# Marsh v. Ferguson

> Court of Appeals of Texas · February 21, 1924 · 262 S.W. 805

URL: https://www.frixlaw.com/law-library/cases/9829257

## Case

- **Full name:** MARSH, Tax Collector, Et Al. v. FERGUSON Et Al.
- **Court:** Court of Appeals of Texas
- **Decided:** February 21, 1924
- **Citations:** 262 S.W. 805
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Barcus
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9829257

## Opinion text

On Rehearing.
Appellees in their motion for rehearing insist that this cause should be governed by Nalle v City of Austin, 41 Tex. Civ. App. 423 , 93 S. W. 141 , instead of by City of Austin v Nalle, 85 Tex. 520 , 22 S. W 668, 960. We have again carefully read the record in this cause and the authorities, and have been unable to reach any different conclusion from that announced in the original opinion. It seems to be a well-established principle of law that one individual taxpayer may in equity institute and prosecute an injunction suit to restrain the collection of an illegal tax,' and thereby prevent a multiplicity of suits. Morris v Cummings, 91 Tex. 618 , 45 S. W. 383 ; Railway v. Dowe, 70 Tex. 5 , 7 S. W. 368 ; Blessing v. City of Galveston, 42 Tex. 641 ; Preston v. Finley (C. C.) 72 Fed. 854 ; Odlin v. Woodruff, 22 L. R. A. 703; Holland v. City of Baltimore, 11 Md. 186 , 69 Am. Dec. 195 ; Russell v. Tate, 7 L. R. A. 181, note; 14 R. C. L. 328.
Counsel for appellees in their brief recognize the rule that, if appellees had brought this suit for themselves and all persons similarly situated, the trial judge would have been disqualified. They contend, however, that they only brought it for themselves and certain other named citizens. Under the above authorities, clearly, where one person interested in the prevention of the enforcement of an illegal tax already assessed and in the process of collection brings suit to enjoin its collection, a judgment rendered enjoining the collector from collecting the tax would inure to the benefit of all similarly situated and be binding upon the courts in all suits thereafter brought involving said tax. It would be a mockery and a travesty on the court to say that each individual tax-’ payer must bring a suit to enjoin the tax collector from collecting taxes under an ordinance, which the court had declared void and had enjoined, simply because the person bringing the suit did not state plainly that he was bringing same for himself and all others similarly situated. It is true, of course, that an individual can bring’ a suit to restrain the collection of his individual tax without attempting to have the levy declared void and without seeking any relief for the benefit of his fellow townsmen, and in such case the decision in Nalle v. City of Austin, 41 Tex. Civ. App. 423 , 93 S. W. 141 , would govern. Appellees in this case alleged that the tax levy was a nullity and prayed for and obtained a permanent judgment and injunction so declaring and restraining the tax collector *807 from collecting the tax, not only against the ■ plaintiffs, hut against every one that was affected by the tax. It was an admitted fact that the district judge was a resident taxpayer in the city of Madisonville and had not paid his tax, and the result of this suit is that the district judge has entered an order restraining the tax collector from collecting the tax assessed against his property. We think this is clearly contrary to the Constitution and statutes of Texas, and that the district judge was unquestionably interested in both the case and the question to be determined.
Motion for rehearing is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9829257. Public record. Not legal advice.