Osage & Oklahoma Co. v. Millard, Co.

1915 OK 6, 145 P. 797, 45 Okla. 334, 1914 Okla. LEXIS 273

• Court: Supreme Court of Oklahoma
• Decided: January 9, 1915
• Docket: 6099
• Status: Published

Opinions

RIDDLE, J.

This is an original proceeding in'this court, instituted by plaintiff against defendants, praying for a writ of . prohibition. Plaintiff, in substance, avers that defendant Ret Millard is county treasurer of Osage county; that C. H. Pittman is the special tax auditor of said county, engaged in attempting to discover property, personal and real in said county not theretofore listed and assessed for taxation under the laws of this state; that plaintiff is a public service corporation, and that it owns its franchise in the city of Tulsa for the distribution and sale of gas to its inhabitants; that it maintains a pipe line in a gas field in Osage county and in the city of Tulsa, and maintains and operates a distributing plant in the city of Tulsa under a franchise granted by said city. Plaintiff further states that during all times mentioned its property, under the Constitution and laws of the state, was subject to assessment by'the state board of equalization; that it has for each of the years hereinafter mentioned filed 'with the state auditor a list of all its property, real, personal, and mixed, as the same existed on the 1st day of February in each year, as required by article 4, c. 72, Bev. Laws 1910; that said C. H. Pittman, as special tax auditor of Osage county, has filed a report with said county treasurer giving a list of property belonging to plaintiff for each of the years named'; that the same consists of gas leases, and "the value thereof for each of said years is alleged to be as follows, to wit: 1908, $156,-000; 1909, $134,000; 1910, $863,000; 1911, $1,033,000; 1912, $1,423,000; 1913, $2,216,000. Plaintiff states that afterwards, oh February 9, 1914, said county treasurer notified plaintiff to appear at his office on February 20, 1914, and show reason, if any, why said property should not be added to the tax rolls and taxes’ collected thereon for the years and respective amounts above stated. It is further alleged that its gas, oil, and minerals are part' of the real estate 'and are assessable and taxable as such; that the gas leases, if property, constitute an investment off the capital of plaintiff; and that all the money and capital of plaintiff was included in the various reports made to the state auditor and considered and assessed by the state board of equalization; that the state board of equalization is vested with the sole and exclusive jurisdiction to assess the property belonging to plaintiff; that defendants have no authority or jurisdiction under the law to assess the property of plaintiff and place the same upon the tax rolls of Osage county. It is then alleged that' defendants, if not prohibited by this court, will proceed to assess said property, and that the same will be extended upon the tax rolls by the treasurer. Plaintiff prays that defendants be restrained.

Defendants filed their answer to the petition, the first part of which was in the nature of a general demurrer. It is then alleged that plaintiff is indebted to Osage county for taxes for the years set out in the petition, and that no offer has been made to pay any of the taxes for said years. It is denied that the report made by plaintiff to the board of equalization for the respective years contains a list of all the property owned by plaintiff. It is further alleged that at the time plaintiff filed with the state auditor its report for the years aforesaid, it was the owner of valuable gas leases, amounting to the values stated in plaintiff’s petition, and that plaintiff purposely and wrongfully refused to include said leases or to include said property in such report so filed with the state auditor; that plaintiff has not paid to' the state or to the officers of said county any tax upon said leases, nor has it at any time offered to pay any such tax; that by reason of the failure of plaintiff, to furnish the state board of equalization a list of the various leases which plaintiff owned during the years before mentioned, it deprived said state board of equalization of the knowledge that it owned said property, and deprived said board of the power to assess same, and plaintiff has waived its right to insist that such property must be assessed by such board. There was no reply filed to this answer, but defendants filed a motion for judgment on the pleadings. The issue as thus made Is presented for our determination.

On a reargument of this case upon a petition for rehearing and a further consideration of same, the other four members of the court have reached the conclusion that the original opinion in this case is not in harmony with the weight of authority, and that a rehearing should be granted, the former opinion vacated, and a writ of prohibition granted as prayed.

Defendants are proceeding to assess and extend on the tax-rolls for taxation plaintiff’s property under section 7449, Rev. Laws 1910, which reads:

“Tlie board of county, commissioners of any county in this state may contract with any person or persons to assist the proper officers of the county in the discovery of property not listed and assessed, as required by existing laws, and fix the compensation at not to- exceed fifteen per cent, of the taxes recovered under this article. Before listing and assessing the property discovered, the county treasurer shall give the person in whose name it is proposed to assess the same, ten days’ notice thereof by registered letter, addressed to him at his last known place of residence, fixing the time and place when objections in writing to such proposed listing and assessment may be made. An appeal may be taken to the county court for the final action of the treasurer within ten days, by giving notice thereof in writing and filing an appeal bond, as in cases appealed from the board of county commissioners to the district court.”

It is the contention of plaintiff: (1) That it being a public service corporation, under. article 10, see. 21, of the Constitution, the state board of equalization has exclusive jurisdiction to assess all public service corporation property; and (2) that section 7449, Rev. Laws 1910, supra, does not on its face purport to confer jurisdiction on the tax ferret or the county officers to assess property belonging to public service or railroad corporations, and it is contended that, if said provision of the statute is broad enough to cover property belonging to public service or railroad corporations, to that extent the same is in conflict with article 10, sec. 21, supra. So far as applicable here, said section of the Constitution, supra, referring to the state board of equalization, provides: “And they shall assess all railroad and public service corporation property.”

It is the conclusion of the majority of the court that this contention must be upheld; that the language of the Constitution in vesting power in the state board of equalization necessarily excludes the power of the Legislature from conferring authority upon any other person or officer to assess any property belonging to such corporation; that this language is equivalent to saying that the power is vested in the state board to assess all railroad and public service corporation property; and that this power shall not be vested in or exercised by any other official. The. case of Adams v. Tonella, 70 Miss. 701, 14 South. 17, 22 L. R. A. 346, would seem to sustain this construction. In the Mississippi Case it is shown that the Constitution of that state of 1869 provided in section 1, art. 5:

“A sheriff, coroner, treasurer, assessor and surveyor shall be elected in each county by the qualified electors thereof, who shall hold their offices for two years, unless sooner removed.”

It .is held by the court in that case that the Constitution, in providing the office of assessor and confining the office of territorial limits of his county, divided the state into as many taxing districts as there were counties; that the office of assessor spoken of in the Constitution is one of known and settled functions,-and in providing that an assessor shall be selected in the manner provided by law for each county it is -to be presumed that the framers of that instrument intended to provide for the performance by him, substantially at least, of those duties which had theretofore pertained to his office. French v. State, 52 Miss. 760. The court further stated:

“And an assessment can only be made .by the officer designated by law to make it. Welty, Assessments, sec. 10-, When the Constitution devolves that duty upon a particular person, the Legislature may not substitute another.”

The court cites People v. Kelsey, 34 Cal. 473; People v. Hastings, 29 Cal. 450; People v. Sangent, 44 Cal. 434; Houghton v. Austin, 47 Cal. 648; Richmond & D. R. Co. v. Orange County Commissioners, 74 N. C. 506; Wilmington & O. & A. R. Co. v. Brunswick Co. Corners. 72 N. C. 10. The court, continuing said:

“In Houghton v. Austin, above cited, the rule that the Legislature could not devolve the duty of assessing property upon any other tribunal or officer than the assessor provided for by the Constitution was carried to the extent of annulling a law creating a state board for equalization of taxation among the several counties of the state.”

It was said by this court in the case of State ex rel. Haskell, Governor, v. Huston et al., 21 Okla. 782, 97 Pac. 982, by Mr. Justice Turner, speaking for-the court:

“It is a familiar rule of construction, as laid down in the syllabus of United States v. Weld, McCahon, 185 Kan. (Dassler's Ed.) 591 [Fed. Cas. No. 16,660], that: ‘When one person, or class of persons, is named in a power of attorney, or an act of the lawmaking power, as being authorized to do a certain thing therein named, all other persons are thereby excluded from doing die same thing as effectually as if they were positively forbidden.”

In the case of People v. Draper, 15 N. Y. 532, Chief Justice Denio says:

“A prohibition to exercise a particular power is an exception. In inquiring, therefore, whether a given statute is constitutional, it is for those who question its validity to show that it is forbidden. I do' not mean that the power must be expressly inhib-ited, for there are but few positive restraints upon the legislative power contained in the instrument. The first article lays down the ancient limitations which have always been considered essention in the constitutional government, whether monarchial or popular; and there are scattered through the instrument a few other provisions in restraint of legislative authority. But the affirmative prescriptions, and the general arrangements of the Constitution, are far more fruitful of restraint upon the Legislature. Every positive direction contains an implication against anything contrary to it, or which would frustrate or disappoint the purpose •of that provision. The frame of the government, the grant of legislative power itself,, the organization of the executive authority, the erection of the principal courts of justice, create implied limitations upon the lawmaking authority as strong as though a negative was expressed in each instance.” In re Leasing of St. Land, 18 Colo. 358, 32 Pac. 986; Western Union Tel. Co. v. Trapp, 186 Fed. 116, 108 C. C. A. 226; State ex rel v. Brunst, 26 Wis. 412, 7 Am. Rep. 84; King v. Hunter, 65 N. C. 603, 6 Am. Rep. 754; Anderson v. Ritterbusch, 22 Okla. 761, 98 Pac. 1002.

We are also of the opinion that section 7449, Rev. Laws 1910, supra,, does not confer authority upon the county taxing officers to assess property belonging to a railroad or public service corporation. The language of said section is that:

“The board of county commissioners of any county in the state may contract with any person or persons to assist the proper county officers of the county in the discovery of property not listed and assessed as required by existing laws,” etc.

We hold that this language simply means that such person with whom the county commissioners might contract to assist the proper taxing officers in the county in the discovery and listing tor taxation such property only as the county authorities were authorized in the first instance to assess for taxation, and that it was not the intention of the Ligeslature by the provision of the statute, supra, to include property belonging to a railroad or public service corporation over which the county officers had no jurisdiction to assess for taxation.

From the foregoing we are of the opinion that defendant had no jurisdiction or authority to list for taxation or to extend on the tax rolls the property belonging to plaintiff, and that the writ of prohibition should be granted; and it is so ordered.

KANE, C. J., and TURNER, LOOFBOURROW, and BLEAKMORE, JJ., concur.