CLARK v. WEBSTER TOWNSITE CO.

CLARK v. WEBSTER TOWNSITE CO.
1938 OK 7
78 P.2d 390
182 Okla. 445
Case Number: 27441
Decided: 01/11/1938
Supreme Court of Oklahoma

CLARK, County Treasurer,
v.
WEBSTER TOWNSITE CO. et al.

Syllabus

¶0 1. CONSTITUTIONAL LAW - TAXATION - Unconstitutionality of statute providing for satisfaction of delinquent taxes by action in court.
The provisions of chapter 212, S.L.1923, 68 Okl.St.Ann. § 351 note, in providing for the sale of real estate for the satisfaction of delinquent ad valorem taxes, and delinquent assessments for street improvements in cities and towns by foreclosure suit in the district court, and the extinguishment of all tax and assessment liens of every kind and character against such land upon confirmation of sale, is void for the reason that it has the effect of impairing the obligation of contracts, and is violative of section 15 of the Bill of Rights, which expressly prohibits the passage of any law impairing the obligation of contract. Nelson v. Pitts, 126 Okl. 191, 259 P. 533, 53 A.L.R. 1137.
2. SAME - States.
Said chapter 212, Acts of 1923, 68 Okl.St.Ann. § 351 note, is also void because it has the effect of abridging the power of the state to levy and collect taxes, and therefore violative of section 5, article 10, of the Constitution, and has the effect of extinguishing obligations due the state in violation of section 53, article 5, of the Constitution.

Appeal from District Court, McCurtain County, Geo. R. Childers, Judge.

Action by the State of Oklahoma, on the relation of C. D. Wilkinson, County Attorney, against the Webster Townsite Company and others to dissolve the corporation and to enjoin removal of buildings from the corporation's property, wherein Frank H. Clark, Jr., County Treasurer, intervened, praying that the property be foreclosed and sold in satisfaction of tax liens. From an order sustaining a demurrer to the petition in intervention and dismissing the intervener's action, the intervener appeals. Affirmed.

Howard Phillips, Co. Atty., T. G. Carr, Asst. Co. Atty., and Geo. T. Arnett, all of Idabel, for plaintiff in error.
H. P. Hosey, of Idabel, for defendants in error.

PHELPS, J.

¶1 The State of Oklahoma ex rel. C. D. Wilkinson, County Attorney, filed its action in the district court to dissolve the corporation of the defendant Webster Townsite Company, and to enjoin the remaining defendants from removing buildings from the property. A restraining order was granted and a receiver appointed for the property.

¶2 Thereafter plaintiff in error, county treasurer, intervened in said action, alleging that the property involved was subject to unpaid and delinquent taxes owing to McCurtain county in an amount approximating $10,000; that the property and the improvements thereon did not exceed the fair value of $2,500. Intervener prayed that the property be foreclosed and sold in satisfaction of the tax liens pursuant to the provisions of sections 12733 to 12739, O.S.1931, Laws 1923, c. 212, 68 Okl.St.Ann. § 351 note.

¶3 The trial court sustained defendant's demurrer to the petition in intervention on the ground that the designated statute under which the petition in intervention was filed is unconstitutional and void.

¶4 Sections 12733 to 12739, O.S.1931, supra, constitute chapter 212, S.L.1923, 68 Okl.St.Ann. § 351 note. This court has held said act unconstitutional. In Nelson v. Pitts, County Treas., ex rel. Lattimore, County Attorney, 126 Okl. 191, 259 P. 533, 535, 53 A.L.R. 1137, in discussing the provisions of chapter 212, S.L.1923, 68 Okl.St.Ann. § 351 note, supra, we said:

"It is obvious that said section is violative of section 15 of the Bill of Rights, which provides positively that no law impairing the obligation of contracts shall ever be passed.

"And to the same extent which said chapter 212, S.L. 1923 [68 Okl.St.Ann. § 351 note], tends to impair the obligation of contracts and to extinguish vested rights, it also tends to restrict the power of the state to levy and collect taxes and to extinguish obligations due the state in violation of both section 5, art. 10, of the Constitution, which provides:

"'The power of taxation shall never be surrendered, suspended, or contracted away' and section 53, art. 5, which provides:

"'The Legislature shall have no power to release or extinguish, or to authorize the releasing or extinguishing, in whole or in part, the indebtedness, liabilities, or obligations of any corporation, or individual, to this state, or any county or other municipal corporation thereof.'

-and for this reason said chapter 212 is void."

¶5 In Hanchett Bond Co. v. Morris, County Treas., et al., 143 Okl. 110, 287 P. 1025, 1026, in the body of the opinion, the following language is used in reference to chapter 212, 68 Okl.St.Ann. § 351 note, supra: "In the first place, the county treasurer had no authority whatever to bring any suit to foreclose the various liens, and the district court had no jurisdiction to entertain the same, except by authority granted in the act of 1923, which was held by this court to be unconstitutional. It follows therefore that except for that act the district court had no jurisdiction of this action."

¶6 In view of the above authorities, and inasmuch as an adequate remedy is available to intervener for the collection of any taxes due on the property, separate and distinct from the provisions of the statute sought to be followed, we conclude that no error was committed by the trial court in sustaining the demurrer to intervener's petition.

¶7 The judgment is affirmed.