Mo., K. & T. Ry. Co. v. Wash. Cnty.

• Decision Date: 09 April 1929
• Docket Number: Case Number: 20099
• Parties: MISSOURI, K. & T. RY. CO. v. WASHINGTON COUNTY.
• Court: Oklahoma Supreme Court

1929 OK 161

276 P. 769

136 Okla. 191

MISSOURI, K. & T. RY. CO. v. WASHINGTON COUNTY.

Case Number: 20099

Supreme Court of Oklahoma

Decided: April 9, 1929

Syllabus

¶0 1. Highways--Authority of County Excise Board to Levy Additional Tax for County Highway Fund Within 8 Mill Limit for Current Expenses.

Section 2, article 3, chapter 173, Sess. Laws of Oklahoma, 1915, as amended by section 5, chapter 30, Sess. Laws 1916, page 76, and brought forward as section 10202, C. O. S. 1921, as supplemented and amended by implication by chapter 48, Sess. Laws, Sp. Sess. 1923-24, authorizes the county excise boards of the various counties in the state to levy an additional tax for the county highway fund, which excess, together with the maximum amount allowed counties for current expenses, under section 9692, C. O. S. 1921, may not exceed 8 mills.

2. Statutes--Subjects and Titles--Intent of Constitutional Provision.

The provision of the Constitution (sec. 57, art 5) that no law shall embrace more than "one subject, which shall be clearly expressed in its title," was designed to prevent, first, the joining in the same bill subjects diverse in their natures and having no necessary connection; and, second, the insertion of clauses in a bill of which the title gives no intimation.

3. Same--Sufficiency of Title to Act Establishing State Highway System.

Chapter 48, Sess. Laws, Sp. Sess. 1923-24, has for its subject the single purpose of establishing a highway system for the state of Oklahoma, and providing for the maintenance thereof, and this subject is clearly indicated in its title. It is therefore not in conflict with the provision of the Constitution above quoted.

4. Same--Act Held to Have Amendatory Effect by Implication and not in Conflict with Constitutional Provision Against Amending, Extending or Conferring Provisions of Law by Reference to Title Only.

A law which does not assume in terms to repeal other provisions of an existing law, or amend an existing law, or to confer or extend the provisions thereof by reference to its title only, but only provides for the diversion of the revenues raised from various sources, and by ad valorem tax levy authorized and provided for under existing general state law, to accomplish the purposes of the same subject and same object and carrying said laws upon said specific subject into effect, by such diversion of the several funds into one fund, instead of requiring them to be levied and collected and carried by the legal custodian of said fund under different headings, has an amendatory effect by implication, although it expressly repeals all inconsistent acts, does not conflict with section 57 of article 5 of the Constitution.

5. Highways -- Act Establishing State Highway System Held not in Conflict with Constitutional Provision Requiring Act to Specify Purpose of Tax Levy and Prohibiting Diversion of Funds.

Chapter 48, Sess. Laws, Sp. Sess. 1923-24, does not conflict with section 19 of article 10 of the Constitution.

Appeal from State Court of Tax Review.

In the matter of the protest of the Missouri, Kansas & Texas Railway Company against illegal tax levies for fiscal year 1928-1929 by the County Excise Board of Washington County. From an adverse judgment of the State Court of Tax Review, protestant appeals. Affirmed.

M. D. Green, John E. M. Taylor, and Eric Haase, for plaintiff in error.

Edwin Dabney, Atty. Gen., V. P. Crowe, Asst. Atty. Gen., E. E. Heyl, Co. Atty., and B. B. Foster, Asst. Co. Atty., for defendant in error.

SWINDALL, J.

¶1 This action comes to this court on appeal from the court of tax review of the state of Oklahoma, wherein the Missouri, Kansas & Texas Railroad Company filed its protest against the county highway fund levied by the county excise board of Washington county, Okla., for the fiscal year beginning July 1, 1928, and ending June 30, 1929, contending that the levy of 2.43 mills, county highway fund levy, is unconstitutional, excessive, illegal, and void to the extent of 1.83 mills.

(1) For the reason that the purpose for which said levy was made is by the statutes of Oklahoma county current expense items, and the assessed valuation in said county for said fiscal year is $ 35,838,104, and that the levy for said purpose, together with all other current expense items, cannot exceed the limit of 4 mills allowed by law for county current expense purposes, unless an increase of said levy is authorized by an election or vote of the people, and that there has been no such election or vote of the people.

(2) Protestant further states that the Act of March 14, 1924, being Senate Bill 44, chapter 48, Sess. Laws 1923-24, p. 54, in so far as it undertakes to authorize said levy, is unconstitutional and void, for the following reasons, to wit:

(a) In that it attempts and purports to repeal other prior existing laws, for the reason that no such purpose is expressed in the title of said act, as required by section 57, article 5, of the Constitution of Oklahoma.

(b) In that it attempts to amend or extend provisions of prior existing laws, for the reason that it does not re-enact and publish the same at length, as required by section 57, article 5, of the Constitution of Oklahoma.

(c) In that it attempts to authorize an additional tax levy or rate of levy, for the reason that the same is not expressed in the title as required by section 57, article 5, of the Constitution of Oklahoma.

(d) In that it does not specify distinctly the purpose for which any such tax is levied, as required by section 19, article 10, of the Oklahoma Constitution.

(e) In that said act purports and undertakes to divert and devote to another purpose taxes levied and collected for one purpose, in violation of section 19, article 10, of the Constitution.

¶2 The Legislature in 1915 enacted chapter 173, entitled:

"An act creating a department of highways and relating to roads and highways, repealing chapter 105 of the Session Laws of 1910-11, and section 7581 of the Revised Laws of Oklahoma, 1910."

¶3 Section 2 of article 3 of this act authorizes the county excise board in each county in the state, at the option of said board, to make a levy of one-fourth of 1 mill upon all property in any 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 said act, and provided that, in order to carry into effect the provisions of said act, the county excise board may levy for current expenses of said county not to exceed 8 mills. This section was construed by this court in connection with section 9, article 10, of the Constitution, in the case of Schaff v. Borum, County Treasurer, decided June 28, 1921, 82 Okla. 284, 200 P. 191, wherein the court says:

"Under the provision of section 9 article 10, of the Constitution, and section 2 of article 3 of chapter 173 of the Session Laws of 1915, the county excise board of the respective counties in the state of Oklahoma are authorized to make such levies as they deem proper for the improvement or construction and maintenance of state and county highways, so long as such levies do not exceed the constitutional limitation of 8 mills, as prescribed by the Constitution.

"In determining the total tax levy made for current expenses of a county, a levy of 2 1/2 mills and one-fourth of 1 mill for the improvement of state and county highways and construction and maintenance of such highways, the same being authorized under section 2 of article 3, chapter 173, of the Act of 1915, are properly excluded and are not controlled by the Act of May 15, 1913 (Sess. Laws 1913, p. 435), limiting county levies for current expenses.

"The Act of March 15, 1915 (chapter 173, Sess. Laws 1915), creating a department of highways and relating to roads and highways, contemplates the permanent improvement of state and county highways, and the construction and maintenance of such roads, and the county excise boards of the respective counties of the state are vested with authority to levy taxes for the purposes of carrying into effect the provisions of said act, so long as such levies, when added to the levy for current expenses of the respective counties, do not exceed the constitutional limitation of 8 mills."

¶4 Section 2 of article 3, chapter 173, Sess. Laws 1915, was amended by section 5 of chapter 30, Sess. Laws 1916 Extra Sess., the amendment adding the following to 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, Sess. 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, Sess. 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."

¶5 This amendment was assailed as being unconstitutional in the case of C., R. I. & P. Ry. Co. v. Willis, Co. Treas., 75 Okla. 13, 181 P. 307, decided May 27, 1919, wherein this court said:

"Section 5, c. 30, Session Laws 1916, construed, and held to be amendatory of section 2, art. 3, c. 173, Session Laws 1915, and not a construction thereof, and therefore not unconstitutional as a legislative encroachment upon the power conferred upon the judicial department of the state by the Constitution."

¶6 This amended act is carried forward in vol. 2, C. O. S. 1921, as section 10202....