Burroughs v. State Ex Rel. , 195 Okla. 420 ( 1944 )

I think we should hold that the statute, 82 O. S. 1941 § 338, specifically and definitely fixes the status of the lien of special assessments for drains and ditches, "to which only thelien of the state, county and municipality for taxes shall beparamount," as therein stated. This provision, first enacted as part of chapter 30, S. L. 1907-08, is clear and plain. It was carried forward without change in chapter 15, S. L. 1909, and in chapter 27, Revised Laws of 1910, and in chapter 166, S. L. 1913, and in section 6065 of Compiled Oklahoma Statutes 1921, and in section 13027, Oklahoma Statutes 1931, and in the last revision of 1941, as first above cited.

In this provision the Legislature continuously distinguished between such assessments on one hand and general taxes on the other hand. So it would seem the Legislature was still referring to general taxes in 68 O. S. 1941 § 394, and still observing the same distinction between general taxes on the one hand and special assessments on the other hand, which are levied not for the benefit of the state, county, or municipality, but are levied to provide a special fund to pay bonds; such bonds having been issued to pay for improvement and betterment of the land, and issued on the specific pledge of lien priority as quoted above.

For cases in which this court has emphasized the distinction between such assessments and general taxes, see Missouri State Life Ins. Co. v. Board of County Com'rs, Garvin County,173 Okla. 26, 45 P.2d 1101; Board of County Com'rs. v. Reirdon,172 Okla. 312, 44 P.2d 990; City of Sapulpa v. Land,101 Okla. 22, 223 P. 640; Riley v. Carico, 27 Okla. 33, 110 P. 738; Trustees, etc., v. Hooten, 53 Okla. 530, 157 P. 293; and observe the reasoning and conclusion of the Territorial Supreme Court in Jones v. Holzapfel, 11 Okla. 405, 68 P. 511.

See, also, City of Ardmore v. State ex rel. Oklahoma Tax Commission, 168 Okla. 316, 32 P.2d 728, wherein is assembled a wealth of authorities supporting the general rule to the effect that where the word "tax," "taxation," or "taxes" is employed in a statute, the terms apply only to property taxes or ad valorem taxes or general taxes for the support of government or annually recurring taxes.

So we would be well supported by authority in holding that when the Legislature used the term "delinquent taxes" and "such tax" in 68 O. S. 1941 § 394, it was intended to refer to general taxes and not to include special assessments.

The majority opinion errs in assuming and stating that the question here presented "is practically identical with the question of priority determined in the case of State ex rel. v. Passmore" (189 Okla. 232, 115 P.2d 120). Abundant lack of controlling similarity is observed by reading both opinions.