The contention in this case arises from the construction of section 3, chapter 31, Session Laws 1910-11, particularly that portion of said section which reads as follows:
"There is hereby levied an assessment against the capital stock of each and every bank and trust company organized or existing under the laws of this state, for the purpose of creating a depositors' guaranty fund, equal to five per centum of its average daily deposits during its continuance in business as a banking corporation."
The contention of the state is that the language used by the Legislature created what is termed a levy or existing liability in praesenti. The court in its opinion has placed a different construction upon this sentence of section 3, and in doing so transposes the language in the sentence to read as follows:
"There is hereby levied against the capital stock of each and every bank and trust company organized or existing under the laws of this state, an assessment during its continuance in business as a banking corporation for the purpose of creating a depositors' guaranty fund equal to five per centum of its average daily deposits."
By what rule of statutory construction has this court authority to interpolate into a statute words or a transposition of language in order to support the courts construction? The very fact that the court has found it necessary to transpose the language is sufficient condemnation of its opinion. There is no disposition upon the writer's part to criticize the defendant bank for seeking to escape the judgment in this case if there is no liability, but to undertake to escape through the claim that it is unjust and unfair is to beg the question. This court has nothing to do with the justness or unjustness of the law, if the law is clear and plain as to what is meant. We could cite numerous instances of what is apparently unfair and unjust in our tax laws. Take, for instance, the mortgage tax law of real estate, which fixes a registration fee of 10 cents upon $100 expressed in the mortgage, where the mortgage runs for five years or more, an exceedingly nominal sum which the mortgagee pays on his investment, while the mortgagor must pay on the full valuation of the real estate given as security in the mortgage on an ad valorem basis. Yet this court would hardly say that the Legislature did not have the authority to pass the law because of its unjustness or apparent unfairness. Again, we have the gross production tax on oil. All other business must pay on an ad valorem basis. Now, if the gross production tax is fair, then why not make it the same basis of taxation for other property. We have in this state a license system, licensing automobiles, which is merely a form of taxation, and the right is fixed according to a mechanical definition of the horse power developed by the engine in the automobile. A "tin lizzie" costing $500, because of the fact that its engine develops a higher rate of horse power than a car that costs $2,500, under this automobile license law must pay as much or a higher rate for the privilege of running upon the highways of this state as the car that cost five times as much, and yet, were this question before this court, the court no doubt would go into details as to the beneficent effect and purposes of the automobile license fund, which is to build up the highways of the state, and would certainly hold that the Legislature had authority to pass the law and that it was valid. Our tax system is so constructed that injustice must of necessity follow until we have learned some other method that would be fair alike to all.
Let me suggest, further: Is it fair to the poor widow woman to pay the same rate of tax on her one milk cow, on which she makes no profit, other than supplying her orphan children with an allowance of milk and butter, as the man who keeps his hundreds and thousands for profit and gain alone? We could cite so many instances of what to our mind is unjust and unfair in our tax system that the reference would be entirely too lengthy. But why base this opinion in this case upon the proposition that it is unfair to require a liquidating bank to pay its liabilities before it can surrender its certificate and cease to do business under the banking laws of the state? It is its duty to pay its liabilities. The state did not require the defendant *Page 100 bank to discontinue as a state bank. The state does require, as a condition precedent to ceasing to do business as a banking corporation, that it discharge all its liabilities. The defendant, while doing business as a state bank, had the pledged security behind its deposits of a levy of 5 per cent. against the capital stock of every bank doing business under the state banking laws, based upon its average daily deposits. This was worth a great deal to the bank in the way of securing business and in assuring its customers that their deposits were absolutely safe.
It is suggested in the court's opinion that something like $600,000 is involved in the result of this suit. It is true this is quite a large sum, but what has this to do with the question at issue. Briefly stated, the contention of the state is that the first sentence in section 3, chapter 31, Session Laws 1910-11, created a levy is praesenti, as held by this court in the case of State ex rel. West, Attorney General, v. Farmers' National Bank of Cushing, 47 Okla. 667, 150 P. 212; while the defendant contends that said sentence does not create a present liability. Special Justice Galbraith, in his opinion in the case, supra, uses this language:
"If the Legislature had intended to levy an assessment against state banks and trust companies equal to 5 per centum of their average daily deposits for the purpose of creating a depositors' guaranty fund, and to provide that such assessment should only be upon the average daily deposits during the existence of the bank or trust company as a banking corporation, and intended such assessment to be a present and existing liability, language more clearly expressing such intention could not have been employed. The fact that it was provided that only 1 per cent. of this obligation should be paid during the first year and extended the time of payment of the remaining 4 per cent. over a period of 16 years does not lessen the purpose and intent to make the obligation of the entire amount a fixed and present liability. It was necessary to make it a present obligation against the banks in order to accomplish the purpose and object of the Legislature in creating the depositors' guaranty fund, namely, to establish confidence in state banks and to offer an absolute guaranty to the depositors against loss. The purpose of the Legislature was evidenced to make this burden on the banks as light as possible, and for that reason the time of paying the assessment was extended over a number of years; but it was necessary to fix liability for all of the assessments at once, in order to create and establish a guaranty fund in fact as well as in name."
The court, however, has tried to apply the rule of statutory construction, by declaring it would be unjust and unfair to the Legislature to claim that the language used created a levy in praesenti, and that it would be taking from the defendant bank when it was receiving no benefits from the depositors' guaranty fund. The Legislature that passed that law was composed of as intelligent men as the average man; they knew the real import of the language used and the purposes for which this fund was created. The Legislature of 1913 also knew just what the language meant in section 3, chapter 31 Session Laws 1910-11, and proceeded to change the law, so as to accomplish just what the court in this opinion is accomplishing in this act. This change occurs in this language (Session Laws 1913, p. 31):
"Whenever any state bank shall liquidate, or cease to operate under the banking laws of this state, it shall be liable for its pro rata share of any existing indebtedness against the said depositors' guaranty fund or any unpaid assessments."
The learned judge, speaking for the court in his opinion in this case, says that this furnishes the rule of "thumb" for the interpretation of the law, and not the law itself. Now, just what is meant by not being the law itself is difficult to discern — another instance where the language used is plain and an attempt is made to confuse the meaning. This amendment of 1913 clearly shows that the Legislature understood well the clear import of the law of 1911, and provided that a bank should be liable, when it ceased to do business under the state law, only for the pro rata amount of the assessment to be paid at the time of liquidating. The defendant bank having gone out of business prior to 1913, so far as a state bank is concerned, the law of 1913 does not apply to it. The Legislature had the power to make a levy in praesenti. It did it. It had a right to say upon what basis the 5 per centum assessment so levied should be determined. It did that. It had a right to say into how many payments these assessments which it levied should be divided. It did that. The language following the first sentence in said section 3 in no way or manner modifies, explains, or affects the language in the first sentence, and no rule of statutory construction will justify this court in reading into this sentence any other term or terms, in order to transpose the language so as to make it have a different meaning.
The general rule of statutory construction, as laid down by Sutherland on Statutory *Page 101 Construction, in section 589, vol. 2, is as follows:
"A statute extends no further than it expresses the legislative will; when it is held to embrace a case which is within its spirit, though not within its letter, it is not meant that the courts have authority to extend a statute to cases which it does not by its words provide, or beyond the sense of its language. A statute is a written law, and cannot be construed to have a sense and spirit not deducible from its provisions. It is a general rule that the courts must find the intent of the Legislature in the statute itself. Unless some grounds can be found in the statute for restricting or enlarging the meaning of its general words, they must receive a general construction; courts cannot arbitrarily subtract from or add thereto."
And also in section 520, same authority, at page 963, we find this language:
"The intention of the Legislature is to be collected from the words they employ. When there is no ambiguity in the words, there is no room for construction."
The courts are not in the habit of transposing the clauses and phrases for the purpose of finding the meaning of the Legislature, unless the clause or phrase in the position in which it is placed by the Legislature is meaningless and absurd, or conflicts in some way with the fundamental law. The Supreme Court of the United States, in Board of County Commissioners v. Rollins, 130 U.S. 670, 9 Sup. Ct. 652, 32 L. Ed. 1060, uses the following language:
"We are unable to adopt the constructive interpolations ingeniously offered by counsel for defendant in error. Why not assume that the framers of the Constitution, and the people who voted it into existence, meant exactly what it says? At the first glance, its reading produces no impression of doubt as to the meaning. It seems all sufficiently plain; and in such case there is a well-settled rule which we must observe. The object of construction, applied to a Constitution, is to give effect to the intent of its framers, and of the people in adopting it. This intent is to be found in the instrument itself; and when the text of a constitutional provision is not ambiguous, the courts in giving construction thereto, are not at liberty to search for its meaning beyond the instrument.
"To get at the thought or meaning expressed in a statute, a contract, or a Constitution, the first resort, in all cases, is to the natural signification of the words, in the order of grammatical arrangement in which the framers of the instrument have placed them. If the words convey a definite meaning, which involves no absurdity, nor any contradiction of other parts of the instrument, then that meaning, apparent on the face of the instrument, must be accepted, and neither the courts nor the Legislature have the right to add to it or take from it. * * *
"Words are the common sign that mankind make use of to declare their intention to one another; and when the words of a man express his meaning, plainly, distinctly, and perfectly, we have no occasion to have recourse to any other means of interpretation."
The language of the statute in making the levy of 5 per cent. import an immediate levy, and not a levy in the future. In the case of St. Joseph Denver City Railroad Co. v. Baldwin,103 U.S. 426, 26 L.Ed. 578, that court, speaking by Mr. Justice Field, said:
"The language of the act here, and of nearly all the congressional acts granting lands, is in terms of a grant in praesenti. The act is a present grant. 'There is hereby granted,' are the words used, and they import an immediate transfer of interest."
Quoting again from the opinion of Judge Galbraith, in the case of Farmers' National Bank of Cushing, supra, the court says:
"There was levied against each bank and trust company, organized and doing business as a state banking corporation, an assessment equal to 5 per centum of its average daily deposits during the time of its existence as such state corporation, and that this assessment was made a present, existing obligation against each bank and trust company from the date of its organization under the law."
For the reasons herein set forth, we are compelled to dissent from the opinion of the court by Justice KING in this case. The decision in the case of the Farmers' National Bank, supra, was rendered practically four years ago, being filed on June 26, 1915. It has become a rule of property in this state. Since the rendition of this opinion this court, by reason of the democracy of our institutions and the hand of death, has changed its personnel, and the personnel of the court in the course of time again will change. It has been the pride and boast of our form of government that our Supreme Court was stable, and a bulwark against the ever-changing innovations that society might suggest in our fundamental laws, the Constitutions of our states and the United States. The citizenship of a state takes pride in the firmness with which the laws of the state are interpreted by its Supreme Court. There should be no vacillating policy in the court's decisions, and we believe that the opinion of the court in this case is not the law of the case, but that the court's opinion in the case of the Farmers' National Bank of Cushing is the law and should not be overruled. *Page 102