Bonaparte, Co. v. Nelson

• Decision Date: 01 October 1929
• Docket Number: Case Number: 20068
• Citation: 1929 OK 385,142 Okla. 54,285 P. 100
• Parties: BONAPARTE, Co. Treas., v. NELSON.
• Court: Oklahoma Supreme Court

1929 OK 385

285 P. 100

142 Okla. 54

BONAPARTE, Co. Treas., v. NELSON.

Case Number: 20068

Supreme Court of Oklahoma

Decided: October 1, 1929

Syllabus

¶0 1. Evidence--Officers Presumed to Have Discharged Official Duties.

Until the contrary is made to appear, the law presumes that officers have discharged the duties which the law imposes upon them.

2. Taxation--Statutory Requirements as to Annual Financial Statements by Municipal Subdivisions--Verification--Sufficiency of Certification to Excise Board Made by Clerk Alone.

Under section 9695, C. O. S. 1921, the financial statements therein provided for and required to be made shall be supported by schedules or exhibits showing by classes the amount of all receipts and disbursements, and must be made by the officers named, or by majority of the members of said respective board acting as a board at a meeting thereof and voting therefor and shall be sworn to as being true and correct, which verification may be made by any of the officers required to make said reports or by the clerk who is custodian of the records and having knowledge of the facts, and must then, after being published and completed, be certified to the excise board of the county, but said certification may be by the clerk of said board, and the certificate or certification is not required to be signed by the members of the respective boards.

3. Taxation--Duties of Excise Board--Rates of Levy for Current Expenses and Sinking Fund Purposes--Sufficiency of Certification to Assessor Signed by County Clerk as Secretary of Board.

Under section 9699, C. O. S. 1921, the rates of levy for current expenses and sinking fund purposes shall be separately made and stated and the revenue accruing therefrom shall be known as the general fund and sinking fund, respectively; and shall, when so made, be certified to the officer whose duty it is to make up the tax rolls, and such certificate is not required to be signed by the members of the county excise board but may be signed by the county clerk, acting as secretary of said board.

4. Judgment for Recovery of Taxes Paid Under Protest not Sustained.

Record examined, and held, insufficient to sustain the findings and judgment in favor of plaintiff.

Error from District Court, Oklahoma County; T. G. Chambers, Judge.

Action by George P. Nelson against E. B. Bonaparte, County Treasurer of Oklahoma County. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

Geo. M. Callihan, Co. Atty., and I. L. Harris, Asst. Co. Atty., for plaintiff in error.

Brown & Stater, for defendant in error.

SWINDALL, J.

¶1 This action comes to this court on appeal from the district court of Oklahoma county, wherein George P. Nelson, as plaintiff, commenced an action against E. B. Bonaparte, county treasurer of Oklahoma county, Okla., as defendant, to recover certain taxes paid by him under protest for the fiscal year ending June 30, 1928, and which he claims were illegally levied.

¶2 Briefly stated, the defendant in error contends that the tax is illegal upon five distinct and separate grounds, namely: (1) That the financial statement and estimate of needs was not published as is by law required; (2) that the financial statement and estimate of needs was not certified to the excise board as is by law required; (3) the minutes and records of the purported action of the excise board was never authenticated or certified to; (4) that the financial statement and estimate of needs was not properly signed or certified by the members of the excise board; (5) the levies as purported to have been made by the excise board were never certified to the officer whose duty it is to make up the tax roll. Defendant in error contends that all five of these omissions were established by positive facts at the trial.

¶3 The plaintiff in error contends that the defendant in error wholly failed to sustain the allegations of his petition and amendment thereto by a preponderance of the evidence.

¶4 The issue for us to determine is whether or not the ad valorem tax questioned in this action was levied in substantial compliance with the laws of this state.

¶5 By section 9694, C. O. S. 1921, there is created in each and every county in this state an excise board to be composed of the county clerk, county attorney, county treasurer, county judge, county superintendent of public instruction, county assessor, and one member of the board of county commissioners to be designated by said board, "which shall perform duties as hereinafter provided without additional compensation." The county judge shall be chairman and the county clerk secretary of said board.

¶6 Under section 9695, C. O. S. 1921, "each board of county commissioners, the mayor and council of each city, or the officers exercising like power in any city having a charter form of government, the board of trustees of each incorporated town, the directors of each township, and the board of education of each independent school district, shall meet on the first Monday in July of each year, and the directors of each school district shall meet on the second Tuesday in July of each year, and shall respectively make in writing a financial statement showing the true fiscal condition of their respective municipalities as of the close of the previous year, and an itemized statement of estimated needs and probable income from sources other than ad valorem tax of each thereof for current expense for the current fiscal year. The financial statement shall be supported by schedules or exhibits showing by classes the amount of all receipts and disbursements, and shall be sworn to as being true and correct. The statement of estimated needs shall be itemized so as to show by classes: (1) The several amounts necessary for the current expense of the municipality, and each officer and department thereof; (2) the amount required by law to be provided for sinking fund purposes; (3) the probable income that will be received from all sources other than ad valorem taxes, and shall be detailed in form and amount so as to disclose the several items for which the excise board is authorized and required in section 5 hereof to approve estimates and make appropriations. Each financial statement and estimate for county, city, incorporated town, township and board of education, as prepared in accordance with the provisions of this section shall be published in some newspaper published in said municipality, in one issue, if published in a weekly newspaper, and in two consecutive issues if published in daily; and if there be no paper published in each county, city, incorporated town or township, then a copy of such statement and estimate shall be posted in at least five public places therein, which posting shall be made in each instance within five days after the meeting of said municipal board; said publication or posting shall be made in each instance by the board or authority making the estimate. Said estimate so made out and published as aforesaid shall, as soon as completed, be certified to the excise board of the county together with an affidavit attached showing the publication or posting thereof as required by this act. The estimates and statements provided for in section 4 shall also at the same time be transmitted to the excise board."

¶7 The section 4 referred to herein is the same as section 9697, C. O. S. 1921, and provides that "each officer, board or commission of any county, city, township and school district or town, and all employees charged with the management or control of any department or institution or either thereof, shall on or before the first Monday in July of each year, make and file with the board or commission charged with the duty of reporting to the excise board, a report in writing showing by classes the earnings and cost of maintaining their respective offices or departments for the previous fiscal year, together with an itemized statement and estimate of the probable needs thereof for the current or ensuing fiscal year. Provided, that the report relative to the construction and repair of bridges shall be made by the county commissioners and county surveyors conjointly, and shall be itemized so as to show the location of each proposed new bridge, and estimated cost thereof, and provided, further, that the report relative to the probable needs of the courts of record shall be made by the court clerk and county attorney conjointly, and shall be itemized so as to show separately the respective needs of each court."

¶8 Section 9698, C. O. S. 1921, requires the excise board to meet at the county seat on the last Saturday of July, and authorizes said board to adjourn from day to day and time to time for the purpose of examining the financial statements for the previous fiscal year as submitted by the county and the several cities, towns, townships and school districts, and ascertaining the true financial condition of each thereof at the close of such year; and for the further purpose of examining the statements of estimated needs for current expense purposes for the current year as certified by each of said municipalities; and determining the items and amounts for which appropriations shall be made for such year, detailed as to each officer, board or department. The said board shall have power and authority to revise and correct any estimate certified to them by either striking items therefrom, increasing or decreasing items thereof, or adding items thereto, when in its opinion the needs of the municipality shall require. All revisions and corrections shall be as to specific items of the estimate, and in no event shall any item or items of the estimate for current expense purposes be increased or new items added thereto, unless such proposed increase or additional item shall have been advertised and published by the excise board in some newspaper of general circulation in the county, in one issue, if published in a weekly paper, and two...