State v. Chickasha Mill. Co.

• Decision Date: 14 September 1937
• Docket Number: 26606.
• Citation: 71 P.2d 981,180 Okla. 611,1937 OK 477
• Parties: STATE v. CHICKASHA MILLING CO.
• Court: Oklahoma Supreme Court

71 P.2d 981

180 Okla. 611, 1937 OK 477

STATE v. CHICKASHA MILLING CO.

No. 26606.

Supreme Court of Oklahoma

September 14, 1937

Rehearing Denied Oct. 5, 1937.

Syllabus by the Court.

1. Under section 317, O.S.1931 (12 Okl.St.Ann. § 482), providing for procedure upon motion for the discovery of documentary evidence in possession of an adverse litigant, there must be a judicial determination of the issue relative to the materiality of the evidence sought, and the court, on objection, is unauthorized to issue the order in response to the motion in the absence of proper showing.

2. A motion for the production of documentary evidence as provided in section 317, O.S.1931 (12 Okl.St.Ann. § 482), is addressed to the judicial discretion of the trial court, and on appeal every intendment will be indulged in favor of the validity of the court's order thereon, and the same will not be disturbed in the absence of positive showing of an abuse of such discretion.

3. By reason of section 30, article 2, Constitution, securing to the people immunity from unreasonable search and seizure of their private papers and effects, the motion of a litigant to compel production of documentary evidence in possession of the adverse party as provided by section 317, O.S. 1931 (12 Okl.St.Ann. § 482), to be sufficient, must describe with reasonable particularity the document sought and its materiality to the issues, supported by oath or affirmation.

4. An assessment of a corporation's moneyed capital, surplus and undivided profits at a lesser sum than the actual value of the assets considered when making the assessment constitutes an undervaluation of property for purposes of taxation, and an assessment of the excess value thereof is unauthorized in a tax ferret proceeding.

5. Money, as defined in chapter 72, Sess.Laws 1927 (sections 12339-12344, O.S.1931 [68 Okl.St.Ann. §§ 1161, 1161 note 1162-1165]), is a proper subject of classification of property for purposes of taxation under section 22, art. 10 Constitution.

6. Any excess of cash belonging to the taxpayer on hand, or on deposit subject to withdrawal on demand, on assessment day over the amount returned and assessed, is subject to assessment as omitted property in a tax ferret proceeding at the rate of one-fifth of 1 per cent. as provided in chapter 72, Sess.Laws 1927 (sections 12339-12344, O.S.1931 [68 Okl.St.Ann. §§ 1161, 1161 note, 1162-1165]).

7. Record examined. Held, evidence failed to establish existence of omitted property taxable under section 12369 O.S.1931 (68 Okl.St.Ann. § 88), as moneyed capital, surplus, and undivided profits.

8. Held, evidence in the instant case shows that the taxpayer was not assessed for full amount of its money on hand on assessment day, and that the action of the trial court in sustaining demurrer to the evidence on that item was erroneous.

Appeal from County Court, Grady County; Owen Vaughn, Judge.

Tax ferret proceeding by the State of Oklahoma against Chickasha Milling Company. Judgment for defendant, and plaintiff appeals.

Affirmed in part and reversed in part, and remanded, with directions.

Bob Shelton, Co. Atty., of Chickasha, and R. W. Stoutz, of Oklahoma City, for the State.

Melton & Melton, of Chickasha, for defendant in error.

GIBSON Justice.

This is a tax ferret proceeding from the county court of Grady county wherein the State, under authority of sections 12346, 12348, O.S.1931 (68 Okl.St.Ann. §§ 481, 482), seeks to assess certain alleged omitted property of the defendant company in the nature of moneyed capital, surplus, and undivided profits as defined in section 12369, O.S.1931 (68 Okl.St.Ann. § 88), of the value of $300,000 for each of the years 1921 to 1933, both inclusive. The State and the taxpayer are referred to herein as plaintiff and defendant, respectively. Demurrer to plaintiff's evidence on each item sought to be assessed was sustained, and plaintiff has appealed.

Defendant has moved to dismiss this appeal on the ground that the county court was without jurisdiction to entertain the cause on appeal from the order of the county treasurer in that the statutes authorizing such appeal (sections 12346, 12348, supra) are unconstitutional as a legislative attempt to confer administrative powers upon the courts in violation of section 1, art. 4, Constitution; and for the further reason that section 12, art. 7, Constitution, limiting the jurisdiction of the county court, does not authorize such appeal.

The foregoing question has heretofore been decided adversely to defendant's contention. In Chickasha Cotton Oil Co. v. Grady County, 177 Okl. 240, 58 P.2d 590, we held: "In proceedings to assess omitted property under section 12346, O.S. 1931 [68 Okl.St.Ann. § 481] the county court exercises purely judicial functions."

Plaintiff first presents for our consideration its assignment of error No. 17, wherein it is asserted that the trial court erred in overruling the motion of plaintiff to direct the defendant to permit plaintiff to examine and take copy of certain portions of defendant's books.

Plaintiff was attempting by this motion to proceed under the provisions of section 317, O.S.1931 (12 Okl.St.Ann. § 482), which section reads as follows: "Either party, or his attorney, may demand of the adverse party an inspection and copy, or permission to take a copy of a book, paper or document in his possession or under his control, containing evidence relating to the merits of the action or defense therein. Such demand shall be in writing, specifying the book, paper or document with sufficient particularity to enable the other party to distinguish it, and if compliance with the demand, within four days, be refused, the court or judge, on motion and notice to the adverse party, may, in their discretion, order the adverse party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of such book, paper or document; and on failure to comply with such order, the court may exclude the paper or document from being given in evidence, or, if wanted as evidence by the party applying, may direct the jury to presume it to be such as the party, by affidavit, alleges it to be. This section is not to be construed to prevent a party from compelling another to produce any book, paper or document when he is examined as a witness."

On the day the appeal was lodged in county court plaintiff made written demand upon defendant for permission to inspect and copy such of its books and papers as would relate to the merits of the cause, and consisting of the balance sheets of defendant as of the 1st day of January of each year in question; and the ledgers from which said balance sheets were compiled "showing the assets of said company on said dates mentioned, and showing the character and amount thereof on the first day of January of the years hereinabove mentioned; and also all journals and formal vouchers, being and containing the original entries posted into said general ledger or ledgers, showing the kind, character and location and value, or some of said information, of said assets as of the dates mentioned."

By said written demand plaintiff also sought inspection of other of defendant's records as follows:

"Also the books and/or records of defendant company showing all baled cotton, cotton seed, farm products and other merchandise and personal property, actually situated in Grady County, Oklahoma, in possession or control of the defendant company, on the first day of January of each of the years hereinabove mentioned, whether owned by defendant company, or held by it as agent, trustee, or warehouseman for others claiming to be the owners thereof.

Also the books and/or records of all baled cotton, cotton seed, farm products and other merchandise and personal property of the defendant company, actually situated in any warehouse or warehouses or other place of storage or keeping in Grady County, Oklahoma, on the first day of January of each, any and every of the years hereinabove mentioned, owned or consigned by defendant company for itself, or as agent, trustee, bailee or warehouseman for others, which may be claimed by defendant company to be in transit to other points by reason of any supposed delivery to or receipt by any transportation company or agent for any such transportation company."

The foregoing demand was refused by defendant, and thereafter plaintiff filed the motion in question and, after notice to defendant, the court proceeded to hear the motion and denied the same. It appears that at said hearing no evidence was offered by plaintiff in support of the motion to establish the existence of the records and documents therein named or to establish defendant's possession of the same. Neither did plaintiff offer to prove that said records contained any information or competent evidence that would support its own cause of action.

Plaintiff says that the information so demanded would constitute "at least some competent evidence of such values for taxation purposes."

Our attention is called to no decision of this or any other court where one party, upon the theory that he may discover some competent evidence to support his cause or defense, has been permitted to examine promiscuously into the private affairs of his adversary. The statute, section 317, supra contemplates a regular hearing upon the motion for discovery, with evidence to the satisfaction of the court that the other party possesses that character of evidence mentioned in the statute and material to movant's cause or defense. There must be an actual trial of the issue relative to the materiality of the evidence sought, and the court, on objection, is unauthorized to issue the order in response to the motion in the...