The opinion
On Rehearing.
Counsel for appellee, in their motion for rehearing, in some respects seem to misapprehend the effect of our opinion. They assume we hold that when a taxpayer omits property from the inventory tendered to the assessor, the assessment of such omitted property must be made by the board of equalization. It is further assumed we hold the taxpayer has the right to determine the taxable status of his assets, and what portion of his property shall be assessed. No such rulings have been made, and there is nothing in the opinion to support such a view.
Counsel complain of our failure to discuss some of the cases cited by them in support of the validity of the assessment here involved. They particularly rely upon Moody v. City of Galveston, 21 Tex. Civ. App. 16 , 50 8. W. 481, 482; Blewett v. Richardson Independent School District (Tex. Com. App.) 240 S. W. 529 ; and Haynes v. State, 44 Tex. Civ. App. 492 , 99 S. W. 405 .
These eases were considered and not regarded as in point. For that reason it was not considered necessary to comment upon them.
We will now briefly discuss same. In the Moody Case, the taxpayer, upon the inventory tendered by him, listed “Credits, cash, office furniture, etc., $20,000.” This valuation the assessor refused to accept, and listed and valued the same at $200,000, and placed the same upon the unrendered roll, and submitted the same to the board of equalization which gave the required notice to the public.
We regard the Moody Case as one where the taxpayer omitted to inventory and list a portion of his taxable property, and in such case it was the duty of the assessor to inventory same and place such omitted property upon the unrendered roll. In that case the procedure prescribed by the statutes in the case of unrendered property was observed.
Blewett v. Richardson, etc., is a case where certain taxpayers refused to render their property. The facts are not very fully stated, but it seems the assessments were made as in cases of unrendered property.
Haynes v. State was another case of un-rendered property which was placed upon the unrendered roll by the assessor. It was held that the statute imposing upon the assessor, in such cases, the duty of first listing the property, is directory, and the failure to so list the same did not invalidate the assessment in the absence of a showing by the taxpayer that he suffered by the omission.
The distinguishing feature of these three cases is that they involved assessments of property which the taxpayer had omitted to render;. which property was rendered and assessed by the assessor and placed upon the unrendered roll as the law requires shall be done when property is not rendered by the taxpayer.
In the present case the assessor did not follow the procedure prescribed in such cases. He rejected the lists and inventories tendered by appellant, made lists and inventories of his own, and carried the same forward upon the rendered rolls.
In the original opinion it was held that the real difference between the assessor and the appellant was as to the true value of the latter’s assets, and if the deductions claimed on the listings were not properly deductible the commissioners’ court, functioning as the board of equalization, had the authority to correct defendant’s listings by eliminating the deductions and thereby increase the valuation of the taxable assets. Ferguson v. Steen (Tex. Civ. App.) 293 S. W. 318 , supports the view that such a correction may be made by the board of equalization.
If the true issue between the assessor and defendant was not over the proper valuation, then .the case is one of failure on the part of appellant to inventory all of its taxable assets. It is then a case of assets omitted, and the assessor should have proceeded as in the case of unrenderéd property and placed the omitted assets upon the unrendered roll in the name of the defendant.
It is perhaps advisable for us here to consider more fully the right of the taxpayer to insist that the statutory provisions governing assessments against his property be sub *633 stantially observed. In Cooley on Taxation (2d) pp. 352, 353, it is said:
“Necessity for Assessment. An assessment, wben taxes are to be levied upon a valuation, is obviously indispensable. It is required as tbe first step in tbe proceedings against individual subjects of taxation, and is tbe foundation of all which follow it. Without an assessment they have no support, and are nullities. Tbe assessment is, therefore, tbe most important of all the proceedings in taxation, and the provisions to insure its accomplishing its office are commonly very full and particular.
“Mandatory Requirements. The assessment being so important, the statutory provisions respecting its preparation and contents ought to be observed with particularity. They are prescribed in order to secure equality and uniformity in the contributions which are demanded for the public service, and if officers, instead of observing them, may substitute a discretion of their own, the most important security which has been devised for the protection of the citizens in tax eases might be rendered valueless.”
In 26 R. C. L. p. 355, it is said: “All those provisions which are intended for the security of the citizens, for insuring an equality of taxation and to enable everyone to know with reasonable certainty for what real and personal estate he is taxed and for what all those who are liable with him are taxed are conditions precedent and if they are not observed he is not legally taxed.”
Section 1, art. 8, of the Constitution of this state, provides that all property “shall be taxed in proportion to its value, which shall be ascertained as may be provided by law.”
In the Vance Case ([Tex. Civ. App.] 261 S. W. 457 , and [Tex. Com. App.] 277 S. W. 89 ), from which we quote in the main opinion, this constitutional provision is referred to, and it was held that in obedience thereto taxable values must be ascertained in the manner provided by law.
In the case at bar, if the difference between the assessor and defendant was one of valuation, then the statutory method of adjusting such difference was not observed.
On the other hand, if it is a case of property omitted by the taxpayer from his inventory, then it was unrendered property, and the statutes governing the assessment of unren-dered property were not observed.
The inventory for the year 1926 tendered by appellant’s agent, Jaloniek, was not verified by his oath, and the one for 1927 not signed by him. We attach no importance to this defect because it had nothing to do with the assessor’s rejection thereof. Jaloniek made every effort to secure acceptance thereof by the assessor, and he was evidently willing to sign and verify same. The assessor’s refusal to accept same was due solely to the deductions which Jaloniek claimed were properly deductible.
If Jaloniek had refused to sign and verify the inventories it would have authorized the assessor to treat it as a refusal to render the appellant’s property and to assess the same as unrendered property, as was done in the Moody Case, supra.
In its motion appellee presents the point that no costs should be taxed against it, and we think this is well taken. Articles 7337, 7343, 7333 and 7297, R. S.; Duclos v. Harris County (Tex. Com. App.) 298 S. W. 417 ; Grant v. Ellis (Tex. Com. App.) 50 S. W.(2d) 1093 .
The motion for rehearing is overruled. No costs will be taxed against the appellee, but it is ordered, in behalf of the court officers, that all costs incurred by appellant in the court below and upon appeal be taxed and adjudged against it. Articles 2051-2052, R. S.