Excise Bd. of Le Flore Cnty. v. Kan. City S. Ry. Co., Case Number: 24698

• Decision Date: 18 June 1935
• Docket Number: Case Number: 24698
• Parties: EXCISE BOARD OF LE FLORE COUNTY v. KANSAS CITY SOUTHERN RY. CO.
• Court: Oklahoma Supreme Court

1935 OK 688

47 P.2d 580

173 Okla. 238

EXCISE BOARD OF LE FLORE COUNTY v. KANSAS CITY SOUTHERN RY. CO.

Case Number: 24698

Supreme Court of Oklahoma

Decided: June 18, 1935

Syllabus

¶0 1. Counties - County Indebtedness - County Free Fair Warrants.

The expense of a county free fair is a part of the current expense of the county, and indebtedness incurred by reason of the issuance of legal county free fair warrants is a county indebtedness.

2. Counties - Validity of Tax to Pay Judgment - Validity of Judgment Determined From Judgment Roll - Collateral Attack.

In considering a tax protest, the validity of a judgment must be determined from the judgment roll and a judgment may be attacked collaterally in such proceeding if shown by the judgment roll to be void.

3. Same - Validity of Judgment Against County on Claim ex Contractu - Pleading and Proof - Constitutional Limitations on Indebtedness.

Where it is sought to recover a judgment against a municipality on a claim ex contractu, the provisions of section 26, article 10, of the Constitution stand as a bar to the recovery of the judgment thereon until it is pleaded and admitted or proved that the indebtedness sued on was not contracted in violation of those provisions.

4. Same - Invalidity of Tax Levy for Sinking Fund Based on Void Judgment.

There is no authority of law for a levy for a sinking fund that is based, in whole or in part, on a void judgment.

5. Same - Judgment Against County for Gas Furnished to Courthouse and Jail Held Void.

Record examined, and held, that the judgment roll shows that the claim sued on was void under the provisions of section 26, article 10, of the Constitution, and that, for the reason stated, the judgment was void. The excise board was without authority of law to consider the same in computing the levy for sinking fund purposes.

Appeal from the Court of Tax Review; Porter Newman, Asa E. Walden, and O.C. Wybrant, Judges.

Protest by the Kansas City Southern Railway Company against certain tax levies made by the Excise Board of LeFlore County. Judgment for protestant, and protestee appeals. Affirmed in part and reversed in part.

A.G. Windham, Co. Atty., and Varner & Varner, for plaintiff in error.

Joseph R. Brown and James B. McDonough, for defendant in error.

WELCH, J.

¶1 This is an appeal by the protestee from a judgment of the Court of Tax Review sustaining the protest of the Kansas City Southern Railway Company against certain tax levies made by the excise board of LeFlore county for the fiscal year ending June 30, 1933.

¶2 The protest first involves that portion of the levy for the county sinking fund, included therein for the purpose of paying four judgments taken against the county on warrants drawn against the appropriation for the county "free fair fund" of LeFlore county in the manner provided by law. The warrants sued on were not paid, for the reason that a sufficient amount of taxes levied for that purpose was not collected. The warrants were legally issued within an appropriation made for that purpose.

¶3 The plaintiff in error contends that the Indebtedness evidenced by the warrants so issued was and is an obligation for which the county was legally liable; that the Court of Tax Review erred in holding that the judgments therefor were void, and that the levy for the payment of the same was illegal.

¶4 Section 8, chapter 38, Session Laws 1925, section 8643, O. S. 1931, authorizes a levy for free fair purposes of not more than one-fourth of one mill in excess of the maximum amount allowed counties for current expenses under section 12669, O. S. 1931 (section 9692, C. O. S. 1921). The levy for county free fairs is similar to a levy for boys' and girls' homes under section 2, chapter 161, Session Laws 1925; a levy for tubercular patients under section 5281, O. S. 1931; a levy for separate schools under section 12677, O. S. 1931; and a levy for highway funds under section 10163, O. S. 1931. All. such levies are made upon all of the taxable property of the county. Alford v. Bonaparte, Co. Treas., 125 Okla. 164, 256 P. 935.

¶5 In St. Louis-San Francisco Railway Co. v. McIntosh, Co. Treas., 103 Okla. 246, 229 P. 1064, it was held that a county levy for a county free fair fund is a part of the current expense of the county. In Spann et. al. v. State ex rel. McClain County Free Fair Ass'n, 152 Okla. 60, 3 P.2d 861, it was held that a levy for a county free fair fund could only be made with the consent of the board of county commissioners. From these authorities we find and hold that the indebtedness incurred by reason of the issuance of the county free fair warrants was a county indebtedness. American State Bank of Boynton v. Board of Com'rs of Muskogee County, 143 Okla. 1, 286 P. 902.

¶6 Attention is called to the decision of this court in Canadian County et al. v. Burgess et al., 153 Okla. 294, 5 P.2d 752, and it is contended that under the rule therein stated the county is not liable. In this case this court was reviewing an award of the State Industrial Commission wherein Canadian county and the county fair association were each held liable to the claimant for an injury which he received while engaged in unloading flooring to be placed in a building to be used by the county fair association for exhibit purposes. In considering the relation existing between the county and "It county fair association, this court said:

"It is contended by the claimant that on account of the fact that a levy may be made by the excise board of the several counties, that such levy constitutes a fair association as an agency of the county. We do not agree with this contention. The fair association is organized and managed through the method pointed out by the statute.

"The members of the county fair association have their own officers separate and apart from that of the county. A mere authorization for a tax levy to assist the corporation to carry on its affairs does not make the fair association an agency of the county. We, therefore, hold that the county was not liable to the claimant."

¶7 The fact that this court therein held that a county fair association is not an agent of the county so as to make the county liable under the provisions of the Workmen's Compensation Act, was in no wise a holding that the county is not liable for warrants issued against the county free fair fund. Under the decisions hereinbefore cited, the county is liable for separate school warrants issued by an independent school district, but that holding does not make the county liable for the torts of the independent school district. County free fair associations are organized under authority of law for county purposes, and they are financed under the authority of section 9, article 10, of the Constitution as a part of the county expense. We must bear in mind that we are here dealing with the law prior to the 1933 voted amendment to article 9 of the Constitution. The county is liable for the amount of the legal warrants issued against the valid appropriation for county free fair purposes, and the judgment rendered on the warrant was a valid judgment.

¶8 The judgment of the Court of Tax Review sustaining the protest as to that item of the protest is reversed, and the cause is remanded, with directions to the Court of Tax Review to restore the levy as made by the county excise board, and to deny that part of the protest.

¶9 Another item of the protest was for that portion of the levy which was made for the purpose of paying a judgment against the county rendered in favor of the American Indian Oil & Gas Company for gas furnished for heating the courthouse, including the county jail, which was a part thereof, and for cooking food for the prisoners confined in the county jail.

¶10 The judgment roll affirmatively shows that there was no estimate or appropriation made for furnishing gas to the county courthouse for the fiscal year in question. The petition showed that no appropriation had ever been made for that purpose. The petition did not allege that an appropriation was made, that the indebtedness incurred was not in excess of the income and revenue provided for that purpose, or that it was authorized by a vote of the people. These were necessary allegations in order to state a cause of action. Faught v. City of Sapulpa, 145 Okla. 164, 292 P. 15. The validity of a judgment against a political subdivision of the state must be determined from the judgment roll, and the judgment may be attacked collaterally if shown thereby to be void. Faught v. City of Sapulpa, supra. The judgment roll shows that no estimate or appropriation was made for furnishing gas. In Protest of Kansas City Southern Ry. Co., 157 Okla. 246, 11 P.2d 500, this court held:

"Where it is sought to recover a judgment against a municipality on a claim ex contractu, the provisions of section 26, article 10, of the Constitution stand as a bar to the recovery of the judgment thereon until it is pleaded and admitted or proved that the indebtedness sued on was not contracted in violation of those provisions."

¶11 The plaintiff In error contends that it was the duty of the board of county commissioners, under section 7668, O. S. 1931, to provide fuel; that upon its failure to do so the court could order same furnished by the sheriff, and that the expenses incurred would be a proper charge against the county, under the holding in Smartt, Sheriff, v. Board of Com'rs, 67 Okla. 141, 169 P. 1101. That is true in so far as an expense incurred comes within the rule announced, but the record in the instant case shows quite a different state of facts. In that case an appropriation had been made which was found to be insufficient. In that case the court went no further than to hold that:

"Moneys lawfully expended by a sheriff in the feeding of prisoners and fees earned by him in the discharge of duties imposed upon him by the Constitution and laws of the state constitute a valid charge against the county and are not within the

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