Adair v. Clay

SUMMERS, Justice,

concurring in part and dissenting in part.

I concur in the Court’s treatment of the taxpayers’ Federal and State Constitutional claims. And although I concur in the Court’s holding that the Assessor failed to comply with her statutorily mandated duties, I must respectfully dissent from that part of the opinion denying the aggrieved taxpayers their refunds.

In Melvin v. Dunn, 607 P.2d 694 (Okl. 1980), we stated the following:

“In the previous discussion of appellants’ equal protection argument, it was pointed out that equal treatment is established by regular, cyclical revaluation. The equality of such a system as it operates on the taxpayer is afforded by revaluation every five years, for if one class of property is revalued first in this five year valuation, and revalued last in the next cycle, unequal treatment would be inflicted on the citizenry, as one class would be valued only after ten years had passed. Id. 607 P.2d at 697 (Emphasis added).”

The majority finds the assessment of taxes to be correct as to the protesting taxpayers because the taxpayers’ new properties were placed on the tax rolls at fair cash value. However, the tax as to them was illegal since it was not in conformity with 68 O.S.1981 § 2481.1, and denied the taxpayers their statutorily created right to equal treatment.

Taxpayers are provided a remedy where the state imposes an illegal tax.

68 O.S. § 2469 states:

“In all cases where the illegality of the tax is alleged to arise by reason of some action from which the laws provide no appeal, the aggrieved person shall pay the full amount of the taxes at the time and in the manner provided by law, and shall give notice to the officer collecting the taxes showing the grounds of complaint and that suit will be brought against the officer for recovery of them. It shall be the duty of such collecting officer to hold such taxes separate and apart from all other taxes collected by him, for a period of thirty days, and if within such time summons shall be served upon such officer in a suit for recovery of such taxes, the officer shall further hold such taxes until the final determination of such suit. All such suits shall be brought in the Court having jurisdiction thereof, and they shall have precedence therein. If, upon final determination of any such suit, the Court shall determine that the taxes were illegally collected, as not being due and *658owing, the Court shall render judgment showing the correct and legal amount of taxes due by such person, and shall issue such order in accordance with the Court’s findings, and if such order shows that the taxes so paid are in excess of the legal and correct amount due, the collecting officer shall pay to such person the excess and shall take his receipt therefor.”

Most of the appealing taxpayers have paid their taxes under protest in full compliance with this section. The parties have stipulated to the amounts of refund recoverable by each in the event liability was established.

In Bonaparte v. American Vinegar Mfg. Co., 161 Okl. 54,17 P.2d 441 (1932) we quoted with approval the following:

“In other words, the general scope of the jurisdiction and powers of the taxing authorities is to impose taxation upon property assessed at its true cash value, and at a rate not exceeding the maximum fixed by law; and when the authorities have proceeded and acted within the scope of their authority as thus defined, and property has not been valued for taxation beyond its true cash value, or a greater rate of taxation levied upon such value than that authorized by law, the owner has not been injured, and cannot be heard to complain, provided his property has been taxed equally and uniformly with other property in the taxing district.” Id. 17 P.2d at 444, (quoting Wallace v. Bullen, 6 Okl. 17, 52 P. 954, 958 (1896)). (Emphasis added).

The property of the protesting taxpayers herein was not taxed equally as required by 68 O.S.1981 § 2481.1 and Melvin v. Dunn, supra. The protesting taxpayers were burdened with a disproportionate share of maintaining governmental institutions.

The Oklahoma Constitution provides that a remedy shall be provided for every legally cognizable injury. Okla. Const. Art. II, § 6. The taxpayers could not receive relief from this inequitable treatment by appearing before the Tulsa County Board of Equalization and requesting lower assessed values as to their property. Tulsa County Board of Equalization v. School District No. 1 of Tulsa County, 743 P.2d 1076 (Okl.1987).

A proceeding pursuant to a prior version of 68 O.S.1981 § 2469 was described as equitable in nature in Bonaparte v. American Vinegar Mfg. Co., 161 Okl. 54, 17 P.2d 441 (1932). I would hold that the equitable remedy afforded by § 2469 allows this suit to recover tax refunds for the inequitable treatment received by these taxpayers who have complied with the requirements of that section.

I am authorized to state that DOOLIN, C.J., and MEANS, Special Justice, share the views expressed herein.

SUPPLEMENT TO OPINION

HODGES, Judge.

Appellants’ Petition for Rehearing has called our attention to the United States Supreme Court’s recent decision in Allegheny Pittsburgh Coal Co. v. County Commission, — U.S.-, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989), which was handed down subsequent to the opinion in this matter. Because the constitutional violations remedied in Allegheny are not present in the instant facts, this appeal is not affected by that case.

In Allegheny, the assessor for Webster County, West Virginia, apparently on her own initiative, taxed petitioners on the full value of their property but undervalued neighboring comparable property. Petitioners’ property was assessed based upon the recent purchase price while only minor modifications were made in the assessments of land that had not been recently sold. As a result, petitioners were taxed at eight to thirty-five times the rate applied to comparable properties. The assessor’s adjustment policy would have required more than 500 years to equalize the assessments. Id. 109 S.Ct. at 637.

The Allegheny court explained that “the constitutional requirement is the seasonable attainment of a rough equality in tax treatment of similarly situated property owners.” Id. 109 S.Ct. at 638. It was noted that Allegheny was “not an example of transitional delay in adjustment of assessment value” but rather the assessor *659had intentionally and systematically undervalued property of owners within the same class as petitioners in violation of the equal protection clause. Id. The Court concluded that the equal protection violation could not be remedied by forcing petitioners to seek an upward revision of the taxes of other members of their class.

Unlike Allegheny, the present appeal does not involve intentional and systematic undervaluation of property in violation of the equal protection clause. The assessor applied the same assessment ratio to all properties. Because no equal protection violation has occurred, the Allegheny decision does not affect this appeal.

HARGRAVE, C.J., OPALA, V.C.J., and LAVENDER, SIMMS, DOOLIN and WILSON, JJ., concur.

MEANS, Special Justice, sitting in place of KAUGER, J., concurs in Supplement to Opinion only.

KAUGER, J., recused.

SUMMERS, J., dissents.