Durham v. Linderman
| Citation | 64 P. 15,1901 OK 9,10 Okla. 570 |
| Parties | W. M. DURHAM, as County Treasurer of Pottawatomie County, v. HENRY LINDERMAN, W. S. FIELD, ALBERT FIELD, R. G. YOUNG, E. M. WINSLOW, THOMAS J. SHEAR, ELLA L. FIELD, A. K. TURNER, EDWARD HAMMER, F. DUMONT, EVELINE RODKEY, F. H. WILLIAMS, J. C. HART, M. P. GREEN, W. D. GILES, S. H. MCELHINNEY, C. E. BUELL, H. C. JONES, H. F. TAYLOR, BYRON D. SHEAR, W. C. PINN, O. A. MITSCHER, E. W. LEVERNEY AND W. F. BROUGHT. |
| Decision Date | 08 February 1901 |
| Court | Supreme Court of Oklahoma |
Error from the District Court of Pottawatomie County; before B. F. Burwell, District Judge.
¶0 1. STATUTES--Construction. While it is part of the history of the Statutes of 1893 that different portions of them were adopted without material alteration from the statutes of different states, and that different portions are not, in all respects, consistent with each other, it is yet the duty of this court to endeavor to reconcile them wherever it is possible so to do, in order that the legislative intent may be, as far as possible, effective, and to support the theory that, as a body of revised laws, adopted at the same time, they are of equal force and effect, and all intended to stand with as little interference as possible, of judicial interpretation, and that it is the duty of the courts to harmonize the various parts of the statute with each other. One part of the statute will not be allowed to defeat another, if, by any reasonable construction, the two may be made to stand together.
2. TENDER--Sufficiency of. It is provided in the statute that "When a tender of money is alleged in any pleading, it shall not be necessary to deposit the money in court when the pleading is filed, but it shall be sufficient if the money is deposited in court at trial, or when ordered by the court." We think the tender offered in this case was adequate, and complied with the statute in all material respects, and should be accepted as an adequate tender, within the meaning of the rule.
3. INJUNCTION-- Proper Remedy--When. Under the circumstances of this case, injunction was the proper remedy to enjoin the levy of the taxes as illegal, together with all proceedings to enforce the same.
L. G. Pitman, County Attorney of Pattowatomie County, T. G. Cutlip and D. B. Madden, for plaintiff in error.
W. S. Fields and Byron D. Shear, for defendants in error.
STATEMENT OF THE CASE.
This was a proceeding in injunction brought in the district court of Pottawatomie county, to restrain the collection of taxes. The plaintiffs, who are defendants in error here, after severally describing their property, consisting of lots and blocks of land in the city of Keokuk Falls, Pottawatomie county, alleging their ownership, averred the incorporation of the town, and that on the 1st day of February, 1894, there was a duly elected, qualified and acting assessor of said town, and that, as such assessor, he had, as provided by law, made an assessment of all the real and personal property in the city of Keokuk Falls; that he had made a true assessment of the property of the plaintiffs, at its actual cash value, and had listed the same, and that after making the assessment, he had returned the lists and rolls of the assessment to the board of trustees of the town, and at the same time returned duplicates thereof to the county clerk of Pottawatomie county, but that after the said assessment had been duly made and returned, one Deacon unlawfully attempted to issue and make a pretended and unauthorized return of the property of the plaintiffs to the county clerk, who ignored the return of the legal assessor, and entered the plaintiffs' property upon the tax rolls of the county as the same had been valued by Deacon, and the plaintiffs were charged with the amount of taxes which the said property would have been charged with if said valuation had been lawful, which was largely in excess of the taxes actually due, and thereafter, these taxes not having been paid, the county treasurer, on the 18th day of November, 1895, attempted to sell for delinquent taxes the said property of the plaintiffs, and did declare that the same were sold therefor to Pottawatomie county, but that no certificate of sale was ever made therefor.
The answer denied generally and specially the allegations of the petition, and set forth that the town of Keokuk Falls at the time mentioned was, under the laws of Oklahoma, "a municipal corporation, with a population and enumeration residents and inhabitants of a number fewer than one thousand." And that, under section 6062 of the Statutes of Oklahoma 1893, it was a part of the township of Dent, and that at no time during the period specified did the said town, as a municipal corporation, have a duly elected, qualified and acting town assessor of said municipality, but that, at all the said times, it was a constituent part of the municipal township of Dent, and that the legally elected, qualified and acting township assessor of the township assessed the real and personal property of the town of Keokuk Falls, and made his return as by law provided, to the county clerk of Pottawatomie county, by his lists and rolls of assessment of the said real property of the town.
The cause was tried to the court. Testimony was taken, and judgment was rendered in favor of the plaintiffs, and the defendant, plaintiff in error here, was perpetually enjoined from acting upon the sales or certificates issued for unpaid taxes upon the real estate in question, as the same were made to appear from the assessment made by Deacon, the township assessor, and the returns made by him.
¶1 The question involved in the case is the validity of the assessment made by Deacon, as township assessor. It is provided in ch. 80, art. 2, sec. 2 of the Statutes of 1893, upon "Townships and Township Officers," that:
"6062.--That all towns, villages or cities, having a population of one thousand inhabitants and over,...
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