FIRST AMERICAN BANK AND TRUST CO. v. OKLAHOMA INDUSTRIAL FINANCE AUTHORITY

FIRST AMERICAN BANK AND TRUST CO. v. OKLAHOMA INDUSTRIAL FINANCE AUTHORITY
1997 OK 155
951 P.2d 625
69 OBJ 23
Case Number: 87070
Decided: 12/23/1997
Modified: 04/03/1998
Mandate Issued: 01/29/1998
Supreme Court of Oklahoma

FIRST AMERICAN BANK AND TRUST COMPANY OF PURCELL, OKLAHOMA, a banking corporation, Plaintiff,
vs.
OKLAHOMA INDUSTRIAL FINANCE AUTHORITY, Appellee/Defendant, and COUNTY TREASURER OF OKLAHOMA COUNTY and BOARD OF COUNTY COMMISSIONERS OF OKLAHOMA COUNTY, Appellants/Defendants, and B & B WHOLESALE MEAT COMPANY, INC., an Oklahoma corporation; UNITED STATES OF AMERICA; CHRYSLER CAPITAL CORPORATION, f/k/a E. F. HUTTON CREDIT CORPORATION; CASH FLOW MANAGEMENT, INC., Defendants. and THE OKLAHOMA INDUSTRIAL FINANCE AUTHORITY, Third Party Plaintiff,
vs.
LARRY BEASLER, an individual; and LOUISE BEASLER, an individual, Third Party Defendants.

CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV
APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY,
STATE OF OKLAHOMA

HONORABLE JOHN M. AMICK, TRIAL JUDGE

[951 P.2d 626]

¶0Co-mortgagees, the Oklahoma Industrial Finance Authority (OIFA), a State agency, and a bank sued to foreclose a parity mortgage. The Oklahoma County Treasurer and Board of Commissioners (County), was made a party and it claimed liens for delinquent ad valorem real estate taxes. Foreclosure judgment issued, the real estate was ordered sold and mortgagees purchased at sheriff's sale. Later, bank quit-claimed its interest to OIFA, who then moved for summary judgment in rem, essentially arguing upon its acquisition the tax exemption afforded State-owned property in OKLA. CONST. art. 10, § 6 extinguished any County tax lien for taxes assessed or owing while the property was previously privately owned. Although conceding the property could not be sold to recover ad valorem real estate taxes arising while the property was previously in private ownership, County cross-moved for summary judgment asserting 68 O. S. 1991, § 2940 gave it an in personam action against OIFA for taxes arising prior to OIFA's acquisition. The trial court gave an in rem judgment to OIFA, essentially ruling, upon OIFA's [951 P.2d 627] acquisition all ad valorem taxes assessed and owing against the property were extinguished. The trial court also held § 2940 was inapplicable and enjoined County from attempting to collect the taxes from OIFA, its successors or assigns. County appealed. The Court of Civil Appeals reversed and remanded for further proceedings. County sought certiorari. Held: OKLA. CONST. art. 10, § 6 is not controlling on the issues here because the plain language of § 6 is prospective, i.e. it only affords a tax exemption for State-owned property from the time of its acquisition by the State. In contrast, § 2940, in unmistakable terms, expresses legislative intent that all ad valorem taxes assessed or that would have become due on the property prior to OIFA's acquisition shall be paid. Further, the obvious intent of § 2940 is that it act as a substitute for the normal method of collection of ad valorem taxes contained in the Ad Valorem Tax Code (sale of the property) in the situation where the State, through one of its agencies acquires property for a governmental purpose upon which previously assessed taxes are unpaid or that would become due prior to the State's acquisition. Accordingly, in that taxes required to be paid to County under § 2940 when OIFA purchased the property have not been paid, County may sue OIFA in a civil action to recover them if they are not paid.

CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS' OPINION VACATED;
TRIAL COURT JUDGMENT REVERSED AND MATTER REMANDED FOR
PROCEEDINGS CONSISTENT WITH THIS OPINION.

W. A. Drew Edmondson, Attorney General of Oklahoma and John Crittenden, Assistant Attorney General, Oklahoma City, Oklahoma for Appellee.
Gretchen Crawford, Assistant District Attorney, Oklahoma City, Oklahoma for Appellants.

LAVENDER, J.

¶1We hold the tax exemption afforded State-owned property found in OKLA. CONST. art. 10, § 6 did not have the effect of extinguishing all Oklahoma County ad valorem real estate taxes assessed and owing against certain property when appellee, Oklahoma Industrial Finance Authority (OIFA), a State agency, acquired the property. In place of a sale of the property, the Legislature intended 68 O. S. 1991, § 2940 to act as the mechanism to insure that all valid ad valorem real estate taxes previously assessed or that would become due prior to OIFA's acquisition of the property are paid. Normally, § 2940 provides such taxes should be paid by deducting them from the purchase price paid to the private seller for remittance to the County - which was not done in this case. In that taxes required to be paid to County under § 2940 when OIFA purchased the property have not been paid and the Legislature intended § 2940 to be the substitute remedy to sale of the property for collection of the taxes, the appellants, Oklahoma County Treasurer and Board of Commissioners (County) may sue OIFA in a civil action to recover the taxes if they are not paid.

PART I. STANDARD OF REVIEW.

¶2The trial court granted summary judgment in favor of OIFA and against County. Thus, the standard for appellate review is that applied to a trial court's grant of summary judgment which was set out in Carmichael v. Beller, 1996 OK 48, 914 P.2d 1051, as follows:

Although a trial court in making a decision on whether summary judgment is appropriate considers factual matters, the ultimate decision turns on purely legal determinations, i.e. whether one party is entitled to judgment as a matter of law because there are no material disputed factual questions. Therefore, as the decision involves purely legal determinations, the appellate standard of review of a trial court's grant of summary judgment is de novo. [This Court], like the trial court, will examine the pleadings and evidentiary materials submitted by the parties to determine if there is a genuine issue of material fact. Further, all inferences and conclusions to be drawn from the evidentiary materials must be viewed in the light most favorable to the non-moving party. (citations omitted) Id. at 1053.

PART II. FACTS AND PROCEDURAL BACKGROUND.

¶3OIFA has authority to make loans and secure them by mortgages. The [951 P.2d 628] authorization emanates from OKLA. CONST. art. 10, § 33A and is vitalized through the Oklahoma Industrial Finance Authority Act, 74 O. S. 1991, § 851 et seq., as amended. OIFA's purpose is to aid and assist Oklahoma's industrial development and provide additional employment and payrolls in the State. 74 O. S. 1991, § 852. OIFA is authorized to take title by foreclosure to any industrial development project where the acquisition is necessary to protect a loan made by it and may sell, transfer and convey any such project to a responsible buyer. 74 O. S. 1991, § 855(o). Further, to minimize financial losses and sustain employment, if sale, transfer or conveyance cannot be accomplished with reasonable promptness, OIFA may lease a project acquired through foreclosure to a responsible tenant or tenants. Id.

¶4In 1988 B & B Wholesale Meat Company, Inc. (B & B) was loaned $525,000.00 from OIFA and $75,000.00 from First American Bank and Trust Company of Purcell (bank). Partly securing the loans was a parity real estate mortgage in which OIFA had an interest of 87.5% and bank, 12.5%.1 B & B defaulted on the loans and bank brought a foreclosure suit, in which OIFA and County were made defendants. OIFA cross-claimed against B & B seeking foreclosure and against County, claiming the superiority of its lien. By a counter/cross-claim, County asserted a superior lien on the property by virtue of delinquent ad valorem real estate taxes for the years 1985 through 1990, as well as liens which might attach during the pendency of the foreclosure suit.2 In reply to County's counterclaim, bank admitted County's ad valorem real estate tax liens were superior to its mortgage lien.

¶5OIFA and bank moved for summary judgment. In August 1991 the trial court entered a partial judgment deciding B & B had defaulted on the loans, the amounts owed to OIFA and bank by B & B were determined, and the property was ordered sold.3 The judgment reserved for future consideration County's claim for taxes. A sheriff's sale was held, which was confirmed by the trial court in February 1992. The purchasers at the sheriff's sale were OIFA and bank who bought the property for $35,000.00. A sheriff's deed was issued to OIFA and bank as tenants in common in their parity mortgage percentages - i.e. undivided interests of 87.5% and 12.5%, respectively. The sheriff's sale proceeds were insufficient to satisfy OIFA's mortgage lien against the property. A $35,00.00 credit was given against OIFA's and bank's earlier judgment.

¶6Before the trial court finally decided all issues concerning County's tax lien(s) or claim for past-due taxes, in August 1995 bank sold its interest to OIFA by quitclaim deed reflecting OIFA paid bank $1,000.00. OIFA then moved for summary judgment in rem, essentially asserting that upon its acquisition, the property became tax exempt and any County ad valorem real estate tax lien existing against the property was extinguished. Although recognizing it could not sell State-owned property to recover past-due real estate taxes arising while the property was previously privately owned, County cross-moved for summary judgment asserting § 2940 gave it an in personam cause of action against OIFA for a money judgment for all delinquent real estate taxes through August 1995. At the time of filing its cross-motion for summary judgment County submitted an affidavit from a Deputy Treasurer [951 P.2d 629] for Oklahoma County that $12,613.57 in delinquent taxes, penalties and interest was due and owing for ad valorem real estate taxes. The affidavit also reflects that despite the tax delinquency, the property was never sold in a tax certificate sale or a tax resale.

¶7The trial judge granted judgment in rem to OIFA. He held the property became tax exempt when OIFA acquired it and all County ad valorem real estate taxes assessed and owing against the property while privately owned were extinguished. He also found § 2940 was inapplicable and prohibited County from attempting to collect the taxes from OIFA, its successors or assigns.

¶8County appealed and the Court of Civil Appeals (COCA), disagreeing with part of the trial judge's decision, reversed and remanded for further proceedings. County sought certiorari which we previously granted. We now vacate the COCA memorandum opinion, reverse the trial court judgment and remand for further proceedings consistent with this opinion.

PART III. OKLA. CONST. ART. 10, § 6 DID NOT EXTINGUISH VALID OKLAHOMA COUNTY AD VALOREM REAL ESTATE TAXES EITHER PREVIOUSLY ASSESSED OR THAT WOULD HAVE BECOME DUE FOR THE PERIOD THE PROPERTY WAS PRIVATELY OWNED PRIOR TO OIFA'S ACQUISITION.

¶9We first note it is unnecessary to decide in this case whether OKLA. CONST. art. 10, § 6 would in all situations preclude sale of State-owned property as a collection mechanism for the recovery of ad valorem real estate taxes delinquent at the time of State acquisition. Nor must we decide the current status of County's claimed lien(s) on the real property involved in this case. Two reasons counsel against the necessity for decisions on these matters. One, County essentially concedes it may not sell the involved property as a method to recover the taxes claimed to be due. Two, as we will set out in Part IV, infra, it is our view, the Legislature intended 68 O. S. 1991, § 2940 to act as the substitute remedy - to sale of the property - for collection of validly owing ad valorem real estate taxes arising while the property is in private ownership, but remain unpaid at the time of State acquisition. With these matters understood, we turn to our review of the trial court's judgment.

¶10In interpreting an Oklahoma constitutional provision our goal is to give effect to the intent of its framers and the people adopting it. Draper v. State, 1980 OK 117, 621 P.2d 1142, 1145. To determine this intent we look to the instrument itself and when the text of a constitutional provision is unambiguous, the courts, in construing it, are not at liberty to search for meaning beyond the instrument. Id. at 1145-1146. The tax exemption for State-owned property found in OKLA. CONST. art. 10, § 6 provides in pertinent part as follows: "[A]ll property of this state, and of counties and of municipalities of this state . . . shall be exempt from taxation . . . ."4

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[951 P.2d 630]

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¶17

PART IV. 68 O. S. 1991, § 2940 IS PLAINLY APPLICABLE TO OIFA'S ACQUISITION OF THIS PROPERTY AND REQUIRES PAYMENT OF AD VALOREM REAL ESTATE TAXES EITHER PREVIOUSLY ASSESSED OR THAT WOULD HAVE BECOME DUE FOR THE PERIOD THE PROPERTY WAS PRIVATELY OWNED PRIOR TO OIFA'S ACQUISITION.

¶18

Whenever the United States, the state, or a city, town, county, school district, or any other political subdivision, including, but not limited to, a turnpike authority, municipal trust, water or conservation district, flood control district, levee or waterway improvement district, urban renewal authority, public housing authority, or any other authority authorized by law, state or federal, acquires title to any real property for a governmental purpose between January 1 and October 1 of the tax year, such property shall be relieved of ad valorem tax for the remaining months of the year beginning with the first of the month next succeeding the date its acquisition for public purposes becomes a matter of public record, if the deed thereto was recorded prior to October 1; provided, however, that all taxes assessed against such property prior to its acquisition shall be paid in full and there be paid a sum equal to one-twelfth (1/12) times the number of months that the property remained in private ownership of an amount estimated by the county treasurer of the county wherein the real property lies to be substantially equal to the amount of tax which would have been or will become due and payable for the year had the real property not been acquired for public purposes. In estimating the amount of taxes which would have been or will become due and payable for the tax year had the real property not been acquired for public purposes the county treasurer shall use as a basis the current assessment and the tax rate for the preceding year, unless the tax for the current year shall be by then determined and set, in which event he shall use as basis the new assessment and rate. The public agency acquiring the property shall deduct the amount of such taxes from the purchase price payable to the private owner and remit the same to the county treasurer in satisfaction of such taxes. The county treasurer of any county is hereby authorized upon order of the board of tax roll corrections to cancel of record all taxes assessed against such property for the year of its acquisition when the deed thereto was recorded prior to October 1 and the aforesaid estimated amount of the tax for the months that the property was in private ownership is paid, which order shall be issued upon application of the acquiring authority.

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PART V. CONCLUSION.

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FOOTNOTES

1 In actuality, the record indicates OIFA made an industrial development loan to the Oklahoma County Finance Authority (OCFA), who in turn loaned the money to B & B and that OCFA was the original mortgagee, along with bank, in the mortgage. The OCFA's note and its share in the mortgage were assigned to OIFA. The record also indicates security interests were taken in B & B personal property and certain personal guarantees were obtained to secure repayment. Finally, the record shows bank had other financial dealings with B & B and/or its principals, which are not relevant to our decision.

2 County also claimed a lien on the property by virtue of certain unpaid personal business taxes. No issue concerning such taxes is before us in this appeal.

3 The August 1991 partial judgment, as it relates to B & B, was only an in rem judgment in regard to the subject property for the amounts due from B & B on the involved notes. No personal judgment against B & B was issued, apparently because B & B had filed for bankruptcy and the automatic stay of the bankruptcy laws had only been lifted as it pertained to the subject property.

4 Although OKLA. CONST. art. 10, § 6, has undergone amendment in certain particulars over the years, the express tax exemption for property of the State has existed since the Statehood era. See OKLA. CONST. art. 10, § 6, REV. LAWS OKLA. ANN. (1910). The language quoted in the text currently appears in subsection (a) of art. 10, § 6 of the Oklahoma Constitution. OKLA. CONST. art. 10, § 6 was most recently amended in a way not germane to this proceeding in 1992.

5 As to the tax exemption once the property is owned by the State, county or municipality, this Court has recognized the exemption is unconditional and without limitation, and applies without reference to the use the property may be put. State ex rel. City of Tulsa v. Mayes, 174 Okla. 286, 51 P.2d 266 (1935).

6 OKLA. CONST. art. 11, § 5 contains similar restrictions on certain other funds constitutionally designated for use by certain educational institutions of the State.

7 In fact, in order to safeguard the school land trust funds, the Legislature itself passed a statute in 1935 providing for the cancellation of previously assessed taxes on land acquired by the Commissioners of the Land Office. 1935 Okla. Sess. Laws, p. 116-117, § 29; See now 64 O. S. 1991, § 151. In State ex rel. Commissioners of Land Office v. Passmore, 189 Okla. 232, 115 P.2d 120, 121-122 (1941) this Court recognized § 151 was passed to safeguard the school land trust funds.

8 We note the Legislature has authorized OIFA to sue and be sued in all courts. 74 O. S. 1991, § 855(h).

9 OIFA's reliance on 68 O. S. 1991, § 3142, a provision in the Ad Valorem Tax Code, to support its position in this matter is unavailing. Section 3142 provides:

Whenever any lands shall be sold for delinquent taxes under the provisions of this article, upon which any mortgage or other lien exists in favor of the State of Oklahoma, or the Commissioners of the Land Office or any other commission, board or officer having power to loan public funds, or any funds under the control of the state upon real estate security, such tax shall be secondary at all times to the lien of the state, or the Commissioners of the Land Office, or of such commission, board or officer.

First, § 3142 does not apply here because there is no indication in this record the involved real estate was sold for delinquent taxes under the Ad Valorem Tax Code. Second, the primary purpose served by § 3142 is to insure that a State mortgage lien could not be foreclosed or divested in any county tax sale by making clear that an ad valorem tax lien is inferior or secondary to a State mortgage lien. See Goode v. Montgomery, 195 Okla. 63, 155 P.2d 228 (1945); State ex rel Commissioners of the Land Office v. Passmore, note 7, supra. In other words, any purchaser at a tax sale upon which the State holds a mortgage lien would take subject to the mortgage lien of the State. Section 3142 simply does not control the issue of whether the Legislature, as it has done in 68 O. S. 1991, § 2940, may mandate that delinquent ad valorem taxes must be paid when the State acquires real property for a governmental purpose.

OPALA, J., with whom WILSON, J., joins, dissenting in part.

¶ 1 Today's opinion pronounces that the terms of 68 O.S.1991 § 2940

¶ 2 Firstly, I dissent from the court's construction of 68 O.S.1991 § 2940. The critical issue to be settled here, which is not one of statutory construction, deals with the State's constitutional immunity from ad valorem levies that burden its newly-acquired land. Secondly, I strongly disagree that there can be found in § 2940 any modicum of textually demonstrable (or otherwise divinable) legislative intent to transmute the general land-burdening concept of ad valorem levies into the acquiring public agency's individual liability for their payment.

¶ 3 The dispositive question here is whether the county's lien survives the State's entry into the chain of title. If it does, the land is burdened; if not, there is no tax lien. The answer to be given calls for staking out the permissible reach of Art. 10, § 6, Okl.Const.

¶ 4 OIFA, a subordinate state-sponsored lending agency, acquired its interest in the property in suit while acting in a commercial capacity. Its demand for a title that is completely freed of all ad valorem assessments for the period before OIFA came into the chain of title clearly lacks any support in Oklahoma's fundamental law. Where the State's land is, as it was here, acquired in a nonsovereign capacity, its title comes burdened with all delinquent ad valorem taxes previously assessed against the premises (and those to become due up to the time of acquisition).

¶ 5 I would hence hold today that (a) the terms of § 2940 were neither invoked nor invocable by the acquiring public agency when title to land passed to OIFA; (b) the county's tax lien for the full amount of preassessed ad valorem levies (and for afterassessed tax up to the time of the State's acquisition) survived OIFA's entry into the chain of title; (c) the State's land is not freed from the burdening liability; and (d) because the lien survived the state acquisition of title, the remedies which the county may pursue for collection of delinquent ad valorem levies against private owners also are available against this public agency's land that came to the State in a nonsovereign capacity.

[951 P.2d 635]

I

¶ 6 THE PROVISIONS OF 68 O.S.1991 § 2940 DO NOT IMPOSE UPON THE ACQUIRING PUBLIC AGENCY INDIVIDUAL LIABILITY FOR THE AD VALOREM TAX DUE. IF ITS PROVISIONS ARE INVOKED AND THE MONEY NEEDED TO SATISFY THE AD VALOREM TAX IS INDEED WITHHELD, THE ACQUIRING PUBLIC AGENCY STANDS VIS-A-VIS THE COUNTY AS AN INVOLUNTARY TRUSTEE WHO IS LIABLE FOR THE AMOUNT OF TRUST RES SETTLED THROUGH COMPLIANCE WITH THE § 2940 PROCEDURES.

¶ 7 The terms of 68 O.S.1991 § 2940

¶ 8 Contrary to the court's conclusion, there is in § 2940 no textually demonstrable (or otherwise divinable) legislative intent to transmute the general land-burdening character of ad valorem levies

¶ 9 In the context of this transaction the § 2940 procedure was neither used nor was it invocable.

II

THE RULE PRESSED BY THE STATE TO FREE THE AGENCY'S LAND FROM LIABILITY FOR AD VALOREM TAX DUE AT THE TIME OF PURCHASE IS NOT INVOCABLE IN THIS CASE

A.

¶ 10 In The Transaction That Is The Subject Of This Litigation The Agency Was Not Acting For The State In A Sovereign Capacity

¶ 11 Acting in a sovereign capacity, states create agencies to perform a wide range of functions at different levels. The subordinate units of government are not themselves sovereign bodies.

¶ 12 OIFA's stated purpose is to "aid and assist with Oklahoma's industrial development and provide additional employment and payrolls" (emphasis supplied) within the state.

¶ 13 Lending money for the expansion and growth of manufacturing and other industrial enterprises is not a traditional governmental activity. When the State creates a money-lending agency it acts in a commercial capacity. Because OIFA is an inferior agency established primarily to conduct and promote certain business activities, it cannot claim for itself the same status as that due the state when acting in its sovereign capacity.

B.

¶ 14 In the Transaction That Is the Subject Matter of this Litigation
the Agency Was Not Acting for the State as a Constitutional Fiduciary for Any State-owned Property.

¶ 15 This case is uniquely inapposite for conferring upon the State the largesse it may expect under this court's school land commission jurisprudence. The State errs in relying on that precedent.

¶ 16 In sum, the State's exercise of its authority qua constitutional fiduciary for the school lands bears no parallel to a state-sponsored money lending activity. As for the former role, the State acts and takes title to and holds land as a sovereign; in the latter capacity, it functions as commercial enterprise sponsor.

III

¶ 17 JUDICIAL EXTINGUISHMENT OF AD VALOREM TAXES DUE OR TO BECOME DUE FOR A PERIOD ANTECEDENT TO STATE ACQUISITION OF LAND IN A NONSOVEREIGN CAPACITY WOULD OFFEND FUNDAMENTAL STATE LAW

A

¶ 18 The Terms Of Art. 10, § 9, Okl.Const.,

¶ 19 The State seeks extinguishment of delinquent ad valorem levies against the OIFA-purchased land in order to invest its agency with clear title to the property in contravention of Art. 10, § 9, Okl.Const. The provisions of § 9 operate as an absolute constitutional barrier against appropriation of ad valorem revenue to benefit the State.29 If the court were today to free the land in suit of a validly assessed ad valorem tax, it would enrich the nonsovereign state activity at the expense of the county. The result would clearly offend the § 9 mandate.

¶ 20 The judiciary is bound to give the words of the constitution that meaning which accords with popularly accepted notions of their significance.30 The commonly understood meaning of the pertinent § 9 text31 impels the conclusion that judicial nullification of an ad valorem levy, valid when assessed, which burdens state land acquired in [951 P.2d 639] a nonsovereign status, violates the constitution's interdiction of that revenue source's use for the support of state activities.

B.

¶ 21 The Provisions of Art. 5, § 53, Okl. Const.,32 Bar Public Officials From Releasing, Extinguishing Or Settling Obligations Due Any Of The There Enumerated Government Units

¶ 22 The terms of Art. 5, § 53, Okl. Const., provide that the legislature shall have no power to release anyone's indebtedness to the State, to the county, or to its municipalities.33 Section 53 targets any special act that would extinguish one's liability for a public debt.34 Extinguishment of an obligation imposed by the county against land acquired by OIFA in furtherance of its commercial enterprise would plainly contravene the cited interdiction in the fundamental law. This court's jurisprudence, no less than the legislature's enactments, must faithfully obey the fundamental law's interdiction against official release of public debts owed to the county and against the use of ad valorem revenue to benefit the State.35 The judiciary is powerless to order county revenue's seizure and to confer its benefit upon a subordinate state-sponsored lending agency that acquired land in the course of its commercial activity.

IV

¶ 23 A FUNCTIONAL APPROACH TO CREATING EXEMPTIONS FROM AD VALOREM TAX ASSESSMENTS

¶ 24 A governmental official's immunity from civil liability is now allocated on a "functional analysis".36 In applying this approach [951 P.2d 640] the court must look to the "nature of the functions" performed at the critical time, and not to the status of the defendant.37 I would adopt today a functional analysis to determine for this case if the state was acting in a sovereign capacity when acquiring the land against which the unpaid ad valorem assessment is now sought to be canceled.38 Measured by the gauge I propose, the State's quest for cancellation of the validly assessed tax cannot pass constitutional muster. Its land purchase bears no connection to any exercise of sovereign power. In short, viewed through the prism of a functional analysis, the State's land in contest here was not acquired in sovereign capacity.

SUMMARY

¶ 25 Ad valorem assessments are a burden on the land as an in rem obligation rather than as the individual (in personam) liability of a landowner. When the procedures of 68 O.S.1991 § 2940 are invoked by the acquiring public agency (and money is withheld from the purchase price to be paid), an involuntary trust relationship stands created. In the absence of an involuntary trust, there is nothing in § 2940 to show legislative intent for transmuting the land's delinquent burdens into the acquiring agency's individual liability. For payment of ad valorem levies no liability may be imposed on the acquiring public agency dehors the parameters of a § 2940 involuntary trust. Because the county's ad valorem lien survived OIFA's entry into the chain of title, the land itself cannot be freed of its ad valorem delinquency. The lien of that levy is enforceable against OIFA - qua public titleholder - by the same remedies as those available against private landowners.

¶ 26 Because the State did not take title as a sovereign but rather acquired it in a commercial capacity, the interdictions in Art. 10, § 9, Okl.Const.39 and in Art. 5, § 53, Okl.Const.40 would stand offended by a judicial decree (a) freeing the land acquired by a state-sponsored public money lender from a lien that secures delinquent ad valorem levies and (b) conferring a benefit on the State by [951 P.2d 641] canceling the county's legitimate claim to an ad valorem revenue source.

¶ 27 The State's interest in the land initially acquired jointly with a private entity (through its nonsovereign money-lending agency) is inferior and subject to the county's lien claim for all preassessed ad valorem levies (and for afterassessed portion up to the time of the State's acquisition). The county's lien survives the State's entry into the chain of title. OIFA's demand that its title to the land in suit be recognized as an asset acquired in the State's sovereign capacity must fail. The nisi prius court should on remand declare the delinquent ad valorem levies validly impressed as a lien but it should pronounce the State's land free from that burden which may be due for the period beginning with OIFA's entry into the chain of title as the property's sole owner.41

FOOTNOTES

1 For the text of 68 O.S.1991 § 2940 see infra note 6.

2 For the (ad valorem) tax liability of land, see cases cited infra note 8.

3 See discussion in Part I infra.

4 The pertinent text of Art. 10, § 6, Okl.Const. (1992), is:

"(a) Except as otherwise provided in subsection (b) of this section, . . . all property of this state, and of counties and of municipalities of this state . . . shall be exempt from taxation . . . ." (Emphasis supplied.)

5 This conclusion is drawn from consistent Oklahoma jurisprudence which, since statehood, has placed a restrictive construction on the § 6 (supra note 4) immunity for nonsovereign acquisition; but land passing to the State in its sovereign capacity is entirely freed from the lien of any ad valorem tax assessments validly made before its acquisition by the State. State ex rel. Commissioners of Land Office v. Gaylon, 154 Okl. 204, 7 P.2d 484, 485 syl.1 (1932); see also cases cited in Gaylon, supra; Foster v. City of Duluth, 140 N.W. 129, 131 (Minn. 1913); State v. Locke, 219 P. 790, 794 (N.M. 1923).

6 The terms of 68 O.S.1991 2940 are:

"Whenever the United States, the state, or a city, town, county, school district, or any other political subdivision, including, but not limited to, a turnpike authority, municipal trust, water or conservation district, flood control district, levee or waterway improvement district, urban renewal authority, public housing authority, or any other authority authorized by law, state or federal, acquires title to any real property for a governmental purpose between January 1 and October 1 of the tax year, such property shall be relieved of ad valorem tax for the remaining months of the year beginning with the first of the month next succeeding the date its acquisition for public purposes becomes a matter of public record, if the deed thereto was recorded prior to October 1; provided, however, that all taxes assessed against such property prior to its acquisition shall be paid in full and there be paid a sum equal to one-twelfth ( 1/12 ) times the number of months that the property remained in private ownership of an amount estimated by the county treasurer of the county wherein the real property lies to be substantially equal to the amount of tax which would have been or will become due and payable for the year had the real property not been acquired for public purposes. In estimating the amount of taxes which would have been or will become due and payable for the tax year had the real property not been acquired for public purposes the county treasurer shall use as a basis the current assessment and the tax rate for the preceding year, unless the tax for the current year shall be by then determined and set, in which event he shall use as basis the new assessment and rate. The public agency acquiring the property shall deduct the amount of such taxes from the purchase price payable to the private owner and remit the same to the county treasurer in satisfaction of such taxes. The county treasurer of any county is hereby authorized upon order of the board of tax roll corrections to cancel of record all taxes assessed against such property for the year of its acquisition when the deed thereto was recorded prior to October 1 and the aforesaid estimated amount of the tax for the months that the property was in private ownership is paid, which order shall be issued upon application of the acquiring authority." (Emphasis added.)

7 One who, though not a consensual trustee, stands nonetheless liable qua trustee for misapplied fiduciary funds is known in equity jurisprudence as involuntary or de son tort trustee. Sandpiper North Apts., Ltd. v. American Nat'l. Bank, 1984 OK 13, 680 P.2d 983, 988. The terms - de son tort, ex maleficio, constructive, involuntary, implied-in-law trustee or one by operation of law - are all synonyms. Id. at 988 n.10; Davis v. National Bank of Tulsa, 1960 OK 151, 353 P.2d 482, 488.

8 Ad valorem assessments are obligations in rem and not in personam. No personal liability is cast upon the property owner to pay the assessments levied against the land. U.S. v. Home Fed. S. & L. of Tulsa, 1966 OK 135, 418 P.2d 319, 325; Allen v. Henshaw, 197 Okl. 123, 168 P.2d 625, 629 (1946); McDonald v. Duckworth, 197 Okl. 576, 173 P.2d 436, 438 (1946)(the ad valorem tax code provides a comprehensive system by which delinquent taxes on real estate may be collected by the sale of the property). Although no personal liability for ad valorem taxes is chargeable against the owner, the unpaid levies constitute a continuing lien upon the realty. Home Fed S. & L., supra at 325.

9 68 O.S.1991 § 3105; Dearing v. State ex rel. Com'rs of Land Off., 1982 OK 5, 642 P.2d 226, 228-29 (when tax is overdue, unpaid ad valorem levies against realty attach as a lien against the entire fee and, unless redeemed, make the property subject to sale in satisfaction of the delinquency).

10 OIFA may sue and be sued in all courts. 74 O.S.1991 § 855(h).

11 The § 2940 procedure is ideally available in situations in which there is a cash purchase and money is due from the acquiring public agency to the owner.

12 The property in contest was acquired at sheriff's sale on January 7, 1992 by OIFA (87.5%) and the plaintiff (bank) (12.5%) taking title jointly in their proportional undivided interests.

13 OIFA acquired 100% fee ownership of the property in contest on August 9, 1995 when the plaintiff bank quitclaimed to OIFA its entire interest in the property.

14 Sovereign power resides either in the federal government or in the several states. See Community Communications Co. v. City of Boulder, 455 U.S. 40, 50, 102 S. Ct. 835, 842, 70 L. Ed. 2d 810 (1982); United States v. Kagama, 118 U.S. 375, 6 S. Ct. 1109, 1111-12, 30 L. Ed. 228 (1886).

15 Government "bodies with limited legislative functions" are "derived from, or exist in, subordination to" state sovereign bodies. Kagama, supra note 14, 118 U.S. at 379, 6 S.Ct. at 1111-12; see also Benson & Gold Chevrolet, Inc. v. Louisiana Motor Vehicle Com'n, 403 So. 2d 13, 20 (La.1981) ("the principle is well established that an administrative agency must act in conformity with its statutory authority, which it cannot exceed"). See in this context Shenefield, The Parker v. Brown State Action Doctrine and the New Federalism of Antitrust, 51 Antitrust L.J. 337, 341 (1982) ("[s]ubordinate [state] agencies operate under delegations of state sovereign power, and can only follow state policy").

16 74 O.S.1991 § 852.

17 An "industrial development agency" is statutorily defined as "any Oklahoma incorporated organization, foundation, association or agency, regardless of the particular name, whether organized for profit or nonprofit, which shall have as its primary function the promotion, encouragement and development of industrial, recreational, agricultural processing and manufacturing enterprises, livestock processing and conditioning enterprises and enterprises which process mined resources in Oklahoma." 74 O.S. 1991 § 853 (d).

18 74 O.S.1991 § 855(g).

19 74 O.S.1991 § 855(o).

20 A helpful analogy may be found in the rule of common law that, absent explicit legislation to the contrary, exemption from the impact of statutory limitations on personal actions stands confined to the state qua sovereign. State ex rel. Schones v. Town of Canute, 1993 OK 90, 858 P.2d 436, 440 (Opala, J., dissenting); Okl. City Mun. Imp. Auth. v. H.T.B., Inc., 1988 OK 149, 769 P.2d 131, 137 (Opala, J., dissenting). When acting in sovereign capacity no state agency is subject to statutory limitations unless it is expressly included by the terms of the pertinent enactment. Time bars do and will govern the State when it is acting in a proprietary or commercial capacity. See People v. Hale, 52 N.E.2d 308, 310-311 (Ill.App.1943); Great Western Ins. Co. v. Saunders, 274 N.W. 28, 31-32 (Iowa 1937); City of Reidsville v. Burton, 152 S.E.2d 147, 151-152 (N.C. 1967); Trustees of Bergen Community College v. J.P. Fyfe, Inc., 188 N.J.Super. 288, 457 A.2d 83, 86-88 (Law Div.1982), aff'd, 192 N.J.Super. 433, 471 A.2d 38, 40 (App.Div.1983), certification denied, 96 N.J. 308, 475 A.2d 598 (1984).

21 See Part III (A) and (B), infra.

22 For the notion that upon a state agency's acquisition of title to land the county's tax lien must be extinguished, the State relies on Gaylon, supra note 26 at 485 syl.1 (real estate acquired by the state in its sovereign capacity is absolved of further liability for ad valorem taxes); State ex rel. Commissioners of Land Office v. Passmore, 189 Okl. 232, 115 P.2d 120 (1941).

23 Art. 6, § 32, Okl.Const.; Art. 11, §§ 1, 2 and 5, Okl.Const. See Oklahoma Ed. Ass'n, Inc. v. Nigh, 1982 OK 22, 642 P.2d 230, 235-36; State ex rel. Commissioners of Land Office v. Armstrong, 199 Okl. 474, 188 P.2d 347, 349 (1947). The Commissioners of the Land Office is a constitutional body that has control of the sale, rental, disposal and management of school land and of other public lands of the state. Nigh, supra at 235-237; Haskell v. Haydon, 33 Okl. 518, 126 P. 232, 233 (1912).

24 Nigh, supra note 23 at 235-236 (the primary purpose of the school land trust is the protection of income for the support and maintenance of the common schools of the state); Sears v. Fair, 1964 OK 239, 397 P.2d 134, 138; Goodin v. Commissioners of Land Office, 174 Okl. 364, 50 P.2d 189, 191 (1935).

25 The pertinent terms of Art. 10, § 33A, Okl.Const., are:

"The Legislature of the State of Oklahoma is hereby authorized to enact legislation creating a State Industrial Finance Authority . . . [which] shall be, and is hereby, authorized to issue and sell State Industrial Finance Bonds . . . the proceeds [of which] . . . to be loaned, and reloaned, by said Authority only to Oklahoma incorporated industrial development agencies (whether profit or non-profit) in Oklahoma communities, which agencies shall first have been approved and qualified by said Authority, such loans to be secured either by first or second mortgage on the land, buildings and facilities of such industrial properties . . ."

Oklahoma Industrial Finance Authority was created by enabling legislation (74 O.S.1991 §§ 851 et seq.) defining it as "a body corporate and politic, constituting a public corporation and governmental instrumentality" of the state. 74 O.S. 1991 § 854.

26 State Insurance Fund v. Taron, 1958 OK 282, 333 P.2d 508, 513 (when the government acts in a proprietary capacity, it does not enjoy sovereign status); State v. Graham, 758 P.2d 247, 251 (Kan.App.1988)(governmental functions are those which are performed for the "general public with respect to the general welfare"); State ex rel. Schneider v. McAfee, 578 P.2d 281, 283 (Kan.App.1978); State ex rel. Stephan v. Brotherhood Bank and Trust Co., 649 P.2d 419, 422-23 (Kan.App.1982); People ex rel. Nelson v. Waukegan State Bank, 184 N.E. 237, 238 (Ill. 1932)(while the state itself is sovereign, its agencies are not so universally).

27 Tax cancellation by judicial fiat would impermissibly invest an inferior agency - acting for the State in a purely commercial capacity - with a license to extinguish legitimate ad valorem revenue sources of a county.

28 The pertinent terms of Art. 10, § 9, Okl.Const., are:

" (a) * * *No ad valorem tax shall be levied for State purposes, nor shall any part of the proceeds of any ad valorem tax levy upon any kind of property in this State be used for State purposes.* * *"

29 Board of County Com'rs of Muskogee County v. City of Muskogee, 1991 OK 115, 820 P.2d 797, 805.

30 Recognized constitutional hermeneutics dictates that fundamental-law provisions be interpreted in conformity with their ordinary significance in the English language, i.e., that they be given their commonly accepted nontechnical meaning. Fundamental-law provisions must be construed in a practical manner in order to honor the plainly manifested intent of their drafters. In re Initiative Petition No. 363, State Question No. 672, 1996 OK 122 , 927 P.2d 558, 570; Ogden v. Hunt, 1955 OK 125, 286 P.2d 1088 syl. 1, 2; Sharpe v. State ex rel. Oklahoma Bar Association, 1968 OK 1, 448 P.2d 301, 306; Wade v. Brown, 1973 OK 137, 516 P.2d 526, 528; Campbell v. White, 1993 OK 89, 856 P.2d 255, 262.

31 For the pertinent text of Art. 10, § 9, Okl.Const., see supra note 28.

32 The terms of Art. 5, § 53, Okl.Const., are:

"Except as to tax and assessment charges against real property remaining delinquent and unpaid for a period of time as long or longer than that provided by law to authorize the taking title to real property by prescription, the Legislature shall have no power to release or extinguish, or to authorize the releasing or extinguishing, in whole or in part, the indebtedness, liabilities, or obligations of any corporation or individual, to this State, or any county or other municipal corporation thereof."

Delinquent taxes are "liabilities", and any law directly or indirectly releasing or extinguishing liabilities for taxes, in whole or part, is unconstitutional. Thompson v. Smith, 189 Okl. 217, 114 P.2d 922 (1941). A statute providing for refunding of penalties accrued on ad valorem taxes was not violative of this section. City of McAlester v. Jones, Okla., 181 Okl. 77, 72 P.2d 371 (1937). Laws 1915, Ch. 8, which extended the time for payment of certain taxes, did not remit or release penalties which had already accrued on delinquent taxes in violation of this section. Rogers v. Mann, Okla., 53 Okl. 648, 157 P. 331 (1916).

33 The provisions of Art. 5, § 53, Okl.Const., supra note 32, were intended to stamp out rampant and pernicious practice by some lawmakers of sponsoring bills to exonerate their political cronies of liability for a public debt. See Covington Bridge v. Davidson, 102 S.W. 330, 340 (Ky. 1907); In re Stanford's Estate, 126 Cal. 112, 58 P. 462, 464 (1899), identified in R.L. Williams, The Constitution and Enabling Act of the State of Oklahoma Annotated (1912), as a material source for the Constitutional Convention's text of Art. 5, § 53. See also State ex rel. Schones v. Town of Canute, 1993 OK 90, 858 P.2d 436, 440 (Opala, J., dissenting).

34 Liability for taxes is treated as fixed only when their assessment has become final. Love v. Silverthorn, 187 Okl. 114, 101 P.2d 254, 257 (1940).

35 See, in the connection, Art. 5, § 46, Okl. Const., jurisprudence: Reynolds v. Porter, 1988 OK 88, 760 P.2d 816, 822. Although directed to the legislature, the terms of Art. 5, § 53, Okl.Const., supra note 32, and Art. 10, § 9, Okl.Const., supra note 28, are no less binding on the courts.

36 See, e.g., Richardson v. McKnight, U.S. , 117 S. Ct. 2100, 2109-2110, 138 L. Ed. 2d 540 (1997)(private prison guards, unlike those who work directly for the government, do not enjoy immunity from suit in a § 1983 case); Clinton v. Jones, U.S. , 117 S. Ct. 1636, 1644, 137 L. Ed. 2d 945 (1997)(in a § 1983 action there is no absolute immunity for damages arising from "unofficial conduct"); Buckley v. Fitzsimmons, 509 U.S. 259, 113 S. Ct. 2606, 125 L. Ed. 2d 209 (1993)(there is no absolute immunity for a prosecutor's conspiracy to manufacture false evidence that was later introduced at grand jury proceedings and at trial, or for a prosecutor's out-of-court statements to the press); Burns v. Reed, 500 U.S. 478, 484-486, 111 S. Ct. 1934, 1938-1939, 114 L. Ed. 2d 547 (1991)(prosecutors have absolute immunity for their actions in participating in a probable-cause hearing but not in giving advice to the police); Forrester v. White, 484 U.S. 219, 224, 108 S. Ct. 538, 542, 98 L. Ed. 2d 555 (1988)(a judge is not entitled to absolute immunity for the "administrative" act of dismissing an employee); Malley v. Briggs, 475 U.S. 335, 342-343, 106 S. Ct. 1092, 1096-1097, 89 L. Ed. 2d 271 (1986)(a police officer is not entitled to absolute immunity for false statements made in a warrant application); Cleavinger v. Saxner, 474 U.S. 193, 201, 106 S. Ct. 496, 500, 88 L. Ed. 2d 507 (1985)(there is no absolute immunity for prison disciplinary board members who adjudicate free from various procedural safeguards, including, the right to counsel, cross-examination, a transcript, and direct judicial review); Briscoe v. LaHue, 460 U.S. 325, 342, 103 S. Ct. 1108, 1119, 75 L. Ed. 2d 96 (1983)(all witnesses, including those who give perjured testimony, are absolutely immune from civil suit under § 1983); Harlow v. Fitzgerald, 457 U.S. 800, 810, 102 S. Ct. 2727, 2734, 73 L. Ed. 2d 396 (1982)(government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known); Butz v. Economou, 438 U.S. 478, 511-513, 98 S. Ct. 2894, 2913-2914, 57 L. Ed. 2d 895 (1978)(federal officials are not liable for mere mistakes in judgment, whether the mistake is one of fact or one of law); Imbler v. Pachtman, 424 U.S. 409, 420-425, 96 S. Ct. 984, 990-993, 47 L. Ed. 2d 128 (1976)(state prosecutors have absolute immunity for the initiation and pursuit of a criminal prosecution, including presentation of the state's case at trial).

37 Briscoe, supra note 36, 460 U.S. at 342, 103 S. Ct. at 1119; Forrester, supra note 36, 484 U.S. at 229, 108 S. Ct. at 545 ("it [is] the nature of the function performed, not the identity of the actor who performed it, that inform[s] our immunity analysis")(emphasis added); Cleavinger, supra note 36, 474 U.S. at 201, 106 S. Ct. at 496 ([a]bsolute immunity "flows not from rank or title or 'location within the Government;' . . . but from the nature of the responsibilities of the individual official"), quoting Butz, supra note 36, 438 U.S. at 511, 98 S. Ct. at 2913.

38 Functional approach is thus far limited to governmental employees carrying out the various functions for their employer. The analysis has not yet been extended to private individuals who undertake for profit government tasks to be performed under a contract. See, e.g., Richardson, supra note 36, U.S. at , 117 S. Ct. at 2107-08 (the Court refused to extend the functional-analysis approach to employees of a private enterprise performing governmental functions).

39 For the pertinent terms of Art. 10, § 9, Okl.Const, see supra note 28

40 For the pertinent terms of Art. 5, § 53, Okl. Const., see supra note 23.

41 Once the property had passed to the State in any capacity, the county's power further to burden it with ad valorem levies came to an end by force of Art. 10, § 6, Okl.Const., supra note 4; Gaylon, supra note .5 at 485.