Nelson v. Oklahoma City & W. Ry. Co.

• Decision Date: 14 September 1909
• Parties: NELSON, Sheriff, v. OKLAHOMA CITY & W. RY. CO.
• Court: Oklahoma Supreme Court

104 P. 42

24 Okla. 617, 1909 OK 229

NELSON, Sheriff, v. OKLAHOMA CITY & W. RY. CO.

Supreme Court of Oklahoma

September 14, 1909

Syllabus by the Court.

Where the statute requires a series of acts to be performed before the owners of property are properly chargeable with taxes such acts are conditions precedent to the exercise of the power to levy taxes, and all the requirements of the statute must be complied with, or they cannot be collected.

Error from District Court, Greer County; C. F. Irwin, Judge.

Action by the Oklahoma City & Western Railway Company against Jasper Nelson, as sheriff. Judgment for plaintiff, and defendant brings error. Affirmed.

H. D Henry, County Atty., and Chas. M. Thacker, for plaintiff in error.

Flynn & Ames and R. A. Kleinschmidt, for defendant in error.

KANE C.J.

This was a suit brought by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, as sheriff of Greer county, to restrain him from collecting certain township taxes assessed against the plaintiff, on the ground that the levy of said tax was illegal and void for the reason that the board of directors of the interested township did not make out an account of the money necessary to defray the township expenses of said township, and did not cause such an account to be signed by the president and attested and filed with the county clerk of Greer county on or before the first day of the session of the board of county commissioners at which the assessment for county purposes was made, and that the board of directors did not at any time file such account and certificate with the county clerk of said county, as required by section 6685 of Wilson's Rev. & Ann. St. Okl. 1903.

It is admitted by the pleadings and by brief of counsel for the plaintiff in error that the board of directors of said township did not perform the duties imposed upon them by the foregoing section of the statute within the time therein specified, and the pleadings and exhibits attached thereto further show that what the board actually did, as taken from the minutes of the meeting, was the following: "The Altus township board was called together by trustee Frank Johnston for the purpose of levying a special road and bridge tax. 6 mills was agreed upon as being a sufficient amt. to raise said funds. No further buis. before the board, meeting closed. Frank Johnston, Trustee. Wm. McDaniel, Clerk." This meeting, according to the pleadings, was held on the 7th day of September, 1906. The certificate of the township levy attached to the answer, marked "Exhibit B," reads as follows: "Altus Township. Greer County, Oklahoma. July 7th, 1906. To the County Clerk of Greer County Oklahoma. The board of directors of Altus township, in Greer county, Oklahoma, has estimated the amount of money necessary to defray the expenses of said township for the next ensuing year at fifteen hundred and seventy-three and no/100 dollars and have determined upon the following levies: For special township purposes -- mills; for general township purposes six mills; for road and bridge purposes -- mills; total on each dollar valuation, six mills. Frank Johnston, President of Township Board, Altus township. Attest: Wm. McDaniel, Clerk." On this said exhibit is indorsed the following: "Township Levy. For year 1906, Altus Township. Township general six mills; road and bridge -- mills; special township -- mills; total six mills. Filed this 2d day of February, 1907. Floyd McNeill, County Clerk." The answer, which, with the exhibits attached, discloses the above state of facts, was demurred to, and the court below sustained the demurrer and issued a permanent injunction against the sheriff enjoining him from collecting the taxes so levied and assessed. To reverse this decree of the court below, the plaintiff in error brings the case to this court by petition in error and case-made.

We are of the opinion that the judgment of the court below should be affirmed. Section 6685, supra, provides, in part, that "the township board of directors shall make out an account of the amount of money necessary to defray the township expenses during the next ensuing year; said account shall be made out not more than sixty nor less than twenty days prior to the meeting of the county commissioners at which the assessment for county purposes is made. Said account shall be signed by the president of the board and attested and filed with the clerk of the county on or before the first day of said session of the county commissioners who shall cause the same to be placed upon the tax books of said township. ***" Plaintiff in error maintains that the judgment of the court below is in conflict with the case of Sharpe et al. v. Engle et al., 2 Okl. 624, 39 P. 384, and quotes from that case to sustain his position, as follows: "Section 5627 of the...