State ex rel. Cartwright v. Oklahoma Tax Com'n
| Decision Date | 02 November 1982 |
| Docket Number | No. 57671,57671 |
| Citation | 1982 OK 146,653 P.2d 1230 |
| Parties | STATE of Oklahoma, ex rel. Jan Eric CARTWRIGHT, Attorney General thereof, Appellant, v. OKLAHOMA TAX COMMISSION, composed of Odie Nance, Chairman, Robert L. Wadley, Vice Chairman, and J.L. Merrill, Secretary-Member, Stuart S. Carey d/b/a Metro Beverage Company, Pioneer Wholesale Liquor Distributors, a partnership, Central Liquor Company, a partnership, and Jarboe Sales Company, a partnership, Appellees. |
| Court | Oklahoma Supreme Court |
Appeal from the District Court of Oklahoma County; David M. Cook, District Judge.
Attorney General of Oklahoma brought action against the Oklahoma Tax Commission (1) to enjoin the Commission from refunding excise tax on sales of alcoholic beverages made by Oklahoma liquor wholesalers to out-of-state purchasers; (2) to have the Tax Commission's administrative rules authorizing the tax refunds declared unlawful and void; (3) to have all sales of alcoholic beverages to out-of-state purchasers declared subject to the excise tax imposed by Oklahoma law; (4) and for a Writ of Mandamus, commanding the Commission to recover all excise taxes improperly refunded. The trial court held: (1) that the Attorney General lacked standing to bring the suit; (2) that an excise tax on sales of alcoholic beverages levied against out-of-state buyers from Oklahoma wholesalers is an unwarranted burden on interstate commerce; (3) that the Attorney General's cause of action lacked merit and that he could not prevail; therefore, the temporary injunction would not issue, the temporary restraining order was dissolved, and the case was dismissed. The Attorney General appeals.
AFFIRMED.
Jan Eric Cartwright, Atty. Gen., Gary W. Gardenhire, Michael C. Conaway, Asst. Attys. Gen., Oklahoma City, for appellant, State of Okl.
Marjorie Patmon, Gen. Counsel, Oklahoma Tax Com'n, Oklahoma City, for appellee, Oklahoma Tax Com'n.
Stephen P. Friot, Spradling, Stagner, Alpern & Friot, Oklahoma City, for intervenor, Stuart S. Carey, d/b/a Metro Beverage Co., appellee.
Jeff L. Hartmann, Shdeed & Hartmann, Oklahoma City, for intervenor, Central Liquor Co., appellee.
Arnold Fagin, Fagin, Hewett, Mathews & Fagin, Oklahoma City, for intervenor, Pioneer Wholesale Liquor Distributors, appellee.
John B. Jarboe, Jarboe & Thompson, Tulsa, for intervenor, Jarboe Sales Co., appellee.
This action was brought by the Oklahoma Attorney General against the Oklahoma Tax Commission (1) to enjoin the Commission from refunding excise tax on sales of alcoholic beverages made by Oklahoma liquor wholesalers to out-of-state purchasers; (2) to have the Tax Commission's administrative rules authorizing the tax refunds declared unlawful and void; (3) to have all sales of alcoholic beverages to out-of-state purchasers declared to be subject to excise tax imposed by Oklahoma law; (4) and for relief in the nature of a Writ of Mandamus commanding the Commission to recover all excise taxes improperly refunded. Four liquor wholesalers intervened. The Attorney General asked for a temporary restraining order during the pendency of this litigation.
At an earlier stage in this proceeding, the trial court ruled that the Attorney General had standing to bring this action, but summarily denied the injunctive relief and adjudicated the case sua sponte. After much procedural advocacy, not pertinent to this appeal, that order was vacated. A second hearing was set and discovery was begun. The Tax Commission refused to answer certain questions, claiming privilege under 68 O.S.1981, § 205. The Attorney General moved to compel, with the trial court denying the motion, ruling that the information sought was privileged and irrelevant.
At the second hearing, on the issues of the Attorney General's standing and the issuance of the temporary injunction, the trial court held: (1) that the Attorney General lacked standing to bring the suit; (2) that an excise tax on sales of alcoholic beverages levied against out-of-state buyers from Oklahoma wholesalers was an unwarranted burden on interstate commerce; (3) that the Attorney General could not prevail on the merits since his propositions lacked "even colorable merit"; (4) therefore, the case was dismissed; (5) that the temporary injunction was denied; and (6) the temporary restraining order was dissolved within five days.
The Attorney General appealed.
At issue in this case is: (1) whether the "direct" out-of-state sales in which the alcoholic beverages are never physically present in the State are legal under the statutes; this issue has been resolved in the case of Central Liquor v. Oklahoma Alcoholic Beverage Control Board, 640 P.2d 1351 (Okl.1982); (2) whether the Oklahoma Tax Commission's current policy of refunding the taxes paid on said out-of-state sales of liquor is legal; (3) whether the refunded taxes are recoverable if they were illegally rebated; (4) whether out-of-state sales of liquor by Oklahoma wholesalers when the beverages are physically present in the state at resale are excluded from excise tax by provisions of Oklahoma legislation; (5) whether the out-of-state sales are excluded from Oklahoma taxation because of the interstate commerce clause and due process; (6) whether the Attorney General of the State of Oklahoma has standing to bring suit to halt the refund of taxes on out-of-state liquor sales by Oklahoma wholesalers; (7) whether the Attorney General was improperly denied discovery by the Oklahoma Tax Commission with regard to the records of out-of-state sales and tax rebates; and (8) whether the trial court's decision is contrary to the law and the evidence.
BRING AN ACTION AGAINST THE OKLAHOMA TAX
The Oklahoma Tax Commission and various intervening liquor distributors contend that Oklahoma's Attorney General lacks standing to bring this cause of action. "Standing" is the legal right of a person to challenge the conduct of another in a judicial forum. "When standing is placed in issue in a case, the question is whether the person whose standing is challenged, is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable." Flast v. Cohen, 392 U.S. 83, 99-100, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947, 961 (1968). Stated another way, "Standing" is the right to commence litigation, to take the initial step that frames legal issues for ultimate adjudication by a court or jury.
We hold that the Attorney General has the legal standing to bring this action under statutory authority. First, the Oklahoma Constitution reads in pertinent part:
(Emphasis added)
Okla. Const. Art. 6, § 1(A). Second, the statutory duties "prescribed by law" are found in 74 O.S.1971, § 18, and 74 O.S.1982 Supp., § 18b. Section 18 reads in toto:
"The Attorney General shall be the Chief Law Officer of the State."
Section 18b reads in pertinent part:
"The duties of the Attorney General as the Chief Law Officer of the state shall be:
* * *
* * *
"(p) To institute civil actions against members of any state board or commission for failure of such members to perform their duties as prescribed by the Statutes and the Constitution...." (Emphasis added)
It is uncontroverted that the action below is a "civil action," see 12 O.S.1971 §§ 4 and 6, and that it was initiated against members of a State Commission for failure to perform a statutory duty.
Specifically, the subject of the Attorney General's challenge is (1) the alleged failure of the appointed members of the Oklahoma Tax Commission to retain proper custody of monies collected and lawfully owed as State taxes from the sale of liquor by Oklahoma wholesalers to out-of-state purchasers, and (2) the refunding of said monies to said licensed Oklahoma liquor wholesalers who purchased liquor pursuant to their Oklahoma licenses and resold it to out-of-state purchasers, allegedly in violation of Okla. Const., Art. 27, § 7(a); 37 O.S. 1981, § 553(b).
With regard to the Attorney General's source of statutory authority, it is axiomatic that persons expressly authorized by statute to bring an action have legal standing to do so. State ex rel. Murray, for Use and Benefit of Sapulpa State Bank v. Pure Oil Co., 169 Okl. 507, 37 P.2d 608 (1934).
II--TAXABLE STATUS OF OUT-OF-STATE SALES MADE BY OKLAHOMA WHOLESALERS.
The citizens of the State of Oklahoma repealed state prohibition by their approval of Article 27 of the Oklahoma Constitution April 7, 1959.
The face of the third section of Article 27 provides two points from which this Court is required to view this litigation by clearly stating therein:
This Court cannot, consonant with any rule of constitutional interpretation, ignore the plainly stated intent of such a clear and unambiguous provision of organic law of this state. The people require, and are entitled to, strict regulation and taxation of the liquor trade and the legislature is required to pass laws in conformity with this mandate.
Under the constitution, the contention of all parties that there is no mandate to strictly regulate taxation, use, importation or sale of alcoholic beverages must be disapproved,...
To continue reading
Request your trial
-
Campbell v. White
...at 500-501, 95 S.Ct. at 2205.17 Valley Forge, supra note 14, 454 U.S. at 475, 102 S.Ct. at 760.18 Id.19 State ex rel. Cartwright v. Okl. Tax Com'n, Okl., 653 P.2d 1230, 1232 (1982); Matter of Adoption of Baby Boy D., Okl., 742 P.2d 1059, 1062 (1987).20 Doan, supra note 3 at 576 n. 3.21 Inde......
-
Cox Telecom v. State ex rel. Corp. Com'n, 102,392.
...Their text is set out, infra, at page ___. 6. Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1236; State ex rel. Cartwright v. Okla. Tax Comm'n, 1982 OK 146, ¶ 6, 653 P.2d 1230, 7. Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, ¶ 7, n. 6, 890 P.2d 906, 910, n. 6. 8. The pert......
-
Adoption of Baby Boy D, Matter of, 62024
...441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979).5 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978).6 State ex rel. Cartwright v. Oklahoma Tax Com'n., 653 P.2d 1230, 1232 (Okl.1982).7 Flast v. Cohen, 392 U.S. 83, 99-100, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968).8 Supra note 6.9 Democra......
-
State ex rel. Regents v. McCloskey Bros.
...provided in subsection C hereof. (Emphasis supplied.). ... 37. Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232; State ex rel. Cartwright v. Okla. Tax Com'n, 1982 OK 146, ¶ 6, 653 P.2d 38. Hendrick v. Walters, see note 37, supra; Independent School Dist. No. 9 v. Glass, 1982 OK 2, ¶ 10,......