Holliman v. Cole

• Decision Date: 26 June 1934
• Docket Number: Case Number: 25355
• Parties: HOLLIMAN, County Treas., v. COLE.
• Court: Oklahoma Supreme Court

1934 OK 381

34 P.2d 597

168 Okla. 473

HOLLIMAN, County Treas., v. COLE.

Case Number: 25355

Supreme Court of Oklahoma

Decided: June 26, 1934

Syllabus

¶0 Pardon--Taxation--Governor Held Without Authority to Remit Penalties on Delinquent Ad Valorem Taxes by Executive Order.

Neither section 10, art. 6, of the Constitution, nor section 3264, O. S. 1931, grants authority to the Governor to remit, by executive order, the penalties on delinquent ad valorem taxes.

Appeal from District Court, Carter County; Asa E. Walden, Judge.

Mandamus by H. G. Cole against Roy Holliman, County Treasurer of Carter County. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

Marvin Shilling, Co. Atty., for plaintiff in error.

Champion, Champion & Fischl and Hayes, Richardson, Shartel, Gilliland & Jordan, for defendant in error.

OSBORN, J.

¶1 The sole question involved in this proceeding concerns the validity and legality of an executive order of the Honorable William H. Murray, the Governor of the state of Oklahoma, issued on January 15, 1934, remitting the penalty on delinquent taxes to all taxpayers in the state of Oklahoma.

¶2 Plaintiff seeks a writ of mandamus against the county treasurer of Carter county directing him to issue to plaintiff a tax receipt.

¶3 The facts are not in dispute. Plaintiff was the owner of certain property in Ardmore, Carter county, Okla., which had been assessed for taxes for the years of 1926 to 1932, inclusive. The taxes for said years had not been paid. Plaintiff, desirous of availing himself of the benefits of said executive order, tendered to the county treasurer of said county the amount of the taxes and costs covering the years in question, and demanded a tax receipt in full. The county treasurer demanded, in addition to the taxes and costs, a penalty of one per cent. per month on the taxes admitted to be due, and, upon refusal of plaintiff to pay said penalty, refused to issue said tax receipt.

¶4 On February 3, 1034, the trial court issued a peremptory writ of mandamus to the county treasurer directing him to accept said tender and to issue receipts in full for said taxes. From this judgment the defendant appeals.

¶5 That portion of the executive order pertinent to the question involved herein is as follows:

"Now, therefore, I, Wm. H. Murray, the Governor of the state of Oklahoma, do hereby grant, remit, and commute the penalties on all classes of property upon which taxes are levied for the state, county, or any subdivision thereof, levied and assessed for the year 1933, and all prior years thereto from the beginning of statehood; and to commute, parole, and pardon all taxpayers upon his assessed ad valorem tax to the amount of penalty assessed under the law and exempting them from any and all penalties, and commute the same upon all classes of taxpayers paying an ad valorem tax upon which the penalty has already been attached, for the year 1933 and all years prior thereto, as aforesaid, provided, the taxes are paid in full to July 1, 1934."

¶6 Section 10, art. 6, of the Constitution is as follows:

"The Governor shall have power to grant, after conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as may be prescribed by law. He shall communicate to the Legislature, at each regular session, each case of reprieve, commutation, parole, or pardon granted, stating the name of the convict, the crime of which he was convicted, the date and place of conviction and the date of commutation, pardon, parole, or reprieve."

¶7 The Governor's executive order, by another paragraph therein, recites that it is predicated upon the above-quoted provision of the Constitution. It is conceded, however, that there is no authority in the constitutional provision for the executive order herein involved. But it is contended that the authority for the issuance of said order is found in section 3264, O. S. 1931, which provides as follows:

"The Governor shall have the power to grant, after conviction, pardons and paroles for all offenses committed against the laws of this state, except cases of impeachment and to remit fines and forfeitures, and he may commute death sentence of persons to imprisonment for life."

¶8 It is noted that the words, "and to remit fines and forfeitures," used in the above statute, are not found in the Constitution, and this is the language upon which plaintiff relies to justify and authorize the executive order of the Governor.

¶9 It is also conceded that the statutory provision is not repugnant to the Constitution. We will therefore not notice that question.

¶10 Let us examine the words of the act in some detail in an effort to discover the legislative meaning.

¶11 A "pardon" is defined as an act of grace and mercy bestowed by the state through its Chief Executive upon offenders against its laws, after conviction. Ex parte Xenophon Jones, 25 Okla. Crim. 347, 220 P. 978, 34 A. L. R. 206; Stewart v. State, 11 Okla. Crim. 400, 146 P. 921. The above definition, or one similar thereto, has been adopted by practically every state in the Union. See 46 C. J. 1181. It is observed that the granting of a pardon by the Chief Executive contemplates a charge of a criminal offense.

¶12 A "fine" is defined as a pecuniary punishment imposed by a lawful tribunal upon a person convicted of a crime or misdemeanor. Murphy v. State of Oregon (Ore.) 250 P. 834, 49 A. L. R. 384; 25 C. J. 1148; Commonwealth v. French, 130 Ky. 744, 114 S.W. 255; United States v. Mitchell, 163 F. 1014.

¶13 The word "fine" does not always mean a pecuniary punishment for an offense inflicted by a court in the exercise of criminal jurisdiction. It has other meanings and may include a forfeiture, or a penalty, recoverable by civil action. The true signification of the word, when used in a statute, must depend somewhat upon the context, and the meaning should be gathered from the intention, if it can fairly be ascertained from the language Used. In ordinary legal phraseology, it is said the term "fine" means a sum of money exacted of a person guilty of a misdemeanor, or a crime, the amount of which may be fixed by law or left to the discretion of the court, while a penalty is a sum of money exacted by way of punishment for doing some act which is prohibited, or omitting to do something which is required to be done. State v. Addington, 143 N.C. 683, 57 S.E. 398, 11 Ann. Cas. 314 (citing Black's Dict., p. 494. State v. Burton, 18 S.E. 657, 113 N.C. 6,55; People v. Nedrow, 13 N.E. 533, 122 Ill. 363; Hanscombe v. Russell, 11 Gray [77 Mass.] 373; A., T. & S. F. Ry. Co. v. State ex rel. Sanders, 22 Kan. 1; Village of Lancaster v. Richardson [N. Y.] 4 Lans. 136.)

¶14 When imposed as a punishment for a statutory offense, there is no substantial difference between a fine and a forfeiture. A fine is a pecuniary punishment for an offense, and a pecuniary punishment called a "forfeiture" is equivalent to the same pecuniary punishment called a "fine." State v. McConnell, 70 N.H. 158, 46 A. 458.

¶15 The words "fine" and "forfeiture" in the statute are often interchangeably used; and where "forfeiture" is employed to denote punishment, it is the equivalent of "fine. " Bryant v. Rich's Grill, 216 Mass. 344, 103 N.E. 925, Ann. Cas. 1915B, 869.

¶16 The word "forfeit," in its ordinary use in cases, is synonymous with "mulct," "fine," or "penalty." Keinath, Schuster & Hudson v. Reed (N. M.) 137 P. 841. The words "penalty, "liability," and "forfeiture" are frequently treated as synonymous with the word "punishment," in connection with crimes of the highest grade. Jones v. State, 10 Okla. Crim. 216, 136 P. 182. "Forfeiture" is something lost for the commission of a crime; something paid for the expiation of a crime; that which is forfeited or lost by neglect of duty: that which is lost, or the Tight to which is alienated, by a crime. In re Court of Pardons (N. J.) 129 A. 624, 3 N.J. Misc. 585. See, also, United States v. Reisinger, 128 U.S. 398, 9 S. Ct. 99, 32 L. Ed. 480.

¶17 It is contended by the plaintiff in this case that the terms "penalty" and "forfeiture" are synonymous, and in some cases cited it is so announced. The conclusion, however, depends entirely upon the manner in which the terms are used. In the case of Missouri, K. & T. Ry. Co. v. Dewey Portland Cement Co., 113 Okla. 142, 242 P. 257, it is said:

"The noun penalty' is defined forfeiture,' or to be forfeited for noncompliance with an agreement, a fine. Worcester's Dict. The words forfeit' and penalty' are substantially synonymous. In Huntington v. Attrill, 146 U.S. 657, 13 S. Ct. 224, 36 L. Ed. 1123, the court said:

" The words "penal" and "penalty," in their strict and primary sense, denote a punishment, whether corporal or pecuniary, imposed and enforced by the state for a crime or offense against its laws.'"

¶18 It is apparent that the terms "forfeiture" and "penalty" are synonymous only when the penalty referred to is for the violation of a criminal law.

¶19 In the case of Hutton v. McCleskey, 132 Ark. 391, 200 S.W. 1032, which is somewhat analogous, but not directly in point, the court was concerned with an executive order of the Governor remitting to all taxpayers a tax penalty provided by an act of the Legislature for failure to assess property for taxation within the time and in the manner prescribed by the statute. The Constitution of Arkansas (art. 6, sec. 18) empowered the Governor, in criminal and penal cases, "to remit fines and forfeitures under such rules and regulations as shall be prescribed by law." The court therein held that under the terms of the Constitution such power applied only to criminal and penal cases after conviction or judgment, and had no application to relief from civil penalties and forfeitures, and that the Governor was without power to grant such relief under...