Oklahoma ex rel. Taylor v. Caffrey

• Decision Date: 11 February 1899
• Citation: 8 Okla. 193,57 P. 204,1899 OK 42
• Parties: THE TERRITORY OF OKLAHOMA, ex rel. W. R. TAYLOR, County Attorney, v. R. F. CAFFREY, County Clerk
• Court: Oklahoma Supreme Court

1899 OK 42

57 P. 204

8 Okla. 193

THE TERRITORY OF OKLAHOMA, ex rel. W. R. TAYLOR, County Attorney, v. R. F. CAFFREY, County Clerk

Supreme Court of Oklahoma

Decided: February 11, 1899

SYLLABUS

¶0 1. MANDAMUS--Return to Insufficient. A return to an alternative writ of mandamus, requiring a county clerk to spread upon the tax rolls the increase of valuations for assessment ordered by the Territorial board of equalization, which return alleges a refusal to comply with such order for the reason that the Territorial board of equalization was not by law authorized to make such increase, presents no defense; nor do the allegations in such return that such increase was made by said board for the illegal and corrupt purpose of increasing assessments, in order thereby to illegally create and produce a greater revenue, and for the purpose of permitting an increase of indebtedness in excess of the 4 per centum limited by the act of congress of July 30, 1886, present any defense (even if the county clerk was authorized to make such defense) where no facts are stated in the return from which such purposes might be deduced by the court. Where, in an answer or return, only conclusions of fact or law are pleaded, no defense is presented.

2. TAXATION--Excessive Valuation--Remedy. Where a board of equalization, in equalizing valuations for taxation, directs an increase by a certain percentage upon the valuation of all the property in a county, and such increase raises the valuations of the property of individuals beyond its actual cash value, which individuals have a right of action to enjoin the collection of the tax levied upon such excess of valuation; but a county clerk cannot set up such right of action existing in such individuals as a defense to a proceeding in mandamus requiring him to spread upon the tax rolls of the county the increase of valuations as ordered by the board of equalization. Causes of action and of defense must be prosecuted by the real parties in interest, and a county clerk cannot set up a cause of action or defense belonging to others as a defense to a proceeding in mandamus, requiring him to perform a ministerial official duty.

3. TRIAL--Rulings Must Be Excepted to--Error. Rulings and orders of the trial court as applied to the evidence, those constituting errors of law occurring on the trial, and generally rulings upon the trial of the cause complained of, must be excepted to at the time, and preserved in the case-made, or be brought into the record by bill of exceptions, to authorize this court to consider them. But exceptions are not necessary to enable this court to review and correct errors that are apparent upon the judgment roll or record proper. Where an error in a judgment appears on the face of the record proper, this court will consider and correct the same, although no exception was taken thereto in the trial court.

Error from the District Court of Oklahoma County; before James R. Keaton, District Judge.

Proceedings in mandamus by the Territory of Oklahoma, on relation of W. R. Taylor, county attorney of Oklahoma county, against Richard F. Caffrey, county clerk of said county, to require said county clerk to spread upon the tax rolls of said county the increased valuation for assessment of the property returned for taxation in said county, as ordered by the territorial board of equalization for the year 1897. From a judgment denying a peremptory mandamus and dismissing the cause, plaintiff brings the case here by petition in error for review. Reversed.

Harper S. Cunningham, Attorney General, for plaintiff in error.

Douglas & Douglas, for defendant in error.

TARSNEY, J.:

¶1 To the alternative writ issued upon the petition in this cause the defendant answered, admitting all the facts stated in the petition and writ, but denying the authority of the territorial board of equalization, in equalizing valuations of property in the several counties for taxation, to increase the aggregate of valuations of all the property in the several counties over the aggregate of the valuations returned by the several county clerks, and alleging that the 23 per cent. increase ordered by said board of equalization in the value of property returned by said Oklahoma county, and ordered to be spread upon the tax rolls of said county, was thereby illegal; that the valuation of property in said county, as fixed by the assessors and local boards of equalization, was up to the full value of all said property of all kinds in said county; that the valuation thereof so fixed was not less than the fair average amount and valuation which the property so assessed in said county bore to all the property in the other counties of the said Territory; that the increase provided for the county of Oklahoma, under the order and action of the territorial board of equalization, was 23 per cent. upon the valuations returned by the county board of equalization of said county; that the increase made and ordered by the territorial board upon said property and upon the property in the other counties in said Territory was arbitrarily and illegally made and ordered, without any authority of law, and was not made for the purpose of equalizing assessments of the various counties of said Territory, or for the purpose of correcting any alleged errors therein, but was made and ordered for illegal and corrupt purposes, viz. for the purpose of increasing the assessments of the various counties, in order thereby to illegally create and produce a greater revenue, and to render nugatory the law limiting the indebtedness of the Territory and of said Oklahoma county to 4 per centum of the assessed valuation of property therein, and that said increase was made with the illegal object and purpose of enabling interested parties and officials to create further territorial and county indebtedness in substantial violation of said laws; that said increase is in excess of the actual value of the property assessed; that said defendant as county clerk of said county, on or about the 1st day of July, 1897, did receive a certificate from said territorial board that such increase had been made and ordered by said board; that said defendant, as county clerk, has refused and still refuses, to extend such increase upon the tax rolls of said county, to become a lien and incumbrance upon said property, and the taxes levied thereon, to be levied against said property, as would be done if said increase were extended on the tax rolls; that great and irreparable injury and damage to the inhabitants of the said county would be inflicted by said extension, incumbrance, and levy; and said defendant so refused because he was and is under no legal obligation to extend such increase on said tax rolls.

¶2 To this answer or return the plaintiff demurred on the ground that the return did not state facts sufficient to constitute any defense to plaintiff's cause of action. The demurrer was, by the court, overruled, and thereupon the court, upon the pleadings, rendered judgment, denying a peremptory writ, dismissing the case, and for costs against the plaintiff.

¶3 The case is brought here upon petition in error, with a transcript of the record attached, and plaintiff in error asks for a reversal upon the following assignments of errors: (1) That said judgment is contrary to law; (2) the court erred in rendering judgment for defendant in error and against plaintiff in error; and (3) said court erred in overruling plaintiff in error's demurrer to the return of said defendant in error to the alternative writ.

¶4 I. The questions presented are: Did the court err in overruling the demurrer to the return? and is the judgment contrary to law? No exception was taken by plaintiff in error to the action of the court in overruling the demurrer, nor was any exception taken at the time to the rendering of the judgment, and it is now contended by counsel for defendant in error, that, as the action of the court below was not excepted to at the time, we have no authority to review the questions presented by the assignment of errors. It may be conceded that the taking of exceptions and preserving the same is necessary to a review of the evidence, or upon the law as applied to...