PARKINSON v. VALENTE

PARKINSON v. VALENTE
1958 OK 69
326 P.2d 826
Case Number: 37575
Decided: 03/11/1958
Supreme Court of Oklahoma

JOE T. PARKINSON, COUNTY TREASURER OF TULSA COUNTY, OKLAHOMA, PLAINTIFF IN
ERROR,
v.
MARY ELIZABETH VALENTE, EXECUTRIX OF THE WILL AND ESTATE OF
FLORENCE N. HACKENDORF, DECEASED, DEFENDANT IN ERROR.

Syllabus by the Court

¶0 When the statutes provide a remedy against an excessive, erroneous, or improper assessment of property by proceedings before a board of equalization or review, taxpayer must at his peril avail himself of such remedy, and he cannot resort to the courts in the first instance.

Appeal from the District Court of Tulsa County; W. Lee Johnson, Judge.

Action to recover ad valorem taxes paid under protest. Judgment for plaintiff; defendant appeals. Reversed.

J. Howard Edmondson, County Atty., and Donald D. Cameron, Asst. County Atty., Tulsa, for plaintiff in error.

F.V. Westhafer, Tulsa, for defendant in error.

PER CURIAM

¶1 This action was initiated by defendant in error to recover the amount of ad valorem taxes paid to the plaintiff in error under protest. The statutory authority relied upon by defendant in error is

¶2 The facts of this action are not in dispute. The valuation of deceased's property was increased by the assessor for the year 1955, but notice of this increased assessment was not given the taxpayer until after the County Equalization Board had adjourned for the year. Thus no appeal to that board from the assessor's action was possible. Taxpayer died after learning of the increase but before the taxes were due, and the defendant in error was appointed executrix of her estate and subsequently paid the taxes under protest. This factual situation gives rise to defendant in error's claim of illegality justifying this action to recover the taxes paid under protest. To defendant in error's petition alleging the facts upon which recovery was predicated, plaintiff in error demurred upon the specific ground that it did not appear from the petition that all administrative remedies had been exhausted before instituting this action; specifically, that there was no allegation that the taxpayer had applied to the Board of Tax Roll Corrections for relief. This demurrer was not sustained and the case proceeded to trial. Most of the factual issues were admitted by stipulation at the trial. It does not appear from the evidence that the taxpayer or defendant in error applied to the Board of Tax Roll Corrections for relief. The question presented by this appeal is: Where notice of an increased assessment is not given a taxpayer, thereby precluding an appeal to the County Equalization Board, must he, where possible, apply to the Board of Tax Roll Corrections for relief before he is entitled to pay such tax under protest and sue to recover as provided by

¶3 Our statute establishing the Board of Tax Roll Corrections,

¶4 Prior to the statutory change hereinabove noted, an action involving a somewhat similar factual situation was presented. Hays v. Bonaparte, 129 Okl. 258, 264 P. 605, 606. The essential facts in that case were that the taxpayers assessment had been raised without notice to him or knowledge of the increase by him, and that he did not learn of the increase until after the County Board of Equalization had adjourned. The defendant contended that it was necessary for plaintiff to bring a proceeding before the county commissioners for relief and that the remedy before that board prevented an action to recover the taxes paid under protest. The court examined §§ 9674 and 9648, C.O.S. 1921, (the statutory ancestors of sec. 184d) and determined that those statutes did not authorize the Board of County Commissioners to grant relief under the factual situation presented. However, the opinion then noted:

"* * * If the commissioners had jurisdiction to grant relief in plaintiff's cause of action, he could not maintain his suit here, but his remedy would be before the county commissioners, * * *."

¶5 The Hays case has been cited many times since in support of the proposition that the notice of an increased assessment is mandatory and that an action under

¶6 In State v. State ex rel. Shull, 142 Okl. 293, 286 P. 891, 899, the following statement appears:

"The rule of law seems to be settled by our court, and by the Supreme Court of the United States, and by the great might of authority, that it is the duty of a taxpayer, feeling himself aggrieved by an erroneous assessment, to exhaust his available statutory remedies before the administrative boards before resorting to courts for relief. This is the holding of this court in Daniel v. Stucky (118 Okl. 150, 257 P. 776, 777), and Cotton v. Blake (133 Okl. 60, 270 P. 1105), supra, and in each of these cases this court held that the aggrieved taxpayer must exhaust his remedy before a board of equalization or review, and that, if he fails to do so, he cannot pay his taxes under protest and sue to recover the same back as provided for in sections 9970, 9971, C.O.S. 1921." (Emphasis supplied.)

¶7 That statement of the law has been consistently adhered to by this court. Keaton v. Bonaparte, 174 Okl. 316, 50 P.2d 404; Lairmore v. Board of Commissioners of Okmulgee County, 200 Okl. 436, 195 P.2d 762; Billingsley v. North, Okl., 298 P.2d 418. It is dispositive of this appeal. Here, the defendant in error had actual knowledge of this increased assessment for almost six months during which she could have proceeded before the Board of Tax Roll Corrections. An action of this nature is authorized only where "the illegality of the tax" arises "by reason of some action from which the laws provide no appeal."

¶8 The defendant in error relies on Chapman v. Thompson, Okl., 288 P.2d 720, which reiterates and applies the rule of Hays v. Bonaparte, supra. Although that action arose after the statutory change noted herein, it does not appear that it conflicts with the view here expressed. The decisive question here was not discussed in or decided by that opinion.

¶9 Judgment reversed.

¶10 The Court acknowledges the aid of the Supreme Court Commission in the preparation of this opinion. After a tentative opinion was written by the Commissioner, the cause was assigned to a Justice of this Court. Therefore, upon report and consideration in conference, the foregoing opinion was adopted by the Court.

¶11 CORN, V.C.J., and DAVISON, HALLEY, WILLIAMS, BLACKBIRD, JACKSON and CARLILE, JJ., concur.