El Reno Wholesale Groc. Co. v. Taylor

I am unable to agree with the conclusion reached by the majority opinion announced in the 12th and 13th paragraphs of the syllabus or that part of the opinion as discussed and announced as the law in those two paragraphs. In view of the vast importance of the decision and the force and effect of the law as announced, I feel it my duty to give my reason for dissenting. The case is of importance because the real question is whether a few taxpayers may, by reading into the statute language that it does not contain, escape their just proportion of the taxes levied for maintaining the state government. I say this because section 7, chapter 107, Session Laws 1915, provides where a person has paid his tax, even under protest, if he fails to file suit for recovery of the money paid within 30 days, he has no remedy. Such was the holding of this court in the cases of A., T. S. F. R. Co. v. Eldredge,67 Okla. 110, 169 P. 1071; Duling, Co. Treas., v. First National Bank of Weleetka, 71 Oklahoma, 175 P. 554; Brown, Co. Treas., v. Hennessey State Bank, 78 Okla. 141, 189 P. 355. The agreed statement of facts discloses that on June 30, 1921, there had been collected over one-half of this tax, or that much reported to the State Treasurer; the amount paid since said time is not disclosed, but from this statement it is apparent no one will be benefited, except a few large taxpayers, who have suits pending for recovering the tax paid. While this fact does not change the law, yet certainly under such a state of facts, the court should not read into the statute something it does not contain and permit the few to escape taxation.

The petition contains many allegations; among the allegations are: That the board abused its discretion, and acted arbitrarily in violation of law in computing the levy. A demurrer was filed to this petition. The demurrer admitted all the allegations of the Petition, which demurrer was overruled by this court. The parties then submitted the case to this court upon an agreed statement of facts; and upon the facts as agreed to, and not those alleged, the case is before this court for consideration. The agreed statement of facts eliminates the allegations of the arbitrary actions and abuse of discretion upon the part of the board. The case in its final analysis depends on whether the board in computing the levy considered items it had no authority to consider, and if it did, is the tax excessive when those items are eliminated? The only contention upon part of the plaintiff is the tax is illegal, because excessive. The question, then, for consideration is what items the State Board of Equalization should consider in computing the levy. The agreed statement of facts includes many facts which are immaterial and unnecessary to consider. The rule is well settled that, before a tax can be enjoined, the burden of proving the tax is excessive is upon the party attacking the levy. It is not sufficient to prove that the State Board of Equalization in computing the levy considered items that were not authorized by law, but whether the levy is excessive when the proper items are considered. The case has not been briefed since filing the agreed statement of facts; the briefs filed for consideration of the court were in support of the demurrer to the petition.

It is admitted that sections 2, 3, and 4 of Article 10 of the Constitution conferred that authority and power upon the State Legislature to levy a state tax. Section 21 of article 10 of the Constitution provides for a State Board of Equalization and designates who the members are, and defines the duties of the state board as follows:

"To adjust and equalize the valuation of real and personal property of the several counties in the state, and it shall perform such other duties as may be prescribed by law."

The State Legislature to carry out the provisions of section 2, article 10, of the Constitution, which section required the Legislature to provide for an annual tax, enacted section 7374, Rev. Laws 1910, and in said section conferred upon the Board of Equalization certain duties in relation to making the tax levy as authorized in section 2 of article 10 of the Constitution. It is held by the majority opinion, in which I concur and which is concurred in by the attorneys for the plaintiff in their brief, that the Legislature itself levies the taxes, and the Legislature has conferred upon the State Board of Equalization the duty of computing this tax, which is nothing more than a mathematical computation. This duty involves no discretion or judgment on behalf of the board, but simply authorizes the board to make the computation as directed by section 7374, supra. This is true, with one exception, to-wit, when the board estimates the income from other sources than from the tax levied. In this matter they must exercise their judgment and discretion. It is stated in the majority opinion, and correctly so, that the State Board of Equalization in computing the levy are simply performing a ministerial duty. It is also admitted that sections 7374 and 7375, Rev. Laws 1910, are the only statutes necessary to be considered to determine whether the tax is excessive, and, in fact, the whole question must be decided by construing section 7374, Rev. Laws 1910.

Let us examine this statute and see whether the Legislature expressed its intent in plain and unambiguous language or whether the language is ambiguous and in order to arrive at the intent we must seek the aid of certain rules of construction. The majority opinion holds that the statute is unambiguous, and the attorneys for the plaintiff, who are attempting to defeat this tax, assert in their brief that the statute is plain and unambiguous, and contend it is the duty of the State Board of Equalization to strictly follow the same. I agree with this statement of the law. With this principle of law definitely fixed in our minds and upon which we all agree, let us apply the law as contended for by the plaintiff and as announced by the majority opinion and see what result we will reach when making the computation to strictly following the plain mandate of the Legislature announced in section 7374, supra.

The first portion of the section of the statute reads as follows:

"There is hereby levied annually an ad valorem tax upon all property in this state which may be subject to taxation upon such basis, a tax sufficient in addition to the income from all other sources, to pay the expenses of the state government for each fiscal year ending on the thirtieth day of June, and to pay the deficiency, if any, for the year next preceding: Providing, however, that the total amount of such levy shall not exceed the maximum amount provided by the Constitution that may be levied on an ad valorem basis for state purposes, including one-fourth of one mill for common school purposes to be levied, collected and distributed as other school money".

There is no dispute over this portion of the statute, unless it would be whether we include the item deficiency for the year next preceding. The next portion of the section of the statute reads as follows:

"For the purpose of computing the amount of the levy hereby made, the State Board of Equalization shall, at its annual meeting on the third Monday in June of each year or as soon thereafter as the total valuation of all the property in this state subject to taxation under the provisions of this chapter shall have been ascertained, and from day to day thereafter, until such time as they shall compute the amount appropriated to pay the expenses of the state government for the period aforesaid with twenty per cent. added thereto as an allowance for deliquent taxes".

The last part of the above section does not make a grammatical sentence, as pointed out by the annotator of the code, but its meaning is plain, and the majority opinion herein and the attorneys for plaintiff assert this statute is unambiguous. This portion of the statute confers a ministerial duty upon the Board of Equalization, a duty that involves no discretion upon the part of the board, but simply authorizes the board by a mathematical computation to ascertain two things: First, the amount of money appropriated by the Legislature; second, add 20 per cent. thereto for delinquent taxes. If there is any ambiguity in the two portions of the section of statutes above quoted, it is whether the board should add the amount of deficiency referred to in the first portion of the section to the amount of appropriation made by the Legislature. I think that is the proper construction, but let us admit, for the sake of argument, that you do not add to the deficiency for the preceding year, and let us apply the second portion of the statute to the facts and see what result we reach.

The board is to first ascertain the total value of the property in this state subject to an ad valorem tax. It was stipulated in this case that the total value of property subject to ad valorem tax as ascertained by the board was $1,695,797,187. The second duty under this provision is stated as follows: They shall compute the amount appropriated to pay the expenses of the state government for the period aforesaid. It was stipulated that the amount appropriated was $7,034,804.80. The statute then says, with twenty per cent. added for delinquent taxes. It was stipulated this was computed to be $1,406,860.67. These are the only two items mentioned in the statute. Now if we add these two items together we will have the appropriation made by the Legislature and the twenty per cent. added as the statute directs, and we will then have a total of $8,441,765.85.

After arriving at this amount, the statute then provides as follows:

"From the actual amount thus computed shall be deducted the estimated income of the state from all sources other than from the levy hereby made".

It is stipulated that the board estimated the income from all other sources than from the levy made at $5,405,000. This is the only item the statute directs the board to deduct. Now, let us follow the mandate of the statute and deduct this estimated income from the amount of appropriation with the twenty per cent. added, and we have $2,046,765.85. We then have the amount to be raised by the levy.

If you divide the value of the property subject to ad valorem tax into the amount to be raised, you will then have the number of mills to be levied on each dollar's worth of property.

This section then reads, the amount so ascertained shall be certified by the State Auditor, etc. So, by applying the law as announced by the majority opinion and as contended for by the plaintiff, towit, that the statute must be strictly followed, the amount to be raised by ad valorem tax was $3,046,765.85. The exhibit to the agreed statement of facts discloses that the mill and a half levy would raise something over $2,500,000. This is less than the amount required to be raised; so, by strictly following the statute, the amount of the levy would not be excessive. When we follow the plain mandate of the statute as written in plain and unambiguous language the contention of plaintiff fails. It is true the Board of Equalization considered items it had no authority to consider, but when we eliminate those items, and consider what the statute does authorize the board to consider, the levy is not excessive. The levy, thus computed, is not in violation of section 7375, Rev. Laws 1910, because the estimated income and the amount to be derived from the mill and a half levy does not exceed the amount appropriated by the Legislature with the 20 per cent. added, but, on the other hand, is over $500,000 less than the amount appropriated.

The plaintiff, to avoid this tax and have it declared excessive, and the majority opinion of the court in declaring it excessive, do so, first, by failing to add the 20 per cent., as directed by the statute; second, by failing to follow the portion of the statute which reads as follows:

"From the actual amount thus computed shall be deducted the estimated income of the state from all sources other than from the levy hereby made".

They attempt to amend this portion of the statute in the majority opinion by adding thereto, "and the amount of surplus on hand in the State Treasury." The plaintiff contends, you shall amend it, by adding not only "and the amount of surplus on hand in the State Treasury", but also, "deduct any taxes levied for previous years in the process of collection."

It is my contention that this court is not authorized to read into the statute language that it does not contain, and thereby declare a tax excessive, and permit a few large taxpayers to escape paying their just proportion of the tax. No one contends that the above portion of the statute is ambiguous; no one even intimates that it is. The language used expresses one idea, and that is a mandatory duty, to wit: That the Board of Equalization shall deduct the estimated income to be derived from other sources, and that is the only item the statute authorizes the board to deduct. The agreed statement of facts does not charge any abuse of discretion or fraud upon the board in arriving at this estimated income. It is so elementary that courts have no right to amend a plain and unambiguous statute by reading into it language that it does not contain; I will only cite a few cases to support my contention.

In the case of Soliss v. General Electric Co., 213 Fed. 204, the court, speaking through Judge Sanborn, said:

"Courts may not assume or presume intents or purposes not fairly indicated in the statute, and then enact by judicial construction provisions to effect them. And the legal presumption is that the legislative body expressed its intent in the statute, that it intended what it expressed and nothing more. * * *"

In the case of Sweet v. United States 228 Fed. 421, the court said:

"Where the terms of a statute are clear and their meaning certain, construction has no place or office. The legal presumption is that the legislative body meant what it said, and it is the duty of the courts not to amend or revoke, but to give effect to the enactment."

This same rule of construction has been applied by this court in the case of Falter v. Walker, 47 Okla. 527, 149 P. 1111:

"One of the most elementary canons governing the construction of statutes is that, if the language used by the Legislalature conveys a definite meaning which involves no absurdity, nor any contradiction of any other parts of the statute, then that meaning apparent on the face of the statute must be accepted."

The above authorities in plain and unambiguous language announce the rule that courts have no power or authority to presume the Legislature intended what the Legislature did not express in the statute, and then seek by Judicial construction to enact an amendment.

The plaintiff in its brief insists, that the Board of Equalization must follow the strict mandate of the statute in computing the levy, and must not add any items not mentioned in the statutes, but when it comes to what the board shall deduct from the amount of appropriation, they utterly disregard the rule contended for. As heretofore stated, in this manner they seek to have the court read into the statute the following items to be deducted, which are not in the statute: First, "Deduct any surplus on hand in the State Treasury. Second, "Deduct any taxes levied for previous years in the process of collection". They fail to cite an authority that authorizes the courts to read into a plain and unambiguous statute language not expressed therein. When they asked this court to deduct these items they pointed out no provision of the statute or Constitution that would authorize us to do so. They admit the state board did deduct the surplus on hand, which amounted to over $2,000,000, and rely upon that fact as the authority of the board for so doing. If we read into the statute language it does not contain, they evade the tax; otherwise the tax is legal. The opinion cites no authority that authorizes this court to amend a plain and unambiguous statute by reading into it language that it does not contain. The majority opinion uses this language: "That we feel it our duty to construe the law as it is". I cannot agree that they have done this, and if there is any language in the statute that expresses such an idea that you deduct any surplus on hand, or is subject to such a construction, I think it should be set out. They refer to no language that has any such meaning, nor do they refer to the language they contend has such meaning.

If the Legislature intended the State Board of Equalization to deduct other items than those mentioned, it could have expressed that intention in some language. It did not do so, but limited the authority of the board to one item. It is apparent that this was not an oversight upon the part of the Legislature, because if we look to section 7378, Rev. Laws 1910, in dealing with counties, we find the State Legislature referred to the item, unexpended balance on hand of the previous year.

The Legislature in 1917, in dealing with the county excise board in making a levy, referred the county excise board to my surplus or balance of revenue on hand. The Legislature made provision for the county excise board to consider this item, but made no reference for the State Board of Equalization to consider this item. If they referred to this item when dealing with county and other municipalities why did they not refer to it when defining the duties of the state board? The answer is: The State Board of Equalization has nothing to do with this item; this was for the Legislature itself.

It might be suggested, What is to become of the balance on hand if there is a surplus in the treasury? In the first place, it is not anticipated there will be a surplus. As stated in the case of S. L. S. F. Ry. Co. v. Thompson, 35 Okla. 138,128 P. 685, as follows:

"The statute contemplates that each year shall take care of itself; that no greater amount of taxes shall be levied during any one year than shall be necessary to take care of the obligations of the municipality, incurred or maturing during that year, which amount shall be fixed by an approved estimate before the tax is levied."

This same theory was advanced in the following cases: St. L. S. F. R. Co. v. Tate, 35 Okla. 563, 130 P. 941; St. L. S. F. R. Co. v. Amend, 44 Okla. 602, 145 P. 1117; St. L. S. F. Ry. Co. v. Hayworth, 48 Okla. 132, 149 P. 1086; A., T. S. F. R. Co. v. Eldredge, 67 Okla. 110, 169 P. 1071. How can it be said the Legislature intended to include surplus in the State Treasury, when the policy of the law is, there should be no surplus? Second, if there is a surplus on hand, it is, for the Legislature to appropriate the same, not the Board of Equalization, which has only ministerial duties to perform in making the levy; nor for this court in its judicial capacity.

The inference the majority opinion that the Surplus on hand, if any, might be wrongfully expended unless applied in this manner by the State Board of Equalization, in my judgment, is used unadvisedly, for the majority opinion in plain and unambiguous language holds the Sate Board of Equalization cannot spend any money that may be in the treasury, nor can the treasurer, nor any one else. There is only one way this money can be expended, and that is to pay appropriations made by the Legislature. The spending of surplus funds on hand, or what shall become of them, is a question for the Legislature, and not for the courts or the State Board of Equalization. In the agreed facts in the instant case it is stipulated that the Eighth Legislature of 1921, which convened after the Board of Equalization had made the levy, passed emergency appropriations amounting to some $3,00,000. These appropriations were directed to be paid out of money on hand. This answers the question. What is to become of the money on hand? It is for the Legislature to appropriate, and not for the courts.

The State Legislature appropriated surplus money on hand to pay for maintaining certain state institutions. This court, by reading into the statute language it does not contain, directs the State Board of Equalization to deduct that amount from the amount of appropriations for the fiscal year ending June 30, 1921, to ascertain the amount to be raised by taxation, and, of course, if it is deducted for that purpose, it must be used for that purpose. It is apparent the surplus on hand cannot be used to pay the appropriations for the fiscal year ending June 30, 1921, and also be used to pay the emergency appropriations by the Legislature in 1921.

That the Legislature never intended that the State Board of Equalization should consider surplus on hand must be apparent, for if such was the intent, it would have imposed a duty upon the State Auditor or Treasurer to report the amount on hand each year to the State Board of Equalization. Section 8072, Rev. Laws 1910, requires the auditor to make a semi-annual report to the Governor, and also a biennial report, which report the Governor shall transmit to the Legislature. The third subdivision of that section provides the report shall disclose the "unexpired" [unexpended] balance of funds on hand. It would be useless to report this fact to the Legislature, if the Legislature did not intend to appropriate the same for such purposes as it deemed advisable. If the State Board of Equalization should consider this item each year when making the levy, why should not a report be made to said board? If the Legislature has nothing to do with this item, why report it to the Legislature?

If we look to the duties of the State Treasurer, we find section 8142, Rev. Laws 1910, provides for the State Treasurer making a semi-annual report, and also a biennial report, to the Governor, and provides the Governor shall submit the biennial report to the Legislature. This report must disclose the balance remaining in the treasury. No provision is made for submitting such a report to the State Board of Equalization, either by the State Auditor or State Treasurer or the Governor.

If this court can read into this statute language that authorizes the State Board of Equalization to deduct any surplus on hand, and without citing authority for doing so, why can it not by the same reasoning read into the statute that you deduct for taxes in the process of collection for previous years, or other item? In my judgment the majority opinion makes a plain and unambiguous statute ambiguous, and the interpretation of the statute in the future will be doubtful.

In one portion of the opinion it is held that the duty of the State Board of Equalization is ministerial and authorizes the making of a mathematical computation of certain items as directed by the Legislature. In the other part of the opinion it fails to apply this rule and says you must first find the amount of appropriation, but fails to require the board to add 20 per cent. as directed. Even ignoring this portion of the statute would not make the levy excessive, but the opinion directs that after ascertaining the amount of the estimated income from other sources and deducting the same, the board shall then deduct the surplus on hand. In order to declare the tax excessive, it is necessary to ignore the statute, first, by refusing to add 20 per cent., and, again to ignore the plain wording of the statute by amending it and deducting the surplus on hand. In my judgment the first part of the opinion announced the law correctly, but the court in the majority opinion fails to apply the law it has announced.

There is contention that the opinion will have no serious effect, nor amount to a discrimination between the taxpayers who have paid their taxes and failed to avail themselves of the statutory right and those who have paid and have suits pending because the next Legislature will probably make an appropriation or grant some relief to reimburse those parties who have paid their taxes and failed to bring suit to recover back the same. Why make a plain statute ambitious, in order to invite more litigation? Why speculate on what a Legislature that has not been elected will do? And whether it will make such an appropriation would be for it to say. Whether it could make such an appropriation is not free from doubt. Section 52, article 5, of the Constitution provides as follows:

"The Legislature shall have no power to revive any right or remedy which may have become barred by lapse of time or by any statute of this state."

It would seem from this section that the Legislature could not pass a law that would authorize the parties who have no suit pending to bring suit to collect back the tax paid, for their right to recover is now barred by virtue of section 7, chapter 107, Session Laws 1915, and such a law would be in violation of the above section of the Constitution. Can the Legislature appropriate money to pay these claims when the party had a statutory right to bring suit to recover, but failed to avail himself of that right?

Section 2, article 10, of the Constitution provides:

"The Legislature shall provide by law for an annual tax sufficient, with other resources, to defray the estimated ordinary expenses of the state for each fiscal year."

Would an appropriation to pay those parties who now have no lawful claim come within the phrase, "ordinary expense of the state for the next fiscal year?" This question also may be doubtful. It may be said that it can be paid out of the funds on hand, but we are confronted with the majority opinion, which says it is the duty of the Board of Equalization each year to consider these funds on hand, and deduct, them from the amount of appropriation. The surplus on hand must be under the control of the Legislature or the State Board of Equalization. It is certainly not under control of both. The Legislature cannot use it for one purpose and the State Board of Equalization for another. Whether the large taxpayer, who has expended his money and gained an advantage, will permit the Legislature to deprive him of his victory without calling the attention of the. Legislature to the above provisions of the Constitution and testing the force and effect of the same, remains to be seen.

This court should not fail to properly apply the law, although it may work a hardship on many, and give an advantage to a few. But, as I read the opinion, the court has read into the stotute language it does not contain, and the force and effect of the same is to permit a few to escape paying their proportionate share to maintain the state government.

For reasons stated, I dissent.

I am authorized to announce Justices KANE and JOHNSON as concurring.