Opinion
No. 19716
Opinion Filed December 10, 1929.
(Syllabus.)
Taxation — Right to Pay Taxes Under Protest and Sue to Recover Illegal Taxes Though Payment Made After Statutory Date of Delinquency Where Officers Delay Certifying Tax Rolls.
Sections 9719 and 9971, C. O. S. 1921, contemplate that county taxing officials will perform their duties in ample time so that a taxpayer may have the benefit of the provisions thereof. Taxpayers have a constitutional right to a reasonable time in which to pay taxes after payment thereof is possible and before the same becomes delinquent and to recover illegal taxes paid under protest. Where the county taxing officials have failed to certify the tax rolls to the county treasurer at the time and in the manner provided by the statute fixing the date of maturity and delinquency thereof, payment under protest may be made by a taxpayer and a suit maintained by him to recover the alleged illegal tax notwithstanding payment of the tax is made after the date of delinquncy provided by the statute.
Error from District Court, Tulsa County; R.D. Hudson, Judge.
Action by E.M.Z. Aaronson against John L. Smiley, County Treasurer. Judgment for defendant, and plaintiff appeals. Reversed,
Brown Stater, Thomas D. Lyons, and Burford, Miley, Hoffman Burford, for plaintiff in error.
Byron Kirkpatrick, Co. Atty., Hugh Webster, Asst. Co. Atty., and Ed. O. Cassidy, for defendant in error.
Plaintiff in error, plaintiff in the trial court, filed his petition and amended petition against defendant and error, defendant in the trial court, as county treasurer of Tulsa county, to recover taxes paid under protest and alleged by the plaintiff to be illegal and void. For convenience, the parties will be referred to as they appeared in the trial court. The tax involved in this action is the tax for the fiscal year beginning July 1, 1925.
Under date of September 19, 1929, an order of dismissal was entered in this case on stipulation of the parties dismissing the appeal as to certain portions of the tax involved herein. The decision in this case is subject to that order.
It was stipulated and agreed that the decision in this case shall apply with equal force and effect to the companion cases as listed in a stipulation entered into between the parties hereto.
The amended petition, to which a demurrer was sustained, is substantially the same as that filed in cause No. 20141, entitled "C. D. Coggeshall Co. v. John L. Smiley, County Treasurer," (this day decided) 140 Okla. 242, 283 P. 788. The only differences therein material to the determination of this cause are the date the tax rolls were certified to the county treasurer and the date of the payment of the tax under protest. In this case the tax rolls were certified to the county treasurer on November 16, 1925, and the taxes paid under protest on January 15, 1926.
What we there said is applicable here, and the same rule is herein announced. We therefore hold that when the tax rolls are not certified to the county treasurer until November 16, 1925, and payment of the tax under protest is made on January 15th following, the payment is made within the time provided by the Legislature for payment, and that an action to recover the same is not barred by reason of the payment having been made after January 1st.
The trial court committed reversible error in sustaining the demurrer to the amended petition. The cause is therefore reversed and remanded to the trial court, with directions to vacate its judgment, overrule the demurrer to the amended petition of the plaintiff, and take such other action as is consistent herewith.
MASON, C. J., and HUNT, CLARK, HEFNER, CULLISON, and SWINDALI, JJ., concur. LESTER, V. C. J., and RILEY, J., absent.
Note. — See "Taxation," 37 Cyc. p. 1158, n. 26; p. 1184, n. 79.