Antrim Lumber Co. v. Sneed
| Citation | 52 P.2d 1040,175 Okla. 47,1935 OK 1144 |
| Decision Date | 26 November 1935 |
| Docket Number | 23783. |
| Parties | ANTRIM LUMBER CO. v. SNEED. |
| Court | Supreme Court of Oklahoma |
Rehearing Denied Jan. 7, 1936.
Syllabus by the Court.
1. Where an action is brought against the state treasurer for the recovery of taxes alleged to have been paid involuntarily and under protest pursuant to the exaction of an unconstitutional statute and the record discloses that the relief sought is to require the payment of money out of the state treasury and such action is prosecuted upon the theory of an official rather than individual liability, the action is in reality one against the state.
2. An action against the state may be maintained only when the state has given its consent thereto and then only at the time and in the manner and method provided by law.
3. In this jurisdiction a suit for the recovery of illegal taxes is deemed to be in effect a suit against the state and consent to the maintenance of such a suit has been granted by section 12665, O.S. 1931 (section 9971, C.O.S. 1921), and thereby the taxpayer is provided with an adequate, speedy, and exclusive remedy in all cases where the illegality of the tax is alleged to arise by reason of some action from which the law provides no appeal.
4. The remedy thus provided by said section 12665, O.S. 1931, is not restricted to ad valorem taxes, but is applicable to all taxes of a general revenue nature and is limited only by the powers conferred upon the court of tax review by initiative petition No. 100 (sections 12305-12315, O.S.1931), and the exclusion of special improvements assessments therefrom.
5. When a taxpayer fails to pursue the statutory remedy provided for the recovery of illegal taxes, he may not thereafter maintain an action to recover said taxes on the theory that payment thereof was made involuntarily and under compulsion.
Appeal from District Court, Oklahoma County; Tom G. Chambers, Judge.
Action by the Antrim Lumber Company against R. A. Sneed, treasurer of the state of Oklahoma, to recover taxes alleged to be void. Judgment for defendant, and plaintiff appeals.
Affirmed.
Lee B Thompson, of Oklahoma City, for plaintiff in error.
J Berry King, Atty. Gen., and Fred Hansen, Asst. Atty. Gen for defendant in error.
This action was commenced in the district court of Oklahoma county by the Antrim Lumber Company against R. A. Sneed, treasurer of the state of Oklahoma. The parties occupy the same position here as in the trial court and will be referred to as plaintiff and defendant, respectively.
The petition of the plaintiff alleges, in substance, that on the 12th day of July, 1929, under threat, duress, and coercion of an unconstitutional and void act of the Legislature of Oklahoma (House Bill 387, chapter 113, Session Laws 1927), it paid under protest to the defendant, as treasurer of the state of Oklahoma, the sum of $850.19, as a corporation license tax and prayed recovery of this sum. Demurrer challenging the petition as being in effect a suit against the state and for failure to state facts sufficient to constitute a cause of action in favor of the plaintiff was interposed and denied. Answer admitted payment to the defendant as state treasurer of the amount stated in the petition and for the purpose therein set forth, but specifically denied that plaintiff made said payment either under duress or protest, and further denied receipt of any notice or knowledge of any protest of any kind relative to said payment prior to the institution of this suit (more than a year subsequent to said payment), and as a further defense alleged that the money so paid by the plaintiff had been by the defendant paid into the state treasury of the state of Oklahoma as required by section 8614, C. O.S. 1921, and comingled with other money of the state of Oklahoma, and hence could not be refunded to the plaintiff, and that this condition had been brought about in part by reason of the laches of the plaintiff, and concluded by setting forth that the defendant had ceased to be treasurer of the state of Oklahoma and had been succeeded in office by Hon. Ray O. Weems. The plaintiff thereupon filed a motion requesting the court to substitute the said Ray O. Weems, treasurer of the state of Oklahoma, in the place and stead of the defendant, R. A. Sneed, treasurer of the state of Oklahoma. This motion was denied by the trial court. Thereupon the cause proceeded to trial upon the original pleadings; being submitted to the court upon the pleadings and the following agreed statement of facts:
"I. That during the calendar years 1927-1929 and 1930 R. A. Sneed was Treasurer of the State of Oklahoma, but that since the second Monday of January, 1931, Ray O. Weems has been and is now the Treasurer of the State of Oklahoma.
II. That a true and correct copy of the report of the Antrim Lumber Company to the Corporation Commission and which report is referred to in Plaintiff's petition, is attached to Plaintiff's petition as Exhibit 'A' thereof, and a true and correct copy of the check of said Company to the State of Oklahoma in payment of the amount due under said report, and which check is referred to in Plaintiff's petition, is set forth as Exhibit 'C' of Plaintiff's petition and made a part thereof.
III. That the original of said report and the original of said check were received through the United States mail by the Corporation Commission of the State of Oklahoma on July 17, 1929, but that no separate written notice of protest or notice of the payment of the amount of said check under duress accompanied said report and check.
IV. That the notation in the upper right hand corner of said report, to-wit: , and the notation on the left lower corner of said check, to-wit: 'This tax paid under protest' were not observed or noted by the Corporation Commission of the State of Oklahoma or by the State Treasurer of Oklahoma when same were received by them or for approximately a year thereafter, and that said notations were not called to the attention of the Corporation Commission or said Treasurer by any one whatsoever until at least one year after said report and check were received as aforesaid.
V. That said check was received by the State Treasurer on or about July 17, 1929, at which time same was deposited by him in his State Treasurer Depository account where the same was held until the day following the second Monday of August, 1929, on which date said amount was deposited by said Treasurer into the State Treasury of the State of Oklahoma.
Dated this 20th day of October, 1931."
The judgment of the trial court was in favor of the defendant; motion for new trial, although unnecessary, was filed and overruled and the cause is now properly before us on appeal.
The plaintiff makes three assignments of error and discusses them under the following propositions:
"(1) That the terms of the Act itself are coercive and any payment made under said Act is an involuntary payment.
(2) That taxes paid involuntarily and under coercion, and under protest, may be recovered by suit.
(3) That the notice which was given by plaintiff in error in this case was sufficient."
In support of the first two of the above propositions, we are cited to Atchison, T. & S. F. Ry. Co. v. O'Connor, 223 U.S. 280, 32 S.Ct. 216, 56 L.Ed. 436, Ann. Cas.1913C, 1050; Gaar, Scott & Co. v. Shannon, 223 U.S. 468, 32 S.Ct. 236, 56 L.Ed. 510; Ward v. Board of County Commissioners of Love County, Okla., 253 U.S. 17, 40 S.Ct. 419,64 L.Ed. 751; and to the case of Sneed v. Shaffer Oil & Refining Co. (C.C.A.) 35 F. (2d) 21; and in support of the third proposition we are cited to numerous decisions of this court as well as those of other jurisdictions and to various text-writers.
We are not here called upon to determine the constitutionality of the statute under which payment was made, nor whether the act by reason of its severity resulted in duress and coercion and thus made any payment thereunder an involuntary one. Admitting, without deciding the contention of the plaintiff regarding the unconstitutionality of the statute in question and the involuntary character of the payment made, we are of the opinion that these questions are not properly involved in this appeal and are unnecessary to a decision herein. The case of Atchison, T. & S. F. Ry. Co. v. O'Connor, supra, together with Erskine v. Van Arsdale, 15 Wall. 75, 21 L.Ed. 63, and the Virginia Coupon Cases (Poindexter v. Greenhow), 114 U.S. 270, 5 S.Ct. 903, 962, 29 L.Ed. 185, are authority for the individual liability of a treasurer to repay taxes paid to him involuntarily and under protest when the tax is exacted under an unconstitutional statute, but are inapplicable where the suit is against the treasurer in his official capacity and thus is in effect a suit against the state. As has been said in Smith v. Reeves, 178 U.S. 436, 20 S.Ct. 919, 44 L.Ed. 1140: "An action against a state treasurer in his official capacity, which is in effect to compel the state, through him to perform its promise to return to taxpayers money that may be adjudged to have been taken under an illegal assessment, is in substance an action against the state itself, within the meaning of U.S.Const. 11th Amend."
As far back as the case of Love v. Filtsch et al., 33 Okl 131, 124 P. 30, 44 L.R.A. (N.S.) 212, we laid down the same doctrine in the following language: "Suits against officers of a state as representing the state in action and liability, and in which the state, although not a party to the record, is the real party against which relief is sought, and in which a judgment for plaintiff, although nominally against defendant as an individual, could...
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