As was said by Chief Justice Moore in the case of R. G. R. R. Co. v. Scanlan, 44 Tex., 650, ‘Where is no assignment of errors in the record, and only such objections can be considered as go to the foundation of the action, and from which it plainly appears that the judgment is obviously erroneous. We will merely, therefore, briefly consider the objections made to the judgment, which counsel for appellant insists are of this character.”
Appellants’ first proposition is as follows, to wit: “ If the taxes were illegally assessed, and plaintiffs paid after seizure of their property to prevent its sale, and under protest, they have a right to recover the money from the officer to whom it was paid.”
The principle of laAV announced is in a qualified sense correct. *400If the taxes assessed were illegal, and paid under protest after seizure, the officer is liable provided the suit is promptly brought, before the officer is required to pay over the money under the law - or instructions of the comptroller. But, notwithstanding the protest, if he delay his suit in such way as to indicate that he had abandoned the contest, or until after such time as the officer is required to pay over the money, then we are of the opinion that the action would not be maintainable against the collecting officer. See. Cooley on Taxation, pp. 567 and 568, and authorities cited.
Appellee claims that as the appellants did not appear before the board, of equalization and contest the assessment, that they can maintain no action against him, for that he is charged with the amount shown by the rolls, and that there is no means by which he can exempt himself from that obligation.
In treating of the powers of the comptroller, the Revised Statutes provide that “ He shall remit or make an allowance to every tax collector in the auditing of his accounts for all sums of money which, in his judgment, have been illegally assessed.” Art. 2754.
The collector could, when the protest was made, have retained the money that was collected as state tax, and submitted to the comptroller the matter for his action. On failing in this he could have retained the fund collected for the state, and reported to the comptroller the fact that a suit was then pending to determine the legality of the assessment. As to that part of the fund collected for the county, the commissioners’ court had full power to correct the matter, and in that way protect the officer; or he could have retained the fund, and reported to that court the pendency of the suit to determine the illegality of the assessment.
In filing their amended petition, appellants failed to observe the rules of court in giving the date upon which the original petition was filed, but from the date of the filing pf other papers in the record, it appears that the suit was brought with reasonable promptness.
Appellants’ second, third and fourth propositions are as follows :
“ The power of the state to levy taxes upon property is limited to such property as is owned within its limits on the 1st day of January of each year.”
Personal property, in the eye of the law, has no locality, but attends the person of the owner, and is subject to taxation in the state where he resides.”
“ The appellants being citizens of Kansas, holding and owning *401cattle in the Indian Territory, the state of Texas had no jurisdiction to tax their property temporarily within its jurisdiction.”
Considering the various sections of our statute upon the subject of taxation, in connection with the several provisions of our constitution with regard to the same subject, it does not seem to us that to render personal property liable to taxation that its owner must reside in the state. The constitution provides that “ All property, whether owned by persons or corporations, shall be assessed for taxation, and the taxes paid in the county where situated.” It is beyond the power of the legislature to exempt from taxation any property made subject thereto by the constitution except certain specified property, such as places of religious worship, places for the burial of the dead, etc. The language used in art. 4662, Revised Statutes, as follows, “ and all movable property owned in this state on the 1st day of January of each and every year,” when construed in the light of the various constitutional provisions upon that subject, does not mean that the owner of the' property must reside in the state on the 1st day of January to render it taxable. The legislative intent with respect to this character of property was, that if it had a status here, that is, was situated here, as distinguished from property merely passing through, or temporarily Avithin the state for the purposes of trade, and other like purposes, then that such property should be subject to _ taxation. This interpretation derives support from a fair construction of art. 4671, where money, credits, bonds and other evidences of debt owned by citizens of the state, are taxed Avhether the same be in or out of the state. There is no such provision Avith respect to cattle and other like property.
Art. 4676 provides that “All property, real and personal, except such as is required to be listed and assessed otherwise, shall be listed and assessed in the county Avhere it is situated.”
We conclude that a£ to such personal property as cattle, horses and other stock, that if it is situated in the state, it then becomes subject to taxation.
From the finding of the court it appears that appellants had about two thousand head of cattle in Hansford county; that they came there in the early winter and remained until about the 1st day of May. It also appears that the appellants had a ranch, composed of a camp outfit and food for part of their hands and horses, about eight miles south of the Texas line. The inquiry would naturally arise, Avhy, if the appellants did not desire their cattle to come into the state, did they establish their line of sign riders eight miles from *402the boundary. And to this circumstance, doubtless, the court beloiv attached importance. At any rate, it appears that these cattle Avere in the state for about five months, including the 1st day of January; that they Avere not passing through the state, nor brought here for the purposes of trade.
There is nothing in the record that Avould necessarily lead to the conclusion that these cattle Avere not, in the meaning of the law, situated in Hansford county on the 1st day of January, 1880.
An examination of the record fails to disclose any such fundamental error as would require the reversal of the judgment, AArhich ought, therefore, to be affirmed.
Affirmed.
[Transferred to Tyler, and opinion delivered October 24, 1882.]