Oklahoma Automobile Dealers Ass'n v. State Ex Rel. Oklahoma Tax Commission

2017 OK 64, 401 P.3d 1152, 2017 WL 3758931, 2017 Okla. LEXIS 66

• Court: Supreme Court of Oklahoma
• Decided: August 31, 2017
• Docket: Case Number: 116143
• Status: Published

Opinions

Wyrick, J.:

¶ 1 This is the second of several cases challenging various measures enacted by the Legislature this past session in response to the State’s budget crisis. In the first of those cases we unanimously held that a measure imposing a new $1.50-per-pack assessment on cigarettes was a “revenue bill” subject to Article V, Section 33’s requirements that revenue bills (1) originate in the House of Representatives, (2) be enacted prior to the final five days of the legislative session, and (3) be approved by either the people or by a three-fourths majority of each legislative chamber.¹ This was so because the cigarette measure fit squarely within our century-old'test for “revenue bills,” in that it both had the primary purpose of raising revenue for the support of state government and it levied a new tax in the strict sense of the word.²

. ¶ 2 This .case involves House Bill 2433,³ which was also enaeted during the final five days of the session and did not receive three-fourth’s support in either legislative chamber.⁴ Like the first case, this case involves an Article V, Section 33 challenge, but the similarities end there because this case presents the much different question of whether a measure revoking an exemption from an already levied tax is a “revenue bill” subject to Article V, Section 33’s requirements. Applying the two-part test we have applied for the last.century, we conclude that HB 2433 is not a “revenue bill” because, despite its revenue-raising purpose, it does not levy a tax in the strict sense of the word.

¶ 3 We are compelled to reach this result for three primary reasons. First, our cases have long held that measures making “certain property ... theretofore exempt from taxation ... subject to taxation” are not “revenue bills” because removal of an exemption from an already levied tax is different from levying a tax in the first instance.⁵ Second, while that rule may seem superficially inconsistent with Article V, Section 33’s taxpayer protections, it is actually deeply rooted in our Constitution’s related policies that disfavor special exemptions from taxation and promote uniformity of taxation-policies that are also designed to protect the taxpayers. And third, because we have never before in our history held that a measure revoking a tax exemption is a “revenue bill,” and because we have explicitly held that such measures are not “revenue bills,” to hold otherwise would require us to break new ground and overrule well-established precedents. To do so would be to deprive the Legislature and the people of the legal predictability, uniformity, and clarity that it is our obligation to provide. Accordingly, we must deny Petitioners the relief they seek.

I.

¶ 4 To properly apply our Article V, Section 33 test, we must first determine the operation and effect of HB 2433.

¶ 5 In 1933, the Legislature levied a sales tax on all tangible personal property-including automobiles-and that sales tax has remained part of our tax code ever since.⁶ In 1935, however, the Legislature added an exemption for automobile sales in the sales-tax provisions, so that automobiles were subject to only an automobile excise tax from that point forward.⁷ HB 2433 revokes part of that sales tax exemption so that sales of automobiles are once again subject to the sales tax, but only a 1.25% sales tax.⁸ Sales of automo-Mes remain exempt from the remainder of the sales tax levy. HB 2433 does not, however, levy any new sales or excise tax, as the text of the measure and related provisions demonstrate.

¶ 6 For example, the sales tax levy can be found in 68 O.S. 1354, imposing a tax upon “the gross receipts ór gross proceeds of each sale” of tangible personal property and other specifically enumerated items.⁹ The last amendment increasing the sales tax levy was in 1989, when the rate was raised to 4.5%.¹⁰ Nothing in HB 2433 aménds the sales tax levy contained in section 1354;¹¹ the rate remains 4.5%.¹² Likewise, the levy of the motor vehicle excise tax is found in 68 O.S. 2103.¹³ That levy has not been increased since 1985,¹⁴ and nothing in HB 2433 amends the levy contained in section 2103.¹⁵ Both before and after the enactment of HB 2433, the levy remains the same: every new vehicle is subject to an excise tax at 3,25% of its value, and every used vehicle is subject to an excise tax of $20.00 on the first $1,500.00 or less of its value plus 3.25% of its remaining value, if any.¹⁶

¶ 7 HB 2433 instead does its work by amending the sections of law that provide and give effect to the sales tax exemption for motor vehicles: 68 O.S, 1355 and 2106, respectively. Prior to HB 2433’s enactment, section 1355 “specifically exempted from the [sales] tax ... [the s]ale of motor vehicles ... on which the Oklahoma Motor Vehicle Excise Tax ... has been, or will be paid.”¹⁷ Section 2106, meanwhile, made clear that “[t]he excise tax levied by this article [wa]s in lieu of all other taxes on the transfer or the first registration in this state of vehicles,”¹⁸ effectively erecting a bar on any other law seeking to impose a sales tax on motor vehicles. After HB 2433, however, section 1355 only exempts motor vehicle sales from “all but a portion of the levy provided under Section 1354 of this title, equal to one and twenty-five-hundredths percent (1.25%) of the gross receipts of such sales.”19 Likewise, and to avoid potential conflict, HB 2433 also amended the bar in 2106 to now provide that “[t]he excise tax levied by this article is in lieu of all other taxes on the transfer or the first registration in this state of vehicles, .... except’. ... [o]ne and twenty-five-hundredths percent (1,25%) of the gross receipts upon which the tax is levied by Section 1354. of this title,”20 These amendments do not levy a new tax, as their reference to the sales tax levy in section 1354 makes plain. They merely remove, in part, an exemption from a tax that was levied many years prior.

II.

¶ 8 Our cases have always recognized the important constitutional distinction between measures levying new taxes and measures removing exemptions to already levied taxes. In an unbroken line of decisions dating to near statehood, we have accounted for this distinction through application of a two-part test that limits Article V, Section 33’s application to only those measures whose “principal object is the raising of revenue” and which “levy taxes in the strict sense of the word.”²¹ The first prong isn’t seriously in doubt here; the passage of HB 2433 was motivated by a desire to capture additional tax revenue to be used to support state government. But because we have always said that bills must have both features, this case turns on the second prong: whether the measure “levies a tax in the strict sense of the word.” Both the facts and the law compel the conclusion that it does not.

A.

¶ 9 As explained above, HB 2433 does not, as a matter of fact, levy a sales tax on automobiles. That tax was originally levied in 1933, and the most recent levy increasing that tax was in 1989.²² But for a legislative exemption that was granted to car buyers, sales of automobiles-just like other sales of goods-would be subject to the sales tax.²³ HB 2433 merely revokes a portion of that special exemption from sales tax such that car buyers now receive only a partial exemption from sales tax, rather than the complete exemption they have long enjoyed. HB 2433 thus does not levy a tax; it merely makes automobile sales subject to the sales tax that was levied on automobile sales many decades prior.

¶ 10 Nor does HB 2433 levy a tax in any legal sense. “Strictly speaking, a levy is the legislative act, whether state or local, which determines that a tax shall be laid, and fixes its amount.”²⁴ We have never held that a measure removing an exemption from an existing tax “levies a tax in the strict sense.” That complete absence of precedent for Petitioners’ position is strong evidence that removing an exemption has always been understood as something other than the levy of a tax. But stronger evidence still is found in our cases where we have explicitly held that making “certain property ... theretofore exempt from taxation .., subject to taxation” (i.e., removing an exemption from taxation) was not a levy of a tax.²⁵

¶ 11 In Leveridge v. Oklahoma Tax Commission,²⁶ for example, this Court was called on to determine whether Article V, Section 33 applied to a measure modifying an exemption from the automobile excise tax. The purpose of the measure at issue was, as its title stated, “to require payment of vehicle excise tax on manufacturer’s factory delivered price as to new vehicles of the latest manufactured model owned by used car dealers when same have not theretofore been registered in Oklahoma and an excise tax paid thereon.”²⁷ In simpler terms, used cars that had previously been titled in another state and which were owned by used car dealers were exempt from the excise , tax.²⁸ Used car dealers discovered that they could take advantage of this exemption by titling new cars in' other states, and then selling those cars in Oklahoma as used cars exempt from the tax,²⁹ Because this exemption was causing the State to miss out on revenue, the Legislature enacted House Bill 885.

¶ 12 HB 885 amended the law in two ways, both of which were designed to aid in the capture of those lost revenues. First, the measure amended the relevant exemption found in 47 O.S.1951 52d “so as to specifically provide that a used car dealer was not exempt from motor vehicle excise taje upon registering a motor vehicle of the ‘latest manufactured model’ for the first time in Oklahoma, even though the vehicle had theretofore been registered in some other state.”³⁰ Second, because under the existing definitions of “new” and “used” cars, a car owned by a used car dealer was never considered “new,” even if it was of the .latest model year, the measure amended the definitions in 47 O.S.1951 52e so that “a used car dealer could own a ‘new vehicle’ for the purposes of the Motor Vehicle Excise Tax Act and could therefore be subjected to motor vehicle excise tax on the basis of 100% of the factory delivered price of the vehicle.”³¹ Neither of these amendments can be fairly construed as having a purpose besides raising revenue.

¶ 13 Accordingly, we never suggested that the purpose of the measure was anything other than to raise revenue. Had there been a plausible argument that the purpose was something other than raising revenue, one would expect the Tax Commission to make that argument; but it didn’t. It instead defended the bill on the basis that it “d[id] not levy a tax in the strict sense of the word.”³² Likewise, if it were the ease that the measure in Leveridge failed that first prong of our “revenue bill” test,- one would expect this Couid to have resolved the case on that basis; but we didn’t. We instead' resolved the case on the basis that-even if revenue raising was its purpose-the measure didn’t levy a tax, holding that “[t]he bill under consideration does not within its four corners levy a tax and for said reason is not per se a revenue bill.”³³ In reaching that holding, we reasoned that “at most ... H. B. 885 ... merely declare[s] that certain property (automobiles of the latest manufactured models owned by used car dealérs) theretofore exempt from taxation (the motor vehicle excise tax) shall thereafter be subject to: taxation. Such amendments do not constitute a revenue bill.”³⁴

¶ 14 The takeaway from Leveridge is thus straightforward: measures removing exemptions from already levied taxes are not revenue bills. This conclusion was entirely consistent with our constitutional policy disfavoring exemptions, and also with our longstanding Article V, Section 33 test, which requires that a measure “levy a tax in the strict sense” if it is to be considered a revenue bill. Because the measure at issue in Leveridge levied no new tax, but merely removed an exemption from an already levied tax, it didn’t meet the test.

B.

¶ 15 As was the ease in Leveridge, HB 2433 doesn’t levy a tax in the strict sense because it merely removes a previously granted exemption from an already levied tax, making “certain [transactions] ... theretofore exempt from taxation ... subject to taxation.” Leveridge should thus be disposi-tive of this case. Recognizing as much, the Petitioners attempt to distinguish the case, but do so unpersuasively.³⁵

¶ 16 First, Petitioners insist that the measure at issue in Leveridge lacked a revenue-raising purpose. As explained above, however, nothing in Leveridge supports the notion that the measure at issue there had a principal object other than raising revenue. That is not how the bill was defended, it did not serve as any part of our holding in the case, and the title and text of the measure expressed a revenue-raising purpose and nothing else.³⁶ And while Petitioners are correct in a certain sense when they say that the measure was designed to “close a loophole” that allowed used car dealers to avoid certain taxation, this merely begs the obvious question: Why does government seek to close loopholes in its tax code? To collect more tax revenue, of course.

¶ 17 At bottom, Petitioners’ argument is that HB 2433 must be a revenue bill because it causes people to have to pay more taxes. But to say that removal of an exemption from taxation causes those previously exempt from the tax to pay more taxes is merely to state the effect of removing an exemption. It does not, however, transform the removal of the exemption into the levy of a tax, and it begs the dispositive question of whether removal of an exemption is the “levy of a tax in the strict sense.” Indeed, the measure at issue in Leveridge could just as easily have been characterized as “imposing a tax disguised as an exemption removal” on new cars that were previously either taxed not at all or at a lower rate. Yet, despite their common effect (causing someone to have to pay a tax they previously didn’t have to pay), removing an exemption and levying a new tax are distinct as a matter of fact and law. Our Constitution’s restrictions on the enactment of revenue bills are aimed only at those bills that actually levy a tax. The policy underlying those restrictions is not undercut in an instance such as this, because the original levies of the sales tax on automobile sales were subject to Article V, Section 33’s restrictions.

¶ 18 It has also been suggested that the 1992 passage of State Question 640 modified our definition of “revenue bill” such that we no longer need inquire as to whether the measure levies a tax in the strict sense-in other words, that revenue-raising intent alone should decide the case. We have rejected this notion on three occasions now, including in our recent unanimous decision in Naifeh v. State ex rel. Oklahoma Tax Commission,37 and were correct to do so each time.

¶ 19 Article V, Section 33 can best be thought of as having two parts. The first describes the object to which it applies (“revenue bills”), and the second describes the requirements it imposes on those revenue bills. SQ 640 only amended the second part by adding the requirement that revenue bills be approved by either the people or by a super-majority of the Legislature. It did not amend the first part defining the provision’s coverage.³⁸ Our many cases defining “revenue bill” — including Leveridge, which excluded exemption — removing measures from the definition of “revenue bill” — existed at the time SQ 640 was drafted, but the drafters of the amendment chose to leave that portion of Article V, Section 33 unchanged.³⁹ Thus, both before and after SQ 640, Article V, Section 33 only applies to “revenue bills,” and “revenue bills” are only those bills that (1) have the primary purpose of raising revenue for the support of state government and (2) levy a tax in the strict sense of the word.⁴⁰ Even putting the plain text aside, no party has provided any, evidence that SQ 640 was intended to overrule our prior cases that say the term “revenue bill” does not include measures making “property ,,. theretofore exempt from taxation ... subject to taxation.”⁴¹

¶ 20 In sum, artificially distinguishing our prior holdings in order to allow some exemption removals but not others would deny the Legislature and the people the legal predictability, regularity, and clarity that it is our obligation to provide. The Legislature would be left guessing as to whether its next attempt to remove an exemption will be treated like the measure in Leveridge, or like the measure at issue here. We instead choose to provide the Legislature with a workable bright line rule: measures whose primary purpose is to raise revenue for the support of state government and which levy a tax in the strict sense are “revenue bills”; measures merely eliminating special exemptions to already levied taxes are not,⁴²

III.

¶ 21 It’s understandable that some might at first blush think that our prior cases elevate form- over function. After all, as a result of HB 2433, those buying a car will pay more taxes to the State than they did before, even if no new tax was. actually levied. But on closer examination it is apparent that the distinction between (1) elimination of a special exemption from an existing tax -and (2) a levy of a new tax, is one deeply rooted in our Constitution and in our founders’ notions .of fair play when it came to bearing the burdens of taxation.

¶22 Oklahoma’s preference for the uniform administration of taxes is expressed in our Constitution in a variety of ways. First are.the complementary commands of Article X, Section 5, and Article V, Section 50. Together, those provisions demand that “[tjaxes shall be uniform upon the same class of subjects,”⁴³ and that “[t]he Legislature shall pass no- law exempting any property within this State from taxation, except as otherwise provided- in this Constitution.”⁴⁴ Likewise, Article V, Section 46, prohibits the Legislature from passing any local or special law that, among other things, “exempt[s] property from taxation,”⁴⁵ while Sections 51 and 59, more generally require the uniform application of laws and prohibit the ■ extension of special treatment- to favored groups or persons.⁴⁶ Read together, these provisions express an unmistakable constitutional policy disfavoring special exemptions from taxation and favoring uniformity of taxation, such that all citizens help shoulder the financial burden of supporting our state government.

¶ 23 The people articulated in our Constitution only a few limited exceptions to this rule. Article X, Section 6 delineates specifically the people’s desire that certain things like libraries, museums, cemeteries, orphanages, churches, etc., be exempt from taxation.⁴⁷ The people then sharply limited the Legislature’s ability to enlarge those constitutional exemptions or grant new statutory exemptions, while giving the Legislature the authority to revoke any exemptions that existed outside the Constitution. We described this constitutional framework as follows: “the Legislature is vested with power, Sec. 6, Art. 10, Const., to qualify, curtail or annul any exemption from taxation but it is without power to grant éxemptions other than those recognized by the Constitution or to enlarge the exemptions so recognized.”⁴⁸

¶ 24 Given all this, it is impossible to conceive that the people-the same people who placed in the Constitution these strong limitations on exemptions and gave the Legislature the power “to qualify, curtail or annul any exemption from taxation” — intended that measures revoking special exemptions would be subject to the strict requirements of Article V, Section 33-requirements whose sole purpose is to hamstring the Legislature’s ability to act. Indeed, Petitioners ask us to enshrine in our Constitution a policy in favor of such exemptions by making measures eliminating exemptions subject to Article V, Section 33, Were we to do so, the Legislature would be able to .hand out special exemptions with only 51% support, but would not be able to take them back without at least 75% support. The practical effect of such a one-way-ratchet rule is that the many special exemptions from taxation currently existing in our tax code — billions worth, according to the Tax Commission⁴⁹ — would be exceedingly difficult to eliminate. That is a result we think wholly inconsistent with the uniformity of taxation policy the people enshrined in our Constitution, a policy designed to ensure that the burdens of supporting our state government were not disproportionately placed on those lacking the political clout to secure special dispensations from taxation.⁵⁰

¶ 25 Petitioners account for none of this. Accordingly, we reject their request that we replace our Constitution’s preference for uniformity with a new policy favoring special exemptions from taxation by making them easy to enact, but all-but-impossible to revoke. Our policy disfavoring new tax levies can-and should-coexist with our policy disfavoring disparity in taxation. Indeed, our obligation as a court is to give vitality to all provisions in the Constitution, and where one constitutional provisions butts up against another, we must harmonize the two rather than allow one to run roughshod over the other.⁵¹

[[Image here]]

¶ 26 HB 2433 was not enacted in violation of Article V, Section 33. Accordingly, we assume original jurisdiction and deny Petitioners’ request for a Writ of Prohibition. 27 Any petition for rehearing shall be filed no later than 5 p.m. on the 6th day of September, 2017. If no petition for rehearing is filed by that deadline, this opinion shall be final.

ORIGINAL JURISDICTION ASSUMED. PETITION FOR WRIT OF PROHIBITION DENIED.

Gurich, V.C.J., Kauger, Winchester, Reif, and Wyrick, JJ., concur. Combs, C.J. (by separate writing), Watt (by separate writing), Edmondson, and Colbert, JJ., dissent.

1 . Naifeh v. State ex rel Okla. Tax Comm’n, 2017 OK 63, ¶¶ 1, 3, 400 P.3d 759.

Article V, Section 33 provides as follows:

A. All bills for raising revenue shall originate in the House of Representatives. The Senate may propose amendments to revenue bills.

B. No revenue bill shall be passed during the five last days of the session.

C. Any revenue bill originating in the House of Representatives shall not become effective until it has been referred to the people of the estate at the next general election held throughout the state and shall become effective and be in force when it has been approved by a majority of the votes cast on the measure at such election and not otherwise, except as otherwise provided'in subsection D of this section.

D. Any revenue bill originating in the House of Representatives may become law without being submitted to a vote of the people of the state if such bill receives the approval of three-fourths (3/4) of the membership of the House of Representatives and three-fourths (3/4) of the .membership of the Senate and is submitted to the Governor for appropriate action. Any such revenue bill shall not be subject to the emergency measure provision authorized in Section 58 of the Article and shall not become effective and be in force until ninety days after it has been approved by the Legislature, and acted on by the Governor. ,

2 . Naifeh, 2017 OK 63, ¶ 0, 400 P.3d 759.

3 . HB 2433, 56th Leg. (Okla, 2017) (enacted) [hereinafter "HB 2433” or "the Act”].

4 . House Journal, 56th Leg., 1st Reg. Sess. 1316— 17 (Okla, 2017) (showing passage of HB 2433 in the House,by a vote of 52 ayes to 47 nays — with 2 vacancies — on May 24, 2017); Senate Journal, 56th Leg., 1st Reg/ Sess. 1260-61 (Okla. 2017) (showing passage in the Senate by a vote of 25 ayes to 18 nays — with 3 excused votes and 2 vacancies — on May 26, 2017),

5 . Leveridge v. Okla. Tax Comm'n, 1956 OK 77, ¶¶ 0, 13, 294 P.2d 809, 809, 812; Cornelius v. State ex rel. Cruce, 1914 OK 222, ¶ 9, 40 Okla. 733, 140 P. 1187, 1189 (quoting Mumford v. Sewall, 11 Or. 67, 4 P. 585, 587 (1883)).

6 . See Oklahoma Sales Tax Law, ch. 196, 5, 1933 O.S.L. 456, 460 (repealed 1935); Oklahoma Consumers' Tax Law of 1935, ch. 66, art. 7, 4, 1935 O.S.L. 308, 309 (repealed 1937); The Consumers and Users Tax Act, 1937, ch. 66, art. 10, 5, 1937 O.S.L. 445, 447 (repealed 1939); The Consumers and Users Tax Act, 1939, ch. 66, art. 11, 5, 1939 O.S.L. 448, 451 (repealed 1941); 68 O.S.1961 1251c (repealed 1963) (originally enacted as The Sales Tax Act, 1941, tit. 68, ch. 27, 5, 1941 O.S.L. 383, 385); 68 O.S.Supp.1963 13-1304 (renumbered 1965) (originally enacted as Oklahoma Sales Tax Code, ch. 367, sec. 2, 1304, 1963 O.S.L. 680, 682); 68 O.S. 1971 1304 (amended 1980 & repealed 1981) (renumbered from 68 O.S. 13-1304 by Act of June 14, 1965, ch. 215, 2, 1965 O.S.L. 378, 378); 68 O.S.Supp.2016 1354 (originally enacted as Act of June 29, 1981, ch. 313, sec. 2, 1354, 1981 O.S.L. 1069, 1073).

7 . Oklahoma Consumers' Tax Law of 1935, ch. 66, art. 7, 5(f), 1935 O.S.L. 308, 310 (repealed 1937) ("There are hereby specifically exempted from the [sales] tax imposed by this Act, the following: ... (f) The gross proceeds derived from the sale and/or purchase of any tangible personal property and/or service subject to any stamp, excise or any other kind of tax, imposed under and by virtue of Article Ten (10), Section Twelve (12) of the Constitution of the State of Oklahoma ....”); The Consumers and Users Tax Act, 1937, ch. 66, art. 10, 6(a), 1937 O.S.L. 445, 448 (repealed 1939) (specifically making mention for the first time of "[g]ross receipts or gross proceeds derived from the sale of motor vehicles" within the exemption); The Consumers and Users Tax Act, 1939, ch. 66, art. 11, 6(n), 1939 O.S.L. 448, 454 (repealed 1941); 68 O.S.1961 1251d(1)(m) (repealed 1963) (originally enacted as The Sales Tax Act, 1941, tit. 68, ch. 27, 6(1)(n), 1941 O.S.L. 383, 387); 68 O.S.Supp.1963 13-1305 (renumbered 1965) (originally enacted as Oklahoma Sales Tax Code, ch. 367, sec, 2, 1305(0, 1963 O.S.L. 680, 683); 68 O.S.Supp. 1971 1305 (amended 1975 & 1980, repealed 1981) (renumbered from 68 O.S. 13-1305 by Act of June 14, 1965, ch. 215, 2, 1965 O.S.L. 378, 378); 68 O.S.Supp.2016 1355(2) (originally enacted as Act of June 29, 1981, ch. 313, sec. 2, 1355(D), 1981 O.S.L. 1069, 1075).

The original enactment of this exemption from the sales tax coincided with the first levy of the motor vehicle excise tax in 1935, see Act of Apr. 22, 1935, ch. 66, art. 12, 1, 1935 O.S.L. 328, 328, which has remained on the books ever since, see id. (repealed 1937); Motor Vehicle Excise Tax, ch. 50, art. 8, 4, 1937 O.S.L. 362, 364 (repealed 1939); Act of Apr. 18, 1939, ch. 66, art. 13, 3, 1-939 O.S.L. 463, 465 (repealed 1941); 47 O.S. 1961 52b (repealed 1963) (originally enacted as Act of Feb. 10, 1941, tit. 47, ch. 2, 3, 1941 O.S.L. 195, 196); 47 O.S.Supp.1963 21-103 (renumbered 1965) (originally enacted as Oklahoma Vehicle Excise Tax Code, ch. 361, sec. 2, 2103, 1963 O.S.L. 623, 624); 68 O.S.Supp.2016 2103 (renumbered from 68 O.S. 21-103 by Act of June 14, 1965, ch. 215, 3, 1965 O.S.L. 378, 378).

8 . HB 2433, 1-2.

9 . 68 O.S.Supp.2016 1354.

10 . See Act of Apr. 25, 1989, ch. 2, 101, 1989 O.S.L. Supp. 167, 240 (raising the sales tax from 4% to 4.5%).

11 . See generally HB 2433.

12 . 1354(A).

13 . 68 O.S.Supp.2016 2103.

14 . Act of June 21, 1985, ch. 179, 90, 1985 O.S.L. 588, 667 (raising the excise tax from 2% to 3.25%).

¹⁵

16 . 2103(A)(1).

17 . 68 O.S.Supp.2016 1355(2).

18 . 68 O.S.2011 2106(a).

19 . HB 2433, 1 (emphasis added).

20 . Id. 2 (emphasis added).

21 . Anderson v. Ritterbusch, 1908 OK 250, ¶ 11, 22 Okla. 761, 98 P. 1002, 1006 (quoting In re The Nashville, 17 F. Cas. 1176 (D. Ind. 1868)), overruled on other grounds by Fent v. Fallin, 2014 OK 105, ¶¶ 7, 17-18, 345 P.3d 1113, 1115-16, 1118 (overruling dicta in 14 of the Anderson opinion that suggested the definition of "raising revenue" might include bills resulting in a decrease of revenue); accord Naifeh, 2017 OK 63, ¶ 17, 400 P.3d 759; Ali v. Fallin, 2017 OK 39, — P.3d -; Fent, 2014 OK 105, ¶¶ 6, 10, 345 P.3d at 1115-16; Calvey v. Daxon, 2000 OK 17, ¶¶ 10-14, 997 P.2d 164, 169-70; Fent v. Okla. Capitol Improvement Auth., 1999 OK 64, ¶ 12, 984 P.2d 200, 209; In re Initiative Petition No. 348, State Question No. 640, 1991 OK 110, ¶ 3 n.3, 820 P.2d 772, 774 n.3; Bd. of Cnty. Comm’rs of Lincoln Cnty. v. Okla. Pub. Emps. Ret. Sys., 1965 OK 111, ¶¶ 22-23, 405 P.2d 68, 72-73; Leveridge, 1956 OK 77, ¶ 8, 294 P.2d at 811; Pure Oil Co. v. Okla. Tax Comm'n, 1936 OK 516, ¶ 10, 179 Okla. 479, 66 P.2d 1097, 1100; Wallace v. Gassaway, 1931 OK 210, ¶ 18, 148 Okla. 265, 298 P. 867, 870; Ex parte Sales, 1924 OK 668, ¶ 7, 108 Okla. 29, 233 P. 186, 187; Lusk v. Ryan, 1918 OK 94, ¶ 3, 69 Okla. 165, 171 P. 323, 324; In re Lee, 1917 OK 458, ¶ 32, 64 Okla. 310, 168 P. 53, 57; Trustees', Executors' & Sec. Ins. Corp. v. Hooton, 1915 OK 1059, ¶¶ 24-26, 53 Okla. 530, 157 P. 293, 298; Cornelius, 1914 OK 222, ¶ 10, 40 Okla. 733, 140 P. at 1189. These cited cases establish that we have consistently and always applied the traditional two-part test in all Article V, Section 33 cases — a test requiring that a measure "levy a tax in the strict sense of the word,” which necessarily excludes measures that eliminate exemptions because such measures simply do not levy a tax in the strict sense of the word. We have only decided two Article V, Section 33 cases involving exemptions (both of which held that measures eliminating exemptions are not subject to Article V, Section 33) in over a century of hearing such challenges, which bolsters the conclusion that measures eliminating exemptions have not traditionally been understood as falling within Article 5, Section 33's purview.

22 . See supra notes 6, 10 and accompanying text.

23 . Automobiles would hardly be the first goods subjected to both excise and sales tax. See, e.g., 37 O.S.Supp.2016 576(C) (imposing a gross receipts tax upon mixed alcoholic beverages that would “be in addition to the excise tax levied in Section 553 of this title, the sales tax levied in the Oklahoma Sales Tax Code and to any municipal or county sales taxes”).

24 . Olson v. Okla. Tax Comm'n, 1947 OK 58, ¶ 11, 198 Okla. 607, 180 P.2d 622, 624 (defining the word "levy” as used in Article X, 12 of the Oklahoma Constitution); In re Protest of First Nat'l Bank of Guthrie, 1929 OK 183, ¶ 8, 136 Okla. 141, 276 P. 766, 767 (quoting 3 Thomas McIntyre Cooley, The Law of Taxation 1012, at 2043-44 (Clark A. Nichols ed. 4th ed. 1924)) (defining the word "levy” as used in Article X, 9 of the Oklahoma Constitution and in O.S. 1921 9692).

25 . Leveridge, 1956 OK 77, ¶¶ 0, 13, 294 P.2d at 809, 812; Cornelius, 1914 OK 222, ¶ 9, 40 Okla. 733, 140 P. at 1189 (quoting Mumford, 4 P. at 587).

26 . 1956 OK 77, 294 P.2d 809.

27 . Act of May 26, 1955, tit. 47, ch. 2, 1955 O.S.L. 262, 262.

28 . See 47 O.S.1951 52d(e) ("An original or a transfer certificate of title shall be issued without the payment of the excise tax levied by this Act for: ... (e) Any vehicle legally owned by a'person licensed as a dealer in used cars or parts, under the provisions of the Vehicle License and Registration Act, [47 O.S.1951 22 to 22.25,] and offered for sale by such person.”).

29 . See Leveridge, 1956 OK 77, ¶¶ 1, 4, 294 P.2d at 809-10 (describing how S.B. Leveridge, a used car dealer, had titled a new Ford vehicle in Missouri and had then attempted to obtain an original certificate of title from the Tax Commission without paying the excise tax required for new vehicles but not for used vehicles). Prior to the amendment of the excise tax exemption that was at issue in the Leveridge case, used car dealers had successfully employed this modus oper-andi with the blessings of this Court. See Kendall v. Okla. Tax Comm'n, 1955 OK 38, 283 P.2d 511. In fact, this Court’s willingness in the Kendall case to allow used car dealers to avoid the excise tax was likely part of the impetus for the Legislature’s amendment of the exemption statute that eventually led to the challenge in the Leveridge case.

30 . Leveridge, 1956 OK 77, ¶ 7, 294 P.2d at 811.

31 . Id. ¶ 6, 294 P.2d at 811.

32 . Id. ¶ 4, 294 P.2d at 810.

33 . Id. ¶ 12, 294 P.2d at 811.

34 . Id. ¶ 13, 294 P.2d at 812.

35 .While some may disagree with our holding in Leveridge, we have continued to rely on Leveridge as good law, including in post-1992 cases. See Naifeh, 2017 OK 63, ¶ 21 n.39, 400 P.3d 759; Calvey, 2000 OK 17, ¶¶ 10 n.11, 18 n.24, 997 P.2d at 168 n.11, 171 n.24. Even if overruling Leveridge were proper as a matter of stare decisis, to pull the rug out from under the Legislature in a decision not limited to prospective application would be problematic, given our longstanding rule that "[w]e uphold the legislative enactment unless the statute is clearly, palpably and plainly inconsistent with the constitution.” Zeier v. Zimmer, Inc., 2006 OK 98, ¶ 12, 152 P.3d 861, 866 (emphasis added). We find it impossible to conclude that HB 2433 is clearly, palpably, and plainly unconstitutional where (1) we have never before held that such a measure is a revenue bill, (2) we have previously explicitly held that measures removing exemptions are not revenue bills, and (3) we have explicitly held that the 1992 amendment did not change the definition of "revenue bill.”

36 . See supra notes 27, 30-34 and accompanying text.

37 . 2017 OK 63, 400 P.3d 759 (applying the traditional two-part test); Fent, 2014 OK 105, ¶ 16, 345 P.3d at 1117; Calvey, 2000 OK 17, ¶¶ 13-14, 997 P.2d at 169-70.

38 . Calvey, 2000 OK 17, ¶¶ 13-14, 997 P.2d at 169-70.

39 . The ballot title of SQ 640, where it said that SQ 640 "would change the method by which state government makes laws that raise revenue," does not support the notion that SQ 640 changed the definition of “revenue bill.” No one disputes that SQ 640 "changed the method by which state government makes laws that raise revenue" by adding a requirement that "revenue bills" be enacted either by the people or by a super-majority of the Legislature — a hugely significant change that made it vastly more difficult for the Legislature to enact revenue bills. This phrase from the ballot title tells us nothing, however, about whether SQ 640 changed the definition of "revenue bill.” As we have repeatedly held, it didn’t. Fent, 2014 OK 105, ¶¶ 10, 16, 345 P.3d at 1116-17 (stating that that die 1992 amendment "did not change the clearly settled meaning of the terms, 'revenue bill' or 'bill for raising revenue’ ” and that "no change was made to the definition of ‘raising revenue' in 1992"); Calvey, 2000 OK 17, ¶¶ 13-14, 997 P.2d at 169-70. And we know this because the text of the amendment left the term "revenue bill” and other scope-defining portions of Article V, Section 33 unchanged, and the ballot title describes no such definition-changing purpose. Indeed, this Court reviewed that ballot title to ensure that it adequately explained the effect of the measure, and we approved that ballot title. In re Initiative Petition No. 348, State Question No. 640, 1991 OK 110, 820 P.2d 772. Had SQ 640 been designed to change the definition of "revenue bill,” we would not have approved the ballot title unless it sufficiently explained that purpose to the people; we would not have allowed SQ 640 to erase a century of well understood meaning sub silentio. And as a matter of original public meaning, in looking to how the public in 1992 would have understood the term "revenue bill,” a term with a well-defined legal meaning, we recognize that the public would have understood the term to mean what it had consistently meant for the past 100 years of Oklahoma law. See Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947) ("[I]f a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.”). For example, if the people chose to amend our due process clause to make it now apply to deprivations of "life, liberty, property, or happiness,” no one would argue that the prior centuries-worth of law defining what constitutes "due process" should be cast aside. Instead, all would understand that the amendment merely added one thing to the list of things that cannot be taken away without due process, but that due process means what our prior cases have said it means.

40 . Calvey, 2000 OK 17, ¶ 14, 997 P.2d at 170 ("The 1992 amendment of art. 5, 33 merely changed the method state government may use to raise revenue. It did not change the clearly settled meaning of the terms, 'revenue bill’ or ‘bill for raising revenue.' .,, We determine, consistent with cases spanning in excess of the last ninety years, that; 1) revenue bills are those laws whose principal object is the raising of revenue and which levy taxes in the strict sense of the word; and 2) laws under which revenue may incidentally arise are not ‘revenue bills’ or ‘bills for raising revenue' within the meaning of art. 5, 33.”). Fent made it abundantly clear that our pre-1992 cases defining "revenue bill” remain good law, a fact confirmed by our application of the traditional two-part test for revenue bills in the Article V, Section 33 cases we have decided since. Indeed, one need not read past the syllabus of Naifeh to discover that we “[ajpplfied] the test we have utilized since 1908," Naifeh, 2017 OK 63, ¶ 0, 400 P.3d 759, while in Fent we repeatedly looked to that same 1908 test as controlling, Fent, 2014 OK 105, ¶ 6, 345 P.3d at 1115 (citing Anderson, 1908 OK 250, 22 Okla. 761, 98 P. 1002). In Fent, we looked to the context surrounding the enactment of the 1992 amendment not to redefine the term "revenue bill,” but rather to answer a question that had never been posed to this Court-namely, whether measures that result in less revenue for the State can be considered "revenue bills” or "bills for raising revenue” — and that context helped shed light on the proper answer to that previously unanswered question. Id. ¶¶ 6-7, 17, 345 P.3d at 1115-18 Accordingly, Fent did not require us to abandon or even modify a pre-1992 holding, nor did it require us to "change” any prior law defining the term "revenue bill”; we merely clarified that any dicta in Anderson suggesting that the term "revenue bill” might encompass a revenue-decreasing measure was not controlling. Id. (explicitly acknowledging that Anderson "did not involve a bill which decreased revenue,” but “to the extent that Anderson v. Ritterbusch implies" that a bill which decreases revenue could be a revenue bill, "it is expressly overruled.” (emphasis added)). Arguments to the contrary fail to account for the fact that in Fent — just as' in Calvey before it and Naifeh after it — we confirmed the 1992 amendment "did not change the clearly settled meaning of the terms, 'revenue bill’ or ‘bill for raising revenue.’ " Id. ¶ 16, 345 P.3d at 1117.

41 . Fent makes clear that Article V, .Section 33 only applies to legislation-that increases revenue, but Fent does not declare that Article V, Section 33 applies to all legislation that increases revenue. If that were the case, then there would be no need to distinguish those measures that primarily raise revenue from those that incidentally do so and no need to distinguish between measures that levy taxes from measures that impose fees. But see Naifeh, 2017 OK 63, ¶¶ 43-49, 400 P.3d 759 (doing just that). Indeed, there would be no need for a two-part test at all.

42 . To be clear, this rule merely allows the Legislature to amend statutory language that specifi- . cally exempts certain property from an already levied tax, making property that would have been subject to the tax — but for the exemption — subject going forward, Cf. Apache Corp. v. State ex rel. Okla. Tax Comm’n, 2004 OK 48, ¶ 10, 98 P.3d 1061, 1064 (describing a tax exemption as a "matter[] of legislative grace”); William Clairmont, Inc. v. State, 261 N.W.2d 780, 783-84 (N.D. 1978) (describing an exemption as "a special freedom from taxation imposed upon others”). It does not, ás Petitioners’ arguments would suggest, allow the Legislature to add new classes of property tó a tax- that was never designed to apply to that properly — e.g., amending the gasoline tax to apply to a gallon of milk. See Pet'rs’ Reply Br. 7-8. The gallon of milk in that example cannot be "exempt” from the gasoline tax, as the milk was never subject to the tax in . the first place. Subjecting milk to the gasoline tax would therefore constitute a levy of a new tax, rathei than a mere removal of an exemption from an already ievied tax.

43 , Okla. Const. art. X, 5(B).

44 . Okla. Const. art. V, 50.

45 , Id. 46 ("The Legislature shall not, except as otherwise providedin this Constitution, pass any local or, special law authorizing; ... [ejxempting property from taxation; .... ”). .

46 . See id. 51 (“The Legislature shall pass no law granting to' any association, corporation, or individual any exclusive rights, privileges, or immunities within this State.”); id. 59 ("Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted.”).

47 . Okla. Const. art. X, 6(A). Article X, Section 6 provides as follows:

A. Except as otherwise provided in subsection B of this section, all property .used for free public libraries, free museums, public cemeteries, property used exclusively for nonprofit schools and colleges, and all property used exclusively for religious and charitable purposes, and all property of the United States except property for which a federal .agency obtains title through foreclosure, voluntary or involuntary liquidation or bankruptcy unless the taxation of such property is prohibited by federal law; all property of this state, and of counties and of municipalities of this state; household goods of the heads of families, tools, ' implements, and livestock employed in the support of the family, not exceeding One Hundred Dollars ($100.00) in value, and all growing crops, shall be exempt from taxation: Provided, that all property not herein specified now exempt from taxation under the laws of the Territory of Oklahoma, shall be exempt from taxation until otherwise provided by law. . All property owned by the Murrow Indian Orphan Home, located in Coal County, and all property owned by the Whitaker Orphan Home, located in Mayes County, so long as the same shall be used exclusively as free homes or schools for orphan children, and for poor and indigent persons, and all fraternal orphan homes, and other orphan homes, together with all their charitable funds, shall be exempt from taxation, and such property' as may be exempt by reason of treaty stipulations, existing between the Indians and the United States government, or by federal laws, during the force and effect of such treaties or federal laws. The Legislature may authorize any incorporated city or town, by a majority vote of its electors voting thereon, to exempt manufacturing establishments and public utilities from municipal taxation, for a period not exceeding five (5) years, as an inducement to their location.

Up to one hundred (100) square feet of a storm shelter designed for protection and safety from tornadoes or tornadic winds and installed or added to an improvement to real property after January 1, 2002, shall be exempt from taxation. A storm shelter shall include, but not be limited' to, a safe room built as part of and within an improvement to real property. If title to property with an exempt storm shelter is transferred, changed or conveyed to another person, such storm shelter shall be assessed'for that year based on the fair cash value as set forth in Section 8 of this article. .

B. The board of county commissioners of any county may call a special election to determine whether or not household goods of the heads of families and livestock employed in support of the family located within the county shall be exempt from ad valorem taxation. Such an election shall also be called by the board upon petition ’ signed by not less than twenty-five percent (25%) of the registered voters of the county. Upon passage of the question, the exemption provided for in this subsection shall become effective on January 1 of the following year.

48 . Cnty. Assessor, Okla. Cnty. v. United Bhd. of Carpenters & Joiners of Am., Local No. 329, 1949 OK 240, ¶ 17, 202 Okla. 162, 211 P.2d 790, 794 (citing Beta Theta Pi Corp. v. Bd. of Comm'rs of Cleveland Cnty., 1925 OK 176, 108 Okla. 78, 234 P. 354).

49 . See Pet'rs' Reply Br. 7 & nn. 9-10 (citing Pet'rs' App'x, Doc. 12, Tax Policy Div., Okla. Tax Comm’n, Tax Expenditure Report 2015-2016, available at https://www.ok.gov/tax/documents/ Tax% 20Expenditure% 20Report% 202015-2016.-pdf).

50 . There are undoubtedly some who think a rule making special exemptions difficult to revoke would be a victory for taxpayers. But it wouldn't be; it would be a victory for the status quo. Those lucky enough to have successfully lobbied for the many special exemptions that litter our tax code would celebrate the prospect that their exemptions were here to stay. Those not so lucky, however, would be left to continue holding the bag, forced to shoulder more than their fair share of the burden of supporting state government. And as our budget crisis persists, the Legislature would be left to confront it lacking the best and most equitable tool it has at its disposal to find new revenue: the ability to clean up our tax code so as to provide more of the uniformity and equity that our Constitution demands.

51 . Okla. City Urban Renewal Auth. v. Med. Tech. & Research Auth. of Okla., 2000 OK 23, ¶ 17, 4 P.3d 677, 686 ("[C]onstitutional provisions are construed to harmonize with each other with a view to giving effect to each and every provision.”); Jones v. Winters, 1961 OK 224, ¶ 42, 365 P.2d 357, 363 ("It is a universally recognized rule of construction that, in ascertaining both the intent and general purpose, as well as the meaning, of a constitution or a part thereof, it should be construed as a whole. As far as possible, each provision should be construed so as to harmonize with all the others, yet with a view to giving effect to each and every provision in so far as it shall be consistent with a construction of the instrument as a whole.” (quoting Latting v. Cordell, 1946 OK 217, ¶ 7, 197 Okla. 369, 172 P.2d 397, 399)).