State v. Ward
| Decision Date | 21 October 1941 |
| Docket Number | 29173. |
| Citation | 118 P.2d 216,189 Okla. 532,1941 OK 343 |
| Parties | STATE v. WARD. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. An Act of the Legislature which authorizes an individual to sue the state on account of pre-existing obligation is not such a special Act covering matters where a general Act could be made applicable as to fall within the inhibition of Section 59, Art. 5, of the Constitution, Okl.St.Ann.
2. An Act of the Legislature which authorizes an individual to sue the state is not to the prejudice or benefit of any locality or subdivision of the State, but affects the entire State and is not such a special or local Act as to require publication of notice of introduction contemplated by Section 59, Art. 5 of the Constitution, Okl.St.Ann.
3. Taxes on property belonging to Indians, exempt from taxation under treaty or under Federal Statutes, are not considered as voluntarily paid where the evidence shows that payment was made to prevent accumulation of penalties.
4. The Statute of Limitation runs in favor of the State and against an individual where there is an effective remedy which if pursued will afford relief.
5. Where a claim against the State has been fully barred by the Statute of Limitations, the Legislature is without power to waive the limitation because of the provision of Section 52 Art. 5, of the Constitution. Okl.St.Ann.
6. Statutes are to be construed as having a prospective operation unless the purpose and intention of the Legislature to give them retrospective effect is expressly declared or is necessarily implied from the language used. In every case of doubt the doubt must be resolved against the retrospective effect. Good et al. v. Keel et al., 29 Okl. 325, 116 P. 777.
7. Where the State cannot be sued without its consent, the Statute of Limitations does not begin to run in the State's favor until it has consented to be sued.
Appeal from District Court, Oklahoma County; Frank P. Douglass Judge.
Action by Herbert Z. Ward against the State of Oklahoma to recover gross production or other taxes which may have been illegally levied and collected from the plaintiff. From a judgment in favor of the plaintiff for $13,520.28, the defendant appeals.
Judgment reversed, and cause remanded with directions to enter judgment for plaintiff in the sum of $11,986.50.
Mac Q. Williamson, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for plaintiff in error.
Babb & Babb, of Poteau, and T. H. Ottesen, of Okemah, for defendant in error.
This is an appeal from a judgment against the State of Oklahoma in an action filed against the State pursuant to House Joint Resolution No. 51, Ch. 183, S.L. 1933, 68 Okl.St.Ann. § 821 note.
The action was commenced August 9, 1933. Defendant demurred to plaintiff's petition. The demurrer was sustained by the trial court and plaintiff appealed. The order sustaining the demurrer was reversed. Ward v. State, 176 Okl. 368, 65 P.2d 136.
By Sec. 1, Ch. 183, supra, plaintiff was authorized to bring suit against the State to recover any gross production or other taxes which may have been illegally levied and collected from him for the years 1917, 1918, 1919 and other years and venue was fixed for said proposed action in Oklahoma County.
In his petition plaintiff claimed only for alleged illegal gross production taxes levied and collected during the years 1917 to 1926, inclusive; that said taxes were paid for him by David Ward, his guardian during said time, while plaintiff was a minor. He asserts that the gross production taxes so levied and collected were illegal and void because plaintiff was a Choctaw Indian, and that the land from which the oil, giving rise to the tax, was produced was his allotment, and under the Atoka Agreement with the Choctaw and Chickasaw Tribes of Indians, June 28, 1898, Ch. 517, 30 Stat. 495-505, the land and premises allotted to plaintiff including the oil produced therefrom, representing his royalty, was not taxable.
After failure of defendant's demurrer became effective, answer was filed in the trial court. Therein defendant admits all of plaintiff's allegations with respect to plaintiff's status as a member of the Choctaw Indian Tribe; the allotment of the land from which the oil upon which the tax in question was paid on plaintiff's royalty interest in said land, and that said royalty interest was not, under the law existing at the time the taxes were paid, subject to the payment of gross production tax to the State; that plaintiff had by and through his guardian paid gross production taxes in the amounts and at the times alleged in plaintiff's petition.
Liability is denied because:
A stipulation of facts was entered into covering the allegations of plaintiff's petition admitted by defendant and the fact that the Joint Resolution authorizing the action against the State was without publication of notice of intention to introduce said measure.
It was also stipulated that the money collected had been transferred to the State Treasury and apportioned and expended in the maintenance of the State Government and its political subdivisions long prior to the passage of the Act, and long before plaintiff attained his majority, which it is agreed was on January 31, 1927.
Evidence was taken concerning claims made for refund of some of the payments, particularly those made after April 2, 1925.
Judgment was entered for plaintiff for the full amount sued for and defendant appeals.
We have a case where the State admittedly collected and received and still retains $13,520.28, in gross production taxes from the royalty interest in plaintiff's land which was not at the time liable for payment of any part of the tax imposed and collected, but was exempt therefrom under the Atoka Agreement. Carpenter v. Shaw, Auditor, 280 U.S. 363, 50 S.Ct. 121, 74 L.Ed. 478.
Defendant, for reversal, presents five propositions:
The first is that House Joint Resolution No. 51, under authority of which this action is brought, was enacted in violation of Section 59, Art. 5, of the Constitution and is an invalid special law.
This proposition is not well taken under the rule announced in State v. Fletcher, 168 Okl. 538, 34 P.2d 595. Therein it was held that Joint Resolution No. 20, Art. 2, Ch. 65, S.L.1931, 63 Okl.St.Ann. § 532 note, in substance the same as the instant enactment, did not violate Section 59, Art. 5, of the Constitution.
It is true that in Jack v. State, 183 Okl. 375, 82 P.2d 1033, 1039, we held that the Act there in question, Art. 18 Ch. 65, S.L.1935, violated Section 59, Art. 5, of the Constitution. But as noted in the opinion, the Act there involved not only authorized an action against the State, but also undertook to authorize recovery of damages, if any, sustained by the parties authorized to bring the action, by reason of the failure and neglect of the State Highway Department and its officers, servants, agents and employees to properly maintain a State Highway at a given point or place. It was on that account that the Act was held to violate Section 59, Art. 5, of the Constitution. The distinction between the facts in that case and those in State v. Fletcher, supra, is pointed out in Jack v. State, supra, as follows: ...
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