & New Orleans Railroad Company v. State of Texas.
    Decided October 11, 1906.
    1. —Payment of Taxes—Authority of Collector.
    The payment of taxes to a tax collector before they are due and before the tax rolls had been delivered to him, is not binding on the State.
    2. —Defaulting Tax Collector—Remedies.
    For the collection of taxes prematurely paid to a collector who afterwards defaulted the State has two remedies; one against the collector and his bondsmen; and the other against the taxpayer. Orange Co. v. Texas & N. O. Ry. Co., 80 S. W. Rep., 670, followed.
    3. —Same.
    By arrangement between the bondsmen of a defaulting tax collector and the attorney for the State it was agreed that in consideration of said attorney forbearing suit against said bondsmen for the amount of taxes prematurely paid by a certain taxpayer to said collector the bondsmen would at their own expense prosecute a suit in the name of the State against said taxpayer for the taxes so prematurely paid and in the meantime would deposit with the State the amount of taxes claimed by it, to abide the successful result of said suit. Held, said arrangement was no defense to the taxpayer in the suit instituted in pursuance thereof. The payment by the bondsmen" of the amount of the taxes to the attorney for the State did not in fact discharge the State’s claim.
    Appeal from the District Court of Orange County. Tried below before Hon. W. P. Nicks.
    
      Baker, Botts, Parker & Garwood and Chester & Chester, for appellant.
    —When, after the tax rolls have been made up and approved by the Commissioners’ Court, and the amount of the taxes thus ascertained and fixed, but before the rolls are delivered to the tax collector, he demands and receives from the taxpayer the amount of the same and receipts for the same as such, and has such funds in his possession when the rolls are delivered to him, then, as between the State and the collector, this would constitute a payment of the tax, and for the amounts so collected the collector and his bondsmen would be primarily liable to the State. Rev. Stats., arts. 5164, 5166 and 5210; Mast v. Nacogdoches Co., 7 Texas, 384; Webb Co. v. Gonzales, 69 Texas, 456; Morris v. State, 47 Texas, 592; Simons v. Jackson Co., 63 Texas., 430; Cooley on Taxation (2d ed.), pp. 706-709, and authorities cited; Lynn v. Mayor of City of Cumberland (Sup. Ct. Maine), 26 Atl. Rep., 1001.
    
      Holland & Holland, for appellee.
   GILL, Chief Justice.

This suit was brought by the State of Texas against the Texas and New Orleans Eailroad Company for taxes due for the year 1898 upon its road and certain other of its property situated in Orange County.

The railway company defended, first, on the ground that it had paid the sum claimed to Bland, the 'tax collector, and had his receipts therefor; second, if such payment was not made under circumstances which amounted to a quittance of the company, the bondsmen of the tax collector Bland had nevertheless paid to the Attorney General the sum claimed in satisfaction of the State’s demand and the State had no interest in this suit.

There was a judgment for the State and the company has appealed.

The facts which are undisputed are as follows: On the 27th day of September, 1898, the defendant paid to Jeff D. Bland, the tax collector of Orange County, duly elected and qualified, the State and county taxes due .by the company in that county for that year, and took his official receipt therefor. At the date of this payment the taxes were not due and Bland had no warrant to collect them the Commissioners’ Court not then having delivered the tax rolls to him. The taxes were due and the rolls to be delivered on October 1 of that year. Bland defaulted, and another was appointed to his office. Bland never paid to the State the sum thus collected from the defendant. The Attorney General of the State was about to institute suit against the bondsmen on Bland’s official bond to recover the sum in question when the bondsmen induced him to pursue his remedy against the defendant railway company, the attorneys of the bondsmen offering to conduct the suit in behalf of the State to a successful termination. The bondsmen also offered to place in the hands of the Attorney General a sum equal to the amount then due by the defendant as taxes, to be held by him and turned into the State treasury in discharge of the bondsmen’s liability in case the State’s suit failed, but to be returned to the bondsmen if the suit was successful. These propositions were accepted by the Attorney General and the sum agreed on placed in his hands. So far as the record discloses it is still held in the Attorney General’s office subject to the terms of the agreement. This suit was brought by authority of the Attorney General, Messrs. Holland & Holland, attorneys for the bondsmen conducting it. The sum placed in the hands of the Attorney General was $1,279.29. The amount recovered in behalf of the State in the court below was a like sum but the interest added at the date of the judgment increased the total to $1,754.74.

By the first assignment .appellant complains of the judgment on the ground that the payment to Bland was binding on the State notwithstanding it was made at a time when the rolls had not been delivered to him. This assignment is overruled without discussion as the point was decided adversely to this contention in the case of Orange County v. Texas & N. O. Ry. Co., 80 S. W. Rep., 670.

The other defense presents a question which is not free from difficulty. We are of opinion, however, that the trial court was correct in holding that the arrangement between the bondsmen and the Attorney General Avas not binding on the State. It is undoubtedly true that the State had either of two remedies upon the default of Bland. One against Bland and his bondsmen, to Avhieh the fact that the tax had been prematurely collected Avould have been no defense. Both Bland and his bondsmen would have been estopped to set it up. (Webb Co. v. Gonzales, 69 Texas, 456; Mast v. Nacogdoches Co., 71 Texas, 384; Morris v. State, 47 Texas, 592.) The other against the railway company Avho as clearly could neither defend on the ground that the State also had a remedy against the bondsmen nor recover over against them the sum recovered by the State. There was no privity between the taxpayer and the bondsmen. The company’s remedy was against Bland.

While the State had two remedies it in fact chose the one against the company. We know of no power which may coerce the discretion of the Attorney General to choose one remedy rather than another. Nor may we inquire into the motives which controlled his choice further than to determine that the payment to him did not in fact discharge the State’s claim, and this it clearly did not' do. It is equally clear that the bondsmen are powerless to appropriate this judgment to their own use. They can not successfully question the right of the State to the fruits of this I-itigation. If they were permitted to do so "the State would lose about $500 in interest w-hich has accrued on the liability while the sum placed with the Attorney General has lain idle in his hands.

We think the judgment should be affirmed, and it is so ordered.

Affirmed.  