Bd. of Cnty. Com'Rs of Atoka Cnty. v. Cypert
| Decision Date | 22 May 1917 |
| Docket Number | Case Number: 7892 |
| Citation | 1917 OK 248,65 Okla. 168,166 P. 195 |
| Parties | BOARD OF COUNTY COM'RS OF ATOKA COUNTY v. CYPERT. |
| Court | Oklahoma Supreme Court |
¶0 1. Taxation -- Tax Assessor--Compensation--Statute. Under section 16, chapter 152, Sess. Laws 1911, the compensation to be paid the county tax assessor was based upon the entire property valuation of the county. In computing the compensation under such statute, the valuation placed upon public service corporations within the county should be included.
2. Same--Claim for Compensation--Estoppel. When the tax assessor presents a claim for alleged balance due on his compensation for the year to the board of county commissioners and the same is disallowed, he is not estopped to maintain an action on the claim so presented and disallowed because of the fact that he has received payment of other claims presented and allowed as a portion of such compensation; it being understood by the board at the time of allowing such claims that they were accepted as part payment of the entire compensation.
3. Appeal and Error -- Harmless Error -- Trial Errors. If the trial court had jurisdiction of the cause and of the parties, and the undisputed competent evidence would have authorized the court to peremptorily instruct the jury to return a verdict for a sum equal to or greater than the amount awarded by the jury, alleged error arising during the progress of the trial will not be considered, as it cannot be said that such error, if any, was prejudicial.
4. Judgment--Wrongful Judgment--Conclusiveness. If the plaintiff has submitted his cause to a tribunal having jurisdiction to try and pass upon the issues, and has permitted a judgment, though wrongful, to become final because of failure to appeal, he cannot maintain another action; but as to such issues nothing short of a final adjudication thereof by a judicial tribunal of competent jurisdiction can successfully be urged as res judicata.
5. Counties -- Judgment -- Res Judicata -- Board of County Commissioners -- Judicial Powers. Boards of county commissioners in this state necessarily exercise quasi judicial power, arising from the discharge of their duties and inherent in the nature of their office; but such boards do not exercise purely judicial power. Though not appealed from the action of such a board in disallowing a claim does not become res judicata.
6. Same. In passing upon claims presented, the members of the board of county commissioners act as agents of the county, and the disallowing of a claim is merely the refusal of the county to pay. Being interested, and, under the law, necessary parties to any action by or against the county, they cannot, in the rejection of claims, be said to act as a court.
7. Same--Action of Board--Appeal--Effect. Appeal from the action of the board of county commissioners is a statutory method by which the district court may obtain jurisdiction of the cause and of the parties, and a judicial determination may be had. Such method is not exclusive, and does not preclude the claimant, after the presentation and disallowance of his claim, from beginning an action by the ordinary method of filing a petition and causing issuance and service of summons.
J. W. Clark and M. C. Haile, for plaintiff in error.
Jones & McCasland, for defendant in error.
¶1 The parties will hereinafter be styled plaintiff and defendant, as they were in the lower court. Plaintiff brought action against the board of county commissioners of Atoka county, Okla., for balance due on compensation of the plaintiff for the year 1913 as tax assessor of Atoka county. Verdict of the jury and judgment of the court was rendered in favor of the plaintiff and against the defendant in the sum of $ 523.44. Motion for a new trial was duly filed and overruled, and defendant brings error to this court. The undisputed evidence shows that the plaintiff was tax assessor of Atoka county during the time set forth in plaintiff's petition, and that the assessed valuation of property in such county for the year 1913 was $ 7,358,918; that the plaintiff, as part of his compensation for said year, received from the county amounts aggregating $ 1,610 in payment of claims presented monthly to the board of county commissioners during the first six months of said year, on the basis of 75 per cent. of the assessed valuation for the preceding year as authorized by law. Under section 16, ch. 152, Sess. Laws 1911, the assessor was allowed 5 cents per $ 100 for the first $ 2,000,000 assessed valuation, 2 1/2 cents per $ 160 for the next $ 3,000,00, 1 1/2 cents per $ 100 for the next $ 30,000,000, and for all above $ 35,000,000, 3/4 of a cent per $ 100. One of the questions raised in the trial of this case is whether or not in computing the compensation of the assessor, the assessed valuation of public service corporations in the county should be included. The case was tried on the 23d day of December, 1914. This court, in Thomas v. Commissioners of Hughes County, 43 Okla. 616, 143 P. 665, an opinion rendered October 13, 1914, held that the county assessor was entitled to compensation based upon the entire valuation of the county, including valuation placed on public service corporations. Hence the rule for computing compensation should not have been in dispute at the time of the trial. The defendant offered no testimony, Under the evidence, the plaintiff could have recovered slightly more than the amount fixed by the verdict of the jury; but the plaintiff has made no complaint in this court. Therefore the fact that the verdict may have been too small will not be considered in this opinion. A great many captious and technical objections were offered by the defendant during the progress of the trial, most of them being wholly untenable and without merit. In this court the defendant complains that the trial court erred in impaneling the jury from a special venire ordered by the court; that the court erred in making certain remarks during the progress of the trial in the presence of the jury, as being prejudicial to the defendant; that the court erred in the general instructions to the jury; also that there was error of the court in not giving the following special instruction requested by the defendant, to wit:
"Gentlemen of the jury, you are instructed that when any allowance, either in whole or in part, is made upon any claim presented to the board of county commissioners, and is accepted by the person making the claim, such allowance shall be in full settlement of the entire claim."
¶2 The general instructions given to the jury fairly charge the law of this case. With reference to the special instruction requested we find that the undisputed evidence in the case shows that the claim sued upon was duly presented to the board of county commissioners and wholly disallowed. It is true that the monthly claims mentioned in the way of advances on the whole compensation coming to the plaintiff were presented and paid; but the plaintiff has not been allowed or paid any part of the claim sued upon, the same being for the balance due on his compensation. He did not receive any part of such claim as presented, and is not estopped to urge same against the county. It is said in County of Oklahoma v. Blakeney, 5 Okla. 70, 48 P. 101:
"The record shows by the proceedings of the board of county commissioners that the amount allowed and accepted was in partial payment, and intended to be only in partial payment of the claim presented; and we must hold that such partial payment did not deprive the defendant in error of the right to subsequently present his claim for the balance on said account to said commissioners for allowance."
¶3 The defendant also raises the question of the jurisdiction of the court over the particular cause, urging that the action of the board of county commissioners in rejecting the claim became, in the absence of appeal, final and res judicata; that therefore an original action cannot be maintained on such claim. The question thus presented is really the only one necessary for this court to consider; for, if the trial court was without jurisdiction, the plaintiff's cause must fail, but, if the trial court had jurisdiction, we think that, under the undisputed evidence, the plaintiff was entitled to recover, and that the trial court should have peremptorily instructed the jury to find for the plaintiff for a greater amount than that awarded by the jury. However, if he has once submitted his case to a tribunal having jurisdiction to try and pass upon the issues, and has permitted a judgment, though wrongful, to become final, he cannot maintain another action. This court, so far as we have been able to find, has never directly passed upon the particular question raised. However, in a number of cases appealed to this court, actions were begun against counties in the ordinary manner by filing petition and causing the issuance and service of summons on claims presented and disallowed, and in which there was no appeal to the district court from the action of the board disallowing same. The...
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