Lusk v. Porter

• Decision Date: 14 March 1916
• Docket Number: 7273.
• Citation: Lusk v. Porter, 156 P. 224, 53 Okla. 294, 1916 OK 337 (Okla. 1916)
• Parties: LUSK ET AL. v. PORTER, COUNTY TREASURER.
• Court: Oklahoma Supreme Court

156 P. 224

53 Okla. 294, 1916 OK 337

LUSK ET AL. v. PORTER, COUNTY TREASURER.

No. 7273.

Supreme Court of Oklahoma

March 14, 1916

Syllabus by the Court.

Where the county commissioners, acting as a county board of equalization, as provided in section 11, c. 152,Sess. Laws 1910-11, p. 334, complete their labors, and the county assessor, in the manner and within the time fixed by statute makes and transmits an abstract of his assessment as revised by said county board of equalization, to the state board of equalization, and where the county assessor thereafter receives from the state board of equalization its report, the board of county commissioners acting as a county board of equalization is without authority to alter, change, or in any manner revise the action of the state board; and any attempt so to do on the part of said board is a nullity.

A petition, based on official misconduct, which charges, in effect, that on account of the willful, wrongful, and illegal acts of certain named officers plaintiff in the payment of taxes was discriminated against, and where the officers complained of were, at the time, without authority over the subject-matter, and the petition omitted in any way to charge malfeasance, neglect, or misconduct on the part of those officers having authority in the premises, fails to state a cause of action and to overcome the presumption that the officers properly chargeable did their duty.

In a case where a pleading is challenged before trial by demurrer its language, where doubtful, will be construed against the pleader upon the ground that, as he selects the language, he should make his meaning clear, and where in such a case a demurrer is sustained on account of the insufficiency of a pleading, and no application for amendment is made, it will be presumed that the facts to justify it do not exist.

Error from District Court, Comanche County; Cham Jones, Judge.

Action by James W. Lusk and others, receivers of the St. Louis & San Francisco Railroad and another, against J. L. Porter, as County Treasurer of Comanche County.Judgment for defendant and plaintiffs bring error.Affirmed.

W. F Evans, of St. Louis, Mo., and R. A. Kleinschmidt and Fred E. Suits, both of Oklahoma City, for plaintiffs in error.

T. B. Orr, Co. Atty., and J. A. Diffendaffer, Asst. Co. Atty., both of Lawton, for defendant in error.

SHARP J.

On January 27, 1914, James W. Lusk, W. C. Nixon, and W. B. Biddle, receivers of St. Louis & San Francisco Railroad and St. Louis & San Francisco Railroad Company, instituted an action in the district court of Comanche county; to recover of J. L. Porter, as county treasurer of Comanche county, certain taxes assessed against the property of said railroad company for the year 1913.The petition does not complain of the action of the state board of equalization, either in assessing the property of which plaintiffs are receivers, or in the adjustment and equalization of the value of the real and personal property in said county as transmitted to the state board by the county assessor.The gravamen of their complaint is, as set out in the fifth paragraph of their petition, as follows:

"Plaintiffs further aver that the county board of equalization of the county of Comanche, state of Oklahoma, willfully, wrongfully, and illegally failed and refused to adopt and to adhere to the valuation so fixed by the said State Board of Equalization, for the taxable property in said county of Comanche, other than that of public service corporations; but that said valuation was without authority of law reduced by said county board of equalization to the sum of $12,694,624, which was a reduction of 7.06 per cent. thereby constituting a willful and unlawful discrimination against plaintiffs herein to that extent on the taxes for said year, being in the sum of $1,666.18 for the year 1913, and in the sum of $833.09 for the first half of the taxes for said year; that the result of such refusal on the part of said county board of equalization to adopt and adhere to the valuation fixed by the state board of equalization is to cause the plaintiffs to bear a greater measure than their just share of the taxes within and for said county and state for the year 1913, and to deny to said plaintiffs the equal protection of the law, as

guaranteed to them by the Constitution of the state of Oklahoma, and by the Constitution of the United States, and thus deprive said plaintiffs of their property without due process of law; that as a result of the refusal of the county board of equalization of said county to adopt and adhere to the value fixed by the state board of equalization, the rest of the property in said county bears less than its just proportion of the taxes within said county, thereby discriminating against said plaintiffs and denying to them, and to each of them, the equal protection of the law, as guaranteed by the Constitution of the state of Oklahoma, and by the Constitution of the United States, and deprives them, and each of them, of their property without due process of law."

Nowhere in the complaint is it charged that the railroad property was not assessed for taxation at its fair cash value, estimated at the price it would bring at a fair voluntary sale.But it is said that on account of the wrongful and illegal act of the county board of equalization, plaintiffs are discriminated against, denied the equal protection of the law, and deprived of their property without due process of law.While it is admitted that the total amount of taxes properly levied against and charged to the property of plaintiffs in Comanche county for the year 1913 was $23,600.36, it is charged that the county board of equalization, having without authority of law reduced the valuation of the taxable property of said county, other than that of public service corporations, from $13,659,433 to $12,694,624, plaintiffs' taxes should be reduced in the same proportion, and that accordingly plaintiff was entitled to recover of and from said treasurer the sum of $1,666.18, which amount was by them paid under protest, to avoid the imposition of burdensome penalties and the issuance and levy of legal process for its collection.

To plaintiffs' petition the court sustained defendant's demurrer, on the ground that it did not state facts sufficient to constitute a cause of action in favor of plaintiffs and against the defendant.From what has been said, it will be readily observed that plaintiffs' cause of action is based upon the alleged willful, wrongful, and illegal act of the county board of equalization, after the action of the state board of equalization was had and returned to the county assessor.By section 11, c. 152,Sess Laws 1910-11, p. 334, the county board of equalization is composed of the county commissioners, the county assessor being made secretary of the board.It is required of said board of equalization that it shall meet at the county seat and shall hold a session commencing on the first Monday of June each year for the purpose of equalizing taxes over the county, notice of which shall be given at least 10 days prior thereto in some newspaper of general circulation in the county; that any person who may think himself aggrieved by the assessment of his property shall have the right to appear before the board for the purpose of having the assessment adjusted.It is provided that complaints against assessment shall be...