State ex rel. Tharel v. Board of Com'rs of Creek County
| Decision Date | 19 November 1940 |
| Docket Number | 29511. |
| Parties | STATE ex rel. THAREL et al. v. BOARD OF COUNTY COM'RS OF CREEK COUNTY et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and in legal contemplation is as inoperative as if it had never been passed. It imposes no duties, confers no rights, bestows no power or authority on anyone, affords no protection and justifies no acts performed under it.
2. Rights acquired by virtue of acts performed by administrative officers, under a statute that has not been adjudged to be constitutional, are subject to a subsequent adjudication that the statute is unconstitutional.
3. Sec 53, Art. 5, of the Constitution, Okl.St.Ann., providing that "the Legislature shall have no power to release or extinguish, or to authorize the releasing or extinguishing in whole or in part, the indebtedness, liabilities or obligations of any corporation or individual to this State or any county or other municipal subdivision thereof", was intended to, and does, insure equality and uniformity in the collection of taxes.
4. The Board of County Commissioners is an administrative board and a part of the executive, and not the judicial, branch of the government.
5. Boards of County Commissioners derive their power and authority wholly from the statutes, and acts performed by them must be done pursuant to authority granted by valid legislative enactments.
6. While in the performance of their statutory duties Boards of County Commissioners may act in a quasi judicial capacity acts done by them under an unconstitutional statute are not res judicata, but may be collaterally attacked.
7. The courts alone have the power to authoritatively determine the constitutionality of a statute.
8. Where a Board of County Commissioners reduced valuations and taxes of delinquent taxpayers under Art. 14, Ch. 66 S.L.1937, 68 Okl.St.Ann. §§ 184a to 184c, which was thereafter held unconstitutional in Ivester v. State, 183 Okl. 519, 83 P.2d 193, such reductions, not being made under any power or authority lawfully conferred upon such board, were void and of no effect, and did not divest the county of its lien for such delinquent taxes.
9. Where delinquent taxpayers secured a reduction of their taxes under a law thereafter adjudged unconstitutional, they were not penalized by a judgment directing the correction of the tax records so as to reflect their original liability to the county, and in effect decreeing them to be liable for payment of the balance due on such taxes. The rule that administrative officers will not be penalized for acts done under an unconstitutional law does not apply to such a situation.
10. All persons dealing with officers or agents of counties are bound to ascertain the limits of their authority or power as fixed by the statutory or organic law and are chargeable with knowledge of such limits. No estoppel can be created by the acts of such agents or officers in excess of their statutory or constitutional powers.
11. Where, under a statute authorizing county officers to reduce delinquent taxes, such officers accept less than the full amount due and issue receipts showing payment in full, and thereafter the statute is adjudged to be unconstitutional, said taxpayers will be given credit for the amount so paid on the total amount due.
12. Where, after the filing, but prior to the hearing, of an action to enjoin county officers from performing acts under a law alleged to be unconstitutional, said officers perform the acts sought to be enjoined, and thereafter the law is in another action finally adjudged to be unconstitutional, it is proper to permit the petition to be amended to ask that said acts of the officers be corrected so as to compel, by mandatory injunction, a restoration of the status quo.
13. Persons entitled to relief under a law purporting to give the county officers authority to remit delinquent taxes by revaluing the property, and those receiving relief thereunder, are proper parties defendant in an action against the county officers to enjoin them from performing acts under the law and to compel the officers to restore the records after performing acts thereunder.
14. Under sec. 154, O.S.1931, 12 Okl.St.Ann. § 233, which provides that "when the question is one of common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all", a class action was properly brought against the defendant taxpayers mentioned in the preceding syllabus, because of their number, the similarity of their situation, and their common interest in the questions involved and in the result of the action.
Appeal from District Court, Creek County; C. O. Beaver, Judge.
Suit by the State of Oklahoma, on the relation of W. D. Tharel and two other owners of taxable property in the city of Drumright, on which the taxes had been paid, for themselves and all other taxpayers of Creek County, Okl., similarly situated, against the Board of County Commissioners of Creek County, Okl., and others to enjoin the defendants from proceeding under the statute authorizing the reassessment of property for 1936 and all prior years on which the taxes were delinquent. After the statute was held unconstitutional by the Supreme Court, the plaintiffs filed an amended petition to compel the county treasurer of Creek County, Okl., by mandatory injunction or mandamus, to cancel all tax receipts issued pursuant to reassessments under the statute, and to restore the tax records as they were prior to the passage of the statute. Lillian Powers, owner of a bond against the City of Drumright, intervened and asked the same relief as that asked in the amended petition. From a judgment denying the plaintiffs and the intervener any relief, they appeal.
Judgment reversed, with instructions.
Grace Arnold, of Drumright, and Glenn O. Young, of Sapulpa, for plaintiffs in error.
J. Berry King and George J. Fagin, both of Oklahoma City, for intervener Lillian Powers.
Mac Q. Williamson, Atty. Gen., and Houston E. Hill and Fred Hanson, Asst. Attys. Gen., amicus curiae for Leon C. Phillips, Governor.
Fred Speakman, of Sapulpa, amicus curiae, defendant in error.
Everett S. Collins, Co. Atty., and Kenneth G. Hughes, Asst. Co. Atty., both of Sapulpa, and E. C. Stanard, of Shawnee, for defendants in error.
This case involves the question of the effect of acts fully performed by the Board of County Commissioners and County Treasurer of Creek County, under Art. 14, Ch. 66, S.L.1937, prior to the decision in Ivester v. State, 183 Okl. 519, 83 P.2d 193, adjudging the act to be unconstitutional.
The action was commenced by the State on the relation of three owners of taxable property in the city of Drumright on which the taxes had been paid, for themselves and all other taxpayers of Creek County similarly situated, against the Board of County Commissioners, County Treasurer, and County Clerk of Creek County, and three named taxpayers who had secured a reduction in their taxes, and all others similarly situated, to enjoin said officers from proceeding under Art. 14, Ch. 66, S.L.1937, 68 Okl.St.Ann. §§ 184a to 184c, authorizing the reassessment of property for 1936 and prior years on which the taxes were delinquent. The petition asked that all other defaulting taxpayers be enjoined from asking relief under the statute and for general equitable relief. No restraining order or injunction was issued in the cause.
The material facts, and sequence of events, are as follows: Said act by its terms took effect on May 3, 1937; the first reassessment by the Board of County Commissioners of Creek County, under the act, was made on May 18, 1937, and the last on July 20, 1938 (just six days before the decision was handed down in Ivester v. State, supra, adjudging the law unconstitutional); this action was filed on September 17, 1937, and in the petition seeking an injunction to prevent the County Treasurer from performing any acts under the law plaintiffs alleged that said act was unconstitutional and violative, among other provisions, of Sec. 53, Art. 5 of the State Constitution, Okl.St.Ann.; on September 18, 1937, the Attorney General gave an opinion, which was immediately furnished to the defendant county officers, advising that since there was grave doubt as to the constitutionality of the act, the County Commissioners should refrain from acting under it until the courts had passed upon the question, and the pendency of the Ivester case in Beckham County was referred to as a test case; on November 22, 1937, the Ivester case was decided by the District Court, the law being adjudged to be unconstitutional; on November 23, 1937, the Attorney General rendered an opinion holding the act unconstitutional, calling attention to the decision in the Ivester case, and this opinion was furnished to the Board of County Commissioners of Creek County a few days thereafter. Thus it is clear that the County Commissioners and County Treasurer of Creek County continued to act under the law after this action was filed against them questioning the constitutionality of the act, and after they had been advised by the Attorney General to refrain from acting under it, and after they were advised by the Attorney General that it had been adjudged, and was, unconstitutional.
During the time the defendant officers were proceeding under the act, they reduced the assessments and taxes on some 4,264 separate pieces of property, and the taxes...
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