Territory ex rel. Sampson v. Clark

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Territory ex rel. Sampson v. Clark
1894 OK 57
35 P. 882
2 Okla. 82
Case Number: ___
Decided: 05/02/1894
Supreme Court of Oklahoma

TERRITORY ex rel. SAMPSON et al., Board of County Commissioners
v.
CLARK, Township Trustee

SYLLABUS

¶0 1. Under the provisions of section 541 of article 21 of chapter 66, p. 852, of the Statutes of Oklahoma of 1893, parties to a question which might be the subject of a civil action may agree upon a case containing the facts of the controversy, and submit the same to any court which would have jurisdiction if an action had been brought, and the court shall render judgment as if an action were pending.

2. In the construction of statutes, it is a cardinal rule that the intention of the legislature must govern.

3. In the construction of statutes, when the intention of the legislature can be gathered from the statute, words may be modified, altered, or supplied to give to the enactment the force and effect which the legislature intended.

4. Also, in such interpretation, the intention of the legislature must be ascertained by a construction of the whole act, or enactment or enactment of the legislature on the same subject.

5. In construing an act the court should, if possible, so interpret all of the provisions of an enactment or enactments of the legislature as to harmonize their various provisions and, so far as possible, to give reasonable effect to all.

6. Construing the seventh subdivision of section 2 of article 1 of chapter 70, p. 1032, of the Statutes of Oklahoma of 1893, which provides that "all breaking, wells or fertilizing upon lands upon which final proof has not been made" shall be exempt from taxation, together with subdivision 15 of section 3 of the same article, which provides that "all other property, real and personal, of any kind not including improvements upon government lands, or lots not deeded," shall be subject to taxation; also, together with subdivision 15 of section 1 of article 2 of the same chapter, which provides that the list of taxable property made by the assessor and assessed to each person shall contain "all other property not specially enumerated in this section by its actual cash value, except such as is specially exempted by section two of this chapter,"-it is held that the legislature intended that all improvements upon government lands, except all breaking, wells, or fertilizing, and also lots not deeded, on lands where final proof and final entry had been made, are subject to taxation.

Original application at the relation of John J. Sampson and others, as board of county commissioners of Logan county, for mandamus to compel A. Z. Clark, trustee and assessor of Spring Creek township, to list for taxation certain property. Granted.

Harris Houston, for plaintiff.

BIERER, J.

¶1 This is an agreed case in mandamus, submitted as an original proceeding in this court to determine in a summary manner the legal question involved under the provisions of general section 4419, (section 541, art. 21, c. 66, p. 852, St. Okl. 1893,) which provides: "Sec. 541. Parties to a question, which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court, which would have jurisdiction if an action had been brought. But it must appear, byaffidavit, that the controversy is real, and the proceedings in good faith to determine the rights of the parties. The court shall thereupon hear and determine the case, and render judgment as if an action were pending." All of the provisions of this section have been fully complied with, and we will determine the question involved the same as if it had been brought before us by an original action in the usual form. The sole question involved in this controversy is as to whether or not improvements upon government lands and lots not deeded, excepting the breaking, wells, and fertilizing upon lands upon which final proof has not been made, are subject to taxation; and this question involves the construction of certain sections of the revenue law of this territory.

¶2 The legislature of 1893 passed an act. which took effect March 14, 1893, entitled "An act to provide for the raising and collecting of revenue, and repealing chapter 75 of the Statutes of Oklahoma, entitled ‘Revenue'." St. Okl. 1893, p. 1031. The seventh subdivision of section 2 of article 1 of said act (c. 70, p. 1032, St. Okl. 1893) is, with the heading of the section, which must be read to get the meaning thereof, as follows: "Sec. 2. The following classes of property shall be exempt from taxation, and may be omitted from the list herein required to be given:" "Seventh: All breaking, wells or fertilizing upon lands upon which final proof has not been made." Section 3 of the same article, excepting the first 14 subdivisions thereof, is as follows: "Sec. 3. All other property, real and personal, shall be subject to taxation in the manner provided in this act:" "Fifteenth. All other property, real and personal, of any kind, not including improvements upon government lands, or lots not deeded." Subdivision 15 of section 1 of article 2 of said act, which provides for the manner of listing property, and what the list of taxable property made by the assessor and assessed to each person shall contain, provides as follows: "Fifteenth. All other property not specially enumerated in this section by its actual cash value, except such as is specially exempted by section two of this chapter." This last provision, referring to "section two of this chapter," was evidently intended to refer to section 2 of article 1 of this chapter, for that is the only section 2 contained in any part of this chapter which refers to the exemption of property from taxation.

¶3 This controversy depends upon the construction to be given by the court to the fifteenth subdivision of section 3 of article 1, above given. It is contended by the assessor that the subdivision referred to exempts from taxation all improvements upon government land, and all lots not deeded. This part of this statute upon its face seems to read that way, but in construing it we must consider the well-known rules for the construction of statutes. In the construction of statutes it is a cardinal rule that the intention of the legislature must govern. Suth. St. Const. § 218; Sedg. St. & Const. Law, p. 325. Also, that when the intention can be gathered from the statute, words may be modified, altered, or supplied to give to the enactment the force and effect which the legislature intended. Suth. St. Const. § 218. In the Eureka Case, 4 Sawy. 302-317, Fed. Cas. No. 4548, Judge Field, delivering the opinion of the court, said: "Instances without number exist where the meaning of words in a statute has been enlarged, or restricted and qualified, to carry out the intention of the legislature. The inquiry, where any uncertainty exists, always is as to what the legislature intended, and when that is ascertained it controls." Another rule for the interpretation of statutes is that the intention of the legislature must be ascertained by a construction of the whole act, and all of the enactment or enactments of the legislature on the same subject must be so construed as to "harmonize their various provisions and, so far as possible, to give reasonable effect to all." State v. Cobb, 2 Kan. 32; State v. Young, 17 Kan. 414; Commissioners v. Morrall, 19 Kan. 141; Gardenhiro v. Mitchell, 21 Kan. 83; Wenger v. Taylor, (Kan.) 18 Pac. 911; Pond v. Maddox, 38 Cal. 572. In the light of these rules, reading the fifteenth subdivision of section 3 of article 1 of chapter 70 in connection with the seventh subdivision of section 2 of article 1, and in connection with the fifteenth subdivision of section 1 of article 2, all of the same chapter, it will be manifest that there is an apparent conflict between the fifteenth subdivision of section 3 of article 1, and all the other provisions of the same enactment; and we must, if possible, harmonize them so as to give effect to all provisions of this enactment of the legislature in accordance with the legislative intent. It will be observed that the seventh subdivision of section 2 of article 1 is contained in an article, entitled "Property Subject to Taxation," the first section of which gives the general classes of property subject to taxation, the second section, under which the seventh subdivision occurs, relates to specific property which is exempt from taxation. Under this provision, the legislature, when it had under consideration the question as to what property in the way of improvements upon government lands upon which final proof had not been made, designated three specific items which should be exempt from such taxation. These were breaking, wells, and fertilizing. The fifteenth subdivision of section 3, which is the bone of contention and makes the trouble, is contained under section 3 of article 1, which relates to the kinds of property which shall be subject to taxation, and does not relate to the exemption of property from taxation; and we believe, construing the statute and these provisions together, that, if the legislature had intended that all improvements upon government lands and all lots not deeded should be exempt from taxation, they would have shown such intent by enumerating these articles as exempt from taxation under the seventh or some other subdivision of section 2 of article 1. This chapter 7 of our revenue law is a substantial re-enactment of the provisions of chapter 75 of the Laws of Oklahoma of 1890, relating to revenue, with certain modifications. The two enactments are drawn under the same heading and the same title, excepting the addition of the repealing part that is added to the last enactment. They have the same number of articles, excepting that to the present chapter 70 is added an article relating to the extension of the time for the payment of the taxes of 1893, and each article is given the same title as the old one; and we can gather the intention of the legislature somewhat by a comparison of the two. The twentieth subdivision of section 3 of article 1 of chapter 75 of the Laws of 1890, for which this subdivision (fifteenth) of section 3 of article 1 of the present law is substituted, reads as follows: "Twentieth. All other property, real and personal, of any kind, including all improvements upon government lands, or lots not deeded."

¶4 It will be observed that this present subdivision (fifteenth) is couched in the same language as the old enactment, excepting that after the word "kind" the word "not" is inserted, and the word "all" is omitted. When the legislature were revising the old chapter of our revenue law, and came to this subdivision, (twentieth) they found that it provided that all improvements upon government lands and all lots not deeded were subject to taxation. They evidently did not desire to continue to tax all improvements upon government lands, for they had said, in the seventh subdivision of the section with reference to the exemption of property from taxation, "that all breaking, wells or fertilizing" upon lands not deeded should be exempt from taxation, and they then inserted the word "not" and omitted the word "all;" evidently intending not that all improvements upon government lands should be exempt from taxation, also intending not that all improvements upon government lands should not be subject to taxation, but actually intending that all other property than that specifically mentioned in the subdivisions before that contained in the same section, real and personal, of any kind, not including exempt improvements upon government lands, also including lots not deeded, should be subject to taxation. This construction makes all of the sections of this article consistent one with the other. A construction exempting from taxation all improvements upon government land, or lots not deeded, makes subdivision fifteenth of section 2 of article 1 inconsistent with the other provisions of this chapter referred to. After the legislature had passed along in their revision of this statute, and had come to subdivision fifteenth of section 1 of article 2, relating to the manner of listing property, they provided that all property than that which had in the same section been specifically enumerated should be listed at its actual cash value, except such as was specifically exempted in section 2 of the same chapter, (meaning section 2 of article 1;) that is, they meant that all property should be listed except such as they, by their own enactment, had specifically exempted by said section 2. The legislature evidently did not mean that the fifteenth subdivision of section 3 should be taken as a provision for exemption, and as granting a much broader exemption than the provision specifically made upon that subject; but they meant that no property should be exempted except that which was made specifically exempt by section 2 of article 1. The change in subdivision fifteenth of section 3 of article 1 of the present statute was evidently made, not to extend the exemptions of section 2 of article 1, but in order that there might be no question that the improvements which had been exempted should not be subject to taxation. We do not believe that, so far as the language of this subdivision fifteenth of section 3 of article 1 of this act is concerned, there can be any serious question as to whether or not the legislature intended that "lots not deeded" should be subject to taxation. The expression, "not including improvements upon government lands" is not intended also to include the designation of "or lots not deeded." Those are two distinct expressions, separated by a comma between "lands" and "or," and were not intended by the legislature to be considered together, or else the comma would have been omitted; and the expression would have read, "not including improvements upon government lands or lots not deeded," omitting the comma. The expression, "lots not deeded," was evidently intended to refer to property which consisted of lots in a town site upon which the entry had been made, and the lots of which had not been deeded to the beneficiaries; and this species of property was intended to be taxed, independently of any question of improvements thereon, the same as any other real estate. It was undoubtedly given the specific designation in order that no technical question of its actual status in law might prevent it from being made subject to taxation. The reference to improvements upon government lands cannot be said to be confined to government lands covered by a homestead entry or subject to a homestead claim; for improvements upon a town lot upon which entry has not been made are as much improvements upon government lands as would be the case if the improvements were on a tract of land subject to homestead entry, but upon which final proof had not been made. The legislature evidently intended to make their provision with reference to improvements upon government lands, to include both government lands held by homestead entry and government lands held under a town-site claim but where, in such cases, final proof and entry had not been perfected. The "lots not deeded" referred to another class of property, as above stated. We do not believe that there is any substantial ground for the claim of the defendant that "lots not deeded" we intended to be exempt from taxation. The enactment of the legislature was passed for the purpose of raising revenue, and not for the purpose of relieving valuable properties from their proper share in contributing the burdens of taxation. The history of the country makes us know, as the legislature must have known in passing this law, that many of the most valuable lots in the cities of this territory are yet not deeded. The litigation concerning some has not yet passed beyond the control of the land department and the deeds given, or, in the newer port of the territory, sufficient time has not elapsed in which the trust imposed upon the town-site trustees could have been administered and the deeds passed. Yet those lots are private property. They are liable to execution for debt. They are a valuable property, of which the occupant under the land laws is the owner, but has not the legal title. Why should such property be exempted from taxation? We can see no reason, nor do we believe the legislature saw any, or intended so; for their enactments exhibit an entirely different intent.

¶5 This conclusion on our part to interpret this revenue law by restricting the meaning of subdivision fifteenth of section 3 of article 1, and adding the word "exempt" thereto, so as to interpret it as if it read: "Fifteenth. All other property, real and personal, of any kind, not including exempt improvements upon government land, and lots not deeded," -the phrase "and lots not deeded" relating back to the phrase "all other property, real and personal, of any kind," so as to give it the meaning of including in the property subject to taxation also lots not deeded,-is sustained not only by what we believe the legislature actually meant in passing this law, as we gather their meaning from the entire enactment, but also by ample authority. Sutherland, in his work on Statutory Construction, (section 246,) says: "The mere literal construction of a section in a statute ought not to prevail if it is opposed to the intention of the legislature apparent by the statute. *** General words or clauses may be restricted to effectuate the intention, or to harmonize them with other expressed provisions. *** The sense in which they were intended to be used furnishes the rule of interpretation, and this is to be collected from the context; and a narrower or more extended meaning is to be given, according to the intention thus indicated. In an act providing for raising state taxes, railroads were taxed on the basis of passenger traffic, and it was provided that every railroad paying such tax should not be assessed ‘with any tax on its lands, buildings, or equipments.' This exemption was confined to the taxes of the kind provided for in the act, and was held not to conflict with another act for a municipal tax." The words "or" and "and" are very often loosely used in legislative enactments, and one is often read in the place of the other in order to give the real meaning to the legislative enactment. Suth. St. Const. § 252. In the interpretation of legislative enactments a word is often rejected as surplusage, or a word substituted, in order to give full effect to the law. In the case of Palms v. Shawano Co., 61 Wis. 211. 21 N.W. 77, the supreme court of that state, in construing the statute, substituted the word "north" for the word "south," and announced the rule to be: "The court will inspect the whole act, and, if the true intention of the legislature can be reached, the false description will be rejected as surplusage, or words substituted, in the place of those wrongly used, which will give effect to the law,"-citing numerous authorities from different states in support thereof.

¶6 Another well-known rule of interpretation of statutes, which guides us in our conclusion in this case, is that where there are specific provisions in the act, relating to a particular subject, they control, as against general provisions in other parts of the statute, although the general provisions, standing alone, would give to the act another meaning. End. Interp. St. § 216; Felt v. Felt, 19 Wis. 208. In this last case the court say: "But it is a well-settled rule of construction that specific provisions relating to a particular subject must govern in respect to that subject, as against general provisions in other parts of the law, which might otherwise be broad enough to include it." Now, in the case at bar a provision exempting "all breaking, wells, or fertilizing" upon public lands is a specific provision with reference to the property that should be exempted from taxation. The language in the other part of the statute, "not including improvements upon government lands, or lots not deeded," is a general expression made, not with reference to the exemption of property from taxation, but with reference to property that should be subject to taxation; and we consider that the specific provisions relating to exemption, also the specific provision in the fifteenth subdivision of article 2 with reference to the listing of property, except that specifically exempted in section 2 of article 1 of the chapter, should control over this general provision contained in the first part of the statute referring to property that should be taxed, and not to property that should be exempted from tax.

¶7 Another illustration of the doctrine which the courts have established, in substituting one word for another, or adding another word, in the legislative enactment, in order to harmonize all the provisions of the enactment and give to it the meaning which the legislature evidently intended, is found in the case of Moody v. Stephenson, 1 Minn. 401, (Gil. 289,) where it was held that the word "final" should be substituted for the word "penal" in one section of a chapter providing for the removal by appeal or writ of error of causes from the district courts to the supreme court of that state. Entertaining these views, it is our judgment that all improvements upon public lands upon which final proof has not been made, excepting "breaking, wells, or fertilizing," and all lots not deeded where final proof and final entry have been made, are subject to taxation, and should be listed with the other property subject to taxation, when the lists are taken by the assessors, under the law.

¶8 The judgment of the court is rendered accordingly, and the peremptory writ of mandamus prayed for will be allowed, with costs.

All the justices concurring.