Franklin v. Ryan

Decision Date17 May 1927
Docket NumberCase Number: 17400
Citation256 P. 932,1927 OK 141,125 Okla. 161
PartiesFRANKLIN v. RYAN, County Treasurer, et al.
CourtOklahoma Supreme Court
Syllabus

¶0 Highways--Maximum Levy for County Highway Fund.

Chapter 48, Session Laws 1923-24, amends section 10202, C. O. S. 1921, and authorizes the county excise boards of the state to levy an additional tax for the county highway fund, which tax, together with the maximum amount allowed counties for current expenses under section 9692, C. O. S. 1921, may not exceed eight mills.

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

Action by Wirt Franklin against M. S. Ryan, County Treasurer of Oklahoma County, and his successor in office. Judgment for defendant, and plaintiff brings error. Affirmed.

Adelbert Brown and Gordon Stater, for plaintiff in error.

J. K. Wright, Co. Atty., and W. F. Smith, Asst. Co. Atty., for defendants in error.

LESTER, J.

¶1 The parties to this action on appeal occupy the same relative position as in the district court. The sole and only question for determination in this case is whether a levy of 2.32 mills for the county highway fund, as made by the county excise board of Oklahoma county for the fiscal year beginning July, 1924, being in excess of 4 mills for current expenses without an election being held thereon, is legal.

¶2 The matter of assessing road levies for the various counties in the state has for many years been one of confusion. In cases where it appeared that such levies were made for the road and bridge fund of the counties of the state it has been held that such levies must come within the 4-mill levy for such county. But where a levy was made by the excise boards of the state for county road and construction fund under the provisions of section 10202, C. O. S. 1921, although in excess of the maximum levy for current expenses of the county and not exceeding eight mills, such levies have been sustained by this court.

¶3 The authorization for the so-called road and bridge fund levy which the county may include in its current expense is to be found in section 9698, C. O. S. 1921, and in so far as it relates to roads and bridges, reads as follows:

"* * * For construction of new bridges, so itemized as to show the location of each proposed bridge and the amount appropriated therefor, separately stated; for maintenance and repairs on bridges; for construction and maintenance of state roads (appropriation in lieu of one-fourth or other mill levy for county road construction fund); 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; for equipment for working convicts on road work and compensation of guards therefor; for each other expenditure as may be necessary and authorized by law but not herein enumerated. * * *"

¶4 This court has held that levies made under the above provision must come within the 4-mill levy for the current expenses of the county.

¶5 The latest expression of this court on said provision is to be found in the case of Bristow Battery Co. v. Payne, County Treasurer, et al., 123 Okla. 137, 252 P. 423, and is as follows:

"Section 9692, Comp. Stat. 1921, provides that the total levy for current expenses for each county shall not exceed in any one year more than 4 mills.
"A county levy for general road and bridge fund of the county is part of the current expenses of the county, and such levy, together with other levies for current expenses, cannot exceed the limit fixed by section 9692, Comp. Stat. 1921.' Payne v. Ross, 95 Okla. 273, 219 P. 144; St. L. & S. F. Ry. Co. v. McIntosh, 103 Okla. 246, 229 P. 1064.
"The agreed statement of facts being 'that the levy of two mills was made to satisfy the requirements of the county highway purposes, and that no election was held authorizing an increased levy,' and it being admitted that such levy was in excess of the limitation provided by section 9692, supra, the judgment for the plaintiffs for the amount of said levy was fully warranted."

¶6 Much discussion has been occasioned on account of the opinion announced in the Bristow Battery Co. v. Payne, County Treasurer, et al., supra, in so far as it relates to the road levy. We have quoted the entire reference made in said opinion relating to the road levy, and we are of the opinion that Mr. Commissioner Dickson clearly had in mind the county road and bridge levy as contained in section 9698, C. O. S. 1921, and prior to the adoption of chapter 48, Session Laws 1923-24.

¶7 The authority to make a levy for county road and construction fund, prior to the enactment of chapter 48, S. L. 1923-24, is to be found in section 10202, C. O. S. 1921, and reads as follows:

"That, whereas section 2, article 3, chapter 173, Session Laws of Oklahoma, 1915, reads as follows:
"'Section 2. The county excise board in each county in the state is hereby authorized, at the option of said board, to make a levy of one-fourth of one mill upon all property in any said county subject to taxation upon an ad valorem basis; said levy when made and collected shall be converted into a county road construction fund, and shall be used for the construction and maintenance of county highways, under the supervision of the board of county commissioners as provided in this act; provided, that in order to carry into effect the provisions of this act, the county board may levy for current expenses of said county not to exceed eight (8) mills.'
"It is hereby declared that the meaning and intent of said section is as follows:
"'Section 2. In addition to the one-mill levy authorized for common school purposes and in addition to the levies authorized for current county expenses by chapter 195, Session Laws 1913, the county excise board in each county in this state is hereby authorized, at the option of said board, to make an additional levy for road purposes upon all property in said county subject to taxation upon an ad valorem basis, in an amount which, together with the aforesaid levies authorized to be made in said chapter 195, Session Laws 1913, shall not exceed a total of eight (8) mills; said additional levy when made and collected shall be credited to the county road construction fund, and shall be used for the construction and maintenance of state highways under the supervision of the board of county commissioners as provided in this act.'"

¶8 This court, in the case of Schaff, Receiver, v. Borum, County Treasurer, 82 Okla. 284, 200 P. 191, and Simmons v. Stuckey, County Treasurer, et al., 113 Okla. 200, 241 P. 124, held that a levy made in accordance with section 10202, C. O. S. 1921, which exceeded the 4-mill levy for current expenses of the county, was valid.

¶9 We think in the instant case the validity of the levy in question is dependent upon certain sections and paragraphs thereof as contained in chapter 48. Session Laws 1923-24, which, in part, are as follows:

"A. The state highway system shall be designated by the Highway Commission, and be composed of inter county and interstate highways, and embracing at least five (5%) per cent. of the county highway system of each county.
"B. When the State Highway Commission shall have taken over any highway, or part thereof, as a state highway, said State Highway Commission shall become responsible for the construction, repair and maintenance of such highways and for this purpose shall be authorized to use any funds in the state highway fund, together with any money derived from any agreement entered into between the State Highway Commission and the federal government, any county, or township, or any citizen or group of citizens who have made donations for that purpose.
"C. The county highway shall be composed of all roads within any county, designated as such by the county commissioners less any part of any road or roads which will be taken over as a state
...

To continue reading

Request your trial
8 cases
  • Mo., K. & T. Ry. Co. v. Wash. Cnty.
    • United States
    • Oklahoma Supreme Court
    • April 9, 1929
    ...was illegal, but that if it had been levied for "state highways" in the county, it would not be illegal. This court in Franklin v. Ryan, 125 Okla. 161, 256 P. 932, says: "We are of the opinion that Mr. Commissioner Dickson clearly had in mind the county road and bridge levy as contained in ......
  • Mo., K. & T. Ry. Co. v. Prince, Co.
    • United States
    • Oklahoma Supreme Court
    • October 23, 1928
    ...a vote of the people, and that same was not authorized by an election or vote of the people. ¶4 Plaintiff concedes that Franklin v. Ryan, 125 Okla. 161, 256 P. 932, followed in Alford v. Bonaparte, 125 Okla. 164, 256 P. 935, and St. L.--S. F. Ry. Co. v. Bailey, 125 Okla. 183, 257 P. 784, up......
  • Adjustment Realty Co. v. Excise Bd. of Muskogee Cnty., Case Number: 21392
    • United States
    • Oklahoma Supreme Court
    • March 10, 1931
    ...of this court based thereon, as erroneous, illogical, and in conflict with the rule announced by this court in Franklin v. Ryan, Co. Treas., 125 Okla. 161, 256 P. 932, and to strike down chapter 48, Session Laws 1923-24, as unconstitutional. The same contention was made and denied in Adjust......
  • Prince, Co. v. Atchison, T. & S. F. Ry. Co.
    • United States
    • Oklahoma Supreme Court
    • October 23, 1928
    ...valid even though made in addition to the statutory limit so long as it was within the constitutional limit of 8 mills. Franklin v. Ryan, 125 Okla. 161, 256 P. 932; St. L.-S. F. Ry. Co. v. Bailey, 125 Okla. 183, 257 P. 784. ¶11 It is insisted, however, that chapter 48, Session Laws 1923-24,......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT