This case involves the question of a refund of gross production taxes exacted from Indian land while exempt from taxation.
Plaintiff invoked our original jurisdiction in mandamus to compel the State Auditor to refund the gross production taxes in question, which had been levied and collected on the production of oil and gas from certain lands allotted to plaintiff while he was the owner thereof. Plaintiff was a citizen by blood of the Choctaw Nation, being a 1/32 quantum of Indian blood. The taxes covered the years from 1917 to 1923, inclusive, and amounted to the sum of $5,842.33. Plaintiff paid the same under the theory, which was more or less prevailing at that time, but nevertheless erroneous, that such production was not exempt from a gross production tax. The power of the state officials to tax such lands had been questioned, but the state courts had given sanction to this theory. See Love County v. Ward, 68 Okla. 287, 173 P. 1050, which was reversed by the Supreme Court of the United States. Ward v. Love County,253 U.S. 17, 84 L. Ed. 741. The case of Carpenter v. Shaw,280 U.S. 363, 74 L. Ed. 478, decided by the Supreme Court of the United States on January 6, 1930, set at rest the question of the power of the state to impose a gross production tax on the oil and gas derived from an Indian allotment while the title remained in the original allottee within 21 years from the date of the patent.
In 1925, the State Legislature passed an act, chapter 20, S. L. 1925, providing for refunding certain gross production taxes *Page 11 which had been collected on account of the production derived from restricted Indian land. Section 3 of said act provided:
"In all cases of overpayment, duplicate payment, or payment made in error on account of the production being derived from restricted Indian lands and therefore exempt from taxation, the State Auditor, by and with the approval of the State Board of Equalization, after an audit by the State Examiner and Inspector, is authorized to refund any such overpaid, duplicate or erroneously paid gross production taxes out of any gross production tax funds in his hands from the same county from which the original tax was derived and not apportioned to the State Treasurer to be distributed as provided by law."
Within 60 days after the passage of said act plaintiff, pursuant to said legislative enactment, made an application for refund of his gross production taxes paid by him on the oil and gas produced from his tax exempt land.
The State Examiner and Inspector audited and certified the claim of plaintiff, and the same was then presented to the State Board of Equalization for approval or disapproval. On October 1, 1925, said board entered the following order:
"Order. "Now, on this, the 1st day of October, 1925, the Board of Equalization of the state of Oklahoma being in session, the following claims for refunds, to wit:
"Osage Leases * * * (other claims) * * * Vernon Collins, Ardmore, Oklahoma.
"$5,842.33 — Gross production tax paid on allotment remaining in the hands of the original allottee. * * * (other claims) * * * comes regularly before the board for consideration; said applicants being represented by counsel; the board, after considering the statutes under which said claims for refunds are submitted, declines to consider or pass upon said claims, and each of them, for following reasons, to wit:
I. "The Board is of the opinion that section 3, chapter 20, page 21, of Session Laws of Oklahoma, 1925, is not retroactive in effect and that, therefore, these claims, being based on overpayment, duplicate payment or payment made in error, as provided in said statute, should not be considered by the Board of Equalization, and the Board of Equalization of the State of Oklahoma, therefore, refuses to consider said claims and each of them, and pass upon their merits for the reason that the claims herein enumerated originated prior to the passage and approval of the legislative act above referred to, wherefore the provisions of the act in question do not apply thereto.
II. "That the Constitution of the State of Oklahoma prohibits the use of current funds to pay claims arising in former years, without specific legislative appropriation therefor.
III. "That all moneys derived or which will be derived from taxes for the current fiscal year, have been appropriated and there is no money now available, or will be available to pay said refunds, if allowed.
IV. "That money appropriated for one purpose cannot be diverted or used for another purpose, and if these claims should be passed upon and allowed, the board holds it would be taking money already appropriated for another purpose and diverting it to the payment of these claims.
V. "If a refund of taxes paid in previous years and coming within the classes specified in said act of the Legislature then the Legislature should have made appropriation to care for the same."
That order, in part, stated as follows:
"* * * The board * * * declines to consider or pass upon certain claims. * * *"
No question is presented as to procedural prerequisites, or correctness of amount, but reasons were assigned by the board as to the validity and construction of the act in question, which, in my opinion, were immaterial for the reason that said board was not acting as a judicial body, but only in an administrative capacity.
After the opinion was delivered in the case of Carpenter v. Shaw, supra, the matter was subsequently called to the attention of the Board of Equalization in reference to the claim of plaintiff, and the board, on April 28, 1930, again took cognizance of said claim and made the following record:
"Mr. Edwards requested the board to take action on the claims. The board read its order of October 1, 1925, and finds that no action had been taken on said claims, the matter was referred to the Attorney General for an opinion as to whether claims should be approved or disapproved under the law as now decided by cases since 1925."
It appears to me that this interpretation by this administrative department should have weighty consideration. The board had taken no action in approving or disapproving *Page 12 the claim after the request of Mr. Edwards up to the time of the filing of the instant action on December 4, 1930. In fact, the State Auditor and State Board of Equalization were authorized to refund these payments received by the state without demand of a claim on the part of the plaintiff.
It is admitted that the plaintiff did not pay the tax under protest nor attempt to comply with the protest and a suit by law as provided by section 9971, C. O. S. 1921 (12665 O. S. 1931); but this is not a suit to recover taxes us contemplated by section 9971, C. O. S. 1921. It is an action to compel public officials to perform a statutory duty enjoined upon them.
The question arises in the instant action as to whether the royalty in oil and gas derived from a Choctaw — Chickasaw allotment is taxable so long as the allotment remains in the hands of the original allottee for 25 years from date of the issuance of the patent.
The majority opinion holds that the statute of limitations, section 185, C. O. S. 1921, is or should be applicable and bars the action of the plaintiff. I cannot agree with that conclusion. The power and jurisdiction of the state to collect the tax in question never incipiently existed. It was never in esse. The state was admitted into the Union with a limitation upon the taxing power of the state in respect to Indian lands.
These vested rights of property could not be nullified by the state and, after the Supreme Court of the United States had plainly spoken in reference to the coercive measures exercised by the state officials without authority of law in collecting the unauthorized and void tax, which had erroneously received the sanction of the state courts, the Legislature, in full recognition of the limitations imposed by Congress and the vested property rights which had been secured to the Indians within the protection of the Fifth Amendment of the Constitution of the United States, and which rights had been denied to these Indians in violation of the Fourteenth Amendment, passed the act in question, which rests upon justice and equity and the moral obligation which this state assumed in receiving its admission to the Union.
The instant act does not rest upon any contract between the state and the individual, directly or indirectly. It does not concern itself with money had and received, nor any implied promise on the part of the state to receive in trust that which had been illegally divested from the taxpayer who paid the tax, perhaps not under a formal protest, but nevertheless as a result of litigation which had been resorted to in the collection of such taxes and the correctness of which was not approved by the Supreme Court of the United States.
The only limitation placed upon the Auditor was that the State Examiner and Inspector should audit the payment which had been made by the taxpayer. When this audit met the approval of the State Auditor and State Board of Equalization, the State Auditor was authorized to refund the payment which had been made in error on account of production derived from the Indian land in question and which had been agreed to be exempt from taxation by this state upon its admission to the Union. This tax was authorized to be refunded from tax funds in the hands of the Auditor coming from the same county from which the original tax was derived. This void tax originally came from the county wherein the land was situated without authority or semblance of law, and if there were other funds derived from gross production taxes in the hands of the Auditor from the same county from which the void tax had been collected, the void tax so collected could be returned from the funds coming from the county which wrongfully received such tax.
In the case of Duke, Mayor, etc., et al. v. Turner et al., Feb. 25, 1907, 204 U.S. 623, which is the same case as Barnes, Mayor, et al. v. C. W. Turner and James A. Kirkwood, No. 1537, Supreme Court of Oklahoma, 14 Okla. 284, 78 P. 108, decided September 1, 1904, a proceeding in mandamus was brought in the district court of Logan county on July 23, 1903, against the mayor and councilmen of the city of Guthrie to compel them to levy a tax certain subdivisions of the city of Guthrie to create a fund to pay certain time warrants which had been issued on July 1, 1893, under the provisions of article 1, ch. 14, Statutes of 1890.
The Supreme Court of the United States affirmed the Supreme Court of Oklahoma in that case, and the opinion of the Supreme Court, written by Mr. Justice Day, after giving a history of the prolific litigation which had centered around the payment of these warrants bearing date of July 1, 1893, revealing that the enforcement of the collection of these warrants had been before the Supreme Court of the Territory of Oklahoma on three different occasions (see 5 Okla. 188, 13 Okla. 26,14 Okla. 284), stated specifically as follows: *Page 13
"The Supreme Court of the territory affirmed the judgment of the district court upon the ground that the statute of limitations, which is also the defense made in the case upon which the decision of the appeal to this court turns, did not begin to run in favor of the municipal corporation upon the obligation evidenced by the warrants, until the municipality had provided funds by which payment could be made.
"The authorities are much in conflict as to whether a statute of limitations, without express words to that effect, governs a proceeding in mandamus as though it were an ordinary civil action. Some of the cases hold that the statute of limitations applies which would govern an ordinary action to enforce the same right.
"Other cases hold that the statute of limitations does not apply as it would to ordinary civil actions, but the relator is only barred from relief where he has slept upon his rights an unreasonable time, particularly when the delay has been prejudicial to the rights of the respondent. The cases pro and con are collected in a note to section 30b, High, Extraordinary Legal Remedies (3d Ed.).
"The question is not a new one in this court; it was under consideration in Chapman v. Douglas County, 107 U.S. 348, 2 U.S. Sup. Ct. Rep. 62. * * *
"The statute of limitations relied upon in the case at bar is the three years' limitation, contained in second paragraph, section 18, Oklahoma Code, 2 Wilson's Rev. Stat. 973, 975, as to statutory liabilities, and section 23, regulating the time for the beginning of a new action to one year after reversal or failure of a former action. These sections in article 3, 'Time of Commencing Civil Actions,' are as follows:
"'Section 18, Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:
"'First. Within five years, an action upon any contract, agreement, or promise in writing.
"'Second. Within three years, an action upon a contract not in writing, express or implied; an action upon a liability created by statute, other than a forfeiture or penalty. * * *
"'Section 23. If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure.'
"The limitation to three years, said to be applicable here, is upon an action created by statute other than forfeiture or penalty, but this language is in a section limiting civil actions other than for the recovery of real property, and the language used in section 23 has reference to actions of like character.
"The proceeding in mandamus is regulated in article 33, Okla. Code, 2 Wilson's Revised Anno. Statutes 1130. That the proceeding is not regarded as a civil action is shown in section 694, Code, 2 Wilson's Rev. Anno. Stat. 1131, which provides that pleadings are to be construed and may be amended in the same manner 'as pleadings in a civil action,' and issues joined, tried, and the proceedings had, 'in the same manner as in a civil action.' The Oklahoma Code (section 687) also declares that writs of mandamus may not be issued where there is a plain and adequate remedy in the ordinary course of the law.
"In Chinn v. Trustees, ubi supra, Judge Scott, delivering the opinion of the Ohio Supreme Court, said:
"'The Code of Civil Procedure limits the time within which an action can be brought "upon a liability created by statute, other than a forfeiture or penalty," to six years. (Section 14.) This provision is found in title 2 of the Code, the object of which is to define and prescribe "the time of commencing civil actions." The civil action of the Code is a substitute for all such judicial proceedings as, prior thereto, were known either as actions at law or suits in equity. (Section 3.) By section 8, the limitations of this title are expressly confined to civil actions. But proceedings in mandamus were never regarded as an action at law, or a suit in equity, and are not therefore a civil action within the meaning of the Code. Mandamus is an extraordinary or supplementary remedy, which cannot be resorted to if the party has any adequate, specific remedy. The Code provides for and regulates this remedy, but does not recognize it as a civil action.'
"This language is no less applicable to the Oklahoma Code.The proceeding in mandamus is not a civil action, and thereforenot within the terms of the statute of limitations."
The syllabus of our own court in the Duke Case reads as follows:
"The statute of limitations does not run in favor of a municipal, or quasi municipal corporation, upon its outstanding obligations evidenced by warrants, until the corporation has provided a fund out of which payment of the same may be made."
I have obtained the briefs which were filed *Page 14 in that case, and the late James Hepburn, who was city attorney of Guthrie at that time, urged in his brief as follows:
"It is contended by plaintiffs in error that mandamus is a civil action and subject to be barred by the statute of limitations, and that this action in mandamus, to compel the mayor and councilmen of the city of Guthrie to levy a tax to create a fund to pay these warrants, accrued on the 9th day of September, 1895, the day W.H. Gray, receiver, commenced his action in mandamus to compel the then mayor and councilmen of the city of Guthrie to levy this same tax for the payment of these game warrants. We contend, not only that this action in mandamus accrued on the 9th day of September, 1895, but that the holders of these warrants are estopped to deny that this action did then accrue, for the reason that the then holder of the warrants brought his action in mandamus on that day. And since this action accrued in 1895, and since it was not commenced until the 23rd day of July, 1903, we contend that it is barred by all of the provisions of the statute of limitations.
"We contend that the duty to levy this tax, which imposed upon the plaintiffs in error, is a liability created by statute, and that the action should have been brought within three years from the time when it accrued.
"We also contend that since the action in mandamus, brought by Gray, receiver, was reversed on the 12th day of February, 1897, and afterwards dismissed by Turner Kirkwood on the 28th day of June, 1901, and since this action was not commenced until the 23rd day of July, 1903, more than a year after such reversal, and more than a year after such dismissal, that this action is barred by the statute of limitations.
"While on the other hand the defendants in error contend that this is an action on the warrants described, and that the plaintiffs in error nor their predecessors not having at any time levied a tax to create a fund for their payment, and no fund having ever been provided, that therefore the statute of limitations never commenced to run against this action."
Messrs. Dale Bierer, in their brief, state as follows:
"It is our contention that the city of Guthrie, having failed, through its municipal officers to levy a tax or to create a fund for the payment of the obligation, plaintiffs in error cannot maintain, as a defense, the statute of limitations."
It is apparent from those opposing views that it became necessary to determine the nature of a mandamus proceeding and the applicability of the statute of limitations to such an action.
It is urged as a reason for the refusal of the State Auditor to act that the money bad been distributed and that no appropriation had been made to provide for the payment of the tax which it is admitted was collected and was void. In this connection it must be remembered that an application was made for the refund of this tax within a few months after the act in question became effective. It seems a highly technical step to advance that the statutes of limitation should be an effective bar because the state officials did not timely perform the official duties required of them by law. If there was no appropriation to take care of the refunding, then certainly the statute of limitations never commenced to run in favor of the State Auditor. See Duke v. Turner, supra; Board of Commissioners of Greer County v. Clark Courts, 12 Okla. 197,70 P. 206. If there has been no fund provided by which the obligation could be enforced, then certainly the State Auditor could not plead a statute of limitations without first showing that a fund had been provided. When the Legislature passed the act refunding the illegal tax which had been paid, this constituted a valid appropriation within the provision of the State Constitution that no money should be paid out of the treasury except in pursuance of appropriations made by law. No particular form of appropriation or technical words are necessary to find the plain intent, purpose, and meaning of a statute which authorizes an appropriation. See Commonwealth v. Ferries Co., 92 (Va.) S.E. 804. However, this statute in question provided for the refund to be deducted from moneys payable to the subdivisions which had received the erroneous payments. The taxes in question were exempt by Acts of Congress (Act of June 28, 1898; 30 Stat. L. 495, and Act of June 16, 1906, 34 Stat. L. 267, as well as by the Constitution of Oklahoma, art. 1, sec. 3; art. 10, sec. 6). See Carpenter v. Shaw, 280 U.S. 363, 74 L. Ed. 478.
It is my view that the refunding act entirely eliminated the necessity, if any, of filing a protest at the time of payment on this exempt property, and it was not necessary to institute a suit for the recovery of the void tax under section 9971, C. O. S. 1921. See Carpenter v. Shaw, supra. The refunding act afforded complete independent procedural relief, without regard to section 9971, supra.
This is not a civil action to recover money within the meaning of our Code of Civil *Page 15 Procedure, and the limitation statute, section 101, O. S. 1931, is not applicable under the rule announced in Duke v. Turner, supra.
Mandamus is not demandable as a matter of right. It is the proper remedy to compel a public officer to perform his official duties imposed upon him by law. It is a remedial process and the issuance of the writ rests largely within the sound discretion of the court. There can be no judicial discretion if a statute of limitation can be effectively imposed as a bar. Judicial discretion then must fail.
In Ferris on Extraordinary Legal Remedies it is said in chapter 16, dealing with mandamus, as follows:
"Mandamus is generally regarded as not embraced within statutes of limitations applicable to ordinary actions, but as subject to the equitable doctrine of laches. It seems well settled that the reason mandamus will not be issued unless asked for within a reasonable time after the wrong happened of which relator complains, is not because of any statute of limitations, but because courts have discretion in issuing the writ, and in the exercise of that discretion will refuse mandamus if the claim has been allowed to become stale without any excuse shown for the delay, and because the relator has apparently acquiesced in the wrong complained of."
It is proper for the court in granting or refusing relief to take into consideration local statutes of limitations in analogous civil actions, the question of long and unreasonable delay in the commencement of the action, the prejudice, if any, resulting from such delay, and all attendant facts and circumstances.
In the case of Duncan Townsite Co. v. Franklin K. Lane,245 U.S. 308, 62 L. Ed. 309, a petition for mandamus was brought in the Supreme Court of the District of Columbia to compel the Secretary of the Interior to restore a certain name to rolls under the Choctaw-Chickasaw Agreement of July 1, 1902. Mr. Justice Brandeis, speaking for the Supreme Court of the United States, on December 10, 1917, said:
"Mandamus is an extraordinary remedial process which is awarded, not as a matter of right, but in the exercise of a sound judicial discretion. It issues to remedy a wrong, not to promote one; to compel the performance of a duty which ought to be performed, not to direct an act which will work a public or private mischief, or will be within the strict letter of the law, but in disregard of its spirit. Although classed as a legal remedy, its issuance is largely controlled by equitable principles."
In the case of United States ex rel. William F. Arant v. Franklin K. Lane, 63 L. Ed. 652, Mr. Justice Clark, speaking for the Supreme Court of the United States, said:
"This court has lately said that while mandamus is classed as a legal remedy, it is a remedial process which is awarded, not as a matter of right, but in the exercise of a sound judicial discretion and upon equitable principles. Duncan Townsite v. Lane, 245 U.S. 308, 62 L. Ed. 309, 38 Sup. Ct. Rep. 99. It is an extraordinary remedy, which will not be allowed in cases of doubtful right (Life Fire Ins. Co. v. Wilson, 8 Pet. 291, 302, 8 L. Ed. 949, 953), and it is generally regarded as not embraced within statutes of limitation applicable to ordinary actions, but as subject to the equitable doctrine of laches. Chapman v. Douglas County, 107 U.S. 348, 355, 27 L. Ed. 378, 381, 2 Sup. Ct. Rep. 62; Duke v. Turner, 204 U.S. 623, 628, 51 L. Ed. 652, 654, 27 Sup. Ct. Rep. 316, 9 Ann. Cas. 842."
The majority opinion quotes with approval from High on Extraordinary Legal Remedies, section 30b. Mr. Justice Day, in the Duke Case, supra, quoted this same section and it is observed that the Supreme Court of the United States disapproved said section.
This is not a suit against the state. See State ex rel. New Orleans Canal Bkg. Co. v. Heard, 47 La. Ann. 1679, 18 So. 746, 47 L. R. A 512; Ehrlich v. Jennings, 78 S.C. 269,58 S.E. 922, 13 Ann. Cas. 1166; State ex rel. Robert Mitchell Furniture Co. v. Toole, 26 Mont. 22, 66 P. 496, 55 L. R. A. 644; Nougues v. Douglass, 7 Cal. 65; and Choctaw Pressed Brick Co. v. Townsend, 108 Okla. 235, 236 P. 46.
It seems to me that the record in this case shows that the Board of Equalization, on October 1, 1935, as shown by its order, declined to consider or pass upon the claim of plaintiff, after plaintiff had timely presented his claim for refund on June 29, 1925; that subsequently on April 28, 1930, said board, whether constituted by the same personnel, which is immaterial, in the further consideration of said claim made a finding that no action had been taken by said Board of Equalization on said claim, and the matter was then referred to the Attorney General for an opinion as to whether said claim should be approved or disallowed. When plaintiff had received no determination of his claim after the further consideration of the same by the board on April 28, 1930, the *Page 16 present action in mandamus was instituted on December 4, 1930.
In the Duke Case, supra, this court said:
"The statute of limitations is what is known in law as a statute of repose. * * * Now, can the officers of the city, when steps are taken which are necessary preliminaries to the collection of these warrants, be heard to lake advantage of their own neglect of duty, by saying that because we have not performed the duty as the law required of us and made the necessary levy to provide the fund for the payment or these warrants, that consequently, on account of our neglect, the statute of limitations has run against the holders of these warrants so as to prevent their collection? We think this case comes clearly within the decision of this court in the Greer County Case (citing Greer County v. Clark, 12 Okla. 197,70 P. 206; Robertson v. Blaine County, 90 F. 63, 32 Cow. C. A. 512, 47 L. R. A. 459; Hubbell v. South Hutchinson, 64 Kan. 645, 68 P. 52.). * * * From the foregoing it will be seen that the reason assigned by the courts in refusing to permit the statute of limitations to be pleaded as a bar to recovery, in cases of this character, arises out of the fact that the defendants were, under the law, required to do some affirmative act; that is, to levy a tax creating a fund for the payment of indebtedness and the taking up of warrants, and if the warrant holder failed to present his warrant and secure the money thereon, the statute of limitations could be successfully interposed; but so long as there remained, under the law, some act to be performed by the municipality, such municipality has not performed its duty under the law, and the courts will not and ought not to as permit them to interpose their failure to act as by law required as a defense to the payment of a just obligation."
It is my theory that the Duke Case, supra, should control the instant proceeding; that under the facts and circumstances, without thought of federal restrictions, there has been no laches or unreasonable delay on the part of the plaintiff in presenting his claim for refund under the statutory provisions of chapter 20, Session Laws of 1925; that the delay has been occasioned by the negligence of the state officials to perform official duties as required by the refunding law in question; that it would be just and fair that the wit of mandamus should issue.
For the foregoing reasons, I respectfully dissent to the views announced in the majority opinion.
I am authorized to announce that Mr. Vice Chief Justice OSBORN, Mr. Justice BUSBY, and Mr. Justice CORN concur in this dissent.