Sharpe v. Engle

• Decision Date: 16 February 1895
• Citation: 2 Okla. 624,1895 OK 13,39 P. 384
• Parties: EARNEST SHARPE, Treasurer et al. v. M. M. ENGLE et al
• Court: Oklahoma Supreme Court

1895 OK 13

39 P. 384

2 Okla. 624

EARNEST SHARPE, Treasurer et al. v. M. M. ENGLE et al

Supreme Court of Oklahoma

Decided: February 16, 1895

Error from the District Court of Canadian County.

Action of injunction to restrain collection of taxes. Reversed.

Syllabus

¶0 1. STATUTE FOR LEVY OF TAXES MANDATORY BUT NOT PROHIBITORY--Section 5627 of the Statutes of Oklahoma of 1893, which provides that on the third Monday in July, of each year, boards of county commissioners must levy the necessary taxes for that year, and that they may levy the same at any time after that day, if the statement from the territorial board of equalization has not been received, but that such levy must not be postponed for more than ten days, and that the commissioners must levy the taxes as directed by law, is mandatory in the requirement that the commissioners must levy the taxes as provided, but does not prohibit the levying of the taxes after the expiration of the time, if they are not levied within the time, and a taxpayer may not enjoin the collection of taxes merely because they were levied a few days late.

2. TERRITORIAL TAXES-- When County Commissioners Shall Levy--The county commissioners are only required to make a levy for territorial taxes when the territorial auditor has not transmitted to the county clerk of the county a statement of the territorial taxes levied by the territorial board of equalization ten days after the third Monday in July, and an allegation that no levy of the territorial taxes was made by the board of county commissioners, without any charge that the territorial board of equalization and auditor had failed to do their duties under the law, does not state a cause of action.

C. A. Galbraith, Attorney General, A. J. Jennings, County Attorney and C. H. Carswell, for plaintiffs in error.

John I Dille, John Schmook, Jr., C. O. Blake and E. E. Blake, for defendants in error.

BIERER, J.

¶1 M. M. Engle and a large number of other persons brought this action, as plaintiffs, in the court below, against Earnest Sharpe, treasurer of Canadian county, Territory of Oklahoma, and Canadian county, to restrain the collection of certain taxes. The petition alleges that the plaintiffs are the owners of real estate and personal property in Canadian county, which has been by the assessors listed for taxation for the year 1893, and that on the 3d day of August, 1893, the board of county commissioners of said county attempted to levy the taxes for the various funds in said county, and that the board of county commissioners has not at any time made a levy for territorial taxes nor a levy for any other purpose for said year except at the time mentioned; that the defendant, Earnest Sharpe, (plaintiff in error here), is the treasurer of Canadian county; that the county clerk of said county, after such levy, made the tax list and delivered the same to the county treasurer for collection, and that the tax as levied by the commissioners, together with an additional sum of four mills on the dollar for territorial purposes, is now on the books of the treasurer for collection, and a cloud on the title of the plaintiffs' property, and that the treasurer is threatening to, and will, unless restrained, issue warrants for the collection of the same and cause the same to be levied upon plaintiffs' property, and will advertise and sell plaintiffs' real estate, to their irreparable damage.

¶2 To this petition the defendants filed a demurrer, on the ground that the court had no jurisdiction of the persons of the defendants or of the subject matter of the action, and that the petition did not state facts sufficient to constitute a cause of action.

¶3 The court overruled this demurrer and rendered judgment, upon the sworn petition, enjoining the collection of the taxes, and from this judgment appeal is taken.

¶4 The point upon which it is contended that the taxes, excepting the territorial taxes, are illegal, is that the tax was levied after the time at which it is provided by law they should have been levied had expired.

¶5 Section 5627 of the statutes of Oklahoma, of 1893, provides:

"On the third Monday of July of each year, the board of county commissioners must meet in the county seat to levy the necessary taxes for the current fiscal year, and they may levy the taxes at any time after the said third Monday of July if the statement from the territorial board of equalization has not then been received, but such levy must not be postponed for more than ten days; and they shall levy the taxes as herein directed."

¶6 It is admitted by plaintiffs in error that the 3d day of August, 1893, was two days beyond the time fixed by this statute for the levying of the taxes for 1893, even if the statement from the territorial board of equalization was not filed within the time provided by law, so that the board of county commissioners could postpone the time ten days from the third Monday of July.

¶7 It is contended by defendants in error that this statute is mandatory, and that the commissioners must levy the taxes at the time provided for therein, and could not levy them after the time had expired.

¶8 The language of this statute is mandatory, but its mandatory effect is not as defendants in error claim. It is mandatory in that the commissioners must meet at the time, or within the time fixed, and that the levy of the taxes must not be postponed for a longer time than the limit allowed by the section, and that they must levy the taxes provided for; but it is not mandatory in that it carries with it a prohibition against levying the tax at any other time.

¶9 The thing sought to be provided for by the legislature in this section was the positive requirement for the levying of such taxes as the county commissioners are required to levy, and not a prohibition against doing it at some other time, which could not affect the justice or equity of the tax.

¶10 It is not contended that any levies were made except such as are provided for by law, and it is not contended that the taxes were unfairly assessed, or are unjust from any cause, or that they are other than what the law provides...