Cornelius v. State
| Decision Date | 12 May 1914 |
| Docket Number | 5917. |
| Citation | 140 P. 1187,40 Okla. 733,1914 OK 222 |
| Parties | CORNELIUS, REGISTER OF DEEDS, v. STATE EX REL. CRUCE, GOVERNOR, ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A mortgage, conveying to the Commissioners of the Land Office for and on behalf of the state, certain land to secure a loan of $1,000 of the permanent school funds, is the property of the state, and as such, by virtue of Const. art. 10, § 6, is exempt from the tax thereon sought to be imposed by act approved July 12, 1913 (Laws 1913, c. 246), which is not a revenue bill within the meaning of Const. art. 5, § 33.
Error from District Court, Oklahoma County; W. R. Taylor, Judge.
Mandamus by the State, on relation of Lee Cruce, Governor, and others against M. Cornelius, Register of Deeds of Oklahoma County to compel the recording of the mortgage for loan of permanent school funds without payment of the mortgage registration tax imposed by Laws 1913, c. 246. From a judgment granting the writ, the register brings error. Affirmed.
D. K. Pope and A. L. Hilpirt, both of Oklahoma City, for plaintiff in error.
J. H. Chambers, of Oklahoma City, and R. E. Wood, of Shawnee, for defendants in error.
On March 29, 1913, the commissioners of the land office, pursuant to Const. art. 6, § 32, and Revised Laws of 1910, § 7652, loaned to J. H. Morton and wife $1,000 of the permanent school funds, and, as security therefor took back from them a mortgage conveying to said commissioners for and on behalf of the state, the "northwest quarter (N.W. 1/4) of section fourteen (14), township fourteen (14) north range four (4), west of the Indian meridian, containing one hundred and sixty (160) acres, payable in five years." Later they presented said mortgage to M. Cornelius, register of deeds of Oklahoma county, for recording, and they tendered him $1.35 as his fee for so doing, which he refused to accept and record said mortgage, for the reason that nowhere indorsed thereupon or accompanying the same was there a receipt of or from the county treasurer of Oklahoma county or other evidence showing payment of $5, the tax sought to be imposed thereon by act approved July 12, 1913, Session Laws of 1913, c. 246. The question before us is whether mandamus will lie to compel him to record the mortgage. As the act was passed during the last five days of the Fourth Legislature, it is conceded by all concerned that mandamus will not lie if said act is a revenue bill within the contemplation of Const. art. 5, § 33. Said act is entitled:
"An act providing for exemption from ad valorem tax of mortgages on real estate and the indebtedness thereby secured, the payment of a registration tax when filing mortgages for record and providing for a procedure for collecting such special tax [sic] for other purposes."
After defining section 1, "real estate mortgage," which includes the one in question, section 2 provides:
Section 3 then provides:
"No mortgage of real property situated within this state shall be exempt, and no person or corporation owning any debt or obligation secured by mortgage of real property situated within this state shall be exempt from the tax imposed by this article by reason of anything contained in any other statute, or by reason of nonresidence within this state, or for any other cause."
That part of section 4 applicable, if at all, to this mortgage then provides for a tax of 50 cents on each $100 secured thereby. It is unnecessary to quote further from the act. It is apparent that this act is not a revenue bill within the contemplation of said section of the Constitution, for the reason that the revenue to be derived therefrom is merely an incident to the main object of the bill, and that its general purpose was not that of raising revenue.
In Twin City National Bank of New Brighton v. Nebeker, 3 App. D. C. 190, in the body of the opinion it is said:
"While the primary object of all taxation is the raising of revenue for the support of the government, and all bills for that general purpose are 'bills for raising revenue,' in the sense of the Constitution, and therefore must originate in the House of Representatives, it does not necessarily follow that every bill for some other legitimate and well-defined general purpose becomes a revenue bill in the same sense, because, as an incident to the main object, it may contain a provision for the payment of certain dues, license fees, or special taxes."
In the syllabus the court says:
"The fact that that portion of National Bank Act June 3, 1864, § 41 (13 Stat. 111), which imposes a semiannual tax upon the circulating notes of the national banks organized under the act had its origin in the Senate by amendment to the bill as originally introduced in the House does not invalidate it," as "the amendment was not an independent measure and did not convert it into a bill for raising revenue in the sense of Const. art. 1, § 7," providing that bills for raising revenue must originate in the House of Representatives.
In Mumford v. Sewell, 11 Or. 67, 4 P. 585, 50 Am. Rep. 462, the act assailed was of October 26, 1882, and entitled:
"An act to define the terms 'land' and 'real property' for the purpose of taxation and to provide where the same shall be assessed and taxed, and to declare what instrument whereby land or real property is made security for the payment of a debt shall be void, and to repeal sections 2 and 7 of c. 50 of Misc. Laws of Oregon."
Among other things the act provided that mortgages on real estate should, for the purpose of taxation, be deemed to be real property, and should be assessed and taxed to the owner thereof in the county where recorded. The act made it the duty of the county clerk, where requested by the owner of a mortgage recorded in his office, to record in the margin of the record of the mortgage all payments made on the indebtedness which such mortgage was given to secure. Pursuant to the act, respondent requested the appellant, the county clerk of a certain county in the state, to record in the margin of a certain mortgage recorded in his office certain payments made thereon, which he refused to do, whereupon respondent instituted certain proceedings, which resulted in a peremptory writ of mandamus requiring him so to do. On appeal the clerk urged among other defenses that the bill was unconstitutional; on this point the court said:
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