Aaronson v. Smiley, Co.
| Decision Date | 10 December 1929 |
| Docket Number | Case Number: 19697 |
| Citation | 285 P. 59,142 Okla. 29,1929 OK 522 |
| Parties | AARONSON v. SMILEY, Co. Treas. |
| Court | Oklahoma Supreme Court |
¶0 1. Taxation--Right to Pay Taxes Under Protest and Sue to Recover Illegal Taxes Though Payment Made After Statutory Date of Delinquency Where Officers Delay Certifying Tax Rolls.
Sections 9719 and 9971, C. O. S. 1921, contemplate that county taxing officials will perform their duties in ample time so that a taxpayer may have the benefit of the provisions thereof. Taxpayers have a constitutional right to a reasonable time in which to pay taxes after payment thereof is possible and before the same becomes delinquent and to recover illegal taxes paid under protest. Where the county taxing officials have failed to certify the tax rolls to the county treasurer at the time and in the manner provided by the statute fixing the date of maturity and delinquency thereof, payment under protest may be made by a taxpayer and suit maintained by him to recover the alleged illegal tax notwithstanding payment of the tax is made after the date of delinquency provided by the statute.
2. Champerty and Maintenance--Champertous Contract not Bar to Recovery on Related Cause of Action.
A champertous contract cannot be set up in bar of a recovery on the cause of action to which it relates.
3. Counties--Tax Levy for Free Fair in Addition to 4 Mills for Current Expenses.
A levy may be made for free fair purposes under the provisions of chapter 159, S. L. 1925, in addition to the 4 mills limitation for current expenses.
4. Same--Appropriation for Roads and Bridges--Necessary Itemization.
Under the provisions of sections 9697 and 9698, C. O. S. 1921, the report of the board of county commissioners and the appropriation for "roads and bridges" must be itemized so as to show the location of each proposed bridge and the amount appropriated therefor, expressly stated; for maintenance and repair on bridges; for construction and maintenance of state roads; for opening and changing roads, and costs incident to condemnation proceedings to obtain right of way for roads; for machinery, tools and equipment for road work; and for equipment for working convicts on road work and compensation of guards therefor.
5. Same--Statutes--Local Law Providing for County Market Commission Invalid and Tax Levy Void.
Chapter 158, S. L. 1925, was not enacted in the manner required by the Constitution and the same is without force and effect. A tax levy made thereunder is void.
6. Taxation--Computation by Excise Board--Improper Deduction of Amount "Reserved for Appropriation" from "Funds on Hand."
An excise board is without authority of law to permit the deduction from funds on hand at the close of the fiscal year of an amount reserved "for appropriation," and a levy based on appropriation made after such deduction is to that extent excessive and void.
7. Municipal Corporations--Limit of Tax Levy for Library Fund.
Under section 9528, C. O. S. 1921, a tax may be levied by the excise board to create what is referred to in said statute as a library fund, but such a tax, when levied, is a current expense within the meaning of section 9692, C. O. S. 1921, and the levy so made, with other levies for other current expense purposes authorized by law, cannot exceed the 6 mills limitation provided by said section.
8. Same--Limit of Tax Levy for Cemetery Purposes.
Under section 4329, C. O. S. 1921, the excise board of any county may levy under the conditions of said statute a tax for cemetery purposes, but such tax is for a current expense within the meaning of section 9692, C. O. S. 1921, and the amount thereof, together with the levies for other purposes authorized by law as current expenses, cannot exceed the limitation of 6 mills by said section provided.
9. Same--Tax Limit for Street Repairs.
A levy for street repairs in excess of the maximum levy allowed for current expenses may not be made. A levy for that purpose must come within the limitation allowed for current expenses of the city.
10. Same--Tax Limit for Park Purposes.
A levy for park purposes in excess of the maximum amount allowed for current expenses may not be made. A levy for that purpose must be considered within the limitation allowed the city for current expenses.
11. Same--Municipally Owned Utilities--Rates for Service and Disposition of Profits not Prescribed by Law.
Neither statute nor Constitution specifically prescribes rates to be charged by municipally owned utilities; neither statute nor Constitution specifically prescribes the purpose to which profits derived from municipally owned utilities must be appropriated. (Const., art. 8, sec. 6; sec. 4507, C. O. S. 1921.)
12. Same -- Bonded Indebtedness -- Number of Levies Necessary for Sinking Fund Purposes.
The number of the installments of levies for sinking fund purposes depends upon the date of issuance and maturity of the bonds and is equal to the number of fiscal years intervening between the date of the issuance and the date of maturity of the bonds in which a tax levy may be made and the tax collected.
13. Same--Tax Levy to Pay Interest on Bonded Indebtedness Maturing Subsequent Fiscal Year Illegal.
An excise board is without authority of law to make an appropriation for the payment of interest on outstanding bonded indebtedness which matures subsequent to the fiscal year for which the appropriation is made.
14. Same--Constitutional Limitations on Indebtedness.
The intent and plain effect of the provisions contained in sections 26 and 27, art. 10, of the Constitution is to require municipalities to carry on their operations upon the cash or pay as you go plan. The revenues of each year must take care of the expenses of each year; and any liability sought to be incurred by contract expressed or implied, executed or executory, in excess of such current revenue, on hand or legally levied is void unless it be authorized by a vote of the people, and within the limitation therein required.
15. Same--Accrued Interest and Premium on Bonds to Be Credited to Sinking Fund.
Accrued interest on bonds and the net premium derived from the sale of bonds should be credited to and held in the sinking fund for the purpose of reducing the tax levy necessary to pay the interest thereon and create a sinking fund for the retirement thereof.
Error from District Court, Tulsa County; R. D. Hudson, Judge.
Action by E. M. Z. Aaronson against John L. Smiley, County Treasurer. From the judgment, plaintiff appeals; defendant filing cross-petition in error. Reversed in part and affirmed in part.
Brown & Stater and Burford, Miley, Hoffman & Burford, for plaintiff in error.
Byron Kirkpatrick, Co. Atty., Hugh Webster, Asst. Co. Atty., M. C. Spradling, City Atty., and Ed. C. Cassidy, for defendant in error.
¶1 This cause involves the last half of the tax for the fiscal year beginning July 1, 1925. The first half thereof was involved in cause No. 19716, Aaronson v. Smiley, Co. Treas., this day decided, 140 Okla. 255, 283 P. 789. The parties appear herein as they did in the trial court, and will be referred to herein as plaintiff and defendant, respectively.
¶2 Under date of September 20, 1929, an order of dismissal was entered in this cause on stipulation of the parties dismissing the appeal as to certain portions of the tax involved herein. The decision in this case is subject to that order.
¶3 It was stipulated and agreed that the decision in this case shall apply with equal force and effect to the companion cases as listed in a stipulation entered into between the parties hereto.
¶4 The petition of the plaintiff was divided into nine causes of action. Each of these causes was considered separately in the briefs, and will be so considered in this opinion. In addition thereto there was a general contention that the petition as a whole did not state a cause of action for the reason that the tax sought to be recovered was not paid at the time and in the manner provided by law and before delinquency. That identical contention was made in cause No. 19716, Aaronson v. Smiley, supra, between the same parties, and it was therein held:
--which rule is applicable to the facts as shown by the petition in this case, and the same rule is herein announced.
¶5 The defendant contends that this action is "dependent upon and grows out of the champertous, barratrous, and illegal contract speculating in litigation," and a general demurrer to the amended petition was based in part on that contention. The demurrer was overruled, and the same objection was raised in the form of a demurrer to the evidence of the plaintiff, which was overruled, and the defendant presents that contention on cross-appeal. The evidence does not sustain this contention and the authorities cited are not in point. The trial court was of the opinion that the contract between the plaintiff and the Tulsa Taxpayers Association was champertous, illegal, and against public policy, but concluded, as a matter of law, that the defendant could not avail himself thereof, and followed the rule which is stated in 11 Corpus Juris, page 270, as follows:
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