Durham v. Linderman , 10 Okla. 570 ( 1901 )

Opinion of the court by

McAtee, J.:

The question involved in the case is the validity of the assessment made by Deacon, as township assessor. It is provided in ch. 80, art. 2, sec. 2 of the Statutes of 1893, upon “Townships and Township Officers,” that:

“6062. — That all towns, villages or cities, having a population of one thousand inhabitants and over, are hereby declared townships for the purpose of this act, and shall annually at the general town, village or city election, elect an assessor whose duties and powers shall be the same as prescribed by law for township assessors.”

But it is also provided in the Statutes of 1893, in the chapter upon “Cities, Towns and Villages,” ch. 15, art. 1, sec. 15 (incorporated towns), that:

“(653). — There shall be elected at the first and at every subsequent election one trustee from each district in said town, and also a clerk, assessor, treasurer, marshal, and justice of the peace, who shall respectively hold their offices until the first Monday in May next following or until their successors are elected and qualified: Provided, however, That no thing herein contained shall prevent the respective offices of clerk, treasurer, assessor and marshal from being held by one and the same person.”

And by sec. 30 of the same article and chapter, that:

“(668). — All property within such corporation liable to taxation, shall be assessed as provided by law, and the assessor shall, in addition to the returns to be made to the county clerk, make a return of his assessment roll embraced within the incorporated town, to the town board on or before the second Tuesday in April of each year.”

It will thus be seen that, while by the chapter relating to “Townships and Township Officers,” it is provided, that: “All towns, villages or cities having a population of one thousand inhabitants and over * * * ” shall “annually * * * elect an assessor whose duties and powers shall be the same as prescribed by law for township assessors,” that it is also, by ch. 15, upon “Cities, Towns and Villages,” provided that in all towns incorporated under that act, “there shall be elected one * * * assessors,” * * *and that, by sec. 30 of the same article, the duties of such assessor are prescribed. And the contention on behalf of the plaintiff in error is, that tbe provision contained in sec. 2 of art. 2 cb. 80, providing that an assessor shall be elected in all towns, villages or cities having a population of “one thousand inhabitants and over,” is inconsistent with the provision in ch. 15, art. 1, secs. 15 and 30, and that the provision contained in ch. 8, for the election of an assessor in towns of one thousand and over is a limitation upon, restriction and revocation of secs. 15 and 30 of ch. 15.

We cannot give this interpretation to the law in this case. The case presented here and now to be passed upon does not involve an assessment in towns, cities or villages of “one thousand inhabitants and over.” The admitted fact in the case is that at the time of the assessment and taxation in question, Keokuk Falls had a population of less than one thousand. It is manifest .that the provisions of the statute are not entirely harmonious and congruous. But there is no such conflict as would make it necessary for this court to decide that either one of these statutes must be determined to be nugatory and void, as irreconcilably in conflict with the other.

There is nothing for us to decide in this case, except whether' the statute, ch. 15, art. 1, secs. 15 and 30, in a case in which the population of an incorporated town of the Territory consists of less than one thousand inhabitants, may stand and be effective, and not in conflict with sec. 2, art. 2, of ch. 80, which provides for the election of an assessor in towns, villages or cities having a population of “one thousand inhabitants and over.” Chapters 15 and 30 of the Statutes of 1893 each took effect December 25, 1890. While it may be accepted as a part of the history of the Statutes of 1893, that different portions of them were adopted without material alteration, from the statutes of different states, and their different portions are not, in all respects, consistent with each other, it is yet the duty of this court to endeavor to reconcile them wherever it is possible so to do, in order that the legislative intent may be, as far as possible, effective, and to support the theory, as fully as may be done, that, as a body of revised laws adopted at the same time, they are of equal force and effect, and all intended to stand, with as little interference as possible, of judicial interpretation. And that it is the duty of courts to endeavor to harmonize the various portions of the statutes with one another. One part of the statute will not be allowed to defeat another, if by any reasonable consruction, the two can be made to stand together. (Cooley on Constitutional Limitations, 71; Endlich on the Interpretation of statutes, sec. 515.)

The election of assessor, therefore, under sec. 15, and his proceedings, under sec. 30, art. 1, ch. 15 of the statutes, will be held to be valid and legal. The acts of Deacon as the assessor of Dent township, within whose boundaries the town of Keokuk Falls lay, and his assessment and listing of property and the taxation following thereupon, will be held to be void, so far as relates to the property of defendants in error.

The petition averred that “prior to the commencement of this action, the treasurer of this county refused to accept any taxes from plaintiff, unless plaintiffs paid all of the same as appears from the tax rolls of his office, which includes all of said illegal taxes, and the plaintiffs here tender into court all legal taxes that the court may find due from plaintiffs to the defendant.”

It is provided in sec. 4009, Statutes of 1893, that: “When a tender of money is alleged in any pleadinng, it shall not be necessary to deposit the money in court when the pleading is filed, but it shall be sufficient if the money is deposited in court at trial, or when ordered by the court.” While the allegation of the tender is not quite so full and definite as is desirable, yet, we think it was adequate, and complied with the statute in all material respects, and should be accepted as an adequate tender and averment of readiness to pay, within the meaning of the rule.

The levy of the taxes by the township assessor, Deacon, within the boundary of the incorporated town of Keokuk Falls, having less than a thousand inhabitants, and which municipality had an elected assessor of its own, was an illegal levy of a tax, and the action was properly brought under sec. 4143 of the Statutes of 1893, which provide, that: “An injunction may be granted to enjoin the illegal levy of any tax, charge or assessment, or any proceeding to enforce the same: * * *

The judgment of the court below is affirmed.

Burwell, J., who presided in the court below, not sitting; all of the other Justices concurring.