State ex rel. Hoard v. Ashley

• Decision Date: 19 March 1935
• Docket Number: Case Number: 23776
• Citation: 1935 OK 286,171 Okla. 169,42 P.2d 225
• Parties: STATE ex rel. HOARD v. ASHLEY, County Treas., et al.
• Court: Oklahoma Supreme Court

1935 OK 286

42 P.2d 225

171 Okla. 169

STATE ex rel. HOARD v. ASHLEY, County Treas., et al.

Case Number: 23776

Supreme Court of Oklahoma

Decided: March 19, 1935

Syllabus

¶0 Mandamus--Tax Ferret Held not Entitled to Maintain Action for Writ Commanding County Treasurer to Issue to Owners of Omitted Property Notice of Proposed Assessment.

A tax ferret has not such a direct and immediate pecuniary interest in the discovery and assessment of property omitted from the tax rolls as to entitle him to maintain an action for writ of mandamus commanding a county treasurer to issue to owners of such omitted property notice of the proposed listing and assessment thereof.

Appeal from District Court, Carter County; John B. Ogden, Judge.

Action by the State of Oklahoma ex rel. Budd Hoard, Tax Ferret of Carter County, against Roy Ashley, County Treasurer of Carter County, et al., for writ of mandamus. Denied, and plaintiff appeals. Appeal dismissed.

Williams & Williams, for plaintiff in error.

Stephen A. George and Champion, Champion & Fischl, for defendants in error.

GIBSON, J.

¶1 This action was commenced in the district court of Carter county by plaintiff in error, plaintiff below, against defendant in error for a writ of mandamus commanding said defendant in error, Roy Ashley, county treasurer of Carter county, defendant below, to issue to the owners of certain property, omitted from the tax rolls, notice of the proposed listing and assessment of such omitted property as authorized by section 9798, C. O. S. 1921 (sec. 12346, O. S. 1931). From a judgment and order denying the peremptory writ, the plaintiff in error prosecutes this appeal.

¶2 The parties will be referred to as they appeared in the trial court.

¶3 We will first consider the contention of the defendant that plaintiff is without sufficient interest in the matters involved to entitle him to prosecute the appeal. To determine that question we will consider the right of plaintiff to maintain the action for writ of mandamus.

¶4 Plaintiff is a tax ferret in Carter county. Defendant, Roy Ashley, is the county treasurer of that county. The other defendants in error are associations and fraternal organizations, property owners of Ardmore, in said county, who were permitted to intervene in the mandamus action brought by the tax ferret against the county treasurer. Under our view of this case, it is not necessary to refer to them further.

¶5 To entitle a petitioner to a writ of mandamus, he must allege, among other requisites, a clear legal right on his part to the relief sought. Witt v. Wentz, 142 Okla. 128, 286 P. 796; Purcell-Lexington Toll Bridge Co. v. Leeper, 148 Okla. 27, 296 P. 969.

¶6 The writ can issue to no one except a party beneficially interested. Section 731, O. S. 1931, referring to issuance of the writ of mandamus, provides:

"731. Not Issued Where Remedy at Law--May Issue on Information of Interested Party. This writ may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law. It may be issued on the information of the party beneficially interested."

¶7 This section was adopted from the state of Kansas, and the Supreme Court of that state, in interpreting said statute, states, in the case of Young v. Regents of University of Kansas, 124 P. 150, as follows:

"* * * The statute provides that the writ of mandamus 'may issue on the information of the party beneficially interested.' Civil Code, sec. 715 (Gen. St. 1909, sec. 6311). The party beneficially interested in the discharge of a purely public duty is the public as a whole. If such a duty be neglected, the public is the party injured. As a matter of good government, each individual is interested in the proper discharge of the duties of public officials, but, so long as his interest is merely that which he shares in common with other citizens, he must look to the law officers of the state to correct official delinquencies. An individual may have, however, particular interest of his own independent of that which he holds in common with the people at large, in the performance of a statutory duty imposed upon some officer or board. In such cases he is not simply an indistinguishable unit of the general public, but he is the possessor of a separate and peculiar right which enables him to say that he is the party beneficially interested, and so bring himself within the cited provision of the Code. * * *"

¶8 This action is brought by plaintiff in his official or...