Holliman v. Cole , 168 Okla. 473 ( 1934 )

The sole question involved in this proceeding concerns the validity and legality of an executive order of the Honorable William H. Murray, the Governor of the state of Oklahoma, issued on January 15, 1934, remitting the penalty on delinquent taxes to all taxpayers in the state of Oklahoma.

Plaintiff seeks a writ of mandamus against the county treasurer of Carter county directing him to issue to plaintiff a tax receipt.

The facts are not in dispute. Plaintiff was the owner of certain property in Ardmore, Carter county, Okla., which had been assessed for taxes for the years of 1926 to 1932, inclusive. The taxes for said years had not been paid. Plaintiff, desirous of availing himself of the benefits of said executive order, tendered to the county treasurer of said county the amount of the taxes and costs covering the years in question, and demanded a tax receipt in full. The county treasurer demanded, in addition to the taxes and costs, a penalty of one per cent. per month on the taxes admitted to be due, and, upon refusal of plaintiff to pay said penalty, refused to issue said tax receipt.

On February 3, 1934, the trial court issued a peremptory writ of mandamus to the county treasurer directing him to accept said tender and to issue receipts in full for said taxes. From this judgment the defendant appeals.

That portion of the executive order pertinent to the question involved herein is as follows:

"Now, therefore, I, Wm. H. Murray, the Governor of the state of Oklahoma, do hereby grant, remit, and commute the penalties on all classes of property upon which taxes are levied for the state, county, or any subdivision thereof, levied and assessed for the year 1933, and all prior years thereto from the beginning of statehood; and to commute, parole, and pardon all taxpayers upon his assessed ad valorem tax to the amount of penalty assessed under the law and exempting them from any and all penalties, and commute the same upon all classes of taxpayers paying an ad valorem tax upon which the penalty has already been attached, for the year 1933 and all years prior thereto, as aforesaid, provided, the taxes are paid in full to July 1, 1934."

Section 10, art. 6, of the Constitution is as follows:

"The Governor shall have power to grant, after conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as may be prescribed by law. He shall communicate to the Legislature, at each regular session, each case of reprieve, commutation, parole, or pardon granted, stating the name of the convict, the crime of which he was convicted, the date and place of conviction and the date of commutation, pardon, parole, or reprieve."

The Governor's executive order, by another paragraph therein, recites that it is predicated upon the above-quoted provision of the Constitution. It is conceded, however, that there is no authority in the constitutional provision for the executive order herein involved. But it is contended that the authority for the issuance of said order is found in section 3264, O. S. 1931, which provides as follows:

"The Governor shall have the power to grant, after conviction, pardons and paroles for all offenses committed against the laws of this state, except cases of impeachment and to remit fines and forfeitures, and he may commute death sentence of persons to imprisonment for life."

It is noted that the words, "and to remit fines and forfeitures," used in the above statute, are not found in the Constitution, and this is the language upon which plaintiff relies to justify and authorize the executive order of the Governor.

It is also conceded that the statutory provision is not repugnant to the Constitution. We will therefore not notice that question.

Let us examine the words of the act in some detail in an effort to discover the legislative meaning.

A "pardon" is defined as an act of grace and mercy bestowed by the state through its Chief Executive upon offenders against its laws, after conviction. Ex parte Xenophon Jones,25 Okla. Crim. 347, 220 P. 978, 34 A. L. R. 206; Stewart v. State,11 Okla. Crim. 400, 146 P. 921. The above definition, or one similar thereto, has been adopted by practically every state in the Union. See 46 C. J. 1181. It is observed that the granting of a pardon by the Chief Executive contemplates a charge of a criminal offense.

A "fine" is defined as a pecuniary punishment imposed by a lawful tribunal upon a person convicted of a crime or misdemeanor. Murphy v. State of Oregon (Ore.) 250 P. 834, 49 A. L. R. 384; 25 C. J. 1148; Commonwealth v. French, 130 Ky. 744, 114 S.W. 255; United States v. Mitchell, 163 Fed. 1014.

The word "fine" does not always mean a pecuniary punishment for an offense inflicted by a court in the exercise of criminal jurisdiction. It has other meanings and may include a forfeiture, or a penalty, recoverable by civil action. The true signification of the word, when used in a statute, must depend somewhat upon the context, and the meaning should be gathered from the intention, if it can fairly be ascertained from the language used. In ordinary legal phraseology, it is said the term "fine" means a sum of money exacted of a person guilty of a misdemeanor, or a crime, the amount of which may be fixed by law or left to the discretion of the court, while a penalty is a sum of money exacted by way of punishment for doing some act which is prohibited, or omitting to do something which is required to be done. State v. Addington,143 N.C. 683, 57 S.E. 398, 11 Ann. Cas. 314 (citing Black's Dict., p. 494; State v. Burton, 18 S.E. 657, 113 N.C. 655; People v. Nedrow, 13 N.E. 533, 122 Ill. 363; Hanscombe v. Russell, 11 Gray [77 Mass.] 373; A., T. S. F. Ry. Co. v. State ex rel. Sanders, 22 Kan. 1; Village of Lancaster v. Richardson [N.Y.] 4 Lans. 136.)

When imposed as a punishment for a statutory offense, there is no substantial difference between a fine and a forfeiture. A fine is a pecuniary punishment for an offense, and a pecuniary punishment called a "forfeiture" is equivalent to the same pecuniary punishment called a "fine." State v. McConnell,70 N.H. 158, 46 A. 458.

The words "fine" and "forfeiture" in the statute are often interchangeably used; and where "forfeiture" is employed to denote punishment, it is the equivalent of "fine." Bryant v. Rich's Grill, 216 Mass. 344, 103 N.E. 925, Ann. Cas. 1915B, 869.

The word "forfeit," in its ordinary use in cases, is synonymous with "mulct," "fine," or "penalty." Keinath, Schuster Hudson v. Reed (N.M.) 137 P. 841. The words "penalty," "liability," and "forfeiture" are frequently treated as synonymous with the word "punishment," in connection with crimes of the highest grade. Jones v. State, 10 Okla. Crim. 216,136 P. 182. "Forfeiture" is something lost for the commission of a crime; something paid for the expiation of a crime; that which is forfeited or lost by neglect of duty; that which is lost, or the right to which is alienated, by a crime. In re Court of Pardons (N.J.) 129 A. 624. See, also, United States v. Reisinger, 128 U.S. 401, 9 S. Ct. 100, 32 L. Ed. 480.

It is contended by the plaintiff in this case that the terms "penalty" and "forfeiture" are synonymous, and in some cases cited it is so announced. The conclusion, however, depends entirely upon the manner in which the terms are used. In the case of Missouri, K. T. Ry. Co. v. Dewey Portland Cement Co.,113 Okla. 142, 242 P. 257, it is said:

"The noun 'penalty' is defined 'forfeiture,' or to be forfeited for noncompliance with an agreement; a fine. Worcester's Dict. The words 'forfeit' and 'penalty' are substantially synonymous. In Huntington v. Attrill,146 U.S. 657, 13 S. Ct. 224, 36 L. Ed. 1123, the court said:

" 'The words "penal" and "penalty," in their strict and primary sense, denote a punishment, whether corporal or pecuniary, imposed and enforced by the state for a crime or offense against its laws.' "

It is apparent that the terms "forfeiture," and "penalty" are synonymous only when the penalty referred to is for the violation of a criminal law.

In the case of Hutton v. McCleskey, 132 Ark. 391, 200 S.W. 1032, which is somewhat analogous, but not directly in point, the court was concerned with an executive order of the Governor remitting to all taxpayers a tax penalty provided by an act of the Legislature for failure to assess property for taxation within the time and in the manner prescribed by the statute. The Constitution of Arkansas (art. 6, sec. 18) empowered the Governor, in criminal and penal cases, "to remit fines and forfeitures under such rules and regulations as shall be prescribed by law." The court therein held that under the terms of the Constitution such power applied only to criminal and penal cases after conviction or judgment, and had no application to relief from civil penalties and forfeitures, and that the Governor was without power to grant such relief under his constitutional authority.

In the case of Commonwealth v. French (Ky.) 114 S.W. 255, a judgment had been rendered against French in the sum of $5,000 for contempt. It appears that an act of the Legislature had provided for the assessment, on appeal, where the appeal was unsuccessful, of a penalty equal to 10 per cent. of the amount of the judgment appealed from. The judgment was appealed and affirmed and a $500 penalty assessed. The Governor of Kentucky, under the power granted him by the Constitution to remit fines and forfeitures, remitted the amount of the judgment and the penalty, but the trial court thereafter rendered judgment against French for $500 damages. It was conceded that the Governor had the power to remit the judgment for contempt, but the court held that the Governor was without power to remit the $500 assessed as damages on appeal. In discussing the nature of said item, the court said:

"Is it a forfeiture? In Black's Law Dictionary a 'forfeiture' is defined to be 'the incurring of a liability to pay a definite sum of money as the consequence of violating the provisions of some statute or refusal to comply with some requirement of law.' It may be said to be a penalty imposed for misconduct or breach of duty, and in our criminal practice arises most frequently in proceedings upon bail bonds and recognizances, the terms of which have been violated. Measured by this definition, it is equally clear that the fund in dispute is not a forfeiture. Being neither a fine nor a forefeiture, and yet being attached to a judgment for a fine, how shall it be classed? Its definition determines its classification. It is a penalty or tax imposed by legislative enactment upon the unsuccessful litigant for having delayed the litigation, and for having kept the successful litigant from sooner collecting his debt — a panacea, as it were, for the law's delay. It is not laid upon the litigant because of any wrong done, or duty violated, but for the sole purpose of preventing useless and frequently vexatious delays in the termination of litigation. Some means had to be adopted that would tend to put an end to useless appeals, which would more frequently than otherwise be brought for the purpose of delay and annoyance. To meet this necessity, the Legislature passed the act imposing upon the unsuccessful appellant from a judgment for the payment of money a penalty in the shape of damages, equal to 10 per cent. of the judgment appealed from."

A taxpayer who intentionally or unintentionally fails to pay his taxes when due has committed no criminal offense. The penalty provided for nonpayment of taxes when due is purely a civil obligation, remedial and coercive in its nature, that operates as a lien against the property. Certain statutory proceedings are provided, such as tax sales, and resales, to enforce the collection thereof. But under no circumstances does the failure to pay taxes when due forfeit the property to the state or to any person. The increased interest on delinquent taxes, known as a penalty, is far different from the penalty for a crime or a fine or forfeiture provided as punishment for the violation of criminal or penal laws.

In behalf of the power and authority of the Governor to remit the penalty on delinquent ad valorem taxes, plaintiff alludes to the history and background relating to the presence of section 3264 (O. S. 1931) in the various compilations of the statutes of this state. The section under consideration has metamorphosed from section I of an act of the First Legislature (Session Laws 1907-08, ch. 62, art. 1) entitled "An Act Relating to the Granting of Pardons: Creating a Board of Pardons and Defining Its Duties," the other sections appearing as sections 3265 to 3277, inclusive. The portion of said section providing that no pardons or paroles shall be granted by the Governor until he shall present the matter to and obtain the advice of the Board of Pardons and Paroles, as provided for in said act, was held unconstitutional by the Criminal Court of Appeals. Ex parte Ridley, 3 Okla. Crim. 350, 106 P. 549. The remainder of said section was brought forward into the Revised Laws of 1910, as section 4626. In the Compiled Oklahoma Statutes of 1921, all of said act was wholly omitted. The compilers of the Oklahoma Statutes of 1931 resurrected said provisions and placed them therein as sections 3264 to 3277, supra.

It is evident that said sections as originally enacted were dealing with violations of the criminal law and specific penalties and forfeitures such as may be found in sections 2241, 2249, 2314, and 2495, O. S. 1931, and other sections relating to the forfeiture of money, office, licenses, and rights. It is insisted by plaintiff that by virtue of the re-enactment of said section, as disclosed by the history thereof above set forth, the historical background of said section is not a proper criterion to gauge the meaning of the language used. But we cannot give our assent to this. It was one section of an act consisting of several sections, all relating to executive clemency for criminal offenses. When the Legislature used the language "to remit fines and forfeitures," it contemplated that certain definite fruits would result therefrom. It aimed at a certain definite defect which it, by said enactment, sought to remedy. By the mere process of transplantation, the fig tree which it sought to plant should not, by construction, bring forth thistles and thorns as its fruit. The intent of the Legislature in said enactment must be determined, if possible, and no greater nor less effect should be given to said act than was contemplated by the words used by the lawmakers. The language should not be isolated from its setting for the purpose of upholding this extraordinary power. Unless the Legislature intended to bestow upon the Chief Executive the right, by executive order, to supersede an enactment designed by it to require the prompt and punctual payment to the state and its municipalities of the tribute levied by the state as a necessary prerequisite to the maintenance of government, the language used should not be enlarged by this court to include such a far-reaching power. The results sought to be attained may be beneficent under certain conditions; but under other conditions an abuse of that power could well lead to chaos and confusion in our fiscal and financial affairs. Such authority exercised in individual cases by the Chief Executive could well be subverted into a potent instrumentality for rewarding friends and purchasing favors from enemies, to the utter ruin of the state. If the Legislature had intended to grant this far-reaching power to the Chief Executive as a supplement to his power and authority granted by the Constitution in criminal cases, it could, and we believe would, have made its intention clear and positive, and there would be no necessity to resort to artful or strained construction.

The Legislature has on numerous occasions fixed an additional sum, which it has chosen to call a penalty, to attach to a tax for the failure to pay such tax on or before a certain stated time. It has from time to time changed the amount thereof, and has even enacted legislation purporting to remove said penalty and to absolve taxpayers from the payment thereof. It has been held that said additional sum constitutes no part of the tax, but is imposed by the sovereign power as an additional charge as punishment for delinquency and that the sovereign power may dispose of said penalty to the same extent as other fines and penalties arising from the violations of the other laws of the state or the failure to perform other duties. Board of Com'rs of Custer County v. City of Clinton, 49 Okla. 795, 154 P. 513. To the same general effect are the following cases: Western Union Tele. Co. v. State, 146 Ind. 54, 44 N.E. 793; State v. Coos County, 115 Or. 300, 237 P. 678; Jones v. Williams, Tax Collector, 121 Tex. 94, 42 S.W.2d 130.

We are not at variance with the holdings in these cases on this point. But we are of the opinion that in the enactment of the section of our law under consideration and the related sections, the Legislature was dealing with criminal proceedings, and while the penalty on taxes is in the nature of a fine or forfeiture, it does not partake of the criminal character under consideration by the Legislature. It partakes more of the characteristics of an added civil burden, such as an increased rate of interest after maturity and nonpayment of a promissory note, or of an acceleration of the maturity of an obligation, or of punitive or exemplary damages.

We have been cited to no case in which it has been held that the pardoning power was construed to authorize the Chief Executive to absolve a citizen from civil liability. It was not intended by the Constitution nor by the enactment of the above-quoted statute to extend the power of the Chief Executive to such extent or to charge him with such responsibility. The power to grant clemency is not inherent in his office, but is derived from the Constitution and statutes. We find nothing in either which extends the pardoning power beyond the limits hereinabove suggested.

We are not herein called upon to determine whether or not the Legislature has the power asserted by it inferentially by the passage of the various acts to which allusion is made. We are concerned herein only with an executive order that purports to defeat the result of the enactment of the Legislature relating to this subject.

The judgment of the trial court is reversed and the cause remanded, with directions to dismiss the same.

RILEY, C. J., CULLISON, V. C. J., and SWINDALL, BAYLESS, BUSBY, and WELCH, JJ., concur. ANDREWS, J., concurring specially. McNEILL, J., dissents.