Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 289
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1875.] MILLAR V. DOUGLASS. 289
Statement of the case.
tax of 1866, demanded and received by appellee under color
of his office as tax collector. The assessment was made in
accordance with plaintiffs oath and list of property. There
was a conflict of testimony as to whether the tax was paid
under protest, or whether the objection was made after the tax
was paid and the rolls had been sent up to the comptroller.
The defendant plead that if he demanded more than the law
allowed it was not knowingly or willfully done.
The comptroller was interrogated b both parties and testified:
"That defendant stated the case to him but he refused
'to disturb the assessment because it was not shown to be
"incorrect or extravagant in amount. The assessor could not
"properly make any change in his rolls after a copy had been
" sent to him, for the assessor is required to settle the entries
"he has made, but he (comptroller) was always willing to cor"rect
errors." The jury found a verdict in favor of the defendant,
and the plaintiff appealed. He complained, among
other tilings, of the charges of the court, to the effect, " if the
" plaintiff objected to make payment, he was bound to take
"proper steps to have the correction made. The basis for
" assessing the tax on income is the sale of the goods made in
" excess of their cost, after deducting the expenses, etc., which
"the law allows. If the defendant was guilty of extortion,
"knowing the amount received to be greater than the amount
"due, the plaintiff would be entitled to recover at least the
"amount wrongfully collected, and such damages as he may
"have sustained not to exceed double the amount of his real
"damage. But if the defendant assessed and collected, under
"the objections of the plaintiff, more than was due, but exercised
no extortion or oppression under color of law, nor did
he do so knowing that it was illegal, the measure of damage
" is the actual sum collected in excess and legal interest."
There was evidence that part of plaintiff's income was de'
rived from other sources, and on this point the court charged:
"If any part of the sum alleged to have been extorted was
'" derived from any other source of income than merchandise,
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/297/: accessed October 21, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .