I assert that the majority opinion herein is wrong from the beginning. It conceives the wrong facts as a basis and nurtures a fallacy in law, destructive of the public policy as expressed by the Legislature in the enactment of section 9606, C. O. S. 1921, which section directs a tax to be levied upon all of the value of certain corporations.
The first statement of fact in the opinion is:
"This cause of action was instituted by the tax ferret of Payne county before the county treasurer wherein it was sought to levy an additional assessment against the Cushing Grocery Company, a corporation. * * * The additional assessment was divided over the tax years 1923-24 and 25."
I think that an erroneous and prejudicial statement of fact. For the years stated there was no just or proper corporate assessment, and perforce there could be no additional assessment as stated in the majority opinion. The record herein, and Exhibits 1 to 6, inclusive, show that this corporation never complied with the law (section 9606, supra) requiring a corporate assessment, but sought to escape the force thereof by making an individual return of its property for taxation. The form sheet used for such return upon its face, in the first sentence, plainly showed these words: "for individuals * * * not to be used by banks or other corporations. * * *"
The majority opinion, in effect, nullifies the statute, section 9606, supra. To judicially declare a legislative act unconstitutional, and so void, is a serious matter and an act not to be lightly done. Trevett v. Wheeden, 4 Am. St. Trials, 584, the proceedings of the General Assembly of Rhode Island against the Judges of the Supreme *Page 193 Court for their judgment in the case of Trevett v. Wheeden. Also In re Initiative Petition No. 79 (128 Okla. 269,263 P. 635).
Where an act is held unconstitutional, and where the object of the legislation is desirous or necessary for the public good, the objective may often be reached by re-enactment, in view of the Constitution, or by constitutional amendment. Under such conditions the way is made open. The advocates of the act must necessarily move forward down the broad road to achievement by re-enactment or constitutional amendment, or else capitulate through inaction. Where the cause is just and where the act is held unconstitutional, the opportunity of achievement is thrust upon the proponents by the judiciary and therein the public welfare is conserved. But as in the case at bar, where a statute is not declared unconstitutional, but simply nullified by judicial interpretation, herein and under these circumstances, I assert the hopelessness of the situation and apprehend therein the aggressiveness of the judiciary beyond that sphere allotted to it under the triune division of the powers. Article 4, sec. 1, of the Constitution.
I bemoan the fact that the people of the state cannot tax corporations, as such, notwithstanding the expressed desire. I would look to the sovereign as all powerful. To me "the people," acting in the adopted mode, according to the basic law, and "the sovereign" are synonymous. Therefore, hoping the views expressed in the majority opinion to be merely transitory, I desire to express my dissent to the conclusions reached and to the law therein stated, in order to be helpful toward a final correct solution of the problem.
The corporation before us agreed that its property was of the value of $125,000; that it was assessed in the manner shown for $37,000. The undervaluation is gross, consequently not "just," and I say that the assessment as made was not "proper" for the reason that it was not according to the statute providing for a corporate assessment, therefore I think there was "omitted" property, as contemplated by section 9597, C. O. S. 1921, but the majority opinion, for reasons which I cannot follow, holds that the assessment as made was in substantial compliance with the law, for that reason not subject to being proceeded against as omitted property.
The opinion states, page 3, "The tax erret claimed the $78,000 is omitted property." I do not think that statement proper. I think it ought to be as follows: The state of Oklahoma maintained there was no just or proper assessment of the corporation, and consequently all of its property was omitted — that the corporation is entitled to deductions for what value it had assessed, and considering such assessment, there was omitted value in the sum of $78,000, subject to a proper assessment for the first time.
On page 10 of the opinion, it is said, in reference to In re National Life Insurance Co., 68 Okla. 219, 173 P. 376:
"In that case this court held that an assessment for taxation on moneyed capital, surplus, and undivided profits of a corporation was the same thing as an assessment upon its property and assets, and that the moneyed capital, surplus, and undivided profits, construed with statutes in pari materia, includes all of the assets, money, and property belonging to or owned by the corporation."
If the first part of that statement is true, I cannot understand the language used in that case, and I, therefore, challenge the statement. I agree to the latter part of the statement, but object to the "double-barreled" proposition.
On the same page the opinion speaks of the ease of evasion of the law under a different interpretation from that made. I am of the opinion that evasion herein is complete by nullification, and forced corporation taxation under section 9606, supra, in this state is a thing dead, and being so, the law ought to be repealed under the theory of the equality of taxation, for there should be no premium upon disrespect for law.
It may be suggested that the law could be put in force by re-enactment and that responsibility for nullification may be shifted from this court to the court as it existed when the case of Wolverton Hdw. Co. v. Porter, 61 Okla. 171,160 P. 906, was written. I deny both of these suggestions for the following reasons: Since the Wolverton Case was written by a Commissioner the statute has been twice amended. If life could be renewed in the statute by subsequent legislation, that would have been done. It would now be in effect. Moreover, the statute has five times been construed as in effect, so the responsibility of nullification is centered wholly upon the majority opinion herein.
The stipulated facts showed that the defendant company was possessed of taxable assets valued at $125,000, for each of the years 1923-1924-1925, and that such property embraced two stocks of goods besides accounts and notes receivable, furniture and *Page 194 fixtures and money on hand. Exhibits 1 to 6 show that the only personal property assessed was two stocks of goods. I have said that the assessment was not a corporate one as required by law.
In re Assessment Oklahoma Natl. Life Ins. Co., 68 Okla. 219,173 P. 376, it was said:
"Section 7302, supra, plainly indicates the intention that all property of corporations except such as is exempt shall be taxed. Since, as before stated, the only assessment of the property of a corporation is that under the name of `moneyed capital, surplus and undivided profits,' taxable personal property not included within that assessment will escape taxation, therefore a construction of the term `capital' other than as including all the property and assets of the corporation would defeat the intention thus plainly expressed in section 7302. * * * Therefore, the statute provides for an assessment, not upon the amount invested in its business, but upon the `net value' thereof, which construed in connection with section 7307, supra, and article 10, section 8 (Williams', sec. 273) of the Constitution, means the `fair cash value, estimated at the price it would bring at a fair voluntary sale' of all the property and assets of the corporation, less the assessed value of the real property listed separately and other deductions which may be allowed."
It seems manifest that where the corporation makes default in all requirements of the things required by section 9962, C. O. S. 1921, and attempts to return for taxation, on an individual form, only a part of its assets which it has stipulated is only a part of its taxable property, such corporation has failed to make even a colorable attempt at a proper assessment, and the utmost it can claim is credit for such partial assessment as was made. The individual return made by this corporation for each of the years mentioned for personal property was for stock of goods as for $25,000 for Cushing and $12,000 for Stillwater, making an aggregate of $37,000 total assessment for each of said three years. The exhibited assessments show for the year 1923 said property was listed merely as "mdse.", in 1924 it was "groc. stock," while in 1925 it merely filled the amount opposite item No. 36 in the printed individual blank. What it should have reported as demanded by the provisions of section 9962, supra, was:
(1) Its authorized capital stock;
(2) Its paid-up capital stock;
(3) Amount of its bonded indebtedness;
(4) Names of stockholders and amount of shares of each;
(5) Description and value of all other property owned;
(7) Total amount of invested capital;
(8) Total amount of surplus and undivided profits;
(9) Description, location, and assessed value of all real estate and tangible personal property.
The stipulation is as follows:
"It is further stipulated and agreed that for the three years mentioned, and on January 1st of each of said years, the Cushing Grocery Company had in Payne county, Okla., $125,000 value of property in the aggregate, for each such year, which included $10,000 value of motor trucks taxed by the state license law, and the balance being made up of accounts or notesreceivable, of stock of merchandise in both stores and allfurniture and fixtures in both stores, and money on hand, if they had any, for the year, 1923, some real estate of the assessed value of $600, but no real estate for the years 1924 and 1925, and the aggregate value just stated was the fair cash value of the property for the purposes of this trial. That they paid the state license tax upon the trucks to the state, and they paid the ad valorem tax by the assessments already in evidence to the amount of $37,000 aggregate for each year."
So it will be observed that the stipulated agreement was that the aggregate property included, besides stocks of merchandise,accounts and notes receivable and furniture and fixtures andmoney on hand, if any. There was no assessment against the aggregate value by name "moneyed capital, surplus, and undivided profits." And it is evident that there was no assessment even under an individual form of the other stipulated items embraced in such aggregate not included in the assessments as made. It must be presumed that the value of such stocks were as returned and no more, because the presumptions and intendments of law are against the idea that a false return was made or that the assessor was recreant in his duty to assess the same at the real value thereof, and the taxpayer is estopped to deny the value he gives. 37 Cyc. 994; Tampa v. Muggor, 40 Fla. 326, 24 So. 489; Denison v. Williamson Co.,153 Ill. 516, 39 N.E. 118; Central Pac. R. Co. v. California,162 U.S. 113.
Obviously the remainder of the aggregate of $125,000 value per annum as stipulated has a value of the difference between that amount and the total of the $37,000 per annum as assessed, which would be $88,000 per annum for omitted, unassessed items, less $10,000 for motor vehicles otherwise assessed, *Page 195 leaving as admitted omitted items and species of property of the value of $78,000.
The opinion herein states:
"Suppose the Cushing Grocery Company, in the instant case, had not reported its property in its store at Cushing, but did report its property in its store at Stillwater, then the property at Cushing would be subject to be assessed as omitted property either under section 9597, or section 9798, C. O. S. 1921. In other words, if a corporation causes a portion of its assets to be placed upon the tax rolls and the tax is levied and paid, the property that is so placed and on which the tax is paid is not omitted property. On the other hand, in placing its property on the tax rolls, if it omits any of its assets and the same are not placed on the tax rolls, the assets so omitted may be assessed as omitted property under either of the sections referred to above."
The fourth paragraph of the syllabus in the case of In re Assessment of Durant Natl. Bk., 107 Okla. 65. 230 P. 712, is said by the majority opinion to be a correct statement of the law. Accepting that as the law, under the agreed statement of fact as above pointed out in figures, this judgment ought not to be affirmed, but ought to be remanded, at least for assessment of the admitted value of (1) notes receivable, (2) furniture and fixtures, and (3) money on hand, which items were wholly omitted from the assessment made, and agreed to be of stated value. The law expressed in the Durant National Bank Case, supra, upon which we agree, is that:
"* * * If said corporation fails to report any item or specie of property of any kind or character owned by it that it is called upon to report, the failure to report * * * said items or specie of property thereof is an omission, and not an undervaluation of the property of the corporation."
See Commonwealth v. Louisville Gas Co. (Ky.) 122 S.W. 164.
See B. O. S.W. R. Co. v. Com. (Ky.) 198 S.W. 35, where it was held:
"When a railroad company or other corporation makes a report that it is required to make by the statutes, it should make a full, itemized and truthful report of all the property it is required to report, giving the value of the items so reported. If it fails to make such report, it will not be heard to say, in a suit against it to have omitted property assessed, that the property charged to have been omitted, and which should have been reported under an item describing that class of property, was included in some other item of property that it did report. * * * A further presumption will be that the board in making the assessment confined itself strictly to the items reported by the company."
The Supreme Court of the United States, in the case of Adams Express Co. v. Ohio, 166 U.S. 185, said:
"What a mockery of substantial justice it would be for a corporation, whose property is worth to its stockholders for the purposes of income and sale $16,800,000, to be adjudged liable for taxation upon only one-fourth of that amount."
Why not apply that principle where this corporation evaded the statutes with less than one-third of its value being assessed?
In Reynolds v. Bowen (Ind.) 36 N.E. 756, it was said: "So that what is not given in is omitted."
This court in Anderson v. Ritterbusch, 22 Okla. 761,98 P. 1002, adopted the reasoning from a Minnesota case, Redwood County v. Winona St. Peter Land Co., 40 Minn. 512, saying:
"The principle of all the cases is that the taxing power, when acting within its legitimate sphere, is one which knows no stopping place until it has accomplished the purpose for which it exists, viz., the actual enforcement and collection from every lawful object of taxation of its proportionate share of the public burdens; and if prevented by an obstacle, it may return again and again until, the way being clear, the tax is collected."
In Reynolds v. Bowen, supra, it was held: The fact that an assessment was sworn to in due form and accepted by an assessor and approved by the county board, will not relieve property omitted from taxation.
In Thompson v. Tinkcom, 15 Minn, 295, it was held:
"The statement contemplated and required by the act must be true, it must be verified, and it must embrace all the personal property which the individual is required by the act in any capacity to list. It may be true and not be verified, or it may be verified and not be true; there may be a partial statement made, or there may be no attempt to make a statement. If there is entire omission to make any statement or if the statement is defective, in any of its essential requisites, there is not a statement of the personal property `as provided by this chapter' within the meaning of the section under consideration."
It is a rule announced by the Supreme Court of the United States that a taxpayer has no vested right in the fruits of his false return. Sturgess v. Carter, 114 U.S. 511, 29 L. Ed. 240.
California holds, City County of San Francisco v. La Societe, etc., 63 P. 1016, that the power of the assessor to make another assessment on omitted property is not impaired by the fact that the corporate taxpayer *Page 196 made a sworn return of its assessment.
Kentucky holds (Com. v. Ky. Heating Co., 195 S.W. 459) items not specifically assessed are presumed omitted.
Oklahoma holds (State ex rel. Glenn v. Crockett,86 Okla. 124, 206 P. 816):
"The county assessor is merely a ministerial officer: he can exercise no judicial function, and he is not an officer from whose action an appeal will lie."
"The officer, too, neglected his duty in accepting the illegal return, but his laches cannot avail the appellant." Bell's Trustee v. City of Lexington, 120 Ky. 199, 85 S.W. 1081.
The opinion herein relies upon Weatherford Milling Co. v. Duncan, 42 Okla. 242, 140 P. 1184. That case involves taxes for the years 1903 to 1908, inclusive, all before the enactment of the law of 1909, a part of which as amended is now section 9606, supra, so manifestly it could not possibly affect the interpretation of a law not then upon the statute books. That opinion makes it obvious that the capital stock there attempted to be assessed was the aggregate of the shares of stock and not at all synonymous with the term "moneyed capital, surplus, and undivided profits."
The case of Wolverton Hdw. Co. v. Porter, supra, the only other authority relied upon, cited and quoted from, was bottomed on the Weatherford Milling Co. Case, supra. While the taxes in the Wolverton Case were for the year 1910, the claim purports to be founded upon section 7318, R. L. 1910, now section 9606, C. O. S. 1921, and I think the case shows that both parties as well as the trial court and the learned Commissioner who wrote the opinion interpreted the term "capital stock" therein mentioned to be the shares of stock to be taxable to the company in the aggregate, and I think the theory of the opinion is wholly at variance with the later exhaustive examination of the statutes as construed in Oklahoma Natl. Life Ins. Co., supra. But even in that case the cause was remanded to be tried on its merits for the discovery of property omitted. By the many subsequent interpretations of this statute, I think it evident that the theory of the Wolverton Case has long since been abandoned and that they ought not to be utilized for authority.
For these reasons, I dissent.