
    STATE v. HOFFMAN.
    (No. 3006.)
    (Supreme Court of Texas.
    March 20, 1918.)
    1. Taxation <&wkey;527½ — Refusal to Pat —• Penalty — Tendee.
    Where taxes are separable, a citizen, to escape the penalties for nonpayment of valid taxes, need not tender a tax which is invalid, but it is sufficient to tender taxes legally due.
    2. Taxation <&wkey;527 — Tender—Payment.
    Where a taxpayer refused to pay an illegal item, but tendered payment of those taxes validly due, it is necessary to keep the tender good that the money be paid into the registry of the court.
    3. Appeal and Eeeoe <&wkey;934(l) — Review — PRESUMPTIONS.
    Where, in an action by the state to recover taxes with penalties, the judgment which denied penalties recited that the amount of the taxes sued for was tendered in open court on trial, it will, in the absence of evidence to the contrary, be presumed that a tender made before accrual of penalties was kept good by payment of the amount into the registry of the court.
    4. Taxation <&wkey;514 — Lien—Extinction.'
    Where a taxpayer tendered those taxes due and kept his tender good, the lien therefor was discharged, and in a suit to collect taxes could not be foreclosed.
    5. Taxation <&wkey;840 — Penalties—1Tendee.
    Where a taxpayer tendered a portion of the taxes assessed, but refused to pay a particular tax on the ground that it was invalid, he need not, to defeat recovery of penalties, having kept his tender good show, in an action to recover the amount of the taxes tendered with penalties and interest, that the tax which he refused to pay was not validly imposed.
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Suit by the State of Texas against Charles Hoffman for taxes with penalties, interest, and foreclosure of tax lien. A judgment for the taxes alone was on appeal by the state affirmed by the Court of Civil Appeals (190 S. W. 1163), and the State brings error.
    Affirmed.
    J. F. Clarkson, of San Diego, and Hicks, Hicks, Teagarden & Dickson, all of San Antonio, for the State. Dougherty & Dougherty and G. C. Robinson, all of Beeville, for defendant in error.
   PHILLIPS, C. J.

This was a proceeding by the State to recover of the defendant Hoffman state and county taxes for the year 1913, with penalties and interest and foreclosure of the tax lien upon certain real estate. There was no dispute as to the taxes. Judgment therefor was rendered for the State. The real controversy is whether the State was entitled to the penalties, interest and costs, and a foreclosure of the lien, as to which its prayer was denied. The case is here upon a writ of error allowed by the Committee of Courts of Civil Appeals Judges, the judgment of the trial court having been affirmed by the Court of Civil Appeals for the Fourth District.

" The full amount of the taxes for which the State has brought this suit was, according to the agreed statement of facts, legally tendered by Hoffman to the county tax collector on January 28, 1914. This was before the time fixed by law for the accrual of any penalty for their non-payment. Hoffman’s tender did not include a tax of twenty cents upon the hundred dollar valuation that had been levied for court house and jail purposes. The validity of that tax was denied by him, and for that reason he declined to pay it. His tender was refused by the collector because it did not embrace the amount of that tax. Exclusive of that amount, it covered all taxes due by him. This being the situation, Hoffman and other citizens in the same attitude, on January -30, 1914, presented to the District Judge their petition for an injunction to restrain the collector from attempting to collect the court house and jail tax, because of its invalidity, and directing that he accept from the plaintiffs- the amount of their taxes less that tax. A preliminary injunction to such effect was granted on the same day. The required bond was duly filed. The writ issued and was served on the collector on January 31st. That injunction is still in force, a motion to dissolve having been later heard and denied. On February 2nd, the intervening day being Sunday, Hoffman made a second tender of his taxes to the collector, in the same amount as the first. It was refused by the collector because it did not include the amount of the penalty. Later, Hoffman and others obtained an injunction restraining the county attorney from prosecuting suits for the court house and jail tax until its validity was determined in the suit against the tax collector which appears to be still pending. On final hearing that injunction was perpetuated, with no ap-lieal taken from either the preliminary or final order.

Hoffman was under no obligation to pay the court house and -jail tax if it was an illegal tax. The property of the citizen is subject to only valid taxation, and it is his right to resist that which is invalid. He is not required to pay the tax and be then put to a suit or compelled to resort to the political authority to recover it if adjudged illegal. The law affords him a more direct remedy. Where the taxes are separable, it is to properly tender the taxes admittedly due and then by appropriate proceeding present for the determination of the courts the validity of the tax assailed. Blanc v. Meyer, 59 Tex. 89; Land & Cattle Company v. Board, Tax Collector, SO Tex. 489, 16 S. W. 312. That is the course Hoffman was entitled to pursue and which he did pursue. Equity will not lend its aid in such a proceeding unless this proffer of the undisputed taxes has been made. But when under the sanction of this equitable rule a man has offered to pay and has attempted to pay before default day his taxes concededly due and keeps his tender good, it is opposed to all sense of justice to inflict a penalty upon him as for default in their payment. There can be no penalty without a default. There was no default here, because within the legal period Hoffman sought to pay the full amount for which he is here sued by making a legal tender to the collector. Having once made such a tender it was unnecessary for him to repeat it. For the tender to be available as a bar to the recovery of the penalty, interest and costs it was only required that he keep it good.

To keep the tender good in an action likd this, it was necessary that the money be paid into the registry of the court. Brock v. Jones, 16 Tex. 461; Tooke v. Bonds, 29 Tex. 420; Hunt on Tender, § 481. It is urged by the State that this was not done, but such is not shown by the record. The judgment of the court recites that the amount of the taxes sued for was tendered by the defendant in open court on the trial. In the absence of a contrary showing by the record we will presume in favor of the judgment that the tender was maintained.

With this true, the lien upon the property for the taxes stood discharged, and the court properly refused to foreclose it.

The ■ writ' of error was granted upon the theory that it was the duty of the collector to refuse Hoffman’s tender of January 28th because it did not include the court house and jail tax which had not then been enjoined, and for that tender to be available here it was incumbent upon -Hoffman to show in this proceeding the illegality of that tax. But Hoffman is not here sued for that tax. That tax is not in issue. The State is here making no claim for it. The penalty it here seeks to impose is not for any default in its payment, but for an alleged default in the payment of the taxes legally tendered by Hoffman before under the law they were delinquent. With the court house and jail tax itself not in issue, Hoffman was not .called on here to contest it, or try out the question of its validity in order to defend against a penalty upon other taxes for which alone he is here sued. True, the collector was not required at the time of the tender to accept less than the full amount of the taxes assessed. But the infliction of a penalty for the non-payment of the taxes in issue here which were legally tendered before default day, is another matter.

The judgments of the District Court and Court of Civil Appeals are affirmed. 
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