Johnson v. Grady County
| Decision Date | 15 June 1915 |
| Docket Number | 7213. |
| Citation | 150 P. 497,50 Okla. 188,1915 OK 459 |
| Parties | JOHNSON v. GRADY COUNTY. |
| Court | Oklahoma Supreme Court |
On Motion for Rehearing, July 20, 1915.
Syllabus by the Court.
Chapter 152, Laws of 1910-11, which is a law creating the office of county assessor, prescribing for his election, qualification and duties, and having for its general purpose the assessment and equalization of property for taxation, is not a revenue bill.
"Revenue bills" are those that levy taxes in the strict sense of the word.
Chapter 152, Laws of 1910-11, is an act creating the office of county assessor and for other purposes relative thereto. The last clause in section 14 of said act is as follows: "And if any taxes, so erroneously assessed, shall have been paid, the same shall be a valid charge against the county and shall be refunded by the board of county commissioners and the amount of such refunded taxes, which have been paid over to any municipality, or to the state, shall be deducted from the tax money due the state or such municipality at the next settlement." Held, this clause is in conflict with section 57, art. 5, of the Constitution, in that the title to said act does not disclose that there is a provision in the body of the act for the refund of taxes theretofore erroneously assessed and paid.
Where a person voluntarily pays taxes to the county or state, however erroneous the assessment may be, the taxes so paid cannot be recovered back unless such taxes were paid under mistake of fact, and not of law; it being a condition precedent to the recovery of such taxes that they be paid under protest compulsion, or duress.
The enrolled bill of chapter 34, Laws 1903, is not to be found in the office of the Secretary of State, the lawful custodian of the same; it having been lost or destroyed. Held, that the fact that the enrolled bill cannot be produced does not of itself invalidate the act.
Neither the parchment upon which the bill was enrolled, nor the writing thereon, constituted the law. The law is an intangible thing. A law, not invalid for some other and different reason, does not become invalid because the written evidence of the same has been lost or destroyed. No power except the one that brought it into existence, can destroy such a law.
(a) Chapter 34, Laws 1903, appears in that volume under the certificate of the Secretary of the Territory. Held, that this fact makes out a prima facie case that the enrolled bill of the act was in existence and in his hands at that time. (b) The absence of the enrolled bill from the office of the Secretary, unexplained, also makes out a prima facie case that no such law was ever in existence. (c) The fact that the Secretary has certified to the existence of the enrolled bill under the seal of his office is entitled to much greater weight than the mere negative fact of the nonexistence of the enrolled bill in his office, at this time.
The appearance of the act in the Laws of 1903, duly certified to by the Secretary, is such strong presumptive evidence of its existence at that time, that it is decisive unless the journals of the Legislature of that session show affirmatively, clearly, and conclusively that the act in question failed to become a law.
The rule obtains in this state that an enrolled bill on file in the office of the Secretary of State imparts absolute verity and the same cannot be impeached by the legislative journals, and, when such an act is called into question, the courts will look to the enrolled bill only. This is the rule where the bill is attacked for some irregularity; but when the very existence of the bill is questioned, based upon the fact that the enrolled bill cannot be produced, the court will look to the journals for information.
The existence of a statute cannot be tried as a question of fact, but must be determined as one of law by the court.
The courts must take judicial notice of what is, and what is not, the statute law of the state.
The recognition of chapter 34, Laws 1903, as a valid law by succeeding Legislatures, and the assessment of property under it from 1903 to 1911, is of strong probative value that the law was valid.
Facts set out, and held to be sufficient to establish the validity of chapter 34, Laws 1903, notwithstanding the enrolled bill has been lost or destroyed.
A party cannot successfully plead coercion or duress in the payment of a tax on real property.
Additional Syllabus by Editorial Staff.
In Const. art. 5, § 57, requiring the subject of an act to be clearly expressed in its title, the word "clearly" means visible, unmistakable, in words of no uncertain meaning, without obscurity, without confusion, and without uncertainty.
Commissioners' Opinion, Division No. 4. Error from District Court, Grady County; T. P. Clay, Judge.
Action by E. B. Johnson against Grady County to recover taxes paid. Judgment for the defendant, and plaintiff brings error. Affirmed, and motion for rehearing denied.
Defendant in error will be called "defendant" and plaintiff in error will be called "plaintiff" in this opinion for the sake of convenience.
This suit was instituted in the district court of Grady county, Okl., to recover certain taxes paid to Grady county, Okl., on lands allotted to a citizen of one of the Five Civilized Tribes of Indians, the title to the lands being in the original allottee at the time the taxes were paid, for the years 1911, 1912, 1913. The defendant filed a general demurrer to plaintiff's petition, and also a special demurrer on the ground that the petition did not state that the taxes were paid under protest or mistake of fact. Plaintiff based his right to recover taxes paid without protest and voluntarily on section 14 of the Act of March 25, 1911, c. 152, of the Session Laws of Oklahoma 1910-11. The defendant contended: (1) That section 14 of said act was void as being in conflict with section 57, art. 5, Constitution of Oklahoma, because of the fact that the subject of such action was not expressed in the title to said act; and (2) that the entire Act of March 25, 1911, was void as being in conflict with section 33, art. 5, Constitution of Oklahoma. The court below sustained the demurrer, and plaintiff appealed therefrom. Plaintiff in his brief contends that neither section 14 of the Act of March 25, 1911, nor the entire Act of March 25, 1911, are unconstitutional for either of the reasons assigned. Defendant contends that section 14 of said act creates, if constitutional, a new cause of action where none existed before. The plaintiff denies this proposition and asserts the contrary.
Bond, Melton & Melton, of Chickasha, for plaintiff in error.
John H. Venable, and Allen K. Swan, both of Chickasha, and S. P. Freeling, Atty. Gen., and J. H. Miley, Asst. Atty. Gen., for defendant in error.
MATHEWS, C. (after stating the facts as above).
Defendant asserts the following three propositions:
The proposition thus presented for our consideration is: Conceding the land was nontaxable, can a tax voluntarily paid without protest be recovered from the county or refunded by order of the county commissioners?
In arriving at a decision thereon, the first point to be examined is whether or not the act approved March 25, 1911 (chapter 152, Session Laws 1910-11), is a revenue bill. The defendant attacks the entire act upon the ground that it is an act for raising revenues, and therefore in conflict with section 33, art. 5, of the Constitution, which provides that no revenue bill shall be passed during the last five days of the session of the Legislature, it being conceded by all parties that the act under consideration was passed by the Legislature on the last day of its session, and the trial court sustained the demurrer upon this ground.
It is not necessary to look further than the well-considered and exhaustive case of Anderson v....
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