Board of Com'rs of Custer County v. City of Clinton , 49 Okla. 795 ( 1916 )

The city of Clinton brought suit in the district court of Custer county against the board of county commissioners of Custer county and G.D. Witt, treasurer, and his successors in office, seeking to recover against said defendants certain sums alleged to be due plaintiff as penalties upon certain city taxes levied upon property within the corporate limits of said city of Clinton. Upon trial of the case judgment was rendered in favor of plaintiff in the sum of $2,022.10, and defendants bring error.

The questions of law involved in this case with reference to the right of the city or of the county to the penalties upon such taxes have been determined in Geo. K. Hunter, CountyTreas., v. State ex rel. City of Shawnee, ante, p. 672,154 P. 545, in which it was held that, under the laws in force at the time the penalties involved accrued, it was the duty of the county treasurer to pay same into the county sinking fund, and to that extent the decision in that case is controlling here.

A number of counsel have been permitted to appear asamici curiae, and different questions have been presented by them, one of the propositions urged being that should the court be of opinion that the county was entitled to the penalties involved, this holding would not be conclusive in an action brought by a city having a charter form of government. This question is not involved in this case, and was not presented or considered in the case of Hunter v. State ex rel. City ofShawnee, supra.

It is further urged by counsel that, if the statute be construed so as to entitle the county to said penalties, it would render the statute void as being in violation of various constitutional provisions regulating the levy and collection of taxes.

In this connection it is well to observe that the penalty is not properly a part of the tax, and that neither the city nor the county can levy a penalty, but, on the contrary, the Legislature has exercised its sovereign power and imposed these penalties as an additional charge or punishment for delinquencies upon the part of the taxpayer in order to hasten the payment of the taxes due. The penalty is not created by the levy of the tax, nor has the Legislature authorized the city or the county to impose the same, and the fund being created by the Legislature, it follows that the Legislature has the right to dispose of said fund to the same extent as other fines and penalties arising from the violation of other laws of the state or the failure to perform other duties. City of New Whatcom v.Roeder, 22 Wn. 570, 61 P. 767; Shultz v. Ritterbusch,County Treas., et al., 38 Okla. 478, 134 P. 961.

Neither can it be said that the statute imposing said penalties and regulating the disposition thereof violates any of the provisions of the federal Constitution. Western UnionTel. Co. v. Indiana, 165 U.S. 304, 17 Sup. Ct. 345, 41 L.Ed. 725.

The judgment of the court is therefore reversed, and the cause remanded to the trial court, with directions to enter a decree for defendants.

All the Justices concur, except SHARP, J., who dissents.