Prudential Property & Casualty Co. v. Grimes

1986 OK 32, 725 P.2d 1246, 1986 Okla. LEXIS 134

• Court: Supreme Court of Oklahoma
• Decided: June 12, 1986
• Docket: 66589
• Status: Published

Opinions

SUMMERS, Justice.

Plaintiffs are fifty out-of-state insurance companies who have challenged Oklahoma’s gross premium tax laws on the basis that they deny plaintiffs equal protection of the law. Plaintiffs commenced this action in 1981, and since that time have followed the statutory procedures for a constitutional challenge to the taxes as set forth in 62 O.S. 1981 § 206. Section 206 provides that taxes alleged to be unconstitutional shall be paid under protest to the collecting officer (here the Insurance Commissioner) with notice in writing stating the grounds for the complaint and that suit will be brought to recover the taxes so paid. The statute then provides:

“It shall be the duty of said officer to deposit said fees or taxes to his credit in a special trust fund in his depository account in the State Treasury to be known as his ‘protest Fund’ and to retain the same therein for a period of sixty (60) days, and if within such time summons shall be served upon him in a suit for the recovery of said fees or taxes or a specified part thereof he shall further so retain the fees or taxes sued for until the final determination of the suit,_” (Emphasis supplied.)

In the event plaintiffs prevail, § 206 further provides for a judgment accompanied by a court order directing the collecting officer “to pay the amount of said judgment by voucher ... from his said protest fund to the plaintiff.”

Over $55 million which was paid by these plaintiffs under protest and deposited in the Insurance Commissioner’s Protest Fund in these actions has been transferred to the Department of Human Services and the Office of Public Affairs, through special legislative acts purporting to authorize such transfers by the Insurance Commissioner. Approximately $13 million in interest on such monies has been transferred from the Protest Fund into the General Revenue Fund. There are present legislative plans to direct the transfer of an additional $42 million out of the Insurance Commissioner’s Protest Fund, in order to set off shortfalls in planning the budget for the 1986-87 fiscal year. The appeal before us does not seek to invalidate these transfers or recapture the transferred money for the Protest Fund. But plaintiffs have on May 14, 1986, filed a Supplemental Petition with an application for injunctive relief enjoining further transfers from the Protest Fund pending the outcome of their actions.

The original suit on the constitutionality of the gross premium tax remains pending in the district court. On May 22, 1986, the judge of the district court denied the supplemental petition for injunctive relief. It is from that order that the plaintiffs appeal.

The Insurance Commissioner urges that the present action is premature for want of a justiciable controversy — that the legislative action sought to be averted in transferring more money from the Protest Fund is merely threatened and not yet enacted. In the hearing on plaintiffs’ application for injunctive relief, however, defendants produced affidavits and testimony of the Governor of Oklahoma, the Senate President Pro Tempore, and the Speaker of the House of Representatives, all of whom were in agreement that the State has a substantial need of the use of the monies in the Insurance Commissioner’s Protest Fund, that the use of such monies is an important component of the budget which is planned for the 1986-87 fiscal year, and that if the State were prohibited from using these funds, it would be disruptive to the State in planning its fiscal affairs for the coming year. Additionally, the President Pro Tempore in his testimony gave assurances that he would expect any judgment obtained by plaintiffs in this action to be satisfied notwithstanding a deficiency in the Insurance Commissioner’s Protest Fund. Senator Lee Cate had previously testified that the 1986-1987 budget would include the appropriation of $42 million from the Protest Fund. If so taken the Fund would then have a balance of approximately $30 million of a total of $139 million that the Fund would have but for the transfers. In In re Goodwin, 597 P.2d 762, 764 (Okl.1979) we said:

“Whenever widespread interest may demand an immediate resolution of some vital public law issue, no impediment arising from infirmity in the procedural posture of the case — however well recognized in purely private litigation — will bar our exercise of reviewing powers.” (Court’s emphasis.)

We find before us a very real, and therefore justiciable, controversy of vital interest to the public and proceed to consider the case on its merits.

At the outset we note that just as it is the legislature that would take funds from the Protest Fund to meet the current revenue shortfall, it was the legislature that established the Fund under Section 206 in first place. And as the legislature may give, the legislature may also take away. Unless, that is, and this is a large “unless”, that which it would take away is a right protected under the Constitution of either the State of Oklahoma or the United States. Plaintiffs have tendered for our consideration several provisions of the state and federal constitutions¹ which they urge will be violated by the pending transfer out of the Insurance Commissioners Protest Fund. We need address only one, however, for Art. 5, § 54 of the Oklahoma Constitution is dispositive of the case. It provides in pertinent part:

“The repeal of a statute shall not ... affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute.” (Emphasis supplied).

Our question, then, is to determine whethér the plaintiffs’ acts of paying the taxes to the Commissioner, serving their notices of protest, and timely filing suit in the district court, all done pursuant to Section 206, constitute a “proceeding begun” which may not be constitutionally interdicted by changing the statute. As the following cases indicate, the constitutional provision is no stranger to this court.

In Harlow v. Bd. of Com’rs., 33 Okl. 353, 125 P. 449 (1912) a statute prohibited the construction of bridges within six miles of another bridge on the same stream. The commissioners resolved to build a bridge contrary to that rule. Plaintiff, a taxpayer, sued to enjoin the carrying out of the contract for the bridge. The trial court issued, but then dissolved an injunction. Taxpayer appealed. The Supreme Court noted that while the appeal was pending the “six mile” statute was repealed by the legislature, but held that by reason of Art. 5, Section 54 the repealing act did not affect the proceeding, and ruled for the plaintiff.

In Gayman v. Mullen, 58 Okl. 477, 161 P. 1051 (1916) plaintiff sought to vacate an assessment for drainage benefits. On appeal the assessment was upheld, notwith-tanding a change in the statute which provided for a different method of selecting drainage district viewers. The court in its syllabus stated (P. 1051)

“(a) Under section 54, art. 5 (Williams, § 144), of the state Constitution, the repeal of a statute does not affect proceedings begun by virtue of such repealed statute, where the rights to which the proceedings relate remain unchanged, although such proceedings are in a matter involving legislative as well as judicial questions and in the main are of legislative character.”

In Green v. Board of Com’rs of Lincoln Co., 126 Okl. 300, 259 P. 635 (1927) the commissioners by resolution and notice called an election at which county bonds for road improvements could be voted. On the afternoon of the election day the Governor signed a bill passed by the legislature which amended or repealed the law under which the bonds were to be voted. The Lincoln County voters approved the bonds, but suit was brought to enjoin their issuance and sale on the basis that the law was changed before the election was final. This court rejected the suit with the following language:

“If the voting, issuance, and sale of the bonds in question can be termed a ‘proceeding,’ as contemplated by section 54 of article 5 of the Constitution, then it is clear that Senate Bill No. 87 has no application, and the county commissioners are justified and authorized to issue and sell the bonds according to their contract with Mr. Trapp.”

“In 32 Cyc. 406, proceeding is defined as follows:

‘In its general acceptation, an act which is done by the authority or direction of the court, express or implied; an act necessary to be done in order to obtain a given end; a prescribed mode of action for carrying into effect a legal right; performances of an act, wholly distinct from any consideration of an abstract right; the form and manner of conducting judicial business before a court or judicial officer; regular and orderly progress in form of law; including all possible steps in an action, from its commencement to the execution of judgment....’”

“In the light of these authorities we cannot agree with the contention of learned counsel who argue in their briefs that what was done in the instant case does not constitue (sic) a ‘proceeding,’ within the contemplation of the section of the Constitution above quoted, and having reached the conclusion that the proceeding having been commenced under the law as it existed prior to the approval by the Governor of Senate Bill No. 87, we must necessarily conclude that the proceeding was governed entirely by the law as it existed prior to the passage and approval of Senate Bill No. 87.”

“In other words, when the board of county commissioners, by their resolution and notice, put the machinery in motion to vote the bonds in question they began a ‘proceeding,’ and such proceeding was not or will not be terminated until the final object of the ‘proceeding’ has been accomplished, to wit, the sale of the bonds; and in accomplishing this the law, as it stood upon the statute books of the state at the time the proceeding was commenced, defines their duties and limits their authority. ” Id. 259 P. at 637. (Italics ours).

In State v. Worten, 167 Okl. 187, 29 P.2d 1 (1933) the court examined a statute which in effect declared a moratorium on actions to foreclose mortgages on real estate. It held the statute inapplicable to foreclosure proceedings pending at the time of the effective date of the statute, stating in its syllabus:

“1. The provision of section 54, article 5, of the Constitution of Oklahoma, that the repeal of a statute shall not affect any proceedings begun by virtue of such repealed statute, applies whether the repeal be expressed or implied; the purpose of the provision being to require an action to pass to judgment under the law applicable thereto at the time of the institution of the action unaffected by any change in the law made after the institution of the action.”

The court also favorably quoted the Black’s Law Dictionary definition of “proceeding”:

“In a general sense, the form and manner of conducting judicial business before a' court or judicial officer; regular and orderly progress in form of law, etc. The italization is ours.” Id. 29 P.2d at 2.

In an apparent reference to the times that produced the moratorium legislation the Wor ten court cautioned:

“We do not think the court should be swayed by public sentiment to alter, modify, or repeal any provision of the Constitution by the mere use of its power so to do. In the language of Mr. Justice Osborn, in Ind. Sch. Dist. #39, Creek Co. v. Exchange National Co. [164 Okl. 176], 23 P.2d 210, 212 [1933]: ‘We do not believe that our courts should base their decisions involving the fundamental rights of citizens on proprieties and exigencies of the occasion.’ ” Id. 29 P.2d at 4.

For other cases in accord see Aldridge Hotel v. Mainard, 171 Okl. 422, 43 P.2d 738 (1935), Oklahoma City Building and Loan v. Bumes, 167 Okl. 53, 29 P.2d 22 (1934), Oklahoma City Building and Loan v. Hooker, 167 Okl. 208, 29 P.2d 21 (1934).

In more recent times we re-examined Art. 5, Section 54 in In re Application of Bd. of Education of Western Heights School District, 565 P.2d 677 (Okl.1977). Therein we held that a bond election called prior to a change in the law, but held after the change, was valid. Relying much on Green v. Bd. of Co. Com’rs., supra, we determined that the calling of the election was a “proceeding begun” pursuant to Art. 5, Section 54, and that the new act that became effective only after proceedings had begun was not applicable to the bond issue.

Our most recent visit to the problem was First National Bank of Pauls Valley v. Crudup, 656 P.2d 914 (Okl.1982) wherein we held that once a lien statement was timely filed a subsequently enacted statute of limitations was ineffective as to that claimant. We said

“The term ‘proceedings begun’ refers to essential steps or measures to invoke, establish, or vindicate a right.’

“Within the meaning of § 54, the phrase ‘proceedings begun’ most surely embraces all of the statutory steps required by law for the establishment and foreclosure of a statutory lien claim. Timely filing of a lien statement is necessary to impress a materialman’s lien. It is a condition precedent to a foreclosure. It is indeed the first critical step in the ‘proceedings begun.’ ” Id. at 916. (footnotes omitted).

The legislature in enacting Section 206 has established a procedure for the payment of taxes under protest, the holding of the funds so paid in a special trust fund pending litigation of the protest, and providing for prompt reimbursement from the fund if the protest is successful in court. It is clear that the plaintiffs have invoked the provisions of Section 206 by paying the tax, serving notice of the grounds on which they complain, and filing suit timely (in 1981) in district court to contest constitutionality. There can be no doubt but that the proceedings established by Section 206 have been began.

Now the legislature would invade the Protest Fund to transfer monies out for other purposes. Legislative acts authorizing transfers from the Protest Fund are nothing less than partial repealers of Section 206. Art. 5, § 54 “applies whether the repeal is expressed or implied.” State v. Worton, supra. The proposed action transferring funds from the Protest Fund once the “proceeding” has been “begun” is contrary to the Oklahoma Constitution and therefore invalid.

The order of the trial court denying in-junctive relief is reversed. The Insurance Commissioner for the State of Oklahoma is enjoined from making further transfers of monies from the Insurance Commissioner’s Protest Fund (including earnings thereon) except pursuant to the express provisions of 62 O.S.1981 § 206, such injunction to remain in effect pending determination of plaintiffs’ constitutional challenges to Oklahoma’s gross premium tax laws.

SIMMS, C.J., DOOLIN, V.C.J., and OPA-LA, J., concur. ALMA WILSON, J., concurs specially. HODGES, LAVENDER and HAR-GRAVE, JJ., dissent. KAUGER, J., disqualified.

1 . Plaintiffs additionally urge that the transfers would violate:

Okla. Const. Art. 5, § 52 (take away existing cause of action or defense);

Okla. Const. Art. 2, § 15 and U.S. Const. Art. 1 § 10, Cl. 1 (impair obligation of the state);

Okla. Const. Art. 2, § 7 and 14th Amendment, U.S. Const, (due process of law); and

Okla. Const. Art. 2, § 24 and 14th Amendment, U.S. Const, (taking private property without just compensation).