State ex rel. Bd. of Com'Rs of Harmon Cnty. v. Okla. Tax Comm'n

• Decision Date: 30 June 1942
• Docket Number: Case Number: 30446
• Citation: 127 P.2d 1052,191 Okla. 155,1942 OK 266
• Parties: STATE ex rel. BOARD OF COM'RS OF HARMON COUNTY v. OKLAHOMA TAX COMMISSION et al.
• Court: Oklahoma Supreme Court

1942 OK 266

127 P.2d 1052

191 Okla. 155

STATE ex rel. BOARD OF COM'RS OF HARMON COUNTY v. OKLAHOMA TAX COMMISSION et al.

Case Number: 30446

Supreme Court of Oklahoma

Decided: June 30, 1942

Syllabus

¶0 1. LICENSES -- Constitutional provision prohibiting diversion of tax money from purpose of levy held applicable to gasoline excise taxes.

Section 19, art. 10, of the State Constitution, which provides that "no tax levied and collected for one purpose shall ever be devoted to another purpose" applies to gasoline excise taxes.

2. SAME---1941 act directing diversion of gasoline tax money from county and township highway and bridge purposes to general revenue fund of state held unconstitutional.

Chapter le of Title 62, S. L. 1941, which directs the diversion of gasoline excise taxes levied and collected for the purpose of "constructing and maintaining county or township highways and permanent bridges in each county" to the general revenue fund of the state, is violative of section 19, art. 10, of the State Constitution, and is void.

3.MANDAMUS--Board of county commissioners maintain proceeding to prevent illegal diversion of tax money by Oklahoma Tax Commission.

The board of county commissioners may maintain a proceeding to prevent the illegal diversion of taxes collected by the Oklahoma Tax Commission and to compel the apportionment and distribution of the same to the counties as provided by the law under which the taxes were collected.

4. TAXATION--Provision of Constitution prohibiting diversion of tax money from purpose of levy not abrogated or affected by constitutional amendment of 1941.

The amendment to section 23, art. 10, of the State Constitution, adopted March 11, 1941, does not abrogate or affect the requirement of section 19, art. 10, of the State Constitution that "no tax levied and collected for one purpose shall ever be devoted to another purpose."

Original action in mandamus by the State ex rel. Board of County Commissioners of Harmon County against the Oklahoma Tax Commission et al. Writ granted.

Duke Duvall, Herbert K. Hyde, Dudley, Hyde, Duvall & Dudley, and John Speck, all of. Oklahoma City (Jasper Roberts, of Oklahoma City, of counsel), for petitioner.

F. M. Dudley, A. L. Herr, and C. D. Stinchecum, all of Oklahoma City, for Oklahoma Tax Commission.

Mac Q. Williamson, Atty. Gen., for respondents Carl C. Sebring, State Treasurer, and Frank C. Carter, State Auditor.

HURST, J.

¶1 This is an original proceeding instituted in this court by the relator, the board of county commissioners of Harmon county, for itself and all other counties similarly situated, to enjoin the respondents, the Oklahoma Tax Commission, the State Treasurer, .and the State Auditor, from diverting $192,011.25, collected from an excise tax on the sale of gasoline, to the general revenue fund of the state, and to compel the apportionment and distribution of the same to the several counties of the state, as required by article 16, ch. 66, S. L. 1937, under which the taxes were levied and collected. The question for decision is whether chapter le, Title 62, S. L. 1941, directing the diversion of said money from county and township highway and bridge purposes to the general revenue fund of the state is violative of section 19, art. 10, of the State Constitution.

¶2 The law under which the tax was levied and collected (section 12535, O. S. 1931, made a part of the 1937 statute by reference) provided that the same be apportioned monthly to each county on the basis of area and population and "sent immediately to the county treasurer of each county to be deposited in the county highway fund, to be used by the county commissioners for the purpose of constructing and maintaining county or township highways and permanent bridges in each county" and for no other purpose.

¶3 Section 10, art. 16, ch. 66, S. L. 1937, provided for the refund of the taxes collected from persons not liable therefor, prescribed the procedure to be followed to obtain the refund, and directed that the refunds be paid from current collections before apportionment and distribution of the part allocated to the counties. By another law (sec. 20, art. 3, ch. 66, S. L. 1937), it was required that the claims for refund be made within one year from the date of payment.

¶4 Article 16, ch. 66, S. L. 1937, was repealed by section 17, art. 14, ch. 66, S. L. 1939, effective May 31, 1939, subject to the proviso that the repeal "shall not operate to effect or repeal existing motor fuel excise tax laws or the enforcement or refund provisions thereof, insofar as said laws apply to the taxes already accrued thereunder."

¶5 On June 1, 1939, the Tax Commission set aside $500,000 of the gasoline tax collected in May, 1939, out of which to pay refunds payable under the statutes aforesaid. The sum of $192,011.25, involved in this proceeding, the balance of said $500,000 not used or needed to pay the refunds, is the money intended to be diverted to the state general revenue fund by chapter le, Title 62, S. L. 1941.

¶6 The board of county commissioners contends that the act contravenes section 19, art. 10, of the State Constitution, which provides:

"Every act enacted by the Legislature, and every ordinance and resolution passed by any county, city, town or municipal board or local legislative body, levying a tax shall specify distinctly the purpose for which said tax is levied, and no tax levied and collected for one purpose shall ever be devoted to another purpose."

¶7 It argues that said section applies to excise taxes, such as are involved in this proceeding, as well as to ad valorem and other taxes. It relies upon Hawks v. Bland, 156 Okla. 48, 9 P.2d 720.

¶8 On the other hand, respondents contend that section 19, art. 10, of the State Constitution applies only to annually recurring taxes, and not to excise taxes. They rely upon McGannon v. State, 33 Okla. 145, 124 P. 1063, and Ex parte Marler, 140 Okla. 194, 282 P. 353. They also make other contentions which will be briefly disposed of.

1. It will be observed that section 19 contains two distinct commands: (1) That every act, ordinance or resolution levying a tax specify distinctly the purpose for which the tax is levied, and (2) that the tax when so levied and collected for one purpose shall never be devoted to another purpose. The authorities relied upon by respondent deal with the first portion, while Hawks v. Bland, relied upon by the relators, and the instant case, deal with the second.

¶9 We find no language in section 19 that justifies the conclusion that the second subdivision applies only to annually recurring taxes such as ad valorem taxes. Section 19 is found in the article of the Constitution that pertains to revenue and taxation. Section 12 of the same article expressly grants the Legislature power to provide for several kinds of taxes, including excise taxes. The two sections should be construed together. The word "taxes" as found in the second subdivision of section 19 is not used in a restrictive sense, but in the broad sense in which it is used in section 12 and the other sections of article 10.

¶10 The second subdivision of section 19, here under consideration, is a limitation on the use of the revenue collected under any law, state or municipal, enacted thereunder.

¶11 Several of the states have constitutional provisions similar to section 19, and they are generally given the construction we think should be given to the second subdivision of section 19. See 61 C. J. 1521; Board of Education v. Commissioners, 137 N. C. 310, 49 S. E. 353; State v. Osborne, 195 S. C. 295, 11 S. E. 2d 260,...