A. T. Streight & G. M. Worthen, Partners, Under the Firm Name & Style of Shawnee Hardware Co. v. Durham

• Citation: 10 Okla. 361,61 P. 1096,1900 OK 56
• Parties: A. T. STREIGHT AND G. M. WORTHEN, Partners, under the firm name and style of SHAWNEE HARDWARE COMPANY v. WILLIAM DURHAM, Treasurer of Pottawatomie County, Oklahoma Territory.
• Decision Date: 30 June 1900
• Court: Supreme Court of Oklahoma

1900 OK 56

61 P. 1096

10 Okla. 361

A. T. STREIGHT AND G. M. WORTHEN, Partners, under the firm name and style of SHAWNEE HARDWARE COMPANY v. WILLIAM DURHAM, Treasurer of Pottawatomie County, Oklahoma Territory.

Supreme Court of Oklahoma

Decided: June 30, 1900

Error from the District Court of Pottawatomie County; before B. F. Burwell, District Judge.

Syllabus

¶0 1. TAXATION, EXCESSIVE--Necessary Proof. The Organic Act and the statutes of this Territory require that all property subject to taxation shall be assessed and taxed according to its true cash value, and where a party seeks to enjoin the collection of a tax which he claims is illegal and excessive, arising from the action of the board of equalization in raising the valuation of the property above the returned valuation by the assessor to the board, it devolves upon him not only to allege in his petition but to prove, that the property was listed and returned for assessment at its true cash value, before a court of equity will interfere and enjoin the collection of the excessive tax.

2. EQUALIZATION, BOARD OF--Powers. Under sec. 5620 of the Statutes of 1893, the board of equalization of a city in exercising its powers and functions of equalizing the various individual assessments, has the undoubted authority to increase the valuation of the property of any individual above the returned valuation by the assessor to the board where it appears that such property has been assessed below its true cash value: subject to the limitations, that the property is uniformly assessed; that no unequal discrimination is made between different kinds of property within the taxing district; and that the property is not raised by the board above its true cash value.

3. EQUALIZATION, BOARD OF--Time of Meeting. The time for the meeting of the board of equalization is fixed by statute, and all persons must take notice of such time; and the action of the board of equalization in raising the assessed value of the property of an individual above the return made to the board by the assessor, does not require that notice shall be given to the tax payer to make such action valid; and the want of notice to an individual tax payer is not in violation of art. 14 of the amendment of the constitution of the United States, which forbids the deprivation of any person of life, liberty or property without due process of law.

P. O. Cassidy, for plaintiffs in error.

L. G. Pitman, for defendant in error.

HAINER, J.:

¶1 This was an action brought in the district court of Pottamatomie county by the plaintiffs in error against the defendant in error, to enjoin the defendant in error from collecting a portion of the taxes for the year 1897. The material allegations in the petition are as follows:

"That these plaintiffs duly and truly listed and returned under oath all personal property owned by them jointly as such partners in the city of Shawnee, for the year 1897, to the proper assessor of said city, and placed the value thereof at $ 1235.00, which was the average cash value of all the personal property owned by the Shawnee Hardware Company in said city at the time, and the said assessor at the time assessed and valued all of the personal property of the plaintiffs in the said city of Shawnee at $ 1,235.00 and did at the time so enter it upon the assessment rolls of the city of Shawnee as the property of the Shawnee Hardware Company.

"But, that afterwards, upon the advice of the mayor and the clerk of the city of Shawnee and other persons unknown to these plaintiffs, the said assessor, without the knowledge or consent of these plaintiffs increased the valuation of plaintiffs' personal property, in said city of Shawnee about sixty-five per cent, viz. $ 800, and extended the same upon the assessment rolls. But, the said assessor never at any time furnished to, or gave to the plaintiffs a copy of the schedule showing such raise or increase of plaintiffs' said personal property, and plaintiffs knew nothing of said increase until they went to pay their taxes to the county treasurer since January first, 1898. That said increase of the value of plaintiffs' personal property from $ 1,235.00 to $ 2,035.00 was fraudulently and unlawfully done, and is inequitable and out of proportion to the values placed on other personal property in the said city of Shawnee, and is an unjust and unequal discrimination against these plaintiffs as compared with the values placed upon the personal property of other residents and tax payers of said city, and unjust, illegal and void."

¶2 Upon this petition the probate judge in the absence of the district court granted a temporary injunction. To the petition of the plaintiff the defendant filed an answer. It was admitted in the answer of the defendant that the city assessor of Shawnee assessed the plaintiffs' property for the year 1897 for $ 1,235.00, and that afterwards said property was raised by the board of equalization of the city of Shawnee to the value of $ 2,035.00; that the increased valuation placed upon the plaintiff's property was done by the regularly constituted board of equalization of the city of Shawnee, consisting of the mayor, the city clerk and the city assessor. That in assessing and equalizing the plaintiffs' property there was no irregularity, and that the same was done according to law. The answer further alleges that there was no discrimination made against the plaintiffs, and that said property was assessed and equalized and returned as all other property in the city of Shawnee, at its actual cash value.

¶3 Upon the issues thus framed the cause was tried by the court upon affidavits filed in the case, which were by agreement of parties taken as the evidence in the case. The district court held that the evidence was insufficient to sustain plaintiffs' claim of the illegality of said tax and dissolve the temporary injunction granted by the probate judge, and dismissed the action at the cost of the plaintiffs. From this judgment the plaintiffs appeal.

¶4 The only evidence offered by the plaintiffs was the affidavit of G. M. Worthen, which is as follows:

"Territory of Oklahoma, Pottawatomie county, ss.

"G. M. Worthen being duly sworn, on oath deposes and says, that he is a member of the Shawnee Hardware Company, the above named plaintiff, and that in February, 1897, the said plaintiff listed to the assessor of the city of Shawnee, under oath all the personal property owned by said plaintiff in the said city and gave in the value thereof at $ 1,235.00, which was the true and fair cash value of said property at the time, as compared by the assessed valuation of other personal property in said city, and the assessor at the time in the presence of the affiant, duly entered said property on the assessment roll of the said city and there assessed said property at $ 1,235.00, and so entered it upon the assessment roll, and plaintiff relying upon the acts of the assessor at the time he assessed said property, and believing that no change could or would be made increasing the value, without giving said plaintiff notice of said change and having received none, paid no more attention to the matter until plaintiff went to pay its taxes after January first, 1898, and then affiant for the first time learned from the county clerk and treasurer that the assessment of plaintiff had been increased from $ 1,235.00 to $ 2,035.00 thereby increasing his taxes from $ 90.77, being the tax on the legal assessment, to $ 149.00, making an increase of $ 58.23, which plaintiff believing to be illegal, but at the time tendered the full amount of taxes on the legal assessment, which the treasurer refused to accept.

"Affiant further says that the plaintiff was never notified of said increase or any contemplated increase on the value of its said property.

"G. M. WORTHEN,

"Subscribed and sworn to before me this 13th day of February, 1898.

"GEO. G. BOGGS,

"Notary Public.

"My commission expires May 4, 1899."

¶5 We think that the evidence offered by the plaintiffs is wholly insufficient to establish any cause of action against the defendant. There was no evidence to show fraud or irregularity either in the assessment or the raise made by the city board of equalization. Nor was there any evidence offered that the property was listed and assessed at its true or actual cash value. Neither was there any evidence offered to show that the board of equalization had increased the valuation of the property in excess of the actual cash value. Had the property been assessed in excess of its true or actual cash value, that fact could have easily been shown by the plaintiffs. But, the only testimony on this point offered by the plaintiffs was, "that $ 1,235.00 was the true and fair cash value of said property at the time, as compared with the assessed valuation of other personal property in said city." On the other hand, the defendant offered the testimony of the mayor, the city clerk and the city assessor, which shows that after a careful comparison of the personal property owned by the plaintiffs and similar property situated in the city of Shawnee, the board of equalization of said city found and determined that said property was listed and assessed below the average value of personal property as returned by other tax payers of said city for the year 1897, and that the fair cash value of said property for said year was $ 2,035.00, and that no discrimination was made against the plaintiffs by the board of equalization.

¶6 It is contended by the plaintiffs in error that the board of equalization of the city of Shawnee has no power to raise the individual assessments, and that...