Sinclair Prairie Oil Co. v. State , 175 Okla. 289 ( 1935 )

I expressly dissent as to the treatment and disposition of the seventh assignment of error in the majority opinion, and to the rule of law announced in paragraph 5 of the syllabus.

The seventh assignment of error reads as follows:

"That said court erred in holding that the county assessor of Seminole county, Okla., committed error in canceling an assessment made by him against defendant covering the equipment on its Jacob Pierce lease, well Numbers 5, 9, and 11, situated on a departmental leasehold on January 1, 1931, and in holding that said equipment was omitted property and subject to discovery by the tax ferret for the year 1931 — fiscal year 1931-1932."

The facts as to this assignment are shown in the following language in the agreed statement of facts:

"That on June 10, 1931, the county assessor of Seminole county, Okla., listed said property for taxation for the year 1931 (fiscal year 1931-1932) and thereafter, to wit, on July 6, 1931, said county assessor canceled said assessment herein mentioned."

It will be noted that the taxpayer did not return this property for assessment. No reason is shown why the county assessor listed it for taxation in June, nor why he canceled such assessment in July.

The law assumes that an official will discharge his duty, and, therefore, I assume that in assessing the property in June the assessor was acting under sections 12587, 12595, and 12597, O. S. 1931. Our statute nowhere authorizes the county assessor for any purpose or for any reason to strike property from the assessment rolls, or to cancel an assessment by order or by act. I, therefore, assume the order of cancellation was erroneous, as I think is also the assumption by the majority opinion in announcing the rule of Law in reference to this matter in paragraph 5 of the syllabus.

But it is to be noted that the defendant insists that this property, so assessed and canceled by the assessor, is not omitted property under section 12587, O. S. 1931.

The majority opinion holds, as stated in paragraph 5 of the syllabus, that such property is not omitted property under section 12346, O. S. 1931.

Thus the defendant insists that, while this property was in truth and in fact omitted from the assessment roll as transmitted by the county assessor to the equalization board, and was omitted from the tax rolls in the office of the county treasurer, and was thus wholly omitted from taxation, the defendant urges that it was not omitted on account of the fact that while the county assessor had the assessment roll, and while that roll was in the process of being prepared for transmission to the equalization board, the county assessor in June listed the property on that roll and a few days later in July removed that property from that roll.

Since the county assessor had no specific authority to cancel assessments, it seems clear to me that his act in canceling the assessment or in removing the assessment from the rolls, or of obliterating the same, was merely undoing in July what he had done in June, thus leaving the matter as if he had done nothing in the matter in June. It seems clear to me that at all times prior to June 10th, this property was in all respects omitted property, being omitted from taxation and omitted from the assessment rolls and omitted from the tax rolls, and the same property was in the same situation at all times after July 6th, being then likewise omitted. Then, can it be said that the act of the county assessor in listing the property on June 10th, and then withdrawing that listing on July 6th, could change the situation? I think not.

Surely, if the assessor had done nothing in the first place, that is, had not listed the property, it would have remained in all respects "omitted property." Then, since his subsequent act in July of canceling his listing amounted to nothing more than the undoing of his act of listing, it seems to me that the result remains the same, and that this then untaxed and unassessed property remained "omitted property."

As to this assignment of error, I think the trial court should be sustained, and that the rule of law announced in paragraph 5 of the syllabus is erroneous.

I am authorized to say that Mr. Justice CORN concurs in these views.