Carroll v. Gerlach

• Decision Date: 06 July 1901
• Citation: 11 Okla. 151,1901 OK 29,65 P. 844
• Parties: J. E. CARROLL v. JOHN G. GERLACH, as Treasurer, AND JEFF MYNATT, as sheriff of Woodward County, Oklahoma Territory.
• Court: Oklahoma Supreme Court

1901 OK 29

65 P. 844

11 Okla. 151

J. E. CARROLL v. JOHN G. GERLACH, as Treasurer, AND JEFF MYNATT,

as sheriff of Woodward County, Oklahoma Territory.

Supreme Court of Oklahoma

Decided: July 6, 1901

Error from the District Court of Woodward County; before Jno. H. Burford, Trial Judge.

Syllabus

¶0 COUNTY COMMISSIONERS--Complaints as to Tax and Assessment Rolls. Our statute having vested the authority in the boards of county commissioners of the various counties of the territory to hear complaints and to correct either upon the assessment rolls or upon the tax rolls of the county any double or erroneous assessment of property for taxation for any particular year, the remedy must be sought, in the first instance, before the tribunal, and the party aggrieved cannot invoke the powers and jurisdiction of a court of equity when he has failed or neglected to present his cause of complaint to such tribunal created by the statute and authorized to hear the same and grant appropriate relief.

B. B. Smith, R. J. Joy and Roy A. Smith, for plaintiff in error.

Charles R. Alexander and Fred Elkin, for defendant in error.

HAINER, J.:

¶1 This was an action brought August 5, 1899, in the district court of Woodward county, by the plaintiff in error against the defendants in error, to enjoin. them from collecting certain taxes assessed and levied against four hundred and thirty head of cattle belonging to the plaintiff in error for the year 1898, and which the plaintiff in error claims were not subject to taxation in said county for that year. The material averments in the petition are: That the plaintiff's cattle were situated and kept in Greer county on and prior to the first day of March, 1898, and were not removed to Woodward county until the latter part of April of said year; that on the 15th of March of said year said cattle were duly listed and assessed by the township assessor of Mangum township, Greer county; that all of said taxes were duly paid to the treasurer of Greer county; that the plaintiff had no notice or knowledge that said cattle were assessed in Woodward county until August 3, 1899, and for that reason he had no opportunity to appear before the board of county commissioners to petition them to relieve him of the payment of the taxes for the year 1898, prior to the commencement of this action. To this petition the defendants interposed a demurrer on the ground that the petition did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and the plaintiff having elected to stand upon the petition, the court dissolved the temporary injunction which had been granted by the probate court in the absence of the district judge and dismissed said cause at the cost of the plaintiff. From this judgment the plaintiff appeals.

¶2 There is no averment in the petition that the plaintiff had made application to the board of county commissioners for an abatement of the taxes on the ground that the said property was not subject to taxation in Woodward county for said year. The only allegation in relation thereto is that the plaintiff had no opportunity to make application before the board of county commissioners to abate said taxes prior to the commencement of this action. This allegation is insufficient. It appears from the plaintiff's petition that he had notice that said property had been assessed on the third day of August, 1899, and this action was not commenced until the fifth day of August, 1899. Manifestly the plaintiff has sufficient time to file his application for an abatement of said taxes with the board of county commissioners, even after he received notice and prior to the commencement of this action, if he so desired.

¶3 Section 1, article 7, chapter 32 of the Session Laws of 1897, vests in the board of county commissioners of the various counties of this territory the power to correct either on the...