Going, Co. v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 03 March 1925
• Docket Number: Case Number: 15229
• Citation: Going, Co. v. Atchison, T. & S. F. Ry. Co., 1925 OK 174, 234 P. 346, 106 Okla. 258 (Okla. 1925)
• Parties: GOING, Co. Treas., v. ATCHISON, T. & S. F. RY. CO.
• Court: Oklahoma Supreme Court

1925 OK 174

234 P. 346

106 Okla. 258

GOING, Co. Treas., v. ATCHISON, T. & S. F. RY. CO.

Case Number: 15229

Supreme Court of Oklahoma

Decided: March 3, 1925

Syllabus

¶0 1.Countie --Taxation -- Estimates by Excise Board--Classification of Items.

An estimate for an item for current expense, classified by the excise board under the subhead "sinking fund," in the general estimate, does not change the nature of the item by reason of its wrongful classification.It is the purpose for which the item is estimated and levied that determines its nature, and not the subhead under which it is placed in the estimated needs prepared and made by the excise board.

2.Same--Estimates and Levies to Take Care of Sinking Fund and Bonds.

The effect of article 10, sec. 28, of our Constitution and section 9695,Comp. Stat. 1921, is to require an estimate and levy to meet the interest accruing on sinking fund indebtedness, or bonds for the current year, and to add to the sinking fund such sum of money annually, as is required by the law, to pay the bonds at maturity.Such levies cannot be omitted for the current year and be levied the following year.

3.Same--Action to Recover Tax Payment--Disposition of Cause.

Record examined; held, to support the judgment of the court allowing recovery for payment of taxes made to replenish sinking funds; second, held, that recovery allowed for taxes paid for meeting the expense for advertising delinquent taxes is not supported by the record.

Commissioners' Opinion, Division No. 4.

Error from District Court, Payne County; C. C. Smith.Judge.

Action by A., T. & S. F. Railway Company, against W. E. Going, as County Treasurer of Payne County to recover certain taxes paid under protest.Judgment for the plaintiff.Defendant appeals.Affirmed in part and reversed and remanded in part, with directions.

J. W. Reece, for plaintiff in error.

Cottingham, McInnis & Green and Frank L. Anderson, for defendant in error.

STEPHENSON, C.

¶1The defendant in error paid certain taxes levied against its property for the fiscal year 1922, under protest, and thereafter commenced its action for recovery against the plaintiff in error.The trial of the cause resulted in judgment for the defendant in error.The county treasurer as plaintiff in error, has perfected his appeal and assigns the action of the court in rendering judgment for the plaintiff as error for reversal here.

¶2The plaintiff in error continued to place penalties collected on properties situated in cities of the first class in the county sinking fund, after the passage of chapter 48 of the Session Laws of 1919.The effect of the act was to require the county to place the penalties collected on payment of taxes levied on the property in cities of the first class, to the credit of the municipality.The plaintiff in error evidently acted on the supposition that the legislative act was unconstitutional.The validity of the act was sustained in the case of State ex rel. City of Durant v. Bonner, 86 Okla. 280, 208 P. 825.It is apparent that the excise board estimated the amount of penalties that would accrue from taxes levied upon property situated in municipalities, and reduced its annual levy to be made for the sinking fund of the county accordingly.Payne county had returned to the cities of the first class their penalties according to the 1919 act, which left a deficit in the county sinking fund of about $ 12,000.The excise board made an estimate of this sum for the benefit of the county sinking fund in the year 1922, and levied the same on the property of the defendant in error and other taxpayers.It is evident that the excise board had omitted to levy in previous years for the benefit of the sinking fund, a sum equal to the shortage existing in the sinking fund to the extent of $ 12,000.The excise board classified the item of $ 12,000 in its estimate as follows:

"Refund on erroneous collections (chapter 19,Laws 1916) and penalties due cities of the first class $ 12,000."

¶3 The truth of the matter is that this levy was made to replenish the sinking fund on account of the failure of the excise board to make annual levies for the required sums in the preceding years.The penalties collected by the county treasurer and due cities of the first class had been placed in the county sinking fund.The county had merely taken the penalties, erroneously placed in the county sinking fund, and restored the same to the cities of the first class.There was no occasion for making a levy to repay the cities of the first class for penalties collected for the cities, as these funds should have been on hand in the sinking fund, if the excise board had made the annual levies required by law to meet interest payments on bonds and judgments, and to create a sinking fund to...