Kramer v. Gypsy Oil Co. , 68 Okla. 212 ( 1917 )

The tax ferret of Tulsa county reported to the treasurer of Tulsa county that property belonging to the Gypsy Oil Company, a corporation, the defendant in error, and hereinafter designated defendant, had been omitted from taxation, and that said property, describing it, omitted from taxation was of the following value, to wit:

For the year 1908________________$ 1,402,389.00 " " " 1909________________ 4,900,829.00 " " " 1910________________ 7,021,933.00 " " " 1911________________ 9,051,495.00 " " " 1912________________ 10,418,766.00 " " " 1913________________ 19,247,822.00 " " " 1914________________ 46,388,790.00

The county treasurer gave notice to the defendant as required by section 7449, Revised Laws 1910, and the defendant filed, in the office of the plaintiff, written objection to said proposed property being listed upon the tax rolls. There was a hearing before said county treasurer, and the result thereof is shown by the following journal entry, omitting caption and signatures:

"This cause coming on regularly this day to be determined by me, the undersigned county treasurer of Tulsa county, Okla., upon information, filed with me by A.B. Davis, employed by the board of county commissioners of Tulsa county under the provisions of section 7449 of the Revised Laws of Oklahoma of 1910, and due notice having been given said Gypsy Oil Company in accordance with law, and said Gypsy Oil Company having filed its answer and objections herein, and having been directed by the Supreme Court of the state of Oklahoma to hold a hearing upon the question of assessment of said Gypsy Oil Company for omitted taxes, and said hearing having been held before me on the 21st day of May, 1915, at which hearing said Gypsy Oil Company was present by attorneys, Hon. _____ Greenslade and Hon. Henry McGraw, and Tulsa county being represented at said hearing by Ed. Crossland, county attorney of said county, and being advised by the county attorney as to the law, and having duly considered all the statements filed with me, I find that the net value of the moneyed capital, surplus, and profits of said corporation which was omitted from assessment at the assessing dates for the several years mentioned was as follows, to wit:

For the year 1908_____________________$ 81,548.76 " " " 1909_____________________ 2,459,026.08 " " " 1910_____________________ 2,274,209.32 " " " 1911_____________________ 2,857,243.64 " " " 1912_____________________ 4,023,421.38 " " " 1913_____________________ 8,390,393.74 " " " 1914_____________________ 9,404,436.44

"I have arrived at said amounts for each of the foregoing respective years as reasonable valuation by fixing it at two times the value of the production of said corporation for each of said years as shown by its answer on file herein.

"I therefore fix the above amounts as the valuation of the moneyed capital, surplus, and profits of said corporation for the several years shown, and direct that they be given credit upon the same for the valuations upon which they have paid as being a part of the properties into which the said moneyed capital, surplus, and profits were invested.

"Done this 31 day of May, 1915."

On June 5, 1915, the defendant perfected an appeal from the action of the county treasurer in placing said property upon the tax rolls to the county court of Tulsa county, and executed a bond conditioned as required by law, which said bond was made payable to Tulsa county, Okla., and gave notice of said appeal to the county clerk of Tulsa county, Okla., to the county treasurer of Tulsa county, Okla., to the board of county commissioners of Tulsa county, Okla., and the tax ferret of Tulsa county, state of Oklahoma. In the notice of appeal and in the appeal bond and in other papers filed in the case by the defendant the case is styled:

"In the Matter of the Assessment of the Gypsy Oil Co., John T. Kramer, as County Treasurer of Tulsa County, Oklahoma v. Gypsy Oil Company, a Corporation, of Tulsa County, Oklahoma."

In the petition in error the case is styled:

"John, T. Kramer, as County Treasurer of Tulsa County, Oklahoma, Plaintiff in Error, v. Gypsy Oil Company, a Corporation, of Tulsa County, Oklahoma."

A transcript of the proceedings had before the defendant as county treasurer of Tulsa county was filed in the county court of Tulsa county, the cause tried in said court, and judgment rendered for defendant as shown by the following journal entry, caption and signature omitted.

"Be it remembered that this matter came on for hearing before the county court of Tulsa county, Okla., on the 10th day of August, 1915, upon the appeal of the Gypsy Oil Company, the respondent herein, from an order of the county treasurer of Tulsa county, listing certain property of the appellant and extending the same on the tax rolls of said Tulsa county, the complainant, the county treasurer of Tulsa county, appearing in person and by his attorneys, Ed Crossland, county attorney of Tulsa county, and C.H. Pitman and Stewart, Cruce Cruce; the respondent appearing by its attorneys, James B. Diggs and Rush Greenslade. Whereupon the trial proceeded to the court in the absence of a jury, and after the taking of testimony and the introduction of evidence from day to day the same was concluded on the 14th day of August, 1915. Whereupon the cause was argued by counsel, and the court took said case under advisement until the 18th day of September, 1915. And now, on this 18th day of September, 1915, this matter comes on for final consideration after due notice given to both the complainant and the respondent, said complainant being present by his attorney, J.P. Evers, deputy county attorney of Tulsa county, and the respondent being present by James B. Diggs and Rush Greenslade, the court, being fully advised in the premises and after due consideration of the evidence submitted, arguments of counsel made, and after due consideration, of the briefs filed by and on behalf of both complainant and respondent, adjudges and decrees that the listing of property, to wit, capital stock, moneyed capital, surplus and undivided profits to the value of $81,548.76 in 1908, $2,459.026.08 in 1909, $2,274,209.32 in 1910, $2,857,243.64 in 1911, $4,023,421.38 in 1912, $8,390,393.74 in 1913, $9,404,436.44 in 1914, and the placing of the same on the rolls of Tulsa county and extending the taxes thereon against the Gypsy Oil Company for the years just above enumerated, was without warrant of law, and the said Gypsy Oil Company was not subject to taxation thereon.

"It is therefore ordered, adjudged, and decreed that the said action of the county treasurer of Tulsa county in listing said property, placing same on the tax rolls, and extending the taxes thereon be, and the same is hereby, vacated and annulled, and that the assessment so made against the said Gypsy Oil Company for the property alleged to have been omitted from assessment in the sum of $81,548.76 in 1908, $2,459,026.08 in 1911 $2,274,209.32 in 1910, $2,857,243.64 in 1911, $4,023,421.38 in 1912, $8,390,393.74 in 1913, $9,404,436.44 in 1914, is vacated and canceled, and said assessment is ordered and directed to be stricken from the tax rolls of this county and held for naught.

"It is further ordered, adjudged, and decreed that the appellant, the Gypsy Oil Company, have and recover its costs herein taxed at $_____.

"To which said judgment of the court the complainant herein, the county treasurer of Tulsa county, is allowed his exceptions; and also on this the 18th day of September, 1915, the complainant herein having filed his motion for a new trial and the same having been considered by the court, the court doth deny the said motion, to which ruling of the court the complainant excepts and prays an appeal to the Supreme Court of the state of Oklahoma. Whereupon the court doth order that the complainant be given 60 days in which to make and serve case-made, 10 days for the suggestion of amendments, same to be settled upon 5 days notice by either party."

The motion to dismiss this appeal has been orally argued in this court, and exhaustive briefs have been filed by the defendant, and we have given said argument and briefs most careful attention and consideration.

The grounds assigned for the dismissal of the appeal are:

"(1) This court is without jurisdiction to entertain the attempted appeal herein because the same is not prosecuted by a proper plaintiff in error.

"(2) The county treasurer of Tulsa county, Okla., has no authority to represent either the state of Oklahoma, or the board of county commissioners of Tulsa county, or the tax ferret of Tulsa county in this proceeding, or to prosecute an appeal in their behalf."

There is only one question involved in this motion: Is this appeal properly in this court? The authority for the action of the county treasurer, which is complained against, is found in section 7449, Revised Laws 1910, which reads as follows:

"Contract and Compensation for Discovery. The board of county commissioners of any county in this state may contract with any person or persons to assist the proper officers of the county in the discovery of property not listed and assessed, as required by existing laws, and fix the compensation at not to exceed fifteen per cent. of the taxes recovered under this article. Before listing and assessing the property discovered, the county treasurer shall give the person in whose name it is proposed to assess the same, ten days' notice thereof by registered letter, addressed to him at his last known place of residence, fixing the time and place when objections in writing to such proposed listing and assessment may be made. An appeal may be taken to the county court for the final action of the treasurer within ten days, by giving notice thereof in writing and filing an appeal bond, as in cases appealed from the board of county commissioners to the district court."

From the action of the treasurer an appeal lies to the county court, and by the amendment of said section 7449 by the act of the Legislature of 1915 (Session Laws 1915, p. 386) either party may prosecute an appeal from the judgment of the county court to this court. In the brief of the appellant and in the brief of the defendant, we have not been favored with a direct authority upon the vital question herein involved, nor after diligent search have we been able to find that this court has decided the identical question herein involved. While there are many authorities cited in the briefs of the attorneys of the defendant, which they earnestly contend conclusively support their contention that this appeal should be dismissed, we are unable to see that said authorities support such contention. Certainly it was the duty of the county attorney to bring into this court the appeal herein.

In Sullins et al., Board of County Commissioners, v. State ex rel. Barnard, Commissioner Charities and Corrections,33 Okla. 526, 126 P. 732, Judge Turner quotes with approval in Auditor General v. Railroad Co., 82 Mich. 426, 46 N.W. 730, as follows:

"Aside from these statutory provisions, it is the general rule that public officers need not be expressly authorized by statute to bring suit, but that their capacity to sue is commensurate with their public trusts and duties. Supervisor v. Stinson, 4 Hill (N.Y.) 136; Overseers v. Overseers, 18 Johns (N.Y.) 407; Todd v. Birdsell, 1 Cow. (N.Y.) 260 (13 Am. Dec. 522); County Treasurer v. Bunbury, 45 Mich. 84, 7 N.W. 705."

In Moore v. Nation, 80 Kan. 672, 103 P. 107, 93 L. R. A. (N. S.) 1115, 18 Ann. Cas. 397, the court said:

"The duties of an officer include all of those that fairly lie within its scope; not merely those which are necessarily involved in the accomplishment of the main purpose of the office, but those, also, which although incidental and collateral, naturally and properly serve to promote and benefit the performance of the principal duties. Constitutions and statutes seldom define with precision the scope of any office."

Section 4644, Revised Laws 1910, defines "an action as an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." Section 4645, Revised Laws 1910, reads: "Every other remedy is a special proceeding." It is clear that the remedy sought is not an ordinary proceeding as defined by section 4644, supra, but is a special proceeding under said section 4645, supra, and it is not necessary to have parties as in an ordinary action. It follows that, this being a special proceeding, the case is properly styled "In the assessment of the Gypsy Oil Co.," and the addition of John T. Kramer, as county treasurer, as a party, is mere surplusage. In the county court the county attorney, the legal representative of the county, appeared and represented the county, and prosecutes the appeal here sought to be dismissed; and this we think, and so hold, was a discharge of his duty as such county attorney, and that this appeal is properly here.

The motion to dismiss this appeal is denied.

By the Court: It is so ordered.

On Rehearing.