(dissenting).
The penalty provisions of the Business Corporation Act of 1947 are Title 18 O.S. 1951 §§ 1.204, 1.239 and 1.247, and Title 18 O.S.Supp.1947 § 1.236. Section 1.236 was repealed in 1949. In my opinion, these provisions did not repeal by implication the penalty provisions of Title 28 O.S.1951 § 111(b).
Title 28 O.S.1951 § 111, inter alia, prescribes that (a) a fee equal to one-tenth of one percent of the maximum amount of a corporation’s capital invested in Oklahoma shall be paid for the fiscal year in which the corporation qualifies to do business in Oklahoma; (b) for each succeeding fiscal year every corporation shall file an affidavit and therein show the maximum amount of capital that the corporation had invested in Oklahoma for the year for which the affidavit is filed; (c) if the corporation’s maximum capital has increased over that upon which a fee has previously been paid, then a fee of one-tenth of one percent shall be paid on the increase; (d) if the corporation fails to file the affidavit or fails to pay the additional fee, the offending corporation is subject to a penalty of $25 per day for each day it is in default.
In determining whether the penalty provisions of Section 111(b), supra, were repealed by implication by the enactment of the 1947 Business Corporation Act, a comparison of the penalty provisions enacted should be made with the penalty provisions the majority opinion holds were repealed by implication.
Section 1.236, supra, which was repealed in 1949, provided a penalty of $25.00 a day for failure to execute and deliver cm annual report in the manner and at the time required by the provisions of this Act, being the 1947 Corporation Act. In my opinion, the information to be filed in an annual report as prescribed by the Act was not the same as, nor did it relate to the affidavit to be filed or the fee to be paid as provided by Sec. Ill, supra.
Section 1.236 did not impose a penalty for failure to pay fees but the penalty was imposed for failure to execute and deliver the annual report. Subsections (c), (d), (e) and (f), of the same section relate to cancellation procedure for failure to file the annual report but does not even mention or make reference to payment of fees; whereas, a penalty is imposed by Sec. 111(b) for not only failing to file the affidavit, but also for the failure to pay fees as therein provided.
A corporation could fail to file its report and fail to pay the penalty in § 1.236, and the only recourse against the corporation would be revocation of its authority to transact business; whereas, failure to pay the penalty under § 111(b), does not prevent an action for the collection of the penalty even though the corporation’s authority to transact business could be rescinded, as it provides the penalty may be recovered in a suit brought by the Attorney General in the name of the State.
Neither the trial court nor Empire Oil Corporation rely on this section as that part of the act which repealed by implication the penalty provisions of Sec. 111(b), but relied on sections 1.204, 1.239, and 1.247. Those relied upon by Empire and the trial court will now be considered.
Title 18 O.S.1951 § 1.204, sub-section b, and paragraphs (6) and (7) provide:
“b. A domesticated corporation may be ousted from this State by the Secretary of State and its certificate of Domestication revoked and cancelled:
“(6) Upon the failure of the corporation to file any report in this State within thirty (30) days after the period *137prescribed in this Act for the filing of such report;
“(7) Upon the failure of the corporation for thirty (30) days to pay any fees, franchise taxes, or changes prescribed by law of this State.”
S.L. of 1947, Sec. 204, p. 163, used the word charges instead of the word changes in (7) above.
It is to be noted that paragraph (6), relates to “failure * * * to file any report * * * after the period prescribed in this Act * * * ”; whereas, paragraph (7) relates to failure * * * “to pay any fees, franchise tax, or changes prescribed by law * * By virtue of the unambiguous phraseology, paragraph (6) relates to “failure” to file any report as prescribed by the Business Corporation Act of 1947, and paragraph (7) relates to “failure * * * to pay * * * [as] prescribed by law” which would include, inter alia, the fees and charges as prescribed by Sec. 111(b), supra, and the franchise tax report to be filed with the Oklahoma Tax Commission.
Assuming, however, if the penalty provision for failure to file any report as prescribed by paragraph (6) above, was applicable to the affidavit as required in Sec. 111(b), supra, this penalty provision could not be imposed until thirty days after a corporation had refused to file its affidavit and the penalty involved is ouster or cancellation of its certificate. It definitely is not a monetary penalty as no monetary penalty is mentioned. The $25 penalty as provided by Sec. 111(b), supra, is definitely a monetary penalty effective the first day after a corporation does not file its affidavit or pay its fee. The penalty provision of Sec. 111(b), supra, cou'ld be applicable and be enforced without Sec. 1.204, supra, being applicable if a corporation filed its reports and paid the fees within the thirty days.
Title 18 O.S.1951 § 1.239 prescribes a monetary penalty for failure to file any report, document or paper “ * * * in the form and within the time required by this Act”, being the Business Corporation Act of 1947. The monetary penalty imposed becomes effective immediately upon failure to file such reports or statements of ownership of land, merger and consolidation, intent to dissolve, change of, registered office or agent, etc., as prescribed in the act of 1947. It is in addition to the penalty provisions of Sec. 1.204, supra, which becomes effective thirty days after such failure. Since this penalty does not relate to “other penalties as prescribed by law”, which would include the penalty provision of Sec. 111(b), supra, it would not be in conflict with or repeal by implication Sec. 111(b), supra.
Title 18 O.S.1951 § 1.247, provides the Secretary of State, for services performed in his office, for expense of mailing, and for filing in the office of the county clerk, shall charge and collect certain fees “in addition to the fees provided by Section 111, of Title 28, O.S.1951.” These fees relate to articles, or amended articles of incorporation, reports and other documents to be filed and for issuing certificates and copying reports and documents and for receiving service of process, whereas under Sec. Ill, supra, the fees are for authorized stock and an additional fee for an increase in capital stock.
A penalty is not imposed by Sec. 1.247 and it specifically states “in addition to the fees provided by Section 111, of Title 28, O.S.1951.” Under no theory do I find this section to be in conflict with Sec. Ill, as this section clearly indicates that the legislature intended that the fee provision of Sec. Ill, supra, be continued in force. Also, this action is for the collection of penalties for failure to file an affidavit and not for the collection of fees as prescribed by Sec. 1.247.
*138In reviewing the penalty provisions of the 1947 Business Corporation Act, and Sec. 111 of Title 28 O.S.1951, with other enactments imposing a penalty for failure to file or pay taxes or fees due within the time as required by law, in my opinion, there is legislative harmony. By enactment of the Oklahoma Franchise Tax Law in 1949, which complemented former franchise tax acts under which penalties were imposed, the legislature provided that if corporations failed to file reports and pay taxes as required, a penalty would be imposed. In addition to the collection of the tax and the penalty the Oklahoma Tax Commission was empowered to suspend the corporation. There are also penalty provisions for failure to file reports or pay taxes or fees due within the time required by law, on other things, such as: gasoline excise tax, special fuel tax, gross production tax, automobile license tax, income tax, estate tax, beverage tax, ad valorem taxes, etc. In absence of specific penalty provisions in the acts levying the tax, Title 68 O.S.1951 § 1466, provides a penalty provision if any tax is not paid before it becomes delinquent. I cannot conclude that the legislature intended or did by enactment of the Business Corporation Act of 1947, relieve corporations from a monetary fee penalty for failure to file a required affidavit or pay the necessary fees. I am therefore of the opinion that the legislature by enactment of the Business Corporation Act in 1947 did not repeal by implication the penalty of Sec. 111(b).
For the foregoing reasons I respectfully dissent to the majority opinion promulgated by a majority of my associates. However, under the rule announced in Oklahoma County v. Queen City Lodge #197, 195 Okl. 131, 156 P.2d 340; and Texas Co. v. Oklahoma Tax Commission, 207 Okl. 385, 249 P.2d 985, a decision of this court overruling an administrative construction of our laws should be given prospective effect only.