The importance of our decision in this case as a precedent is so great that I feel justified in expressing at some length my personal reasons for concurring in the conclusion reached in the opinion of the court written by Mr. Justice Branson.
It is by the provisions of House Bill No. 168 of the Session Laws of 1909 and by no other law that there is made taxable in this state those shares of stock and those shares only which are issued by corporations (other than banking institutions) whose property is not assessed in this state. It applies equally to domestic and foreign corporations. The fifth subdivision of section 9583 alone is sufficient to make shares of domestic corporations taxable the same as are shares of foreign corporations without discrimination. See In re Indian Territory Illuminating Oil Co., 43 Okla. 307, 142 P. 997; Commonwealth v. Fidelity Trust Co. (Ky.) 143 S.W. 1037; Commonwealth v. Harris (Ky.) 118 S.W. 294; Commonwealth v. Walsh's Trustee (Ky.) 117 S.W. 398.
The act is a comprehensive codification and revision of all the laws relating to the creation of revenue by ad valorem taxation. The language in the various sections thereof relating to the making of property taxable is peculiarly indefinite and incomplete in many respects when each section is separately considered. (1) All separate parts of the act must be construed in pari materia, (2) assigning to each provision thereof some meaning and useful purpose, (3) with due regard for a long-established interpretation given the act by the executive and administrative departments of the state, (4) the whole bill must be so interpreted as to make it constitute, if possible, one harmonious act, and (5) to avoid double taxation unless it be clearly imposed. Supporting these rules in the order announced, see:
(1) R.C.L., vol. 25, pp. 1060-1062, sec. 285.
(2) Bohart v. Anderson, 24 Okla. 82, 103 P. 742; K.C.S. Ry. Co. v. Wallace, 38 Okla. 233, 132 P. 908; Board of Eq. v. First St. Bk., 77 Okla. 291, 188 P. 115.
(3) R.C.L., vol. 25, p. 1043; United States v. Moore,95 U.S. 760, 24 L.Ed. 588; U.S. v. Johnston, 124 U.S. 236, 31 L.Ed. 389; Pennoyer v. McConnaughy, 140 U.S. 1, 35 L.Ed. 363; 25 R.C.L., pp. 1043-1045, sec. 274; Bloxham, Comptroller, v. Consumers' Electric Light Street Railroad Co., 18 South, 444; Robert L. Winebrenner v. Edward C. Forney, 189 U.S. 148, 47 L.Ed. 754; MaHarry v. Eatman, 29 Okla. 46, 116 P. 935; Duff v. Keaton, 33 Okla. 92, 124 P. 291.
(4) Thacker v. Witt, 64 Okla. 169, 166 P. 713; Town of Comanche v. Ferguson, 67 Okla. 101, 169 P. 1075.
(5) 26 R.C.L. 158, sec. 129; State of Tennessee v. Geo. K. Whitworth, 29 L.Ed. 830, 117 U.S. ___; Farrington v. Tennessee,95 U.S. 679, 24 L.Ed. 558; 26 R.C.L., pp. 157-158, sec. 129; Commonwealth v. Walsh's Trustee, (Ky.) 117 S.W. 398; Commonwealth v. Harris (Ky.) 118 S.W. 294; Commonwealth v. Fidelity Trust Co. (Ky. App.) 143 S.W. 1037; Ridpath v. Spokane County, 23 Wn. 436, 63 P. 261; Whitaker v. Brooks (Ky.) 13 S.W. 355.
To reach this result we will construe language either literally or liberally as will best serve this purpose, but we will not hold language to mean that which it clearly denies. When language is easily capable of two different constructions, we will adopt that which promotes the general purpose of the act when the legislative intent is capable of ascertainment. It is sections 9574, 9583, 9599 and 9614, Comp. Stat. 1921, *Page 286 being parts of this act, construed together in pari materia in accordance with the rules above announced, and not any one separate section of the act, that impose the burden of taxation upon such shares of stock in accordance with the legislative intent. The act thus construed as a whole does not in terms exempt certain classes of shares of stock from taxation. It merely thus burdens certain classes of shares and leaves the remaining shares go free by reason of its failure to affirmatively tax them. In so classifying the shares of stock into two separate classes, one of which the lawmakers intended to burden and the other of which they intended should go free, the reason impelling the lawmakers to so act is clearly apparent. They desired that property in this state should neither directly nor indirectly be burdened with double ad valorem taxation. To accomplish this end and at the same time tax those shares of stock which, on account of the failure of the corporation issuing them to pay any tax, would otherwise neither directly nor indirectly contribute any aid to the maintenance of our state government, it is provided in the act that there shall be taxed only those shares of stock which are issued by a corporation whose "property" "is not assessed in this state". Just what property of the corporation must escape taxation in order that we may in the language of the statute say that its property "is not assessed in this state"? The taxferret says we must so say unless all the property of the company is located in the state and here assessed. The taxpayer says we cannot so say if the company has merely a small per cent. of its property located in this state and that small part has been duly assessed. If the tax ferret's theory be correct, the lawmakers in effect, though not in express terms, have divided this subject of taxation, to wit, shares of corporate stock, into two classes for taxation purposes, the first to be taxed and the second to go free. The first class, so the taxferret says, consists of shares of stock in corporations which have a very small portion, or other portion less than all, of their property in another state, and the second class consists only of shares in corporations having absolutely all their property in this state. Under the taxpayer's theory, two classes have been made for purposes stated, but he in effect says the classification is as follows, to wit: The first class, to be taxed, consists, so the tax-payer says, only of shares of stock in corporations having none of their property in the state, and the second class, which goes free, consists of shares of stock in all corporations having even a very small portion, or major portion, or all, of their property within the state and here assessed.
According to the tax ferret's theory, if A., being a resident of Oklahoma, owns all the shares of stock in a corporation which has one hundred per cent. of its property in this state and here assessed, he pays no tax upon the shares of stock. If B., likewise a resident of Oklahoma, owns similar shares in a similar corporation and it happens to invest even five per cent. of its capital in another state, he must pay full tax upon one hundred per cent. of the value of all the corporate stock issued by the company. Both corporations here pay ad valorem tax on practically all their property. The result is a ninety-five per cent double taxation on B.
According to the taxpayer's theory, if A., being a resident of Oklahoma, owns all the shares of stock in a corporation which has invested merely five per cent of its great capital in this state, he pays no tax whatever on the corporate shares, although he owns them all. If B., likewise a resident of this state, owns similar shares in a similar corporation which has failed to have the meager five per cent. portion of its property located here and has none here, then he must pay full tax upon one hundred per cent. of the value of all the corporate stock issued by the company. The latter corporation has paid no ad valorem tax here and the former practically none. This results in just such an unjust discrimination between A. and B. as tends to bring governments into disrepute. The choice between such theories is merely a selection of the lesser of two great and unnecessary evils.
I think the statute is capable of only the two constructions suggested. Which shall it be? The language is capable of either. We turn to the underlying legislative purpose in making the classification.
"The corporation owns its capital stock. The shareholders own each their share of capital stock. Each is property. Yet, there is but one thing. When the thing itself is taxed at its full value, every element of it is made to bear the tax. The whole includes all its parts. When the state lays a tax upon the whole, it has made each of its constituent parts contribute to the support of the government." Commonwealth v. Walsh's Trustee (Ky.) 117 S.W. 398.
Neither this state nor any other state intends to tax, or does tax, "every right or interest in things which the law recognizes as property." See In re Indian Territory *Page 287 Illuminating Oil Co., 43 Okla. 307, 142 P. 997. We have by special acts provided for the tax of shares of stock in banking corporations, but in order to avoid double taxation we do not tax to the corporation the property by it owned. If the classification and distinction should be permissible, we find no reasons to believe that our lawmakers intended to place a burden upon shares of stock in strictly private commercial corporations not borne by banking institutions, which enjoy special privileges given them by the state. Under the taxferret's theory, this result would obtain where a corporation had nearly but not quite all of its property located and taxed in this state. The only conceivable purpose which the lawmakers could have had in separating shares of stock into classes distinguished by differences due to the location and local tax of the corporate properties is that they intended that the residents of this state should not be subjected to double taxation, hardly conscionable unless the same is mandatory to preserve the very existence of the commonwealth itself. The theory of the taxpayer here and as above outlined produces a result consistent with the legislative purpose. The theory of the tax ferret almost completely circumvents such purpose. It is true the taxpayer's theory produces an unjust and unwarranted discrimination between taxpayers but no more so than does the tax ferret's theory. Between these two almost unconscionable results we select the one most evidently in harmony with the clear legislative purpose and which will do the least amount of injustice to the fewest of our citizens. See Adams v. Board of Commissioners, Garvin County,35 Okla. 440, 130 P. 148. I therefore am of the opinion that the shares of stock in a corporation are not taxable, if the act be constitutional, in event any substantial portion of the corporate property is in good faith, and not for the purpose of avoiding the tax upon its shares, located in the state and here duly assessed. See, State ex rel. Wisconsin Trust Co. v. Leuch, City Clerk (Wis.) 144 N.W. 290; Patterson v. Board of Commissioners of Wilson County et al. (Kan.) 109 P. 790; Tennessee Fertilizer Co. v. McFall (Tenn.) 163 S.W. 806; Dallas County v. Home Fire Ins. Co. (Ark.) 133 S.W. 1113: Dallas County v. Banks (Ark.) 113 S.W. 37: Stroh v. City of Detroit (Mich.) 90 N.W. 1029: Gillespie, Tax Collector, v. Gaston et al. (Tex.) 4 S.W. 248; Slater v. Commonwealth (Ky. App.) 179 S.W. 201.
This is the construction of the statute which has been followed by the executive and administrative officers of this state and the various subdivisions of its sovereignty during the long years which have elapsed since its enactment. Multiplied thousands of our citizens have invested their savings and their fortunes in good faith relying upon the correctness of this well-established and long-recognized interpretation of these laws. Clearly such an interpretation is not in conflict with the plain intent of the act and we should be most reluctant to overturn such a long-standing construction when we know that such great interests of our citizens will be disturbed, or even completely destroyed, if we now suddenly force upon the citizenship an interpretation so radically different as that here sought by the tax ferret. We must know that thousands of the citizens of our state, even ranking among the poorer classes of our people, have invested the savings from their earnings since statehood in shares of stock. Under the interpretation of this law as sought by the tax ferret, they would be liable for the payment of the tax during all the years elapsed since the law was enacted. In tax ferret proceedings they would be made to pay, and the tax for the years now gone by with accumulated interest would in a thousand instances completely confiscate every dollar of such an investment. If all such property could be located and thus made to pay, the state would be enriched by perhaps a hundred million dollars, which its needs do not justify it to procure in manner like this and of which fifteen or twenty millions would be paid to individual tax ferrets. Those who for years have owned such corporate stock would in addition to their tax hereafter annually accruing be required to pay such large sums in back taxes that all other citizens of the state could enjoy the privileges of the state and local government for years hereafter without excuse on the part of the state for tax upon them. Thousands of our good citizens, thus victimized, would possibly be pauperized, or nearly so, and their families likely made dependent. Our citizens would either have to abandon investments in corporate stock of corporations not having all their property located in the state or move their residence to a state which appreciated the importance of retaining wealth within its borders. The result would be irreparable damage to our great commonwealth. According to the history of the practical operation of tax ferret proceedings, little uniformity appears therein and the equal protection of the law usually fails to function there. We should endeavor to so interpret the laws of this state and of the nation as to furnish no justification *Page 288 for the statement quoted in the brief of the defendants in error from an eminent statesman of the nation who said:
"Those who do the day's work of the nation are so terrorized by tax gatherers and other government spies and inspectors that American character is being transformed from that of upstanding fearless citizens of a republic into that of furtive and hypocritical subjects of autocracy."
It is urged by the tax ferret that the interpretation which I have approved makes the statute unconstitutional in that it exempts from taxation certain property which under the Constitution he says the Legislature was without power to exempt. Even if it be said that the Constitution prohibits the exemption from taxation of property not exempted by the Constitution itself, it must also be said that the Constitution does not require the lawmakers to provide a system of double taxation. There is nothing in the state Constitution which could be properly construed to require the Legislature to place a tax upon shares of stock in a corporation when it had provided for the tax of the thing represented by the shares, to wit, the property owned by the corporation itself. The same contention can as well be made as to the theory advanced by the tax ferret. Even under his theory, shares of stock are exempted when the company has all of its corporate property within the state. It therefore appears that if the tax ferret is correct in his contention, the adoption of either theory would render this part of the act unconstitutional for the reasons urged by the tax ferret himself. The tax ferret says that section 9583 is the one that alone places the tax upon property. If that be true then, coupled with his theory that the provisions of section 9599 create an unconstitutional exemption, all shares of stock in all corporations are always fully taxable and a result is reached not only generally unjust but clearly contrary to the easily apparent intent of the lawmakers expressed in this act.
In my opinion, it is immaterial which interpretation of this statute we adopt, for these portions of the act, under either theory, clearly contravene article 10, section 5 of the state Constitution, which provides that "taxes shall be uniform upon the same class of subjects." The Legislature may classify subjects of taxation and divide them into numerous classes and provide for the taxation of the various classes according to entirely different methods. However, the Legislature is without power, under the Oklahoma Constitution, to take property naturally constituting but one subject of taxation and properly belonging to one class only and by an arbitrary and capricious classification founded upon no real and substantial distinctions provide a high tax upon the part coming within the terms of one such artificial classification and a most substantially lower tax, or none at all, upon the other. The Legislature is without power to assess all black horses for taxation at $100 per head and all white horses at $10 per head or to permit them to go free. There is no reason why all shares of stock should be made taxable at their full value in a corporation which has 95 per cent. of all its capital invested in Oklahoma and five per cent. invested in another state and at the same time entirely relieve shares of that burden if the corporation issuing them has one hundred per cent. of its capital invested in this state. There is no logic to support a theory that shares of stock in a corporation should go tax-free if the corporation has five per cent. of its capital invested in Oklahoma and 95 per cent. in another state, while the shares of stock be taxed at one hundred per cent. of their value in a similar corporation that fails to have five per cent. of its capital invested in this state. Such a classification merely toys at first with the subject of double taxation, but at last embraces it and at all times is so discriminating that it violates the mandate of the Constitution requiring that "taxes shall be uniform upon the same class of subjects," and creates distinctions and discriminations abhorrent to the basic principles of American government and traditions. A law which would make taxable shares of stock in a corporation only in the inverse ratio which the capital invested in this state bears to the entire capital of the corporation might or might not be subject to such a criticism and some of the states have enacted laws to that effect. The classifications of shares of corporate stock as made by this act are unnatural, are artificial and arbitrary, based on no reason, and are void under the Constitution. It is several different sections of the act taken together, and not any one separate section thereof, that impose the burden of taxation upon such shares of stock. The act does not in terms exempt certain classes of shares of stock from taxation. It merely thus burdens certain classes of shares and leaves the remaining shares go free by reason of its failure to affirmatively tax them. It therefore follows that it is not a mere exemption from taxation in the act which contravenes the organic law of the state, but it is the entire parts and portions thereof which *Page 289 place the tax upon the class of shares specified. It is therefore my opinion that all that portion of the act referred to which undertakes to place an ad valorem tax upon any shares of capital stock is in conflict with the provisions of our state Constitution and is void. So I say because I do not find there merely an express exemption which I can say is void, thus leaving in force the part of the statute creating the tax. But were such the form of the statute, the result would be the same. When one part of a legislative act is held void, all portions of the act fail except those parts of which it can safely be said from an examination of the act that the Legislature would have enacted had it then known the part declared invalid would have been unenforceable. The contrary intention of the lawmakers is clearly apparent here as to the placing of tax upon shares of corporate stock.