This is an original proceeding against defendant's as a member of the state board of equalization, praying for a writ of prohibition, prohibiting defendants, as such board, from reassing property of plaintiff or adding to the assessment previously made the property which it is claimed was omitted. The material facts in plaintiff's petition, which are admitted by the answer, are: That plaintiff on the 30th day of March, 1914, filed with the state auditor a sworn statement of its property subject to taxation in this state, of the approximate value of $31,220,665.33, and on the __________ day of August the state board of equalization raised the valuation thereof to $35,329,904.70, and that thereafter, during the month of August, said board completed the assessment of plaintiff's property, and of all public service corporations in the state for said year, and completed the equalization of all other property in the state, and on September 3d levied a tax for the fiscal year of 1.3 mills; that on the 28th day of August the state auditor certified the assessment so made to the county assessors of the various counties in which taxable property of plaintiff was located, and thereafter said board took recess subject to the call of the Governor; that thereafter, on complaint, of one *Page 776 C. H. Pittman, as tax ferret, the board reconvened, and, after various proceedings, on December 10th increased the assessment of plaintiff's property in the sum of $10,500,000.
These facts are admitted by the answer, and defendants seek to justify their action by reason of the fact, as they allege, that the assessment in August of $35,000,000 was induced by fraud of plaintiff in concealing the fact that it had property of more than $10,500,000 invested in oil and gas leases, and that plaintiff concealed from the defendants the true value of its capital stock, surplus, and undivided profits, and allege that plaintiffs taxable property in the state is approximately the sum of $64,000,000. There is no reply to the answer, and for the purposes of this proceeding the material affirmative allegations thereof are to be taken as true.
There are presented to us for our consideration two questions: (1) If the allegations of plaintiff are true, and defendants were without jurisdiction in the premises, is prohibition the proper remedy? (2) Were defendants, as members of the state board of equalization, without jurisdiction to hear and determine matters considered at the time the proceedings in question were had?
The right of the plaintiff to the relief sought is denied by the defendants; and in support of their position they cite the court to section 7370, Rev. Laws 1910, which is as follows:
"The proceedings before the board of equalization and appeals therefrom shall be the sole method by which assessments or equalization shall be corrected or taxes abated. Equitable remedies shall be resorted to only where the aggrieved party has no taxable property within the tax district of which complaint is made."
Plaintiff contends that the action of the state board in the premises is not governed by this statute, because the board was not legally in session, and therefore clothed with no legal authority, and their acts a nullity. If this contention be true, section 7370 *Page 777 is not applicable, because that evidently has reference to proceedings when the board is legally in session, and the procedure there provided is for the correction of assessments so made. If the defendants were not lawfully in session as the board of equalization, their acts, so far as they affect the rights of plaintiff, would not be governed by this statute, although they may claim to have been acting as public officers in the exercise of some legal duty. The right to a writ of prohibition under these circumstances has been determined by this court in the recent case of Osage Okla. Co. v. Millardet al., ante, 145 P. 797, where prohibition was granted restraining the defendant, as county treasurer, from listing for taxation, or extending on the tax rolls, the property of plaintiff in that case. See, also, People ex rel. N.Y. EdisonCo. v. Feitner et al., 45 Misc. Rep. 12, 90 N.Y. Supp. 826;Layman v. Iowa, Telephone Co., 123 Iowa, 591, 99 N.W. 205, and cases cited there; Hutchinson et al. v. City of Omaha,52 Neb. 345, 72 N.W. 218; Cooley on Taxation, p. 1391.
The second question involves the consideration of the various statutes of this state for the assessment of the property of railroads and public service corporations. Section 21, art. 10, Const. (Williams' Ann. Const. sec. 286), creates the state board of equalization, and prescribes its duties as follows:
"The duty of said board shall be to adjust and equalize the valuation of real and personal property of the several counties in the state, and it shall perform such further duties as may be prescribed by law, and they shall assess all railroad and public service corporations property."
Section 7373, Rev. Laws 1910, prescribes additional duties for this board, as follows:
"It shall be the duty of said [state] board to examine the various county assessments and to equalize, correct and adjust the same as between the counties by increasing or decreasing the aggregate assessed value of the property or any class thereof, in *Page 778 any or all of them, to conform to the fair cash value thereof, as herein, defined, and to order and direct the assessment rolls of any county in this state to be so corrected as to adjust and equalize the valuation of the real and personal property of the several counties."
The manner of exercising the powers conferred upon said board by the constitutional provision above referred to is contained in article 4, c. 72, Rev. Laws 1910, secs. 7336-7349, inclusive. By section 7337 it is provided that the property of all public service corporations shall be assessed annually by the state board of equalization in the manner prescribed in said chapter. Section 7338 requires every public service corporation, on or before the last day of February of each year, to furnish sworn lists or schedules of its taxable property, as may be required by the state board of equalization, and makes such property subject to taxation for state, county, and other public purposes to the same extent as the real and personal property of private persons. Section 7348 provides that the returns so made shall not be conclusive as to the value or amount of said property, and authorizes the state board of equalization to make an assessment of such property at its fair cash valuation, estimated at the price it would bring at a fair voluntary sale, and gives the board power to examine the books, records, and papers and files of any corporation, to compel the attendance of witnesses and the production of books and papers so as to enable it to properly discharge its duties in these matters. Section 7349, is as follows:
"The state board of equalization, after having valued and assessed all the property of public service corporations in this state according to the provisions of this article, shall cause the same to be certified by the state auditor to the county clerks of each and every county in which any portion of the property of any such public service corporation may be located. Such returns shall show the various portions of the property of such corporation located and taxable in each county, and in every city, town, township, school district or other municipal subdivision thereof, and shall include a full and particular statement of all and every *Page 779 species of property of such corporation located in each of the said several subdivisions, together with the assessed value of every item thereof. Said return shall be certified by the state auditor to the clerks of the several counties wherein such property is located on or before the first Monday of May of each year."
The constitutionality of this legislation was sustained inWestern Union Telegraph Co. v. Trapp, 186 Fed. 114, 108 C. C. A. 226, and it was there held that said legislation had the effect of constituting the state board of equalization a board of assessors for the purpose of assessing the character of property over which they were given jurisdiction.
After the state board has assessed all of the property of public service corporations in the state, and caused the same to be certified by the state auditor to the county clerks, the said county clerks are required to do certain things which are prescribed by section 7350, as follows:
"The county clerk, as soon as he shall have received the certificate from the state auditor of the property of public service corporations and the valuation thereof assessed for taxation in his county, shall certify same to the proper officers of the different school districts, cities, towns and townships in his county in which any portion of the property of any such public service corporation is located, and the amount of such assessment shall be placed on the tax rolls for the benefit of the respective school districts, cities, towns, or townships, and he shall, at the proper time, place such assessment on the proper tax roll of his county, subject to the same levy for different purposes as is other property."
The various county assessors are required by section 12, c. 152, Sess. Laws 1911, p. 335, to make an abstract of his assessments to the state board, after the sitting of the county board of equalization, not later than Saturday preceding the third Monday in June, and the third Monday in June is fixed as the time of the meeting of the state board of equalization, which is required *Page 780 by section 7373 to meet in session at the state capital, commencing on the third Monday in June of each year, and requiring it to examine the various county assessments, to equalize, correct, and adjust the same as between the counties. Section 7374 levies an annual ad valorem tax, and prescribes the duties of the board in connection therewith. After the board has discharged its duties under this section, and the same has been certified to the clerks in the several counties in this state, the county excise board is required by section 7380 to meet at the county seat on the last Saturday of July for the purpose of examining the various estimates and revising hand correcting same and ascertaining the assessed valuation of the property in the county, and each municipal subdivision thereof, and making a levy of taxes required for public purposes and the levy so made by them must be certified to the county clerk, who shall extend the same upon the tax rolls.
The foregoing presents the general scheme of taxation in this state, whereby revenues of the state and of its various municipal subdivisions are levied and collected. The various provisions of the statute fix the time at which each of the several duties shall be performed by the different officers in the assessment of property and levy of taxes, but we do not think these provisions constitute a limitation upon the powers of the officials so as to render invalid any acts performed by them after the time so fixed. There is no doubt that these provisions were intended to put into force an orderly and systematic procedure governing the conduct of the various officers whose duties it is to see to the assessment of the property and the levy and collection of the revenues of the state; and it seems clear that these provisions are not mandatory, but are merely directory; and if a taxpayer has failed to perform his full duty as a citizen by disclosing all of his property subject to taxation, and this fact is discovered by the taxing officers before the time has expired in which property may lawfully be assessed, that such officers may proceed, after proper notice and opportunity to be heard, *Page 781 to assess said property so that it may bear its just proportion of the burdens of the government. It is a matter of no material importance to a taxpayer whether his property is assessed within the particular times prescribed by law or thereafter. This coustruceion of the law is conceded to be correct by counsel for plaintiff in the petition for a rehearing and the oral argument in support thereof. Wells v. Burbank, 17 N.H. 393; Anderson, etc., v. Mayfield, 93 Ky. 230, 19 S.W. 598;Buswell Respt., v. Board Sup. Alameda County et al., 116 Cal. 351, 48 P. 226; People v. Eureka Lake Yuba Canal Co. etal., 48 Cal. 143; Atlantic Pacific R. Co. v. Yavapai County,3 Ariz. 117, 21 P. 768; Hart v. Plum, 14 Cal. 149; Barkley v.Dale, 213 Ill. 614, 73 N.E. 325; Willard v. Pike, 59 Vt. 202, 9 A. 907.
It is further urged by plaintiff that after the said board had assessed the property of plaintiff and all other public service corporations, and had equalized the assessments of the various counties, and caused the state auditor to certify such action to the clerks of the several counties of the state wherein property was located, that the board had exhausted its jurisdiction, and was without authority to take any further action in the premises, and should be held in law to have adjourned and to be functus officio. We axe of the opinion that, when said board had valued and assessed all the property of public service corporations in the state, and had caused the same to be certified by the state auditor to the county clerks, as required by section 7349, they were without authority to reconvene and reconsider their action by reassessing property already assessed, or by adding thereto property which it was claimed had been omitted, except as we shall hereinafter point out. What we mean by this last statement may be illustrated thus: The board, having completed its assessment and valuation of the property, and certified the same to the county clerks, during the year 1914, could not during that year make an additional assessment and certify the additional amount to the county clerks in the same manner and with like effect *Page 782 as the original assessment and certification was made. These various provisions of the law, in our opinion, contemplate some finality of action by the board at some time during the year, so that the result of their labors may be certified to the various county clerks, and so that the various municipal subdivisions of the state, through their proper officers, may make suitable provisions for revenue to meet their current expenses and obligations. If this were not so, the board at any time might reconvene and reconsider their action, and thereby disarrange the entire fiscal system of the state and all of its subdivisions; and if they could do this as to one corporation or as to one item of property, the same action could be taken with reference to every public service corporation and railroad company, and as often as the board in its judgment should determine the necessity therefor. The powers of the board with reference to assessing property, and its other duties in relation to the revenues of the state, are statutory, and no authority exists for any action to be taken by the board unless the same is expressly conferred or included by clear implication; and in case of doubt the rule of construction is that the doubt must be resolved against the existence of the power. McGannon v. State ex rel, Trapp et al., 33 Okla. 145,124 P. 1063, Ann. Cas. 1914B, 620.
Another reason why we think this must necessarily be so is that by section 7368, Rev. Laws 1910, provision is made for an appeal in matters of this kind, and it is provided that appeals from the state board may be taken to the Supreme Court within 60 days after the adjournment of said board, but not afterward. An appeal necessarily carries with it the idea of some finality to the act appealed from, and, if it be held that the action of the board is not final when the result is certified to the county clerks, and that the board retains jurisdiction in the premises until it shall finally adjourn at its pleasure, then no right of appeal would accrue from any assessment until the adjournment was, in fact, had; or, if it be held that an appeal must be taken within 60 *Page 783 days from the date the board took final action upon the particular matter appealed from, then we would have this condition presented, or an appeal in a matter which was still within the jurisdiction and under the control of the board, and, should they see fit to do so, the matter appealed from might be reconsidered and a different result arrived at, from which an additional appeal could be taken, and so on from every order they might make. This, in our judgment, would lead to intolerable confusion, and would put it within the power of persons and corporations seeking to dodge their taxes to suspend payment thereof by neglecting to appeal until payment was sought to be enforced; when, if it be held the board still had jurisdiction, they could give notice of appeal under the provisions of the sections above referred to, and suspend the payment of taxes.
We have made careful examination of the authorities cited in the brief of counsel for both parties, and have arrived at the conclusion above stated, that when the board has valued and assessed all of the property of public service corporations, and has discharged its other duties, and caused the same to be certified by the state auditor to the county clerks, that said board is without jurisdiction or authority to take any further action in the premises. Cooley on Taxation (2d Ed.) pp. 351, 352; City of Hannibal ex rel. v. Bowman, 98 Mo. App. 103, 71 S.W. 1122; Auditor Gen. v. Sparrow, 116 Mich. 574, 74 N.W. 881;Auditor Gen. v. Sessions, 100 Mich. 343, 58 N.W. 1014; Fertonet al. v. Feller, 33 Mich. 199; Common Council v. Smith,99 Mich. 507, 58 N.W. 481; Wells v. Smyth et al., 55 Pa. 159;Lewis v. Bishop, 19 Wn. 312, 53 P. 165; Bialy v. BayCity, 139 Mich. 495, 102 N.W. 1033; Barkley v. Dale, 213 Ill. 614, 73 N.E. 325; Sullivan v. Peckham, 16 R.I. 525,17 A. 997; Willard v. Pike, 59 Vt. 202, 9 A. 907; Downing v.Roberts, 21 Vt. 441; State v. Manhattan Silver Min. Co., 4 Nev. 318;People v. Supervisors of Westchester, 15 Barb. (N.Y.) 607;Overing v. Foote, *Page 784 65 N.Y. 263; City of N.Y. v. Smith et al., 61 App. Div. 407, 70 N Y Supp. 702; People ex rel. v. Forrest, 96 N.Y. 544.
The legislature may make provision by law for a reassessment of property which has already been assessed at less than its fair value, but, in the absence of such provision by the Legislature, no authority exists in the board to do so; and we find no provision in the laws of this state conferring any authority upon any of the officers of the state whose duty it is to assess property to reassess the same after it has once been assessed. Anderson v. Ritterbusch, 22 Okla. 761,98 P. 1002. By section 7309, Rev. Laws 1910, authority is conferred upon the assessors to add property which has escaped taxation in previous years to the assessment for the current year; and this, we think, is sufficient warrant of authority for the state board to add to the tax rolls property which has been omitted and which has escaped taxation. Counsel for plaintiff admit this section authorizes action by the state board, and we think this construction is also sustained by the decision inWestern Union Telegraph Co. v. Trapp, supra. This section does not authorize the revaluation of property which has already been assessed, but simply authorizes the assessment of property which has been omitted and thereby escaped taxation, and directs the assessor to assess the property and extend against the same on the tax rolls for the current year all arrearages of taxes properly accruing against it. The defendants urge that under this section they have authority, after having assessed property for a certain year and caused the state auditor to certify the same to the county clerks, that if they discover during that year property omitted, they may assess the same and cause the auditor to certify their action to the county clerks to be collected in addition to, and in connection with, the valuation already made. If we are correct in our first proposition — that when the state board has assessed and valued the property of all public service corporations and railroad companies, and the state auditor has certified the same to the various county clerks, they are *Page 785 without further authority — then undoubtedly they would have no authority to act under this section until the time for making the assessments in the next or some subsequent year; at which time, and in connection with the assessment for that year, the omitted property may be added, and all arrearages accruing against said property extended against the same on the tax rolls. We think this is the correct construction to be given to this section; and if the action of the board in this case is sought to be justified as a reassessment of property already assessed, the same was without warrant or authority of law; and if it be an addition of property omitted, then they are without jurisdiction, because, having fully completed their labors, they have no power to further act until the assessment for the succeeding or some subsequent year is to be made, when, by virtue of section 7309, the property so omitted may be added.
We are of the opinion that the writ should issue as prayed for.
KANE, C. J., concurs. TURNER AND SHARP, JJ., concur in conclusion. BROWN, J., dissents.