Weatherford Mill. Co. v. Duncan
| Decision Date | 12 May 1914 |
| Docket Number | 3645. |
| Citation | 140 P. 1184,42 Okla. 242,1914 OK 243 |
| Parties | WEATHERFORD MILLING CO. v. DUNCAN, COUNTY TREASURER. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Section 1, of chapter 81, art. 9, Session Laws 1908, allowing an appeal to the county court from the action of the county treasurer in assessing property thereunder, did not, by implication, repeal section 4440, Wilson's Rev. & Ann St. 1903 (section 4881, Rev. Laws 1910), of the Code of Civil Procedure, permitting an injunction to restrain the levy and collection of an illegal tax.
Where the taxes sought to be assessed or collected under the above chapter are illegal, the aggrieved party had two concurrent remedies; one by appeal from the action of the treasurer to the county court, the other by an injunction as prescribed in section 4881 of the Code of Civil Procedure.
Where a milling corporation has disposed of all of its capital stock and invested the proceeds in tangible property, real and personal, and an attempt is made to assess its capital stock to the corporation, as omitted property, under the provisions of the Tax Ferret Statute, such attempt is illegal, and not warranted by the statutes, and the action of the treasurer making such assessment or attempt to collect the taxes thereon may be restrained by injunction.
Commissioners' Opinion, Division No. 2. Error from District Court, Custer County; Jas. R. Tolbert, Judge.
Action by the Weatherford Milling Company against James T. Duncan Treasurer of Custer County. Judgment for defendant, and plaintiff brings error. Reversed and remanded.
T. W Jones, of Weatherford, and Keaton, Wells & Johnston, of Oklahoma City, for plaintiff in error.
Thomas & Thomas, of Wagoner, for defendant in error.
On the 23d day of April, 1909, the Weatherford Milling Company filed its petition in the district court of Custer county, seeking an injunction against Jas. T. Duncan, treasurer of Custer county, to prevent him from levying and collecting certain taxes, which it was charged he was attempting to levy and collect against the property of the plaintiff. It was charged in the petition that the defendant had served notice on it that certain property, to wit, its capital stock, had been omitted from the assessment and tax rolls for the years 1903-1908, and that, at the time therein specified, unless sufficient cause was shown for not doing so, he would proceed to assess such property for taxes for said years; that the plaintiff appeared at the time and place mentioned in the notice and filed a protest against the assessment being made on the grounds that it did not own its capital stock, and that the same had been sold to various and sundry parties and the proceeds thereof had been invested in real and personal property, all of which had been assessed for said years, and the taxes paid thereon; that this protest was overruled by the county treasurer, and the full amount of the plaintiff's capital stock, $25,000, was assessed by said treasurer for each of said years, and that said taxes amounted in the aggregate to the sum of $8,517.50; that the treasurer intended to and would, unless restrained by order of court, extend said taxes on the tax rolls of said county, and the same would become a lien on the plaintiff's property; and that said taxes were void, and asked for an injunction against the treasurer preventing him from extending said taxes on the tax rolls, and from taking any further steps to collect the same. On April 23, 1909, a temporary injunction was granted. On the 21st of June thereafter a motion to dissolve the injunction order was filed and argued and thereafter overruled by the district judge, and the defendant given time to answer. On May 25, 1911, the defendant answered. On August 7, 1911, the defendant was permitted by the court to withdraw his answer and file a motion to dismiss. The ground of this motion was that the plaintiff had a plain, adequate, and complete remedy at law, inasmuch as the statute provided that it might appeal to the county court from the action of the treasurer in assessing said property. This motion was sustained, and the action dismissed. To review this order of the district court, the plaintiff has perfected an appeal to this court.
It is argued by the plaintiff in error that the taxes sought to be levied and assessed against its capital stock were illegal and void; and, second, that, being illegal and void, it had a right to proceed by injunction to restrain the action of the treasurer.
The county treasurer was proceeding under what is known as the "Tax Ferret Law," being chapter 81, art. 9, of the Session Laws of 1908, section 2 of which reads:
"Property that has been omitted from assessment through a series of years, shall be listed and assessed for each year that it has been omitted and charged with the levy for that year."
Section 1 of this act, being brought forward as section 7449, Rev. Laws 1910, reads as follows:
It will be observed that the last section above quoted provides that an appeal may be taken to the county court from the action of the treasurer within ten days in the same manner as appeals are taken from the board of county commissioners to the district court. Section 4440 of the Laws of 1903, brought forward as section 4881, Rev. Laws 1910, reads in part:
"An injunction may be granted to enjoin the enforcement of a void judgment, the illegal levy of any tax, charge or assessment, or the collection of any illegal tax, charge or assessment or any proceeding to enforce the same. * * *" It is contended on behalf of the defendant in error that the Tax Ferret Statute, above quoted, by providing an appeal to the county court from the action of the treasurer in making an assessment, provided a plain, adequate, and complete remedy for any person aggrieved by such assessment, and that such remedy is exclusive and repealed by implication section 4881, and therefore denies to the aggrieved person the right to pursue the equitable remedy by injunction against the treasurer in such cases. The first question, therefore, presented is whether or not the person aggrieved by the act of the treasurer proceeding under this Tax Ferret Statute has the concurrent remedies of an appeal as provided in that statute, and the right to an injunction as provided in the Code of Civil Procedure.
It is clear that there is nothing in the Tax Ferret Statute that in any way conflicts with the statute giving the right to an injunction, and also that the later statute does not by any direct reference repeal the former, and that, if the adoption of the Tax Ferret Statute effectuates a repeal of the former statute allowing a remedy by injunction, the same was by implication. The repealing clause in the Tax...
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