The opinion
ARNOLD, J.
(concurring specially). No one contends in this case, nor is there any holding by this court or any other court, that good cause for not appearing before the board of equalization does not have to be shown before the county commissioners would have the authority to correct erroneous assessments under such a statute as ours. We have consistently held that a showing of good cause for not appearing before the board of equalization is an absolute prerequisite to the exercise of authority granted to correct such assessments.
In this case the affidavit does not show “good cause” as the statute requires, and the record brought here does not absolutely show that good cause was shown before the board made the correction which provoked this controversy, however, the testimony does strongly suggest that such testimony was introduced in support of the affidavit before the order of correction was entered. Upon a similar record and contention, we said in City of Enid v. Champlin Refining Co., 112 Okla. 168 , 240 P. 604 , that:
“ . . . nothing of substance of the claim is required to be stated under oath or otherwise, and the only affidavit required is one showing good cause why the applicant did not attend the meeting of the board of equalization. This not being of the substance or the essence of the claim, we are inclined to the opinion that this provision was inserted for the protection of the board of county commissioners, and was designed to prevent a multiplicity of applications upon unfounded claims, and left it to the discretion of such board whether it would consider a claim or not, where good cause was not shown by affidavit for not having the correction made before the board of equalization, and under a long line of uniform authorities, we hold the filing of the affidavit was directory only and not mandatory.”
This ruling has never been overruled by this court and since the date of that opinion the practice has been, in accord with the opinion, as was likely done in this case according to the testimony, to require and make the required showing of good cause. The rule of the Champlin Case should be followed or the case should be overruled. We should not ignore the rule and instead apply the rule announced in the cases relied upon by the majority, whether the rule was announced under facts that did not present issues requiring the announcement of such rule, to wit: Morningside Hospital and Training School for Nurses v. Carmichael, 185 Okla. 48 , 89 P. 2d 958 , and Tulsa Exchange Co. v. Parkinson, 192 Okla. 311 , 136 P. 2nd 694. In those cases the records affirmatively and conclusively showed that “good cause” did not exist. The opinions were not entirely bottomed upon the absence of a showing of good cause in the affidavit. The announcement therein that the record
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must affirmatively show good cause for not appearing before the board of equalization was not necessary to a determination of the issue presented. Those opinions correctly hold, in arriving at correct conclusions, that such showing must be made or else the board of county commissioners would be without authority to make a correction of erroneous assessments. Since the records in those cases showed that good cause did not exist, there was no necessity for the announcement of the rule that the record must affirmatively show the existence of good cause.
We distinguished the Champlin Case from the Morningside Hospital Case by pointing to the fact that good cause did exist in the Champlin Case while the record in the Morningside Case showed that good cause did not exist. The rule of the Champlin Case was in no wise criticised but, in effect, approved by us in the Morningside opinion.
The rule of the Champlin Case, supra, makes section 299, 12 O. S. 1941, applicable. It provides:
“In pleading a judgment, or other determination of a court or officer of special jurisdiction, it shall be sufficient to state that such judgment or determination was duly given or made; and the jurisdiction of any such court or officer shall be presumed until the contrary appears.”
This statute being applicable, and as long as the Champlin Case stands, there can be no doubt of the intention of the Legislature to require an affirmative showing, by one attacking the jurisdiction of a quasi-judicial administrative board, that jurisdiction to enter its order did not exist. This showing was not made. For the foregoing reasons, and the further reason that the majority opinion is at variance with the common understanding of our rule and great confusion will no doubt result from the rule therein announced, I must dissent on this theory of the case which concedes the correctness of the case of Barry v. Board of Commissioners of Tulsa County, 173 Okla. 645 , 49 P. 2d 548 , applying and preserving the remedy provided by O.S. 1931 § 12642, which I am convinced is wrong, and it, as well as our other opinions following it, should be overruled.
It cannot be seriously questioned that the assessment and equalization of values of real and personal property for purposes of ad valorem taxation upon a basis of fair distribution of the tax burden is the public policy of the state. It is reflected by constitutional provisions and by statutory enactment. It is unquestionable that mistake and errors will occur in the performance of the ministerial duties involved in such assessments and equalizations. To provide procedure for the correction of such mistakes and errors the Legislature has been recurrently active since statehood. One of these enactments is the one here invoked by the plaintiff, being section 12642, O.S. 1931.
The purpose of all such enactments being to correct inequalities developed in the administration of the assessment and equalization laws they are remedial in their nature and must receive a liberal interpretation not inconsistent with the evident legislative intent. Being remedial as to acts already performed, they are necessarily procedural in character and not substantive.
There is no vested right in any form of procedure. Constitution, art. 5, section 54, only preserves rights which have accrued or proceedings already begun under a repealed statute. The proceedings in the instant case were not begun prior to repeal of section 12642, O.S. 1931. Since there was no vested right in the form of procedure therein prescribed, defendant cannot invoke the protection of the constitutional provision, supra, for a proceeding under the statute commenced since its repeal.
Under the rule ejusdem generis the general words in the first clause of section 12642, “erroneous assessments,
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mistakes or errors,” must be considered as limited and restricted by the specific words thereafter used in enumerating the instances in which county commissioners may grant relief, to wit: “that any personal or real property has been assessed to any person, firm or corporation not owning or claiming to own the same, or that property exempt from taxation has been assessed.” ( 50 Am. Jur. p. 244 , § 249.) In the event erroneous taxes have been paid through mistake of fact, such payment may be refunded. Defendant is not within any of the three classes specifically enumerated, and it is therefore immaterial whether he or his predecessors in interest showed good cause for not appearing before the board of equalization.
Section 12642, O.S. 1931, was enacted at the special session of the Legislature in 1916. At its regular session in 1915 the same Legislature had provided by chapter 107, S.L. 1915, for the correction and adjustment of all other forms of errors in assessments and levies by apperance before the board of equalization and appeals therefrom to the district court, and had declared this to be the sole remedy for erroneous assessment and equalization. (O.S. 1931 §§ 12659 to 12665, inc.)
Section 12642 was intended to apply and leave effective operation only as to current assessments and tax rolls because it provides that applications thereunder must be made “before the taxes have been paid,” and by law the taxes were required to be paid on or before the 1st day of May each year. (O.S. 1931 § 12740.)
No substantial rights vested under section 12642 and the remedy provided thereby did not exist at the time this proceeding was begun because of the repeal of the act. Barry v. Board of Commissioners of Tulsa County, supra, holding contrary, should be overruled.
I,therefore, concur in the result.
OSBORN, J., concurs in the views herein expressed.