Chickasha Cotton Oil Co. v. Rogers

ANDREWS, J. This is an appeal from a judgment of the district court of Kiowa county. The parties appear in the same order in which they appeared in the trial court. The action was to recover a money judgment for the amount of excessive taxes paid for the year 1928. The trial court rendered judgment sustaining a demurrer to the plaintiff’s evidence. The record discloses that the plaintiff owned 40 acres of land near the city of Hobart upon which there was located a cotton oil mill. During the year 1928 a portion of the property was levied upon as being within the city of Hobart. The defendant contends that that portion of the property had been taken into the city of Hobart by virtue of a city ordinance. That tax was paid under protest and the action was for the recovery of the amount paid. By virtue of section 4463, C. O. S. 1921, the limits of a city may be extended. The ordinance relied upon by the plaintiff did not recite any of the prerequisites to the inclusion of property of the kind involved in this action within the city limits. It did not show that the tract of land was less than five acres with more than one residence thereon; that the consent in writing of the owners of a majority of the whole number of acres owned had been obtained, or that at least three sides of the tract are adjacent to or abutting on the property already within the city limits. In Barton v. Stuckey, Co. Treas., 121 Okla. 226, 248 P. 592, this court held: “Where a city attempts by ordinance to annex additional territory, three sides of which are not adjacent to nor abutting on property already within the city limits, without the application or consent of the owners thereof as required by section 4463, Comp. Okla. Stat. 1921, held, such ordinance is void and confers no jurisdiction or authority over such territory by the city, and a tax levy for city purposes against the land thus embraced is void and if paid under protest as provided by section 9971, Comp. Okla. Stat. 1921, may be recovered in a suit for that purpose.” The ordinance on its face does not show jurisdictional facts. There was no claim made or proof offered that the owner of the property gave its consent to have the property brought into the city of Hobart. It was not shown by the ordinance, or by the evidence, that three sides of the land attempted to be brought into the city of Hobart are adjacent to or abutting -on property already within the city limits unless the land described in ordinance No. 746 was within the city limits at the time of the enactment of ordinance No. 748. If the land described in ordinance No. 746 was not within the city limits at the time of the passage of ordinance No. 748, three sides of the land described in ordinance No. 748 were not adjacent to or abutting on property already within the city limits at the, time of the enactment of ordinance No. 748, and the city council was without authority of law to annex the same to the city without he consent of the owner. The record shows that both ordinances were passed and approved on the same day. The provision® of section 4463, supra, may not be defeated by a city council extending the city limits to include certain real estate and, at the same meeting of the city council, again extending limits of the city to include other real estate, where the validity of the second extension of the city limits is dependent upon the validity of the first extension thereof. If that procedure could be followed, the provision^ of section 4463, supra, as to adjacent or abutting property could be nullified. The land described in ordinance No. 746 was not legally within the city limits when ordinance No. 748 was passed and approved. In Barton v. Stuckey, Co. Treas., supra, this court said: "Since the record discloses that the attempted extension of the city limits to embrace the plaintiff’s land was made without her application or written consent, and since it does not disclose that three sides thereof, at that time, were adjacent to or abutting on property already within the city limits, the city was without authority or jurisdiction to enact said ordinance, and the same is void, and therefore conferred no authority upon the taxing authorities to levy and collect city taxes thereon for the year 1923.” It is contended herein, as it was contended in Barton v. Stuckey, supra, that the ordinance cannot be attacked collaterally. In that case this court said: “Defendant’s brief is devoted almost exclusively to a discussion tending to show that the validity of said ordinance cannot be attacked in this manner; it being contended that this is a collateral attack on said ordinance. Numerous authorities are cited which in our judgment are not applicable, for the reason that the ordinance in question shows on its face an absence of the jurisdictional facts delineated in both the city *166 charter and the general statutes as a prerequisite! to the passage thereof. “We are familiar with the general rule that where the council substantially complies with the statutes and the facts are sufficient to confer authority and jurisdiction on it toi enact an annexing ordinance, its validity cannot be questioned in a collateral proceeding by reason of defects, informalities, and irregularities in its passage. But where the council is without authority, as in the instant case, the ordinance is a nullity — a blank —and serves no purpose and confers no jurisdiction whatever upon the city to treat the territory thus embraced as a part of the city’s domain. “Such ordinance being void, any taxes attempted to be levied thereon for city purposes, by reason of said ordinance, would be illegal and unenforceable.” That rule is applicable in this case. It is not in conflict with the rule stated in Biggerstaff v. City of Altus, 114 Okla. 98, 243 P. 751. The defendant contends that the taxes are contested solely upon the ground that the plaintiff’s property was erroneously assessed and listed as being within the corporate limits of the city of Hobart, and that the suit being an original action in the district court, the court was without jurisdiction to hear the issue, the plaintiff having pursued the wrong remedy. The defendant further contends that the holding by this court in Daniel v. Stuckey, Co. Treas., 118 Okla. 150, 257 P. 776, should govern the holding in this case. We do not agree with those contentions. In Daniel v. Stuckey, supra, the question for determination was whether the plaintiff could pursue the remedy provided by section 9971, C. O. S. 1921, where property was illegally listed and assessed, or whether the plaintiff should pursue the remedy provided by section 9966, C. O. S. 1921, which offers a remedy whereby a taxpayer, who feels aggrieved at the listing and assessment made against his property, may appeal from the decision of the board of equalization. In the case at bar the plaintiff does not complain of any wrongful listing of his property for taxation nor of the value placed thereon. The rate of levy alone is complained of. The rate levied was that for property within the city of Hobart. The rate that should have been levied was that for property without the city. The plaintiff was entitled to no relief from the board of equalization under the provisions of section 9966, supra. On© of the questions before the court was the legality of the city ordinance. That was one of the questions before the court in Barton v. Stuckey, Co. Treas., supra. The court therein held that the ordinance conferred upon the city no jurisdiction or authority over the property; that the tax levy for the city was void, and that the tax, when paid under protest, could be recovered by suit under the provisions of section 9971, supra. I-Iaving reached this conclusion, we deem it unnecessary to consider any other question raised in this appeal. The trial court was in error in sustaining the demurrer to the plaintiff’s evidence. For that error its judgment is reversed and the cause is remanded, with directions to set aside the judgment rendered herein and to render judgment in favor of the plaintiff in accordance herewith. HEFNER, SWINDALL, McNEILL, and KORNEGAY, J.T., concur. LESTER., O. J., CLARK, Y. O. J., and RILEY and CULLI-SON, JX, absent.