Webster v. Morris, Co.

• Decision Date: 31 January 1928
• Docket Number: Case Number: 18093
• Citation: Webster v. Morris, Co., 1928 OK 84, 264 P. 190, 129 Okla. 145 (Okla. 1928)
• Parties: WEBSTER v. MORRIS, Co. Treas., et al.
• Court: Oklahoma Supreme Court

1928 OK 84

264 P. 190

129 Okla. 145

WEBSTER v. MORRIS, Co. Treas., et al.

Case Number: 18093

Supreme Court of Oklahoma

Decided: January 31, 1928

Syllabus

¶0 1.Taxation--Legislative Power to Prescribe Method of Collection.

The Legislature, subject only to such rules, limitations, and restraints of the Constitution of the state, may provide the method for collecting taxes and naming the agency therefor.

2.Same--Duties Devolving on Counties--Cost of Resale Notices.

The Legislature of this state has placed upon the counties of the state the duty of collecting taxes levied and assessed on an ad valorem basis, against real and personal property located in the respective counties, and it has also provided that, where taxes have become delinquent against real estate, such real estate may finally be disposed of at resale, and the state has also imposed upon the counties of the state the cost of publishing resale notices.

3.Same--Discretion of Excise Board as to Amount Provided for Cost.

The enforcement of tax collections is as necessary for the sustenance of the several counties of the state as it is for the maintenance of the state, and the county excise board in providing for the cost of publishing notices of resale has discretion only as to the amount that will be reasonably necessary for such publication.

4.Same--Fees Paid by Purchasers at Resales not Trust Fund to Pay Cost of Notices.

Fees paid the county treasurer by purchasers at a resale do not become a trust fund, nor is such county treasurer authorized to use such funds for the payment of resale tax notices.

Error from District Court, Ottawa County; J. J. Smith, Judge.

Mandamus by George T. Webster against E. D. Morris, Treasurer of Ottawa County, et al.Judgment for defendants, and plaintiff brings error.Affirmed.

George T. Webster, for plaintiff in error.

A. L. Commons, for defendants in error.

LESTER, J.

¶1 This action was commenced by the plaintiff to secure a peremptory writ of mandamus compelling the excise board of Ottawa county, Okla., to add to the levy for current expenses a sum of money sufficient to meet the cost of publishing tax notices for the resale of real estate to be held on the third Monday in April, 1927; in lieu thereof, to compel the county treasurer of said county to prepare and cause resale tax notices to be published as provided by chapter 158, Session Laws 1923.

¶2 A hearing was had in said cause before the district court which resulted in the court denying any relief to plaintiff and entering its judgment in favor of the defendants, from which judgment the plaintiff prosecutes this appeal.

¶3 It appears that in Ottawa county no resale of property, on account of nonpayment of taxes, has been made by the officers of said county for a period of several consecutive years; that the excise board of said county has for several years last past refused to provide or allow funds for the purpose of providing for the advertising of tax resales, and for that reason the county treasurer has failed to conduct tax resales as provided by sections 1,2,3,4,5, and6 of chapter 158, Session Laws 1923.

¶4Section 4 of said act provides:

"The treasurer shall give notice of the resale of such real estate by the publication thereof once each consecutive week for four publications preceding the resale in some newspaper in the county, and if there be no paper published in the county, he shall give notice by written or printed notice posted on the door of the courthouse or building in which courts are commonly held, or at the usual place of meeting of the county commissioners.Such notice shall contain a description of the real estate to be sold, the name of the owner of said real estate, as shown by the last tax rolls in the office of county treasurer, the time and place of sale, and a statement of the date on which said real estate was sold to the county for delinquent taxes, and the year or years for which taxes have been assessed, and that the same has not been redeemed for the period of two (2) years from the date of sale and the amount of all delinquent taxes, costs, penalties and interest accrued on the same and that such real estate will be sold to the highest bidder for cash, provided that sales provided for in this act shall be held on the third Monday of April of each year in each county."

¶5Section 6 of said act provides in part:

"Any number of lots or tracts of land may be included in one deed, for which deed the treasurer shall collect from the purchaser:

"One dollar ($ 1.00) for the first tract and ten (10) cents for each additional tract included therein.The treasurer shall also charge and collect from the purchaser at such sale the sum of twenty-five (25) cents on each tract of real property and fifteen (15) cents on each town lot so advertised and sold for the cost of publishing said notice of sale, which sums shall be paid into the county treasury and the county shall pay the cost of publishing such notice of resale."

¶6 On the hearing of said cause, the county treasurer testified, in part, as follows:

"Q.Was any retax sale held in April, 1924?A.No, sir,--wasn't any except in 1921.Q was any held in 1925?A.No, sir.Q.Why wasn't any retax sale held in either of these years by you?A.Well, for several reasons: First, we had no funds to pay for the publication and other expenses; second, on account of the imperfections of the tax rolls of Ottawa county.Q.In what year since statehood has there been a retax sale held in Ottawa county as shown by your books?A. 1919, 1920, 1921.Q.Did you not make an estimate to the board of county commissioners of the amount you would need to make this publication?A.I did, sir,--I made or asked for an appropriation of $ 2,000 in my statement which went before the board of county commissioners and was published in the paper, and that item went to the excise board and by a vote of six to one in there they refused to give me that allowance.By the Court: Just a question for my information,--Mr.Morris, is there any way of knowing, or do you have any way of knowing, or do you have an idea concerning the approximate amount of delinquent taxes there is now standing against these lots and parcels of land that are subject to retax sale?A.Youmean in Ottawa county, the amount that is due, penalties and costs, etc.?The Court: Yes, A. Something more than a million dollars.The Court: That is in the aggregate.A.Yes, sir."

¶7 This witness also testified that there were approximately 6,000 lots and parcels of land that were subject to resale.

¶8 It will be seen that not since the year 1921 has there been a resale of property in Ottawa county; that more than 6,000 lots and parcels of land are subject to resale; that the value of the said real estate is approximately $ 1,000,000, and in allowing the taxes and penalties for several years to accumulate against said property and remain uncollected, in many instances, such taxes and penalties exceed the value of the particular property.

¶9 The excise board of Ottawa county seeks to excuse itself from providing an estimate and funds necessary to pay for the publication of tax resale on the ground that it has given consideration to said estimate, and, acting within the discretion of said board, has disallowed the same; that if said board had allowed the sum asked by the county treasurer of Ottawa county for publishing notices of resale for the year 1926, said item of expense, together with the other estimates made by said board for current expenses, would have exceeded the maximum sum of four mills allowed the county by statute for current expenses; and that the excise board in acting on the estimate requested by said county treasurer, and the disallowance of the same by said board, was acting within its authority as expressed in section 9698,C. O. S. 1921, which is as follows:

"The said board shall have power and authority to revise and correct any estimate certified to them by either striking items therefrom, increasing, or decreasing items thereof, or adding items thereto, when in its opinion the needs of the municipality shall require."

¶10 The rule is uniform that where there has been an exercise of good faith and judgment of discretion by an officer upon whom the duty involving discretion is imposed, the writ of mandamus will not lie to compel him to act again, but, on the other hand, if such person, by an arbitrary exercise of his authority, abuses the discretion extended him, the writ of mandamus will issue to compel such officer to act within the limits of the law.

¶11 For a long term of years the excise board of Ottawa county has failed, refused, and neglected to make an appropriation necessary to pay the publication expenses for resale of real property in that county.

¶12 Government is not supported by voluntary donations from its citizenship.County and state governments of Oklahoma, together with the municipalities thereof, are almost wholly dependent for their sustenance upon the enforcement of collecting taxes levied and assessed against real...