
    DAVENPORT, County Treas., v. SNYDER et al.
    No. 29174.
    April 14, 1939.
    Rehearing Denied May 23, 1939.
    Mac Q. Williamson, Atty. Gen., and John H. Poe, Asst. Atty. Gen. (Jack Langford, of counsel), for plaintiffs in error.
    Millard E. Lowrance, R. E. Bowling, and John C. Powell, for defendants in error.
   GIBSON, J.

This action was commenced in the district court of Murray county by defendants in error against plaintiffs in error to enjoin the 1939 tax resale (secs. 12753-12755, O. S. 1931, 68 Okla. Stat. Ann. secs. 412-414). The parties are hereafter referred to as they appeared at the trial.

Defendants have appealed from the judgment overruling their demurrer to the amended petition. We are to determine, therefore, whether plaintiffs are entitled to any relief under the allegations of the petition.

Plaintiffs are landowners and resident taxpayers of said county. They seek to enjoin the sale not only as to their own lands, but attempt to prevent the same as a whole on the ground that said sale, if conducted, will be void for certain reasons alleged in the petition.

While we have heretofore held that one or more taxpayers may unite in a petition to restrain the collection of an illegal tax, as permitted by section 723, O. S. 1931, 12 Okla. Stat. Ann. sec. 1397, we have not held that one or more taxpayers may for themselves and all others similarly situated maintain an action to restrain the collection of a tax. See Kellogg v. School Dist., 13 Okla. 285, 74 P. 110; Vette v. Childers, 102 Okla. 140, 228 P. 145; Stiles v. City of Guthrie, 3 Okla. 26, 41 P. 383.

In the last-cited case the Territorial Supreme Court held that a representative suit, one commenced by plaintiffs for themselves and all other parties similarly situated, as provided by section 154, O. S. 1931, 12 Okla. Stat. Ann. see. 233, could not be maintained on behalf of such other parties to enjoin the collection of a tax. The court in that case, construing section 154, above, held as follows :

“One or more taxpayers, whose property is attempted to be subjected to an illegal tax, cannot maintain an action enjoining the collection of the tax as against the property of other taxpayers similarly situated, under the provisions of the Code, which is that ‘when the question is one of common or general interest in many persons, or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.’ ”

Tbe sale of land for delinquent taxes is a step in tbe process of collecting tbe tax; tbe sole object of tbe sale is to collect tbe tax. 61 C. J. 1113, see. 1514.

Under authority of .the Stiles Case tbe present plaintiffs could not maintain tbe action in a representative capacity. At most they could restrain tbe sale in their individual capacity under proper allegations. Id.

Tbe plaintiffs do not seek, as taxpayers, to restrain tbe sale on tbe ground that tbe same will create an illegal financial burden upon all the taxpayers of tbe county. See Kellogg v. School Dist., supra. Tbe petition shows that tbe county will be put to no expense in conducting tbe sale. Neither do plaintiffs attack tbe legality of tbe tax sought by tbe sale to be collected. Tbe suit is not designed to prevent a public burden, financial or otherwise. In its entirety tbe action is nothing more than an attempt to prevent an alleged illegal method of collecting a legal tax. Unless tbe proposed illegal method will result in public expense to be borne by the taxpayers in general, a taxpayer’s suit to enjoin such illegal process in its entirety so as to redound to tbe benefit of a class similarly situated is inappropriate. In view of tbe Stiles Case such bolding is necessary.

In order for tbe plaintiffs to maintain tbe action for their own benefit they were obliged to show a willingness to do equity; it was their duty to tender tbe amount of tbe legal taxes. Tbe statute as well as equitable principles demands this. Section 12668, O. S. 1931, 68 Okla. Stat. Ann. sec. 360; 61 C. J. 1089; Collins v. Green, 10 Okla. 244, 62 P. 813: Thurston v. Caldwell, 40 Okla. 206, 137 P. 683. See, also, Phelps v. Asplund, 184 Okla. 310, 87 P.2d 134.

Plaintiffs urge the case of Criswell v. Hart, 155 Okla. 159, 8 P.2d 70, in support of their contention that tbe petition states a cause for injunction. There is a material difference between tbe facts as alleged in that ease and the present one. There tbe allegations not only showed tbe invalidity of tbe proposed sale, but charged illegal assessment and unlawful expense to accrue to tbe county by reason of tbe sale.

Tbe trial court erred in overruling tbe demurrer to plaintiffs’ petition. The judgment is reversed and tbe cause remanded, with directions to-sustain said demurrer and dismiss plaintiffs’ action.

BAYLESS, C. J., and RILEY, OSBORN, CORN, HURST, DAVISON, and DANNER, JJ., concur.. WELCH, V. C. J., absent.  