State ex rel. West v. Mccafferty
| Decision Date | 09 November 1909 |
| Docket Number | Case Number: 826 |
| Citation | 1909 OK 291,105 P. 992,25 Okla. 2 |
| Parties | STATE ex rel. WEST, Atty. Gen., et al. v. MCCAFFERTY, County Treasurer. |
| Court | Oklahoma Supreme Court |
¶0 1. STATUTES--Implied Repeal. Where a section, expressly amendatory to another section of a statute, purports to set out in full all that it is intended to contain, any matter which was in the original section, but not in the amendatory section, is repealed by the omission.
2. CONSTITUTIONAL LAW--Obligation of Contracts--Tax Ferret--Contract with County--Nature of Agency. A contract, made under authority of Act May 29, 1908, p. 729, c. 81, art. 9 (Sess. Laws 1907-08), by a board of county commissioners with an individual, to assist the proper officers of the county in the discovery of property not listed for taxation, and to receive as full compensation 25 per cent. of all taxes recovered under said act, does not confer upon the agent a power, coupled with an interest in the subject of the contract, which makes the contract of agency irrevocable.
3. MANDAMUS--Nature of Act Commanded--Repeal of Statutory Authority--Tax Ferrets. Where an application was made to this court by an agent, under contract with a board of county commissioners to assist the proper officers of the county in the discovery of property not listed for taxation from 1897 to 1907, inclusive, entered into pursuant to Act May 29, 1908 (Sess. Laws 1907-1908, p. 729, c. 81, art. 9), to mandamus the county treasurer to give certain taxpayers of the county, in whose name it was proposed to list and assess certain property alleged to have been discovered by said agent, the '10 days' notice in writing required by said act, fixing the time and place when and where objections thereto might be made, and where, pending a hearing, said act was repealed by the Act March 8, 1909 (Sess. Laws 1909, p. 626, c. 38, art. 3), to the extent of revoking the authority of said board of county commissioners to employ said agent to assist said officers in the discovery of such property not listed and assessed for taxation prior to November 16, 1907, and also revoking his agency under said contract, held, that all the power of the county treasurer to do and perform the acts sought to be required of him in the business was destroyed by that part of said act repealed, and the mandamus was denied.
4. MANDAMUS--Discretion of Court--Useless Acts. Mandamus is not a writ of right, but one resting within the sound judicial discretion of the court, and will not be granted to compel the performance of a useless act.
Original application for mandamus by the State of Oklahoma, on the relation of Charles West, Attorney General, by the Board of County Commissioners of Oklahoma County, by E. E. Reardon, County Attorney, and by C. H. Pittman, against Charles McCafferty, County Treasurer. Writ denied.
Charles West, Atty. Gen., for the State; E. E. Reardon, County Atty., for Oklahoma County; M. Fulton and John Adams, for C. H. Pittman.--Citing: Hall v. State of Wisconsin, 103 U.S. 5; Teacher v. Supt. of Stuben Co., 21 Misc. (N.Y.) 271; People v. Hill, 8 Colo. 490; People v. Stell, 231 Ill. 340; In re Preston, 63 Ohio St. 428; People v. Coler, 166 N.Y. 144; Mitchell v. Burlington, 4 Wall. (U. S.) 270; Ohio, etc., Co. v. DeBolt, 16 How. (U. S.) 416; Newstadt v. Ill. Cent. R. Co., 31 Ill. 484; Southwestern Missouri Lt. Co. v. City of Joplin, 101 F. 23; Township v. Talcott, 19 Wall. (U. S.) 666; Houston, etc., v. State of Texas, 177 U.S. 66; Edwards v. Kearzey, 96 U.S. 601; Ogden v. Saunders, 12 Wheat. (U. S.) 213; Sturges v. Crownshield, 4 Wheat. (U. S.) 122; City of Louisville v. R. R. Co. (Ky.) 63 S.W. 14; Oliver v. Houghton, (Tex.) 54 S.W. 940-943; In re Leland Standford (Cal.) 45 L. R. A. 788; Trippet v. Guondike (Cal.) 8 L. R. A. 1210; Prorost v. Greneaux, 19 How. (U. S.) 1; Alliance Trust Co. v. Multumauh Co. (Ore.) 63 P. 498; Smith v. Kelley, 24 Ore. 464.
Everest, Smith & Campbell, John H. Wright, and George A. Matlack (Dale & Bierer, Devereux & Hildreth, J. L. Brown, and Horace Speed, of counsel), for respondent.--Citing: Musgrave v. Railroad Co., 50 Miss. 677; French v. State, 53 Miss. 651; Haynes v. State (Tenn.) 39 Am. Dec. 187; Missouri v. Walker, 88 Mo. 279, 125 U.S. 339; Merrill v. Sherburne, 1 N. H. 213; Cooley, Const. Lim., 359; Commw. v. Glover (Ky.) 116 S.W. 769; Baker v. City of Utica, 19 N.Y. 326; 8 Cyc. 944; Selma B. & L. Ass'n v. Morgan, 57 Ala. 33; State v. Brewer, 64 Ala. 287; Commw. v. Comm'rs, 6 Pick. (Mass.) 500; Williamson v. New Jersey, 130 U.S. 189; Dwarris on Statutes, 676; Canal Co. v. City of Chicago, 14 Ill. 334; Fitzgerald v. Railroad Co. (Vt.) 13 L. R. A. 70; Port v. Sheboygan, 25 Wis. 506; Reed v. Francis, 33 Kan. 510; Commw. v. Standard Oil Co., 101 Pa. St. 149; Butler v. Palmer, 1 Hill (N.Y.) 324; Gravel Road Co. v. Sheath, Treas., 53 Ind, 35.
¶1 This is an original proceeding in mandamus, filed in this court May 6, 1909, by the state of Oklahoma, on the relation of Charles West, Attorney General, the board of county commissioners of Oklahoma county, by E. E. Reardon, county attorney, and C. H. Pittman, against Charles McCafferty, county treasurer of said county. The petition substantially states that on August 11, 1908, said Pittman was employed and contracted in writing with said board of county commissioners to assist the proper officers of said county in the discovery of property not listed and assessed for taxation, as required by existing laws; that said contract was made pursuant to Act May 29, 1908, c. 81, p. 729, art. 9 (Seas. Laws Okla. 1907-1908); that the same provided that said Pittman should receive the sum of 25 per cent. of all taxes recovered under said act as compensation for his services. A copy of said contract, together with a copy of the minutes and proceedings of said board of county commissioners with relation thereto, are attached as exhibits to the petition. The petition further alleged that under said act it was the duty of said McCafferty, as county treasurer, upon being notified by said Pittman of property omitted from listing and assessment for taxation, to give to the person in whose name it was proposed to assess such property 10 days' notice of his intention so to do, by registered letter addressed to such person at his last-known place of residence, fixing the time and place when objections in writing to such proposed listing and assessment might be made, and that, if it be found that said property had been omitted from taxation, and had not been listed and assessed, to list and assess the same for each year it had been omitted, and charge the same with the tax levy of that year, and enter the same upon the tax rolls for collection, and proceed forthwith to collect the taxes due and payable thereon; that pursuant to said employment he had made examination, investigation, and search to discover any property in said county that had been omitted from assessment for taxation for the years 1897 to 1907, inclusive, and as exhibits filed alleged schedules thereof, showing the names of persons having property omitted from listing and assessment, and the years omitted, and the amount of property omitted for each year, alleging the interest therein of the state and county to be in all $ 750,000; that said McCafferty, county treasurer, upon the facts as stated having been brought to his knowledge, upon request, refused and still refuses to give the persons in whose name it is proposed to assess said property said notice required by law, and to take any steps to bring about the proper listing and assessment of said omitted property, or any part thereof, for any of the years named, and fails, neglects, and refuses to do his duty as county treasurer under said act; that plaintiff has no adequate remedy other than the present proceeding, and prays that an alternative writ of mandamus be directed to said McCafferty, as treasurer aforesaid, commanding him to show cause why he should not be compelled to issue said notice and list and assess said property and enter the same upon the tax rolls of said county for the years during which it was so omitted; and that he thereafter be required to forthwith proceed with the collection of said taxes, and for judgment and costs.
¶2 An examination of the contract discloses that no consideration appears upon its face, no limit is fixed for its duration, and that it was for the discovery of taxes due the county for the past 10 years, exclusive of the taxes then being collected for the current year.
¶3 Responding to the rule, defendant answered, in substance, that the writ should not issue because, he said, (1) there has been no refusal on his part to do any duty enjoined upon him by law; (2) that the act under which plaintiff seeks to compel him to do and perform the things set forth in the writ was not legally passed by the Legislature, and never became a law; (3) that said act is so vague and indefinite as to be incapable of intelligent interpretation, no definite procedure being provided; (4) that said act has, in effect, been repealed as to all property omitted from assessment prior to November 16, 1907.
¶4 Plaintiff demurred to the answer, and the main questions necessary for us to determine are whether the act approved May 29, 1908, was repealed in whole or in part by the act approved March 8, 1909 (Laws 1909, p. 626, c. 38, art. 3), and, if so, what effect, if any, said repealing act had on the contract of employment of the relator Pittman and on his right to the peremptory writ.
¶5 The former act provides:
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