Seber v. BOARD OF COUNTY COM'RS

• Decision Date: 10 May 1941
• Docket Number: No. 436 Civ.,436 Civ.
• Citation: 38 F. Supp. 731
• Parties: SEBER et al. v. BOARD OF COUNTY COM'RS OF CREEK COUNTY et al.
• Court: U.S. District Court — Northern District of Oklahoma

38 F. Supp. 731

SEBER et al. v. BOARD OF COUNTY COM'RS OF CREEK COUNTY et al.

No. 436 Civ.

District Court, N. D. Oklahoma.

May 10, 1941.

George Jennings, of Sapulpa, Okl., for plaintiffs.

Whit Y. Mauzy, U. S. Dist. Atty., of Tulsa, Okl., Mac Q. Williamson, Atty. Gen., State of Oklahoma, and Houston E. Hill, Asst. Atty. Gen., for defendant.

FRANKLIN E. KENNAMER, District Judge.

This action is brought by the plaintiffs for the recovery of certain ad valorem taxes, already paid, levied against real estate claimed as exempt from such taxation; for the cancellation of certain unpaid levies of similar taxes against a portion of said property, and for a declaratory judgment to establish the tax exempt character in futurity of such portion thereof.

The case is before the court upon motion of the defendants to dismiss.

Material to the inquiry here, the complaint alleges that plaintiffs are unenrolled full-blood Creek Indians, and children of Wosey Deere, formerly Wosey John, an enrolled full-blood member of the Creek Tribe of Indians; that prior to the passage by Congress of the Act of May 10, 1928, 45 Stat. 495, the Secretary of Interior, out of funds in his control accrued to the credit of said Wosey Deere from the sale of oil and gas from her restricted lands, purchased for her the lands above mentioned, the deeds of conveyance being made to Wosey Deere and her heirs, with a provision in each conveyance that the lands thereby conveyed were restricted against alienation without the consent of the Secretary of Interior until April 26, 1931; that on March 4, 1931 Wosey Deere by deed approved by the Secretary on April 3, 1931, conveyed all of said real estate to plaintiffs jointly, reserving, however, a life estate therein to herself, with a provision in said conveyance restraining the plaintiffs and their heirs from alienating or encumbering the conveyed lands without the consent of the Secretary of Interior; that later, and on December 10, 1937, Wosey Deere by another deed granted to plaintiffs the life estate reserved in her previous deed, this conveyance not being approved by the Secretary, but bearing a certificate of the Superintendent of the Five Civilized Tribes certifying that said lands were purchased with restricted funds held in trust by the United States for the benefit of plaintiffs; that on December 16, 1937, the plaintiffs executed a Certificate of Tax Exemption in compliance with Congressional enactment, designating a portion of said real estate as their homestead and exempt from taxation by the State of Oklahoma and its municipal subdivisions, which certificate was approved by the Secretary of Interior March 24, 1938, and filed in the office of the County Clerk of Creek County; that all of the lands were exempt from taxation for the years 1936 and 1937, and that the homestead occupied by plaintiffs as designated in the aforesaid certificate of tax exemption was exempt from the tax levies of 1938, 1939 and 1940, and will continue to be exempt from subsequent levies so long as the same is owned by and remains the homestead of plaintiffs and their restricted heirs until restrictions against alienation are removed therefrom; that all of said real estate was illegally taxed for the years 1936 and 1937, and that said claimed homestead was illegally taxed for each succeeding year; that plaintiffs have paid the illegal taxes levied against all the lands for the years 1936 and 1937 and have also paid the illegal levy against the homestead for the year 1938, but that such payments were made by plaintiffs under compulsion and duress; and, specifically, plaintiffs ask judgment for the amount of taxes paid as aforesaid, and for the cancellation of the illegal unpaid levies made against the homestead, and further for a declaratory judgment determining the tax exempt status of said homestead.

In support of their motion, defendants submit three principal propositions, namely, (1) that the court is without jurisdiction; (2) that plaintiffs are barred by the statute of limitations from recovering the taxes already paid; and (3) that the complaint fails to state any claim upon which relief can be granted.

The jurisdictional objection of defendants is that there is neither a diversity of citizenship, nor a Federal question involved. It is true that there is no diverse citizenship, but plaintiffs make a substantial claim that the property in question is tax exempt by virtue of certain Acts of Congress. This presents a Federal question. Therefore, since the necessary jurisdictional amount is involved, there is no merit to this contention of defendants. Jefferson v. Gypsy Oil Co., 8 Cir., 27 F.2d 304.

It is also definitely clear that the action is not barred by any statute of limitation. It is not such a suit as comes within the purview of the limitations provisions of the Act of Congress of April 12, 1926, 44 Stat. 239. Board of County Commissioners of Tulsa County v. United States, 10 Cir., 94 F.2d 450; McGugin v. United States, 10 Cir., 109 F.2d 94; United States v. Fixico, 10 Cir., 115 F.2d 389.

While not exactly a question of limitations, it may be well remarked here that the contention of defendants that plaintiffs in any event are precluded from recovering the amount of the taxes paid by reason of failure to comply with Sec. 12665, O.S.1931, 68 Okl.St.Ann. § 263, is not well founded. The section of the Oklahoma Statutes makes it a prerequisite in the recovery of taxes illegally levied that the...