Bank of Picher v. Morris, Co., Case Number: 20042

• Decision Date: 03 May 1932
• Docket Number: Case Number: 20042
• Citation: 11 P.2d 178,157 Okla. 122,1932 OK 334
• Parties: BANK OF PICHER v. MORRIS, Co. Treas.
• Court: Oklahoma Supreme Court

1932 OK 334

11 P.2d 178

157 Okla. 122

BANK OF PICHER v. MORRIS, Co. Treas.

Case Number: 20042

Supreme Court of Oklahoma

Decided: May 3, 1932

Syllabus

¶0 1. Taxation--Time for Payment of Illegal Taxes Under Protest and Recovery by Suit--Effect of Legislative Resolution Extending Time for Paying Taxes.

By the provisions of Joint Resolution No. 3 (chapter 228, Session Laws 1927), approved January 31, 1927, the statutory time for the payment of taxes for the year 1926 was extended, and by the provisions of section 9971, C. O. S. 1921, illegal ad valorem taxes paid under protest within the time prescribed by that resolution may be recovered in a timely action brought for that purpose.

2. Same--Effect of Delay in Certifying Tax Rolls to County Treasurer.

Sections 9719 and 9971, C. O. S. 1921, contemplate that county taxing officials will perform their duties in ample time so that a taxpayer may have the benefit of the provisions thereof. There is nothing in said sections to provide that a tax will become delinquent before the tax rolls are certified to the county treasurer. Taxpayers have a constitutional right to a reasonable time in which to pay taxes after payment thereof is possible and before the same become delinquent and to recover illegal taxes paid under protest. Where the county taxing officials have failed to certify the tax rolls to the county treasurer at the time and in the manner provided by the statutes fixing the date of maturity and delinquency thereof, payment under protest may be made by a taxpayer and a suit maintained by him to recover the alleged illegal tax notwithstanding payment of the tax is made after the date of delinquency provided by the statute.

3. Taxation--Legislature Held Without Authority to Provide for Refund of Taxes From Sinking Fund.

The Legislature is without authority to provide that refunds of taxes shall be made from a sinking fund which accrued pursuant to the provisions of sections 26, 27, and 28, art. 10, of the Constitution, for the reason that under the provisions of section 19, art. 10. of the Constitution, taxes levied and collected for one purpose shall never be devoted to another purpose.

4. Same--Tax Levy for Sinking Fund Purposes Which Includes Amount for Refunding Taxes Held not Authorized.

The constitutional provisions for the levying of taxes for sinking fund purposes are sections 26, 27, and 28, art. 10, and legislative provisions therefor are sections 4276, 4550, 8571, 8574, 9698, 9699, and 9700, C. O. S. 1921. There is no authority in any of those provisions for the making of a tax levy for sinking fund purposes which includes an amount for the refunding of taxes. Since the Constitution does not require a sinking fund tax levy for such a purpose, and since the Legislature has not provided for such a tax levy, there is no authority for such a tax levy.

5. Courts--Supreme Court--All Causes Assigned for Oral Argument or Submission Before Whole Court.

This court has adopted no rule providing for a division of the court into two divisions and the hearing and determination of causes by each of the two divisions, as authorized by section 3034, C. O. S. 1921, and all causes are assigned for oral argument or submission before the whole court.

6. Same--Majority of Members of Court Constitute Quorum and Concurrence of Majority Suffices for Decision of Court.

By the provisions of section 3, art. 7, of the Constitution, a majority of the members of this court shall constitute a quorum, and the concurrence of a majority of the members is necessary. When a majority of the members of this court have concurred in a decision of this court, it is the decision of this court, although some of the members of the court were not present at the time of the adoption of the decision or did not participate therein.

7. Hospitals--Care of Tubercular Patients--Statute Placing Tax Burden on Counties Instead of on State Held Unconstitutional.

Under article 21 of the Constitution of Oklahoma, institutions for the care of tubercular patients, when maintained by the state, shall be at the expense of the state. Section 8970, C. O. S. 1921, which attempts to place that tax burden upon counties, is in violation of the Constitution and inoperative.

8. Statutes--Special Statute as Superseding General Statute on Subject-Matter.

A statute which is enacted for the primary purpose of dealing with a particular subject, and which prescribes the terms and conditions of that particular subject-matter, prevails over a general statute which does not refer to the particular subject-matter, but does contain language which might be broad enough to cover the subject-matter if the special statute was not in existence.

9. Statutes--Courts Without Authority by Construction to Aid Defective Execution of Powers Given by Statute.

Courts have no rightful authority, by mere construction, to aid the defective execution of a power given or created exclusively by statute, nor dispense with those formalities which the Legislature has seen fit to provide to secure its due execution.

10. Taxation--Necessary Publication of Financial Statement and Estimate of Needs--Appropriation Limited to Items in Estimate--Exception as to Appropriations and Rates of Levy for Sinking Fund.

The financial statement and estimate required by the provisions of sections 9695 and 9698, C. O. S. 1921, must be published as therein provided, and an appropriation may be made for only those items for which estimates have been made and published, but this rule has no application to appropriations and rates of levy for sinking fund purposes.

Appeal from District Court, Ottawa County; J. J. Smith, Judge.

Action by the Bank of Picher against E. D. Morris, County Treasurer of Ottawa County. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.

Joseph C. Stone, Charles A. Moon, and Francis Stewart, for plaintiff in error.

Perry Porter, Commons & Chandler, A. G. Croninger, and Wm. M. Thomas, for defendant in error.

ANDREWS, J.

¶1 This is an appeal by the plaintiff in error, who hereinafter will be referred to as the protestant, from a judgment of the district court of Ottawa county in favor of the defendant in error, who hereinafter will be referred to as the protestee. The issues involve taxes for Ottawa county for the fiscal year commencing July 1, 1926.

¶2 The protestee contends that the action cannot be maintained for the reason that the taxes were not paid prior to their maturity. In support thereof he contends that chapter 151, Session Laws 1923, is unconstitutional and void for the reason that it is in conflict with section 57, art. 5, of the Constitution. We do not think it necessary to determine whether or not that act is unconstitutional, for, by the provisions of Joint Resolution No. 3, approved January 31, 1927, chapter 228, Session Laws 1927, the time for the payment of taxes was extended and the taxes were paid within the extended time. In Oklahoma News Co. v. Ryan, 101 Okla. 151, 224 P. 969, a similar joint resolution was approved and the payment of taxes prior to the expiration of the extended time was held to be in time. Under that decision and the decisions of this court in First Nat. Bank v. Pitts, Co. Treas., 120 Okla. 8, 249 P. 907; Grubb v. Smiley, Co. Treas., 140 Okla. 233, 283 P. 784; C. D. Coggeshall & Co. v. Smiley, Co. Treas., 140 Okla. 242, 283 P. 788; Aaronson v. Smiley, Co. Treas., 140 Okla. 255, 283 P. 789; C. D. Coggeshall & Co. v. Smiley, Co. Treas., 142 Okla. 8, 285 P. 48; Grubb v. Smiley, Co. Treas., 142 Okla. 19, 285 P. 38; and Aaronson v. Smiley, Co. Treas., 142 Okla. 29, 285 P. 59, the contention of the protestee cannot be sustained.

¶3 The protestant contends that the rate of levy for sinking fund purposes of Ottawa county was excessive. There was included in the estimated needs for sinking fund purposes of the county the amount of $ 1,500 which was estimated to be needed for refund of taxes under the provisions of chapter 30, Session Laws 1925. By the provisions of that section, counties are authorized to refund and pay to the holders of tax sale certificates the original purchase money paid thereon, together with subsequent payments, with interest from the date of payment at six per cent. per annum. There is nothing in that act which authorizes a refund or payment to be made from the sinking fund. However, by the provisions of section 8575, C. O. S. 1921, all rebates upon taxes allowed by the county commissioners are required to be paid out of the sinking fund. There was also included in the estimate for sinking fund purposes the sum of $ 6,310.19 for refund pursuant to the provisions of section 9674, C. O. S. 1921. By the provisions of that section, it was provided that the refund therein authorized should be made from the sinking fund of the county by the county treasurer on an order of the board of county commissioners.

¶4 The Legislature was without authority to provide that such refunds should be made from a sinking fund which accrued pursuant to the provisions of section 26, 27, and 28, art. 10, of the Constitution, for, by the provisions of section 19, art. 10, of the Constitution taxes levied and collected for one purpose shall never be devoted to another purpose. See Allen v. Bd. of Comm'rs of Logan County, 131 Okla. 41, 267 P. 860. It is probable that the Legislature had the authority to provide that rebates upon taxes shall be paid from penalties, interest, forfeitures, etc., which by legislative enactment are required to be placed in the sinking fund, but it is not necessary for us to determine that question in this case.

¶5 We are not considering whether or not there should be a refund of taxes or from what source such a refund may be made. We are considering the authority to make a tax levy for sinking fund purposes. The constitutional provisions for the levying of taxes for sinking fund purposes are sections 26, 27, and 28, art. 10, and the...