¶ 1 I concur in the judgment and in most of the Court's opinion. Where I depart is *Page 1141 from that language explaining why "The June 24, 1996 Resolution" became ineffective. The opinion seems to contemplate as available to the Commissioners some kind of "protest" before the Excise Board. I have difficulty reconciling this language with our prior opinions and the relevant statutes.
¶ 2 The budget process of the "County Budget Act" creates a budget for a county. The procedure of § 1415 is for the purpose of taxpayer protesting a county budget. The specific statute at issue, 19 O.S. 1991 § 1415[19-1415], states as follows:
Within fifteen (15) days after the filing of any county budget with the State Auditor and Inspector, any taxpayer may file protests against any alleged illegality of the budget in the manner provided by Sections 24104[68-24104] through 24111[68-24111] of Title 68 of the Oklahoma Statutes. If no protest is filed by any taxpayer within the fifteen-day period, the budget and any appropriation thereof shall be deemed legal and final until amended by the county budget board. Taxpayers shall have the right at all reasonable times to examine the budget on file with the county clerk, county excise board or the State Auditor and Inspector for the purpose of checking for illegalities in the levies or for filing protests in accordance with this section.
Section 1415 gives a remedy to taxpayers to file protests against levies, and the statute refers to the procedure in sections 24104 through 24111 of Title 68. Sections 24104 through 24111 are numbered this way in the 1981 Official Statutes, and they specified the procedures for the Court of Tax Review.1 The incorporation of these statutes and review by the Court of Tax Review is also provided for municipal budgets in 11 O.S. 1991 § 17-210[11-17-210], and medical service districts in 19 O.S. 1991 § 1716[19-1716]. The protest is before the Court of Tax Review and not the Excise Board.
¶ 3 The opinion appears to expand the definition of a "taxpayer" to include a governmental entity, in this case, Oklahoma County. This runs counter to many of our opinions that allow mandamus and injunctive relief as the appropriate remedies to government entities in circumstances that include seeking to correct a budget. These remedies are based upon this Court's recognition that governmental entities are not taxpayers, and cannot therefore file the statutory protests. This point is demonstrated by opinions such as Clay v. Independent SchoolDistrict No. 1 of Tulsa County, 1997 OK 13, ¶¶ 22-23,935 P.2d 294; Oklahoma City v. Excise Board of Okla. County,193 Okla. 189, 141 P.2d 805 (1943); and Smith v. Board of CountyCommissioners, 201 Okla. 652, 208 P.2d 177 (1949).2 If a budget does not include a mandatory expense, as in Clay, then under the reasoning of today's opinion, could a government entity (in that case, the assessor) file a protest as a taxpayer? In one opinion we said the following.
Board of County Com'rs of Muskogee County v. City ofMuskogee, 1991 OK 115, ¶ 20, 820 P.2d 797, 807, emphasis added.A municipality is a revenue consumer, not a contributor. It does not have standing to press a taxpayer's complaint based on a statute's non-uniform effect
The above language is inconsistent with the Court's opinion.
¶ 4 Section 46 of Article 5 states that the Legislature shall not pass any local or special law authorizing certain activities that are listed *Page 1142 in that section.3 The Court cites two of these as justification for treating a county government as a taxpayer: The first is that the Legislature shall not pass a local or special law authorizing regulating the affairs of counties. The second is that § 46 prohibits a local or special law authorizing "[r]egulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts, . . . or other tribunals,. . . ."
¶ 5 The first question raised in a § 46 challenge is whether § 1415 is a special or local law. If it is not, then we need not make further inquiry. See Fraternal Order ofPolice v. City of Choctaw, 1996 OK 78, 933 P.2d 261, where we said that we must first determine whether the statute at issue in a special law or a general law, and then if so, whether it falls within one of the enumerated situations in which a special law is never constitutional. Id. 1996 OK 78, at ¶ 28, 933 P.2d at 269, citing, Reynolds v.Porter, 1988 OK 88, 760 P.2d 816, 822. Accord,Ross v. Peters, 1993 OK 8, ¶ 27, 846 P.2d 1107, 1119. A statute is general if it relates uniformly to or involves all persons or things in a given class. A statute is special if it relates to only particular persons or things within a class. Fraternal Order of Police v. City of Choctaw,1996 OK 78, 933 P.2d 261, citing, Reynolds v.Porter, 1988 OK 88, 760 P.2d 816, 822, and Jack v.State, 183 Okla. 375, 82 P.2d 1033 (1938). More specifically: "Special laws prohibited by the Okla. Const. art. 5, § 46 are those which do not have a uniform operation and which apply to less than the whole of a class of persons, entities or things standing upon the same footing or in substantially the same situation or circumstances." City of Bethany v. PublicEmployees Relations Bd., 1995 OK 99, ¶ 36, 904 P.2d 604, 615, notes omitted. Accord, State v. Goforth,1989 OK 37, ¶ 10, 772 P.2d 911, 914.
¶ 6 How does the Court determine if the persons, entities or things are indeed standing upon the same footing or in substantially the same situation or circumstances? In making a § 46 analysis we have examined *Page 1143 whether the statute at issue applied to named counties, or excepted named counties from the operation of the statute. See Sparks v.Board of Library Trustees, 197 Okla. 132 169 P.2d 201, 203 (1946), and the collected opinions involving counties and school districts. One reason for this analysis is that the Legislature possesses the power to regulate counties with a statute applying to all counties. See Sparks v. Board of Library Trustees, 197 Okla. 132,169 P.2d 201, 203 (1946), where we said that the "Legislature possesses the power to regulate the use of all county funds by appropriate general legislation. . . . ." The statutes at issue here do not single out Oklahoma County from other counties for either inclusion or exclusion. The County Budget Act applies "to any county which by resolution of the governing body elects to come under and comply with all its provisions and requirements."19 O.S. 1991 § 1403[19-1403].
¶ 7 We have also examined whether the operation of a statute that is universally applicable on its face nevertheless has the effect of singling out particular counties by unreasonable criteria. One example of this is in an opinion involving the local or special laws prescribing the duties of officers in counties. State v. District Court of Mayes County,1967 OK 228, 440 P.2d 700. There we invalidated legislation that awarded additional salary to certain county officials in those counties with both a population between 20,000 and 20,400 in the preceding decennial census and also possessed an assessed valuation of at least $15,000,000.00. We concluded that "the population and valuation classification prescribed in the bill under consideration is purely arbitrary in the sense that there appear to be no distinctive characteristics upon which varying treatment of officials in the affected counties may be founded,. . . ." Id. 1967 OK 228, at ¶ 11, 440 P.2d at 706. This analysis focuses upon the reasonableness of the criteria used by the Legislature, and not the number of people affected. This is so because the number of persons affected by legislation general on its face, is not, by itself, a sufficient reason for its invalidation. See Excise Board ofWashita County v. Lowden, 189 Okla. 286, 116 P.2d 700, 703 (1941), (a law may be general and yet have only one local application);Grable v. Childers, 176 Okla. 360, 56 P.2d 357 (1936), (the syllabus by the Court states that a general law may have an impact upon a relatively small number of persons).
¶ 8 Focusing upon the reasonableness of the legislative criteria is at the heart of the Court's second justification pursuant to § 46 for treating a county government as a taxpayer. Our determination of reasonableness is often based on how the Legislature has defined substantive rights. That is, we have examined whether individuals treated differently by a procedural statute possess the same substantive statutory rights. We do this by looking at the nature of the cause of action or controversy that is involved.
¶ 9 For example, see Walton v. Colonial Penn Ins.Co., 1993 OK 115, 860 P.2d 222, where we noted that suits on oral contracts and written contracts were constitutionally subject to different statutes of limitations, and we held the Legislature could enact statutes of limitations for suits on fire insurance contracts that were different from those for suits on other contracts. Id. 1993 OK 115, at ¶¶ 10-13, 860 P.2d at 225-226. We used this analysis again in Brown v.Ford, 1995 OK 101, ¶ 7, 905 P.2d 223, 228. Therein we said that a statute providing a remedy against an employer for work-related sexual discrimination did not violate § 46 when the remedy was statutorily limited to an employer having fifteen or more employees. Id. In other words, different remedies may be based upon legislatively drawn criteria that distinguish different causes of action. This concept is not novel, and is found in our opinions discussing remedies that are available based upon the nature of the substantive rights at issue. See, e.g., Macy v. Oklahoma CitySchool Dist. No. 89, 1998 OK 58, 961 P.2d 804, 807-810.
¶ 10 In our case today, are different causes of action (or substantive rights) present in a protest remedy for a taxpayer and a mandamus remedy for a county? The answer is yes. This Court has recognized that taxpayers have a direct and immediate pecuniary interest at stake when the illegal use of moneys by a municipal corporation is involved. *Page 1144 Brandon v. Ashworth, 1998 OK 20, ¶¶ 6-8, 955 P.2d 233, 235. From the viewpoint of the Legislature, the interest of county officials, i.e., the county itself, is different from that of taxpayers. This viewpoint is shown by the procedures for a § 1415 protest.
¶ 11 Included in the concept of a protest procedure is the invasion of a legally protected interest where the defendant is that party legally responsible for the injury or its redress. Borrowing and modifying a phrase from Chief Judge Cardozo, the protest procedure of § 1415 is not actionable unless it involves the invasion of a legally protected interest, i.e., the violation of a right with regard to the defendant(s) thereto; proof of an illegal budget item in the air, so to speak, will not do.4 In other words, a protest proceeding must have as a plaintiff a real party in interest and a proper defendant. Who are the parties to a § 1415 protest of a county budget? A taxpayer or protestant is the plaintiff and a "county" is the defendant. A district attorney is statutorily required to represent a "county" before the Court of Tax Review (68 O.S.1991 § 3026[68-3026]), and either the "protestant" or the "county" may appeal to the Supreme Court, 68 O.S. 1991 §3027[68-3027]. By turning a county into a taxpayer/protestant the Court must also turn some other entity into a county/defendant. I divine nothing in the statutes or the Oklahoma Constitution requiring such a construction.
¶ 12 The Court has stated that: "A classification is not a prohibited, special law if it establishes a reasonable classification of persons, entities or things, sharing the same circumstances." Nelson v. Nelson, 1998 OK 10, n. 24,954 P.2d 1219, 1225. The Court then cited with approval a separate writing stating "that legislation relating to `discrete subclasses . . . based upon identified distinguishing characteristics' would not be subject to art. 5, § 46's prohibition against a special law." Id. Thus, it is reasonable for the Legislature to classify the interests of county government as different from taxpayers when the complaint is an alleged illegality in a county budget. Are there characteristics that distinguish county government as a party seeking to challenge a budget from taxpayers seeking to challenge a budget? If so, there is no violation of Art. 5 § 46. The statutes themselves characterize the interests of counties and taxpayers as different.
¶ 13 The interests of taxpayers in removing an alleged illegal payment from a budget are simply not the same as those of county government from removing an alleged illegal payment from its own budget. If the illegality is not removed the taxpayer must fund the item. The Legislature recognizes this substantive fiscal interest and gives the taxpayer a remedy at the end of the process after the budget has been approved by the excise board. An excise board is required to strike items that are not authorized or contrary to law. 68 O.S. 1991 §1414[68-1414](A)(1). Giving taxpayers a remedy to challenge an illegal expenditure after excise board approval gives taxpayers an opportunity for a final approval of the expenditure of public funds. I would follow the literal language of the statutes and decline to make county government a "taxpayer" for the purposes of a tax protest proceeding. I would conclude that § 1415 is not a local or special law.
¶ 14 In sum, if an item in the budget before the Excise Board is unlawful because of the June 24th Commissioners' Resolution, then that same item was unlawfully in the budget before the Budget Board. The Resolution would thus have legal effect as to all government entities — including both the Budget Board and the Excise Board. If no statutory remedy exists for County Commissioners before the Court of Tax Review the common law remedy of mandamus fills the gap. This is one purpose of mandamus, and a procedure consistent with Clay v. IndependentSchool District No. 1 of Tulsa County, supra. This remedy was available at the time this dispute arose. Clay v.Independent School District No. 1 of Tulsa County, *Page 1145 supra. The Commissioners' remedy was to seek mandamus against the Budget Board immediately when it published the budget with the alleged unlawful item, and then subsequently to add the Excise Board as a party respondent in the same proceeding if the alleged unlawful budget is before the Excise Board without correction.
¶ 15 I concur in the judgment because the Commissioners used the wrong remedy. Their claim was pressed by a counter-claim in a declaratory judgment proceeding, and the fiscal year has lapsed, mooting any claim for governmental funds. See Clayv. Independent School District No. 1 of Tulsa County,1997 OK 13, at n. 22, 935 P.2d at 305, explaining, Mortonv. Adair County Excise Board, 1989 OK 174, 780 P.2d 707, and other opinions.5 Thus, I would affirm the judgment.
The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:
The creation, extension, or impairing of liens;
Regulating the affairs of counties, cities, towns, wards, or school districts;
Changing the names of persons or places;
Authorizing the laying out, opening, altering, or maintaining of roads, highways, streets, or alleys;
Relating to ferries or bridges, or incorporating ferry or bridge companies, except for the erection of bridges crossing streams which form boundaries between this and any other state;
Vacating roads, town plats, streets, or alleys;
Relating to cemeteries, graveyards, or public grounds not owned by the State;
Authorizing the adoption or legitimation of children;
Locating or changing county seats;
Incorporating cities, towns, or villages, or changing their charters;
For the opening and conducting of elections, or fixing or changing the places of voting;
Granting divorces;
Creating offices, or prescribing the powers and duties of officers, in counties, cities, towns, election or school districts;
Changing the law of descent or succession;
Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts, justices of the peace, sheriffs, commissioners, arbitrators, or other tribunals, or providing or changing the methods for the collection of debts, or the enforcement of judgments or prescribing the effect of judicial sales of real estate;
Regulating the fees, or extending the powers and duties of aldermen, justices of the peace, or constables;
Regulating the management of public schools, the building or repairing of school houses, and the raising of money for such purposes;
Fixing the rate of interest;
Affecting the estates of minors, or persons under disability;
Remitting fines, penalties and forfeitures, and refunding moneys legally paid into the treasury;
Exempting property from taxation;
Declaring any named person of age;
Extending the time for the assessment or collection of taxes, or otherwise relieving any assessor or collector of taxes from due performance of his official duties, or his securities from liability;
Giving effect to informal or invalid wills or deeds;
Summoning or impaneling grand or petit juries;
For limitation of civil or criminal actions;
For incorporating railroads or other works of internal improvements;
Providing for change of venue in civil and criminal cases.