Upon petition for rehearing the court has examined the record carefully, and is satisfied that the opinion prepared by Mr. Commissioner Collier is right and should be approved.
In addition to the reasoning of the commission it may be observed that the notice given by the treasurer in pursuance of section 7449, Rev. Laws 1910, is properly entitled, "In re Assessment of Gypsy Oil Company," and that the present title was fastened to the proceeding by counsel for the oil company in their subsequent pleadings wherein the county treasurer is uniformly designated as "complainant." On the appeal of the oil company, the county court seems to have adopted the practice followed by counsel for the appellant, the cause in that court being entitled:
"In the Matter of the Assessment of the Gypsy Oil Company for the years 1908, 1909, 1910, 1911, 1912, 1913 and 1914. John T. Kramer, as County Treasurer of Tulsa County, State of Oklahoma, Complainant, v. Gypsy Oil Company, a Corporation, of Tulsa, Oklahoma, Respondent."
The journal entry of judgment in favor of the appellant oil company is also entitled as above. Subsequently in his motion for a new trial the county attorney, following the practice suggested by counsel for the oil company, adopted the same title, designating the treasurer "complainant," and in his petition in error in this court he entitles the proceedng in error, "John T. Kramer as County Treasurer of Tulsa County, State of Oklahoma, Plaintiff in Error, v. Gypsy Oil Company, a Corporation, of Tulsa, Oklahoma, Defendant in Error."
If we understand the contention of the plaintiff in error correctly, it is briefly this: Inasmuch as the statute, section 7449, supra, provides that an appeal may be taken by "either party" to the Supreme Court, the proceeding being a controversy between the taxing power and the taxpayer, the state is the real party in interest, and since the judgment of the county court was against the power to impose the taxes, an appeal from that decision can only be prosecuted by and in the name of the state of Oklahoma. All this may be strictly true in fact and sound in reason, but yet it does not necessarily follow that the practice adopted in the present proceeding is subversive or contrary in substance to the principle contended for. The state by its Legislature has not seen fit to provide any designation or title for these special proceedings, and the practice of the courts does not seem to be uniform in this regard. The prevailing practice in this jurisdiction has been to entitle them as this one was originally entitled in the notice instituting the proceeding. This title, we have no doubt, is sufficient to identify the proceeding and disclose its nature, and we can perceive no good reason why it should be changed in any of its subsequent *Page 216 stages. On the other hand, we are not willing to say that the practice adopted by counsel for the oil company, subsequently followed by the county court and the county attorney without objection, is not equally descriptive of the proceeding and its nature. Under either designation the object and purpose of the proceeding are precisely the same, and the mere fact that in neither of these titles is the state specifically mentioned as a party does not render the remedy less effective or prevent the state from being the real party in interest. Nor does the recital in the motion for a new trial, "Now comes the complainant and moves the court," etc., or in the petition in error in this court, "The said John T. Kramer, as county treasurer of Tulsa county, state of Oklahoma, plaintiff in error, complains," etc., in any wise detract from this conclusion. The proceeding still continues to be a controversy between the taxing power and the taxpayer for the purpose of collecting taxes upon omitted property. The state as a corporate entity always performs such governmental functions through the person of chosen representatives. By the statutes now under consideration the purpose of the Legislature was to provide laws for the collection of taxes on omitted property and create agencies, for carrying these laws into effect. As was said by this court in another case, Anderson v. Ritterbusch, Treasurer, 22 Okla. 761, 98 P. 1002:
"A proceeding for the assessment and collection of taxes due on omitted property is not a civil action. It is a remedial proceeding, granted by the Legislature, conferring upon the treasurer a remedial right and duty, not heretofore existing, for the collection of taxes due on omitted property, and as a matter of grace the Legislature gave the taxpayer the right of appeal to the county court, where said summary proceeding may be heard de novo."
As the right of appeal is made reciprocal as between the taxing power and the taxpayer, it would seem to follow that the right and duty of the treasurer to collect taxes on omitted property does not cease until he has exhausted all the means for this purpose placed at his disposal by the Legislature. As it is his right and duty to act for the state in giving the original notice, so it continues to be his right and duty to pursue to the end, with the advice and counsel of the law offices of the state, all the remedies afforded by statute for the collection of these taxes. Section 1732, Rev. Laws 1910, designates the county treasurer "collector of taxes," and provides that "he shall be charged with the amount of all tax lists in his hands for collection." In the case of omitted property the tax ferret is employed to assist the treasurer in collecting taxes, and not to collect such taxes. It is the duty of the treasurer to collect them, and it is the duty of the county attorney of his county to perform whatever legal services are necessary for the attainment of this purpose. The objections made to the summary proceedings herein, whereby the county treasurer is attempting to perform his duty, seem to us to be objections of form, more than to substance, which should not be permitted to stand in the way of the enforcement or these statutes upon which the revenues or the state and its minor governmental subdivisions so largely depend.
For the reasons stated, the opinion of the commission is approved, and the petition for rehearing denied.
All the Justices concur, except SHARP, C. J., and MILEY, J., who dissent.