Stiles v. City of Guthrie

• Decision Date: 27 July 1895
• Citation: 41 P. 383,3 Okla. 26,1895 OK 51
• Parties: JOSEPH STILES, Treasurer, et al. v. THE CITY OF GUTHRIE, et al.
• Court: Oklahoma Supreme Court

1895 OK 51

41 P. 383

3 Okla. 26

JOSEPH STILES, Treasurer, et al. v. THE CITY OF GUTHRIE, et al.

Supreme Court of Oklahoma

Decided: July 27, 1895

Error from the District Court of Logan County.

Syllabus

¶0 1. SATUTES--Construction of. The intention of the legislature governs the construction of a statute, and if that requires a change in the punctuation, or even in the wording, of the statute, such change must be made.

2. ROAD AND BRIDGE TAX--County Commissioners No General Authority to Levy. The board of county commissioners, under the laws of 1893, had no authority to levy any tax for road and bridge purposes, unless they were first authorized to do so by a majority vote of the people, upon the question being submitted at a general or special election.

3. MISJOINDER OF PARTIES--Not Ground for Demurrer. A misjoinder of parties, both plaintiff and defendant, is no ground for a demurrer to the petition under our code.

4. INJUNCTION AGAINST ILLEGAL TAX -- Joinder of Parties. Several persons, whose property is affected in the same manner by the same illegal tax, may, under our statute, join in an action to restrain the collection of such tax.

5. ILLEGAL TAX -- Injunction a Proper Remedy. Under our code injunction is a proper and legal remedy to restrain the collection of illegal taxes.

6. GENERAL DEMURRER -- Not Proper If Any Cause of Action Is Stated. Where a demurrer is joined in by several persons, on the ground that the petition does not state a cause of action, there is no error in overruling the demurrer as to all of the defendants, if a cause of action is stated against any of them, although no cause of action whatever may be stated against a part of them.

7. WHEN PARTIES IN INTEREST MUST SUE. One or more tax payers, whose property is attempted to be subjected to an illegal tax, can not maintain an action enjoining the collection of the tax as against the property of other tax payers similarly situated, under the provisions of the code, which is that "when the question is one of common or general interest in 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. H. Huston and Buckner & Son for plaintiff in error.

Bayard T. Hainer for defendants in error.

BIERER, J.:

¶1 The city of Guthrie, a city of the first class, and G. H. Lynds and J. W. Snyder, residents and tax payers of said city, brought this action in the court below against Joseph Stiles, treasurer of Logan county, Richard Smith, J.

¶2 J. Sampson and S. P. Atherton, county commissioners of Logan county, to enjoin the collection of five mills of tax, which had been levied by the board of county commissioners as a road and bridge tax for the year 1893. A demurrer to the petition of the plaintiffs below was presented by defendants overruled and excepted to, and judgment rendered in favor of plaintiffs and against defendants, enjoining the collection of these taxes. Two days afterwards, upon application of plaintiffs, the court permitted an amendment to be made to the petition, showing that this levy of tax was made against all of the property of all the citizens and tax payers of Logan county, inside, as well as outside, of the city of Guthrie, where Lynds and Snyder resided, and asked that the defendants be enjoined from the collection of any of these taxes against any and all of the tax payers of the county. Upon this amended petition the court rendered judgment enjoining the entire collection of this tax against any and all tax payers of the county. Exceptions were duly saved to all of the rulings of the court, and an appeal is brought here for a review of this judgment.

¶3 There are several important questions of practice and procedure urged for our consideration by plaintiffs in error, and which would ordinarily be considered before the principal question of substantive law involved in the controversy, but as a disposition of these former questions, as involved in this case, will depend somewhat upon what conclusion we arrive at on the question as to whether the plaintiffs below, or any of them, had any cause of complaint in any form of procedure against the defendants, or any of them, we will consider first the principal question involved in the controversy, and that is, as to whether or not, under the Statutes of this territory of 1893, the county commissioners had any authority to make a general levy of a road and bridge tax throughout the county, without first being authorized so to do by a vote of the qualified voters of the county. The petition alleges that the commissioners had no authority to levy a tax, and the case is briefed by counsel on both sides without any contention but what the petition is sufficient in this respect to show that the commissioners had no authority to levy the tax unless they had it without the question being submitted to the taxpayers, and under general authority given under the revenue law. Counsel for the commissioners base their contention that they had the authority to levy this tax entirely under the provisions of § 5625 of the Statutes of 1893, which section is § 1 of an article entitled "Rate of Taxation and Levy," and contains the marginal note, "Limitation of Taxes." This is section reads as follows:

"The rate of the general territorial tax shall not be less than one-half mill nor more than three mills on the dollar valuation, and one-half mill each year for the erection and support of a territorial normal school, and one-half mill each year for the erection and support of a territorial university, the rate for ordinary county revenue, including the support of the poor, not more than six mills on the dollar; a road and bridge tax not to exceed five mills on the dollar, to be paid in money for the county sinking fund, such rate as in the estimation of the county board will pay one year's interest on all the outstanding debt of the county, with ten per cent. on the principal, and such other taxes as may be authorized by law."

¶4 The clause from this section referring to the road and bridge tax and to the levy for a sinking fund is evidently improperly punctuated, and, being punctuated as the legislature evidently intended it to be, would read thus: "a road and bridge tax not to exceed five mills on the dollar; to be paid in money for the county sinking fund, such rate as in the estimation of the county board will pay one year's interest on all of the outstanding debt of the county, with ten per cent. on the principal, and such other taxes as may be authorized by law." It will be observed that this reading of the statute changes no word, but only substitutes a semi-colon for the comma after the word "dollar," and makes the clause "to be paid in money for the county sinking fund" relate entirely to the provision for the payment of the outstanding debt of the county with the interest thereon, and not so that it may be applied, according to the fancy or interest of the reader, to a road and bridge tax or a county debt fund. This reading is, to a disinterested person, manifestly what was intended by the legislature, for the legislature certainly never intended that taxes should be levied for road and bridge purposes, and that the payment of such levy should be made in money for the county sinking fund. Such reading would be absurd on its face, and we cannot let an absurdity supercede the intention of the legislature in construing the law. We must construe the law as the legislature intended it, and if that requires a change in the punctuation, or even in the wording of the statute, such change must be made. (Territory v. Clark, 2 Okla. 82, 35 P. 882.)

¶5 Having ascertained, now, what the language and connection of the different matters referred to in this section are, does it give any authority to the county commissioners to levy a road and bridge tax? We observe nothing of that kind in the section. There is nothing in the section which directs any particular body, tribunal or officer to make a levy of the tax, nor is there anything in or about the section that purports to do such a thing. It only fixes the rate, or rather, it only fixes the limitation upon certain taxes which may be levied for certain purposes in this territory, and does not say, or pretend to say, what officer or body shall make the levy. It leaves the question as to who, or what officer or tribunal, shall make the levy to other provisions of the statute. The very next section following this one provides that the territorial board of equalization shall fix the rate of taxation for a territorial tax, and that the auditor shall certify the same to the county clerks of the counties. The section following this latter one provides the time when the county commissioners shall meet and levy the taxes in the counties. Upon a consideration of these three sections, it would be as fair to hold that the county commissioners were the body to fix the amount which should be levied for territorial taxes as that they should make a levy of taxes for road and bridge purposes, and this conclusion can certainly not be reached. But there are other sections of the statute which make it very clear as to whose duty it is to levy taxes for road and bridge purposes in cities, and when, if ever, the county commissioners can levy any such taxes. Section 5729, of the same statutes, provides: "The county commissioners of each county, by and with the consent of the respective township trustees, may at the time prescribed by law for levying county taxes, levy a road tax of not more than five mills on the dollar on all taxable property in their respective townships, except the real estate in incorporated city (meaning cities) of over two thousand inhabitants, and the said tax may be paid in labor under the direction of the overseer of the district in which the property is situated, by any able-bodied man at the rate of one dollar per day, and the same...