Robinson v. Jones
| Decision Date | 07 November 1925 |
| Docket Number | 26,166 |
| Citation | 240 P. 957,119 Kan. 609 |
| Parties | W. C. ROBINSON et al., Plaintiffs, v. JOSIAH JONES et al., as County Commissioners of the County of Butler, and WILL BLAIR, as County Clerk, Defendants |
| Court | Kansas Supreme Court |
Decided July, 1925.
Original proceedings in mandamus.
Order denied.
SYLLABUS BY THE COURT.
1. MANDAMUS--County Commissioners--Compelling Compliance With Order of Tax Commission. Mandamus is a remedy properly invocable by an aggrieved taxpayer to compel a board of county commissioners to comply with an order of the tax commission to cancel uncollected taxes and to refund taxes which have been collected.
2. SAME--Defenses of Commissioners--Erroneous Order. In an action of mandamus by a taxpayer to compel a board of county commissioners to obey an order of the tax commission to cancel and refund taxes, the board may defend on the ground the order was erroneous as a matter of law.
3. TAXATION--Persons Liable--Overriding Royalties. By virtue of R. S. 79-329, 79-330, and 79-331, overriding royalties carved out of the working interest created by an oil lease, are taxable to the owners of such royalties.
Stephen H. Allen, Otis S. Allen and George S. Allen, all of Topeka, for the plaintiffs.
R. T. McCluggage and Stanley C. Taylor, both of El Dorado, for the defendants.
The action is one to compel the board of county commissioners and the county clerk of Butler county to obey an order of the tax commission directing cancellation and refunding of taxes assessed under the statute relating to assessment and taxation of oil and gas leases.
Plaintiffs are owners of what are called overriding royalties. Such interests are derived in this way: A landowner calling himself lessor gives to another called lessee an instrument called an oil lease, in the common form. As consideration for the grant, the owner is to receive one-eighth of the oil produced. This interest is called royalty. The lessee's seven-eighths interest in the oil produced is called the working interest. The lessee, who may be designated as A, assigns to B all his interest as lessee in five-eighths of the oil produced, together with A's privilege to enter upon the land and operate and produce. B then assigns to C all his interest in three-eighths of the oil produced, together with the privileges of the assignor and the lessee to enter upon the land and operate and produce. C enters upon the land and operates and produces oil. The lessee, A, then assigns to X one-eighth of the oil which may be produced pursuant to the lease, and B assigns to Y one-eighth of the oil which may be produced pursuant to the lease. X and Y have no connection with operation or production. The full extent of their relation to the lease is that, if oil be produced, they shall each receive one-eighth of it, delivered by the operator in tank or pipeline. The interests of X and Y are called overriding royalties. Fractional interests of the owner's royalty and of overriding royalties are often assigned and reassigned. Let it be assumed that the lessor assigns one-half of his royalty to Z. The whole interest in production may then be tabulated thus:
OWNER'S ROYALTY--
Lessor
1/16
Z
1/16
1/8
WORKING INTEREST--
Lessee, A
1/8
Assignee, B
1/8
3/8
5/8
Overriding Royalties--
X
1/8
Y
1/8
2/8
7/8
The statute reads as follows:
Taxes on plaintiffs' overriding royalties having been charged against them, and part of the taxes having been paid, plaintiffs appealed to the tax commission for relief, contending that overriding royalties are not taxable to the persons entitled to them. The tax commission sustained this contention, and directed cancellation of the record of the assessment of the current year, and the taxes extended on the tax rolls pursuant to the assessment, and directed the issuance to plaintiffs of refunding warrants for the taxes which had been paid. The county officers refused to comply with the tax commission's order, and assert its invalidity in the return to the alternative writ.
Defendants say plaintiffs have an adequate remedy at law: They may sue to recover the portion of the taxes paid; they may employ the remedy of injunction given by statute to taxpayers to prevent the collection of an illegal tax; or, they may pay under protest, and sue. These remedies are not quite adequate. If plaintiffs should recover a judgment against the county, it could not be collected by execution, and they would be obliged to abide the process of raising funds to pay it. Under the order of the tax commission, plaintiffs are entitled immediately to a refunding warrant. Injunction against collection of the unpaid taxes would not take the assessment and levy off the tax rolls, as the tax commission directed, and thereby remove from the record something in the nature of a cloud on plaintiffs' title. Plaintiffs' rights having been established by the tax commission, compliance with its mandate is a purely ministerial duty, and the suggested remedies are not fair substitutes for specific performance.
Plaintiffs say the tax commission, as the body having general supervision over administration of the tax laws, is...
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