Opinion
No. 25976.
January 21, 1936.
(Syllabus.)
1. Taxation — Action to Recover Taxes Paid Under Protest — Necessary Allegations.
Before a party can pay his taxes under protest and bring action to recover the illegal portions, if any, thereof under section 9971, C. O. S. 1921 (sec. 12665, O. S. 1931), he must allege facts showing that the illegality of the tax arises by reason of some action from which the law provides no appeal or that the failure to give such party notice of an increase in valuation deprives such party of due process of law.
2. Constitutional Law — "Due Process of Law."
Due process of law is shown when opportunity is conferred to invoke the equal protection of the law by judicial proceedings to secure the end and object sought to be obtained.
3. Taxation — Relief Against Excessive, Erroneous, or Improper Assessment — Remedy by Proceedings Before Board of Equalization or Review Before Resort to Courts.
When the statutes provide a remedy against an excessive, erroneous, or improper assessment of the property of an individual, as by sections 9966 and 9674 C. O. S. 1921 (secs. 12660, 12642, O. S. 1931), by proceedings before a board of equalization or review the taxpayer must at his peril avail himself of such remedy, and cannot resort to the courts in the first instance.
4. Same — County Equalization Board Held Authorized to Correct and Equalize Real Estate Assessments During Even-numbered Years.
Although an assessment of real estate for purposes of ad valorem taxation made in the odd numbered years is by law made the legal assessment of such property for such purpose for two consecutive years, a county equalization board has the same power and authority to correct and equalize real estate assessments during the even numbered years in so far as the same affects the taxes for the year in which the action is taken, as it had in the odd numbered years when such real estate was originally assessed.
Appeal from District Court, Oklahoma County; Sam Hooker, Judge.
Action to recover alleged illegal taxes by E.A. Walker against E.B. Bonaparte, County Treasurer of Oklahoma County, et al. Judgment for plaintiff, and defendants appeal. Reversed, with directions to dismiss.
Lewis R. Morris County Attorney, and Phil E. Daugherty, Asst. County Attorney, for plaintiff in error.
Harlan Deupree, Municipal Counselor, and Robert Berry, Asst. Municipal Counselor, for Oklahoma City.
Gordon Stater, for defendant in error.
This is an appeal from the district court of Oklahoma county involving the recovery of the 1928 taxes paid under protest.
The defendant in error in this case is the same Mr. Walker who was the representative of the Tradesmen's National Bank who testified in the trial court in the case of E.B. Bonaparte, County Treasurer, et al. v. Tradesmen's National Bank, 175 Okla. 530, 53 P.2d 1106, this day decided by this court. The evidence in the Tradesmen's National Bank Case, supra, was introduced as evidence in this case. The facts and the legal conditions are the same in both cases, and, therefore, our determination here is controlled by the Tradesmen's National Bank Case, supra.
Paragraphs 1, 2, 3, and 4 of, the syllabus in the Bonaparte v. Tradesmen's National Bank Case, supra, are adopted as paragraphs 1, 2, 3, and 4 of the syllabus here and the cause is reversed and remanded, with instructions to dismiss.
McNEILL, C. J., and BAYLESS, CORN, and GIBSON, JJ., concur.