Thurston v. Caldwell

• Decision Date: 16 December 1913
• Docket Number: Case Number: 5067
• Citation: 137 P. 683,1913 OK 714,40 Okla. 206
• Parties: THURSTON, County Treasurer, v. CALDWELL et al.
• Court: Oklahoma Supreme Court

1913 OK 714

137 P. 683

40 Okla. 206

THURSTON, County Treasurer, v. CALDWELL et al.

Case Number: 5067

Supreme Court of Oklahoma

Decided: December 16, 1913

Syllabus

¶0 1. TAXATION--Imposition of Taxes--Power of State-- Municipalities. Section 20, art. 10, Williams' Ann. Const. Okla., which provides, "The Legislature shall not impose taxes for the purpose of any county, city, town, or other municipal corporation, but may, by general laws, confer on the proper authorities thereof, respectively, the power to assess and collect such taxes," applies to purely municipal affairs, and does not constitute a limitation upon the power of the Legislature of the state to impose taxes for purposes which, although of a municipal character, the state has a sovereign interest in, such as taxation for police protection, for streets, highways, and bridges, for the purpose of establishing and maintaining a public school system, etc.

2. SAME--Enforcement--Right to Enjoin--Conditions Precedent. In all matters pertaining to taxation, a party who seeks equitable relief against an assessment of which he complains must himself offer to do equity. He must offer to pay the amount of taxes as the facts show would be properly chargeable against him under a proper assessment.

Chas. West, Atty. Gen., C. J. Davenport, Asst. Atty. Gen., Wayne Wadlington, Co. Atty., and Warren K. Snyder, for plaintiff in error.

J. W. Hocker, for defendants in error.

KANE, J.

¶1 This was a suit in equity, commenced by the defendants in error, plaintiffs below, against the plaintiff in error, defendant below, to enjoin the defendant as county treasurer from selling certain real estate belonging to the plaintiffs to satisfy certain assessments and taxes imposed or attempted to be imposed on said read estate for what is alleged to be city, town, school district, and county purposes, under the general revenue law of the state. Upon trial to the court, a decree was issued as prayed for, to reverse which this proceeding in error was commenced. The taxes involved cover the years 1908, 1909, 1910, 1911, and 1912. The petition shows that during part of that time the city of Purcell was a chartered city under a commission form of government, with duly organized legislative and executive departments. The principal contention of the plaintiffs is that the general revenue law of 1909 (Sess. Laws 1909, c. 38, secs. 14, 15), which empowered the county clerk to make the tax roll for county, city, town, township, and school district purposes and certify the same to the county treasurer, together with his warrant directing the county treasurer to collect the taxes for the city, as well as for the county, township, and school district, and the act of 1910 (Sess. Laws 1910, c. 64, secs. 3, 4), known as the "County Excise Board Act," which directs and empowers a board composed of certain executive and judicial officers of the county to levy taxes for city, as well as for county, purposes, and the act of 1911 (Sess. Laws 1910-11, c. 152), creating the office of county assessor and abolishing township assessors, are unconstitutional in so far as they relate to counties, cities, and townships, because they are repugnant to section 20 of article 10, Williams' Ann. Const. Okla., which provides:

"The Legislature shall not impose taxes for the purpose of any county, city, town, or other municipal corporation, but may, by general laws, confer on the proper authorities thereof, respectively, the power to assess and collect such taxes."

¶2 We gather from the able brief of counsel for plaintiffs that broadly his contention is that in the matter of the imposition, assessment, and collection of taxes upon property for the purpose of any county, city, township, or other municipal corporation, each governmental subdivision is supreme, and the Legislature of the state is without power to impose any taxes thereon for such purposes, even though the tax sought to be imposed may be as necessary to the health, happiness, and welfare of the state at large as to the people of the particular municipal corporation involved. We cannot agree with this sweeping interpretation of the constitutional provision under consideration. Several state Constitutions contain similar provisions which had been construed by their highest courts prior to the adoption of our Constitution, but we are unable to find where the construction contended for by counsel for plaintiffs had been adopted by any of them. In the note to this section in Williams' Ann. Const., it is said: "This section was taken from Kentucky." Whilst no decision by the highest court of that state passing directly upon the exact question herein involved is to be found, there are several cases to the effect that this provision does not deprive the Legislature of the power to provide for the assessment of property which shall be the basis of all levies for city, town, township, and other subdivisions of the state. South Covington, etc., Ry. Co. v. Town of Bellevue, 105 Ky. 283, 49 S.W. 23, 57 L. R. A. 50; Paducah St. Ry. Co. v. McCracken County, 105 Ky. 472, 49 S.W. 178; Levi v. City of Louisville, 97 Ky. 394, 30 S.W. 973, 28 L. R. A. 480; State ex rel. City of Seattle v. Carson, 6 Wash. 250, 33 P. 428. The latter, a Washington case, which state also has a similar provision, is more directly in point. It was held:

"Const. art. 7, sec. 9, and article 11, sec. 12, providing that for all corporate purposes municipal corporations may be vested with authority to assess and collect taxes, and that the Legislature shall have no power to impose taxes on municipal corporations for municipal purposes, do not render invalid Act March 9, 1893, making the assessment roll of a city of the first class the same as that of the county, and making the county treasurer ex officio collector of taxes for the city."

¶3 The Supreme Court of Missouri, where there is a provision identical with our own, in State ex rel. v. Owsley, 122 Mo. 68, 26 S.W. 659, speaking generally of its purpose and effect, and construing it in connection with other provisions of the Missouri Constitution, which in effect are also found in our Constitution, says:

"The crying evil that the people of the state were laboring under at the time these provisions were introduced into the Constitution was excessive indebtedness, incurred by counties and other municipalities under authority of the Legislature, to meet which oppressive taxes had to be imposed, and it was to meet this evil, and remove it for the future, that these provisions were introduced into the organic law of the state. It was not sought to deprive the Legislature of the taxing power and confer it upon municipalities to any extent. On the contrary, the plenary taxing power of the General Assembly as it had theretofore been exercised is recognized as a premise of the proposed legislation. It is only the exercise of it by the assembly that is limited and regulated by the Constitution. All taxes since the adoption of the Constitution or before are levied and collected under and by the authority of the General Assembly of the state. Under these limitations of the Constitution, the taxes must be uniform within the territorial limits of the authority levying them, they must be levied in pursuance of a general law of the assembly directly authorizing them for state purposes, and authorizing them indirectly, through power conferred upon municipal authorities, for local purposes. And in each case the rate of taxation must be within the limit allowed for such purpose. And the General Assembly was inhibited from imposing upon municipalities a tax for local purposes, except by a general law authorizing such tax to be imposed by the local authorities, or releasing any municipality from its proportionate share of taxes levied for state purposes."

¶4 In the Owsley case, it was contended that a section of the act of the General Assembly which provided for the registration of voters in, and for the appointment by the Governor of, a recorder of voters in cities of more than 100,000 inhabitants, and which further provided that all the costs and expenses of such registration and election and of the office of recorder of voters, required by this article in any such cities, shall be paid one-half out of the city treasury and one-half out of the county treasury, was unconstitutional, as being repugnant to the section of the Missouri Constitution. It was held:

"Revised Statutes 1889, secs. 989-1013 (revising and amending the Act of March 31, 1883, Laws, p. 38), providing for the registration of voters in cities having a population of more than 100,000, and the appointment by the Governor of a recorder of voters for such cities, and the payment of the costs and expenses of registration and election and of the office of recorder of voters equally out of the county and city treasuries, in cities situated within counties, are not unconstitutional as authorizing the levy of a municipal local tax for other than local purposes."

¶5 In State ex rel. Hawes et al. v. Mason, 153 Mo. 23, 54 S.W. 524, the authority of the state to create a metropolitan police...