State ex rel. Nesbitt v. Ford

• Decision Date: 19 September 1967
• Docket Number: No. 42222,42222
• Citation: 434 P.2d 934,1967 OK 186
• Parties: STATE of Oklahoma ex rel. Charles NESBITT, Attorney General, Petitioner, v. Henry FORD, Roy Smith, and Eugene D. Dozier, Respondents.
• Court: Oklahoma Supreme Court

Page 934

434 P.2d 934

1967 OK 186

STATE of Oklahoma ex rel. Charles NESBITT, Attorney General, Petitioner, v. Henry FORD, Roy Smith, and Eugene D. Dozier, Respondents.

No. 42222.

Supreme Court of Oklahoma.

Sept. 19, 1967.

Syllabus by the Court

1. This court is authorized under constitutional and statutory provisions to assume original jurisdiction and issue writs of mandamus to executive officers having no judicial powers, directing them to perform purely ministerial duties, and will do so in a proper case where the question presented is publici juris.

2. That part of 11 O.S.Supp.1965, Sec. 481, which provides that 'tracts of land in excess of forty acres shall not be subject to city taxes when located within a city or town and when used for industrial or commercial purposes' is not authorized by Art. 10, Sec. 6, and the territorial statute, Sec 458, unless also authorized under 11 O.S.1961, Sec. 6, and constitutes no authority for classifying such tracts as exempt from city taxes.

3. That part of 11 O.S.Supp.1965, Sec. 481, which provides that 'all horses, cattle, asses, sheep, swine, goats, and other livestock and all agricultural implements and machinery and household goods located thereon, shall not be subject to city taxes, unless the city or town affected furnishes municipal services as ordinarily furnished to city residents,' is unauthorized by Art. 10, Sec. 6, Okla.Const., and the territorial statute (Wilson's Revised Statutes 1903, Sec. 458), and constitutes no authority for classifying such tracts as exempt from city taxes.

4. That part of 11 O.S.Supp.1965, Sec. 482, which provides that 'all horses, cattle, mules, asses, sheep, swine, goats and other livestock and all agricultural implements and machinery and household goods located thereon, shall not be subject to city or town taxes, unless the city or town affected furnishes municipal services as ordinarily furnished to city or town residents;' and the provision that 'tracts of land in excess of forty (40) acres shall not be subject to municipal taxes when located within a City or town when used for industrial or commercial purposes', is unauthorized by Art. 10, Sec. 6, and the territorial statute (Wilson's Revised Statutes 1903, Sec. 458), unless also authorized under 11 O.S.1961, Sec. 6, and constitutes no authority for classifying any of such properties as exempt from city taxes.

5. Courts, in the exercise of sound judicial discretion, may, in view of serious public consequences attendant on the issuance of a writ of mandamus, refuse the writ in a proper case, though petitioner would otherwise have a clear legal right for which mandamus is an appropriate remedy.

Original proceeding in this court by State of Oklahoma ex rel. Charles Nesbitt, Attorney General, against the respondents, the County Assessors of Oklahoma, Tulsa, and Canadian counties, presenting the question of the constitutionality of 11 O.S.Supp.1965, Secs. 481 and 482, in which this Court is requested to assume original jurisdiction and issue writs of mandamus to the respondents. Application to assume original jurisdiction granted; Petition for writs of mandamus authorized but withheld, as explained.

Charles Nesbitt, Atty. Gen., Joseph C. Muskrat, William Penn Lerblance, Asst. Attys. Gen., for petitioner.

David Hall, County Atty., William H. Means, Asst. County Atty., for respondent County Assessor of Tulsa County, Oklahoma.

Curtis P. Harris, County Atty., Granville Scanland, Asst. County Atty., for respondent County Assessor of Oklahoma County, Okla.

Eugene Dozier, County Assessor of Canadian County, pro se.

Crowe, Boxley, Dunlevy, Thweatt, Swinford & Johnson, McClelland, Collins, Sheehan, Bailey, Bailey & Short, James B. White, Mark Meister, Robinson, Robertson & Barnes, Oklahoma City, amici curiae.

JACKSON, Chief Justice.

In 1957, 1963, and 1964, the Attorney General of this State wrote official opinions wherein he expressed doubt as to the constitutional validity of some of the tax exemptions contained in 11 O.S.1951 (1961) Sec. 481. He concluded, however, that since Section 481 had been treated as constitutional by interested officials for a period of fifty years that it should continue to be treated as constitutional until a court of competent jurisdiction holds otherwise.

On June 6, 1966, the Honorable Charles Nesbitt, then Attorney General, issued an official opinion to the County Attorney of Stephens County in which he concluded that portions of 11 O.S.Supp.1965, Secs. 481 and 482, are unconstitutional in part as granting unauthorized exemptions from municipal taxes.

In October, 1966, the Honorable Charles Nesbitt, Attorney General, brought this action in this court wherein he requests this court to assume original jurisdiction and issue a writ of mandamus to the County Assessors of Oklahoma, Tulsa, and Canadian Counties, directing them to (1) remove unconstitutional city tax exemptions appearing on the ad valorem tax rolls in Oklahoma, Tulsa, and Canadian Counties purportedly authorized by 11 O.S.Supp.1965, Secs. 481 and 482, and (2) cause said properties to be taxed according to law and the Constitution of Oklahoma.

The Tulsa County Assessor's verified answer shows that he is following Attorney General Nesbitt's 1966 opinion and has removed from the exemption lists all properties unconstitutionally exempted by the provisions of 11 O.S.Supp.1965, Secs. 481 and 482. His answer is not controverted.

The County Assessor of Canadian County has filed answer stating that he is allowing the exemptions provided for in 11 O.S.Supp.1965, Secs. 481 and 482, and requests this court to correctly advise him so that he may be able to assess properties in Canadian County in compliance with constitutional law.

The County Assessor of Oklahoma County has filed no answer.

The respondents have not filed briefs but the County Assessor of Oklahoma County has expressed the view through his attorneys that the briefs of the Attorney General and counsel amicus curiae adequately cover all of the legal questions raised.

The briefs of the Attorney General and counsel amicus curiae have been very helpful but in order not to unduly lengthen this opinion their views and contentions will not be specifically stated. Acceptable arguments will be reflected in the results of this opinion.

This court is authorized to and may take original jurisdiction and issue writs of mandamus, Art. 7, Sec. 2, Okla.Const., 12 O.S.1961, Sec. 1451, to executive officers commanding them to perform ministerial duties where the question raised is publici juris. Homesteaders v. McCombs, 24 Okl. 201, 103 P. 691, 38 L.R.A., N.S., 1000; State ex rel. Freeling v. Lyons, 63 Okl. 285, 165 P. 419.

All property owners in Oklahoma, Tulsa, and Canadian Counties who pay municipal taxes, as well as those who claim municipal tax exemptions under 11 O.S.Supp.1965, Secs. 481 and 482, and the people in all municipalities in the State which have annexed, or propose to annex large areas, are interested in a decision of the question presented. The fact that some County Assessors are following Attorney General Nesbitt's opinion dated June 6, 1966, and some are not, indicates the necessity for a decision in this case. Under the circumstances here presented this court should, and does, assume jurisdiction.

At the outset it is noticed that petitioner prays for mandatory relief, which for convenience we have divided into two counts. He asks this court to require the respondents to remove unconstitutional city tax exemptions appearing on the ad valorem tax rolls in their counties which are purportedly authorized by 11 O.S.Supp.1965, Secs. 481 and 482, and (2) require the respondents to cause the exempted property to be taxed according to law and the Constitution of Oklahoma. We now address our remarks to the first count. It is not suggested that the provisions of 11 O.S.1961, Sec. 6, are involved in this case.

Art. 5, Sec. 50, Okla.Const., provides:

'The Legislature shall pass no law exempting any property within this State from taxation, except as otherwise provided in this Constitution.'

Art. 10, Sec. 6, Okla.Const., sets forth properties which are exempted from taxation in Oklahoma, and further provides:

'Provided, That all property not herein specified now exempt from taxation under the laws of the Territory of Oklahoma shall be exempt from taxation Until otherwise provided by law.' (Emphasis supplied.)

Under territorial law (Wilson's Revised and Annotated Statutes of Oklahoma 1903, Section 458) provision was made for annexing adjacent territory to a city, and in said section it was further provided:

'Provided, That tracts of land in excess of five acres used for agricultural purposes shall not be subject to city taxes.'

The people of Oklahoma in adopting Art. 10, Sec. 6, and the exemption provided for in Sec. 458, Wilson's Revised Statutes, supra, approved this exemption perpetually and without restriction. The words in Art. 10, Sec. 6, supra, 'until otherwise provided by law', simply authorized the Legislature to reduce or eliminate the exemption. We are of the view that subsequent legislatures were given as much freedom to control the exemption, within the constitutional limitation, as was given to the first Legislature in 1907--1908. We have examined the cases cited but find none of them decisive of the specific question presented.

Having concluded that the Constitution authorizes annexed tracts of land in excess of five acres used for agricultural purposes to be exempted from city taxes we must determine what provisions, if any, of 11 O.S.Supp.1965, Secs. 481 and 482, are not within these constitutional limitations.

That part of 11 O.S.Supp.1965, Sec. 481, which provides that 'tracts of land in excess of forty acres shall not be subject to city taxes when located within a city or town and when used for industrial or commercial purposes' is not authorized by Art. 10, Sec. 6, and the territorial statute, ...