I cannot concur with by Associates *Page 786 in the final conclusion reached in this case, though with many of the propositions announced therein I heartily agree.
First, I agree that under section 21, art. 10, of the Constitution, it is the imperative duty of the state board of equalization to assess for taxation all property belonging to public service corporations in this state subject to taxation.
Second, I agree that for the purpose of assessing property owned by public service corporations the state board of equalization is a board of assessors.
Third, I agree that section 7309, Rev. Laws 1910, which makes it the duty of tax assessors to cause to be placed on the tax rolls taxable property which has been omitted and escaped taxation, applies to and includes the state board of equalization, the same as local officers whose duty it is to assess property for taxation, and I believe the board has authority so to do, independent of said statute.
Fourth, I agree that the several statutes stating the time in which the officers who shall act are directory, and I am in hearty accord with the proposition so well stated in the opinion of the court and in language which can scarcely be improved on, as follows:
"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 power 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 *Page 787 by disclosing all his property subject to taxation, and this fact is discovered by the taxing officers before the time has expired in which property may be lawfully assessed, and that such officers may proceed after proper notice and opportunity to be heard, 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 whether his property is assessed within the particular times prescribed by law or thereafter."
I think the following proposition announced by the court is not applicable to the facts in this case as disclosed by the record, viz.:
"We are of the opinion that, when said state board of equalization had valued and assessed all property of public service corporations in the state, and caused the same to be certified by the state auditor to the county clerks as required by section 7309, that 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 as the original assessment and certification was made."
The proposition just quoted is based upon conditions and a state of facts different from those upon which the state board of equalization acted in the instant case. The language of the court is:
"That when said board had valued and assessed all property of public service corporations in the state, and had caused the same to be certified by the state auditor to the county clerks," and so forth.
In another portion of the court's opinion, referring to the answer of the defendants, the court say: *Page 788
"There is no reply to the answer, and for the purposes of this proceeding the material averments and allegations thereof are to be taken as true."
In this the court is, of course, correct. Thus, considering the allegations in defendants' answer as true, we have this character of case: The extent and value of property owned by plaintiff and subject to taxation in Oklahoma, for the year 1914, was peculiarly within the knowledge of plaintiff's officers, and was not known to the state board of equalization, and that, in making and returning to the state auditor, the sworn list and schedule required by statute of property owned by the plaintiff corporation, together with a statement of the value thereof, plaintiff fraudulently omitted to include in such lists certain oil and gas leases of the approximate value of $10,500,000, and fraudulently stated the value of the property actually listed to be several million dollars less than its actual value, and that the board in August, 1914, was induced, by such fraudulent omission and false statement of values, to assess the property of plaintiff so returned at $35,000,000, which sum was more than $10,500,000 less than the taxable value thereof; that thereafter said assessment, was certified to the county clerks as required by law, and the board did not adjourn, but took a recess, subject to be reconvened upon call by the Governor; that later, about September of the same year, the board was informed of the omission by plaintiff to list and return its property, the oils and gas leases, as well as other property alleged to belong to it, and that said property was not included in the August assessment, and also that plaintiff had concealed the real value of its property rendered, and that, as a result thereof, the August assessment of said property at $35,000,000 was greatly less than the taxable value thereof, and that therefore, after due notice to plaintiff, the board, over plaintiff's objections, proceeded to hear and take evidence upon the questions stated, and that the evidence so taken showed plaintiffs had, in fact, failed and omitted to include in its property lists, oil and gas leases, and *Page 789 other property belonging to it, and subject to taxation in the state of Oklahoma, for the year 1914, and the taxable value of such omitted property for said year was at least $10,500,000, and was not included in the board's previous assessment, and that such evidence further showed $35,000,000, the board's August assessment of plaintiff's listed property, was more than $10,500,000 less than the then taxable value of said property; that after hearing said evidence the board agreed to assess plaintiff for $10,500,000, in addition to its August assessment, and to add said additional sum to its previous assessment of $35,000,000, as the tax due and owing by plaintiff for the year 1914, and plaintiff brought this action to prohibit the board from doing the acts above stated. This court, as then composed, on the 5th day of January, 1915, in a decision by Justice Riddle, and concurred in by all the Justices (the present Chief Justice not sitting) denied plaintiff's petition for the writ of prohibition. Now, I submit, if the above facts stated in the answer are to be taken as true, and they must, then the state board had not assessed all the property of plaintiff subject to taxation at its meeting the __________ day of August, 1914.
But in this case, if we concede the board of equalization, when it assessed plaintiff's property at $35,000,000 in August, 1914, understood, as it evidently did, it was assessing all the property owned by plaintiff and subject to taxation in the state of Oklahoma, and intended such assessment as final, and that the action of the state auditor in certifying this assessment down to the county clerks was without objection on the part of the board, and that thereafter, when the board took recess subject to the call of the Governor, it did not have in mind any further proceedings in connection with plaintiff's property, even then, in my judgment, it was not precluded, under the allegations in the answer in this case, from further consideration of the matter of its assessment of plaintiff's property. To illustrate: Property owned by public service corporations is peculiarly within the knowledge of its *Page 790 officers and servants. The law requires, on or before the last day of February of each year, they shall make and file with the state auditor sworn lists and schedules truly stating the property owned by them and the cash value thereof. The purpose of the statute in requiring these lists is to enable or at least aid the state board of equalization in arriving at a correct valuation and assessment of all property owned by the corporation. Every person is presumed to swear truthfully, and the board of equalization would be justified in assuming that the sworn lists and schedules returned contained a full and complete list of its taxable property, and that the valuation therein stated was, in truth, the cash value of such property. It is conceded the board may act at any time, within its discretion, in assessing corporation property. Then let us suppose that in March, immediately after the corporation has returned and filed its lists and schedules as required by law, the board of equalization, upon examination of these returns, rely upon the sworn statements that they contain a list of all property owned by the corporation subject to taxation in the state, and that the sworn value therein stated is correct, and, so relying, proceed to assess plaintiff's property stated in such returns, at the value therein stated, that the assessment is accordingly certified by the state auditor to the different county clerks, as required by law, and within the next ten days the board should learn the corporation and its officers had knowingly and intentionally omitted from the lists a certain class of its property subject to taxation, and had knowingly, and intentionally misstated the value of the property returned, then, if the court's holding in this case is correct, the board would nevertheless be precluded from a reconsideration of its assessment, and precluded from adding to the original amount already assessed against the corporation the value of the property which had been omitted from the returns and not assessed at all, and thereby the corporation, as a result of its success in perpetrating a fraud upon the board and concealing from it taxable property and values, escape the *Page 791 payment of taxes for the current year upon the property and values omitted, though the same equaled or exceeded the value of the property actually returned and assessed, and though, as in this, the omitted property aggregated millions of dollars of taxable property and thousands of dollars of taxes which the corporation would be required to pay but for the fraud successfully perpetrated.
Another illustration: Suppose a corporation returns a correct statement and list of all property owned by it subject to taxation, but knowingly, with a fraudulent intent to deceive the board and escape payment of taxes, swore the cash value of the property returned was $31,000,000 (approximately the value placed by the corporation upon the property returned by it in this case), when, in fact, it knew the cash value of such property was over $60,000,000 (as some of the evidence tended to show was the cash value of the property returned by plaintiff in this case), and the board, relying upon the sworn valuation stated in the corporation's return, adopted the same and assessed the property thereat, and caused their assessment to be certified by the state auditor to the county clerks, and thereafter the board took a recess or adjourned, with no expectation of further consideration of the corporation's taxes, and afterwards, during the same year, and possibly the same month, the fraud is brought to the knowledge of the board, and it is discovered the corporation is assessed for even less than half the correct value of its property, then, notwithstanding this fact, under the court's holding, the board would be forever precluded, under existing laws, from reassessing the corporation's property, and from adding to the already assessed value a sum equal to the difference between the already assessed value and the actual taxable value at which it should have been assessed in the first instance, and the corporation would, as a reward for the successful perpetration of the fraud and deceit practiced by it upon the board, permanently escape *Page 792 payment of one-half the taxes which in justice it should pay; for the court says:
"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 seate, 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."
In my judgment, the law as it existed in 1914, and as it exists to-day, was and is sufficient to confer upon the board of equalization power to assess all property of whatsoever kind, of public service corporations, owned by them in this state, subject to taxation, and at its full taxable value, whether the same is correctly stated in the schedules returned by the corporation or thereafter discovered by the board of equalization, and that where the board, by fraud, accident, or mistake, fails to properly tax such property, it may return at any time the mistake is discovered and make a correct assessment.
In the case of Anderson v. Ritterbusch, Treasurer,22 Okla. 761, 98 P. 1002, this court held, quoting from paragraphs 10 and 11 of the syllabus, as follows:
"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 any obstacles, it may return again and again until, the way being clear, the tax is collected.
"In laws for the assessment and collection of taxes due on omitted property, it is uniformity of burden, and not identity of method of enforcement, which is required by constitutional principles."
The duty imposed upon the board by the Constitution is *Page 793 mandatory — that of assessing all public service corporations in the state. The Constitution prescribes no bounds; it does not state when the board's work shall commence or be completed. Any statute which would so hamper or obstruct the board in the discharge of this duty so as to prevent the complete consummation and accomplishment thereof would be unconstitutional. The statutes do not prescribe any time within which the board is bound to act, or which estops them from acting at any time in the discharge of the duty imposed upon them. But the effect of the court's holding is that, the board having met, and by mistake has assessed the corporation's property at less than its valuation, has thereby estopped itself from a full and complete discharge of the duties imposed upon it by the Constitution and statutes of the state. The board is a continuing one, and with a mandatory duty of assessing all property of public service corporations at its fair cash value, and, in my opinion, it cannot by its own act excuse itself from a full discharge of such duty. It must perform the duty of assessing public service corporations, and, if necessary, it is entitled to the full term of its office in which so to do, and, as before stated, where, by fraud, accident, or mistake, it had been prevented or has failed to discharge its full duty, it may at any time during its term of office, upon discovery thereof, proceed to the full performance and discharge of such duty, and it is its duty to do so.
The court in its opinion appears to construe the action of the board in December, 1914, as a reassessment of plaintiff's property already assessed in August, and holding that property once assessed cannot be reassessed by the board, and that the writ of prohibition will lie to prohibit the board from adding to the amount of its August assessment the $10,500,000, the sum found at the December meeting to be the value of the corporation's property which was not previously considered by the board nor assessed by it. But I do not understand the action of the board in December to be a reassessment of the property value considered *Page 794 and assessed in August. The defendants' answer affirmatively alleges the facts hereinbefore stated. It is further alleged that defendants deny that the statement returned by plaintiff contains all of the property in the state of Oklahoma subject to taxation. It is further alleged:
"That these defendants deny that said assessment was made with full knowledge by the board of the character, quality, and use of the property of the plaintiff, and affirm that at that time, and on the 1st day of March, 1914, and on the 1st day of January, 1914, and on the 1st day of February, 1914, plaintiff had other additional property in very large amounts not known to these defendants, and which they did not know of on said __________ day of August, 1914, when they made the assessment last named"
Again, after admitting in August, 1914, the board attempted to complete its assessment of the property of plaintiff and of all other public corporations for that particular year, it is affirmatively alleged, at the bottom of page 2 and top of page 3 of said answer:
"But that, in fact, these defendants failed in said attempt, to the extent at least as has appeared at this time, that they failed to properly assess the property of the Prairie Oil Gas Company, this plaintiff, and several other public service corporations similarly situated and of other corporations dissimilarly situated."
It is further alleged on page 3 of the answer, in substance, that after the August assessment of the property returned by plaintiff the board believing it had fully assessed all public service corporation property, levied an ad valorem tax of 1.3 mills for such fiscal year on the property of plaintiff, and that said assessment and levy was certified by the state auditor down to the proper officers, and that thereafter, in September, the board took a recess subject to the call of the Governor, and that on the __________ day of November, 1914, one C. H. Pitman represented *Page 795 to the individual members of the board of equalization that certain property belonging to plaintiff had been omitted and not assessed by the board for the fiscal year of 1914, and that the property, which was assessed was assessed insufficiently; that on or about the 30th day of November, the board was reconvened by the Governor, and, after due notice to plaintiff, proceeded, over plaintiff's objection, to hear evidence offered by both plaintiff and Pitman for and against said allegation of omitted property and insufficient assessment. It is further alleged, in substance, that the evidence before the board at such December meeting showed such property was of the value of at least $10,500,000, and that the same had been omitted and not assessed by the board because of the fraudulent concealment thereof by plaintiff, and that after hearing the evidence the board, upon motion and second, agreed to add said sum of $10,500,000 to its previous assessment of plaintiff's property. These affirmative allegations in defendants' answer, if true, and, being undenied, are to be taken as true, show very plainly, to my mind, that the December action of the board does not amount to a reassessment of the property assessed by it in August, but was an assessment of other property belonging to plaintiff which was not before the board, and was not considered or assessed by it at its August meeting.
It is admitted in the opinion of the court that, under section 7309, Rev. Laws 1910, the state board of equalization have authority to assess property belonging to public service corporations which has been omitted and not previously assessed for taxes, but the court holds the board could not do so until the following year. I am at a loss, however, to understand how, under this statute referred to, it can be contended the board must wait until a subsequent year in which to render and assess omitted property authorized to be assessed by them. Notice the language of said section 7309:
"If any real or personal property be omitted in the assessment *Page 796 of any year or years, and the property thereby escape taxation, when such omission is discovered the assessor shall enter such property on the assessment and tax books for the year or years omitted and he shall assess the property, and extend against the same on the tax list for the current year, all arrearage of taxes properly accruing against it, including therein, in the case of personal property taxes, interest thereon at the rate of six per cent. per annum from the time such taxes would have become delinquent, and when the omission was caused by the failure of the owner to list the same."
The statute is plain and unambiguous, and by its provisions and terms it becomes the duty of the assessing officer, as soon as be discovers property authorized to, be assessed by him has been omitted and not assessed for taxes, either for previous years or for the year in which the discovery is made, to then and there enter said property on the tax rolls and assess it and extend the taxes on the tax list for the current year. To wait until the following year, as held by the court he must do, to enter said property on the tax rolls or to assess the same, would, I think, be in violation of the plain and express terms of the statute. There is also splendid reason for requiring the taxing officer to proceed with the assessment as soon as he discovers the omitted property: First, the personnel of the taxing officers, which in this case was the board of equalization, may sustain a complete change before another year, as has been done in the present case at the recent election, and their successors, not having heard the evidence establishing the omission and nonassessment, could not proceed as provided by this section of the statute without again going to the trouble and expense of taking evidence, much or all of which may not be obtainable; and, second, before the following year the unassessed and untaxed property may have been removed beyond the limits of the state and the owner thereof become insolvent; or, third, the property may have been purchased by another without notice of the nonassessment for taxation thereof. If the law regulating the assessment of taxes in this *Page 797 state is as construed by the court in its opinion, then there is a very serious discrimination between the ordinary taxpayer and public service corporations and in favor of the latter. The property of the ordinary taxpayer is assessed according to article or items. If he has ten head of horses, and lists only five for assessment, the omission is easily discovered, and the omitted five head may be readily included in the new assessment. But public service corporations are assessed according to a unit valuation, and, under the rule adopted by the court in this case, if the board, either by fraud, mistake, or accident, assesses the corporation's property at one-half its valuation, it is precluding from correcting its mistake, and the corporation, instead of bearing its portion of the burden of taxation, pays only one-half of the taxes it should pay, and the amount of the taxes so lost to the state and the various municipalities in which the corporation has property must be paid and contributed by the ordinary and common taxpayer.
In this case I think it is clearly shown the, action of the board at its December meeting simply amounted to an assessment by them of property theretofore omitted and not assessed, of the aggregate value of $10,500,000, and that the board's action was fully authorized by section 7309. It may be, and I think it is a fact, that instead of adding said amount to the original assessment theretofore made by the board, it should have entered and extended the same as an independent assessment against plaintiff in said sum, but, if it was authorized to make the assessment, the fact that it is wrongfully added to the previous assessment was a mere irregularity, and could be taken advantage of by appeal only.
It would seem the court in this case has overlooked the old and familiar maxims, almost elementary, that "one cannot take advantage of his own wrong," and that "he who comes into a court of equity must come with clean hands." *Page 798
The plaintiff appears before us in the attitude of admitting as true the allegations of fraud and deceit in the answer of defendants, and at the same time seeking affirmative equitable relief to stay the correcting hand of the board of equalization seeking to right, the alleged wrong perpetrated upon it.
I am clearly of the opinion that the former decision of this court, denying the writ of prohibition was correct, and that petition of plaintiff for rehearing should be refused, and that the decision of my Brethren herein granting plaintiff a rehearing and allowing a writ of prohibition prayed for is fundamentally wrong.
In view of the pronounced interpretation by a majority of the court of the existing laws of this state relating to the assessment and collection of taxes on the property of public service corporations, it is of vital importance to, the common and ordinary taxpayer in the state that the Legislature, now in session, hasten to enact laws by which all classes of taxpayers be required to contribute their share and portion of the burden of taxation.