The opinion
IRWIN, Justice
(dissenting).
68 O.S.1971, § 226(c) provides, under the circumstances here presented, that a taxpayer shall be afforded a legal remedy and right of action in any State or Federal Court having jurisdiction of the parties and the subject matter.
If I correctly construe the majority opinion, it is predicated on the theory that the District Court of Nowata County did not have venue of the action in that 12 O. S. 1971, § 133 placed venue in the District Court of Oklahoma County.
There is a clear distinction between venue and jurisdiction. Venue relates to geographical or territorial consideration; that is, where an action lies; and jurisdiction relates to the inherent judicial power of a court to adjudicate the subject matter in a given case. Atchison, Topeka & Santa Fe Ry. Co. v. Superior Court of Creek County, Oklahoma, Okl., 368 P.2d 475 .
In Rich v. Reynolds, Okl., 277 P.2d 985 , we held:
“Where an action which, under the terms of Tit. 12 O.S.1951 § 133, should have been commenced in a county in which the cause of action, or some part thereof, arose is improperly commenced in another county a question of venue arises, which may be waived, and where the record affirmatively shows that the question of venue was not raised by defendants, and answers are filed presenting other grounds than that of venue they thereby waive the objection that they have been improperly sued in the wrong county.”
Assuming arguendo, that 12 O.S.1971, § 133, would be applicable in the case at bar, if the Tax Commission had not challenged the venue of the Nowata District Court, a judgment rendered by that court would have been valid and binding against the Tax Commission. Since the jurisdiction of a court may not be waived, it necessarily follows that the Nowata District Court in the instant action did have jurisdiction of the parties and the subject matter. In my opinion, this case comes squarely within the language of § 226(c) granting the taxpayer a legal remedy and right in any state court having jurisdiction of the parties and the subject matter.
The case at bar is distinguishable from State of Oklahoma ex rel. State Board of Education v. District Court of Bryan County, Okl., 290 P.2d 413 ; State ex rel. Department of Corrections v. Brock, Okl., 513 P.2d 1293 ; and cases of similar import. In those cases there were not specific statutory provisions such as § 226(c) supra. .
In my opinion, if the Legislature had intended that 12 O.S.1971, § 133, would be applicable in cases such as here presented, it would not have employed the language “in any State * * * Court having jurisdiction of the parties and the subject matter”.
I respectfully dissent.