Rush v. Brown

• Decision Date: 09 April 1940
• Docket Number: 28919.
• Citation: 101 P.2d 262,187 Okla. 97,1940 OK 194
• Parties: RUSH v. BROWN.
• Court: Oklahoma Supreme Court

101 P.2d 262

187 Okla. 97, 1940 OK 194

RUSH v. BROWN.

No. 28919.

Supreme Court of Oklahoma

April 9, 1940

Syllabus by the Court.

1. The power to determine the policy of the law is primarily legislative, and cannot be delegated, whereas the power to make rules of a subordinate character in order to carry out that policy and apply it to varying conditions, although partaking of a legislative character, is in its dominant aspect administrative and can be delegated.

2. Assignments of error presented by counsel in their brief unsupported by authority will not be noticed on appeal unless it is apparent without further research that they are well taken.

Appeal from District Court, Oklahoma County; Ben Arnold, Judge.

Action by W. T. Rush against C. C. Brown, as Chairman of the Oklahoma Tax Commission and Oklahoma Tax Commissioner, to recover a certain sum paid under protest as sales taxes and to restrain the future collection of sales taxes. From an adverse judgment, the plaintiff appeals.

Judgment affirmed.

A. J Wildman, of Shidler, and Bert Lawton, of Pawhuska, for plaintiff in error.

C. D Cund, of Oklahoma City, A. L. Herr, of Chickasha, and Wendell Barnes, of Oklahoma City, for defendant in error.

DAVISON Justice.

This case was instituted in the District Court of Oklahoma County on the 25th day of October, 1937, by W. T. Rush, a retail merchant, as plaintiff, against C. C. Brown as chairman of the Oklahoma Tax Commission, to recover the sum of $553.13 with interest at 6% per annum from September 28, 1937 and to restrain the Oklahoma Tax Commission from the future collection of sales taxes.

The sum sought to be recovered was paid under protest by the plaintiff to the defendant. It represented sales tax asserted to be due and owing from the plaintiff under the Oklahoma Sales Tax Act of 1935 (Art. 7, ch. 66, S.L.1935) and under the successive Consumer's and User's Tax Act of 1937 (Art. 10, ch. 66, page 445, S.L.1937, 68 Okl.St.Ann. § 1249 et seq.).

The court below on the 6th day of May, 1938, rendered judgment for the defendant from which the plaintiff appeals, appearing herein as plaintiff in error. Our future reference to the parties will be by their trial court designation.

In presenting his case to this court the plaintiff does not assert any error or mistake in computing the amount of the tax, thus tacitly conceding that the same was correctly calculated according to existing law.

He relies for recovery upon the alleged unconstitutionality of the Acts under which the taxing authorities purported to act and denies their asserted right to collect any sum whatever from him by reason of the invalidity thereof.

While the general basis upon which plaintiff seeks to avoid liability is readily ascertainable from his brief, the precise particulars in which the challenged legislation is thought by him to transcend constitutional limitations is in many respects impossible of determination.

Eleven separately labeled specifications of error are mentioned in the brief followed by eight separately numbered "points", most of which contain sweeping generalities and invoke constitutional provisions (upon which volumes have been written) without concrete application to any precise question.

Obviously an equally general discussion of constitutional law on our part, no matter how instructive it might be, would find little to justify its existence in a judicial opinion.

In view of rule 10 of this court and the presumption which obtains as to the correctness of the decision of the trial tribunal, it is not incumbent upon us to endeavor to find some theory to reverse a cause. Musick, County Supt. v. State ex rel. Miles, 185 Okl. 140, 90 P.2d 631; Drum Standish Commission Co. v. First National Bank & Trust Company of Oklahoma City, 168 Okl. 400, 31 P.2d 843. We shall not, however, upon these considerations entirely ignore plaintiff's complaint but in so far as the briefs may fairly be said to properly present questions for appellate consideration, we shall treat and dispose of the same upon the merits thereof to the extent of their application to the situation here presented.

It is first asserted by the plaintiff that the legislature can not delegate the power to make laws, and authorities from other states bearing out this assertion are called to our attention. The question of what constitutes an unauthorized or purely legislative power has been a prolific source of litigation in this and other jurisdictions and we have been called upon many times to consider the same from the standpoint of some concrete problem in connection with administrative boards. In Associated Industries of Oklahoma v. Industrial Welfare Commission and E. W. Marland, W. A. Pat Murphy and Andrew Fraley, as members thereof, 185 Okl. 177, 90 P.2d 899, 904, we reviewed a number of authorities and announced our conclusion upon the point in the following language: "From the foregoing authorities it is apparent that the power to determine the policy of the law is primarily legislative, and cannot be delegated, whereas the power to make rules of a subordinate character in order to carry out that policy and apply it to varying conditions, although partaking of a legislative character, is in its dominant aspect administrative and can be delegated."

While plaintiff does not say, we presume that in invoking this principle of constitutional law, he had in mind sec. 21 of the 1937 Act, supra, 68 Okl.St.Ann. § 1249s, and sec. 16 of the 1935 Act, supra, which in connection with the respective Acts authorize the promulgation of rules looking toward the collection of the tax imposed by the Act.

It is not asserted in connection with this point that any rule has been promulgated or applied by the Tax...