Mo., K. & T. Ry. Co. v. Prince, Co.

• Decision Date: 23 October 1928
• Docket Number: Case Number: 18039
• Citation: 133 Okla. 228,271 P. 253,1928 OK 625
• Parties: MISSOURI, K. & T. RY. CO. v. PRINCE, Co. Treas.
• Court: Oklahoma Supreme Court

1928 OK 625

271 P. 253

133 Okla. 228

MISSOURI, K. & T. RY. CO. v. PRINCE, Co. Treas.

Case Number: 18039

Supreme Court of Oklahoma

Decided: October 23, 1928

Syllabus

¶0 1. Appeal and Error--Review--Constitutionality of Statute -- Necessary to Raise Question in Trial Court.

The constitutionality of an act of the Legislature cannot be raised for the first time on appeal to this court, and where it clearly appears that the question was not presented to the trial court, and that the trial court did not pass, and was not asked to pass, upon the question before its final action in the cause, such question will not be considered by this court.

2. Schools and School Districts--Validity of Tax Levy--Authority for Excess Levy.

Where the certificate of a school board, attached to the financial statement and estimate of needs filed with the county excise board, contains a statement that a certain number of mills over and above the regular five mills authorized to be levied for school purposes was voted by a majority of the taxpaying voters of said district voting at an election held during the annual meeting, and certifies the number of votes cast in favor of such increased levy, and that no votes were cast against the same, and the report of the annual meeting made to the county superintendent, as required by law, contains the statement that an excess levy of a certain number of mills was voted, showing the number of votes for and against the levy and showing a majority in favor thereof, a levy not in excess of the amount shown by the certificate filed with the excise board to have been authorized, is a legal levy though the number of mills of excess levy shown by such certificate be not the same, but less than that shown by the report of the annual meeting.

3. Same--Statutes--Validity of Statute Relating to School Elections Authorizing Excess Levies.

Section 9708, C. O. S. 1921, held not to violate that part of section 57, art. 5 of the Constitution, which provides "* * * and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length." Nor was section 9708 repealed by the enactment of section 9696, C. O. S. 1921.

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

Roscoe Cox, Co. Atty., and Erwin & Erwin, for defendant in error.

DIFFENDAFFER, C.

¶1 Plaintiff in error, hereinafter referred to as plaintiff, brought this action against defendant in error, hereinafter referred to as defendant, to recover certain taxes for the year 1926, paid by plaintiff under protest. The amended petition, upon which the cause was tried, contains 19 causes of action. The first cause of action attacks the validity of a levy of 1.5 mills made in said county for the fiscal year beginning July 1, 1925, for the county highway fund. The claim of plaintiff is that, as a levy of 4 mills was made for the benefit of the general fund of the county, and 1.5 mills for the county highway fund, the county highway fund levy was excessive and, illegal. The second to sixth causes of action involve certain town and township levies, in which the judgment of the trial court is not questioned. The seventh to the eighteenth causes, inclusive, involve the validity of certain school district taxes, and the nineteenth cause of action involves a sinking fund levy in school district, the judgment upon which is not questioned. The action is to recover the alleged excess represented by the first one-half thereof paid by plaintiff under protest.

¶2 The case was tried to the court without a jury, and judgment was rendered for defendant on its first cause of action, and for defendant on a number of the causes of action involving school district taxes, and for plaintiff for a part only of the amount sued for in other causes involving school district taxes, from which judgment plaintiff appeals.

¶3 It is agreed that the levy of 1.5 mills levied for county highway purposes was in excess of 4 mills, and was not authorized by an election. The only grounds upon which this levy was alleged in the petition to be illegal was, that said levy of 1.5 mills was in excess of the 4 mills authorized by law to be levied for county general fund current expense purposes, without 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, uphold the validity of the tax, but contends that chapter 48, Sess. Laws 1923-24, does not amend section 10202, C. O. S. 1921, so as to authorize a levy for county highway purposes in addition to and in excess of the maximum levy allowed by law for current expenses, but that section 10202 is still the law and limits the purpose of the additional levy authorized thereby to the construction and maintenance of state highways only. In Franklin v. Ryan, supra, this court said:

"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."

¶5 Plaintiff, at the oral argument and in its reply brief filed since the oral argument, for the first time assails the constitutionality of chapter 48, Session Laws 1923-24, and contends that said chapter, in so far as it amends section 10202, C. O. S. 1921, is unconstitutional, for the reason that it attempts to amend or extend provisions of prior existing laws, but does not enact and publish same at length; that it attempts to authorize an additional tax levy, but such purpose is not expressed in the title; that it does not specify distinctly the purpose for which such tax is levied, and that it purports and undertakes to divert and devote taxes levied and collected for one purpose to another purpose.

¶6 Defendant in error, in response, insists that plaintiff may not in this court for the first time raise this question of the constitutionality of chapter 48, Session Laws 1923-24, and thus raise a question that was not raised in the trial court, and which the trial court had no opportunity to pass upon. In this, we think, the position of defendant must be sustained. It has been the uniform holding of this court that such questions cannot be raised for the first time upon appeal.

¶7 In Duffey v. Scientific American Compiling Department, 30 Okla. 742, 120 P. 1088 this court held:

"Where a defendant relies upon a certain defense in the trial court, he will not be permitted to shift his ground of defense on appeal, so as to present another defense, not presented nor relied upon in the trial court."

¶8 In Fast v. Gilbert, 102 Okla. 245, 229 P. 275, wherein the constitutionality of an act of the Legislature was attacked for the first time on appeal, as here, this court said:

"The issue of the constitutionality of this act cannot be raised for the first time in the briefs of the parties where no proper pleadings to test this question were filed in the trial court, and the parties voluntarily proceeded to trial in the forum provided without objection. Parties will not be permitted to interject new issues in this court which were not raised nor argued in the trial court."

¶9 To permit this question to be raised for the first time on appeal would be unfair to defendant in error and to the trial court, and would be a violation of a well-established rule of law followed by this court since statehood.

¶10 It is contended by plaintiff that of the levy made for general fund for the fiscal year ending June 30, 1926, in school district No. 17, Lincoln county, four mills thereof levying a tax on plaintiff's property in that school district, amounting to $ 425.16, was excessive, illegal and void, the first-one-half of which, amounting to $ 212.58, plaintiff in its seventh cause of action sues to recover. The total levy was 9 mills.

¶11 It is contended that no levy above the 5 mills provided by law, without majority vote of the qualified electors of the district, was authorized by such vote. The basis of plaintiff's claim is that, in the agreed statement of facts, there appears the following resolution:

"Be it resolved, by the legal voters of school district No. 17, Lincoln county, Okla., assembled this last Tuesday in March, the 31st, 1925, in the annual school meeting of said district, that because of the following essential information being to us unknown at this time:"

"1. The cost to the district for the transfer of pupils to other district, if there be any transfers allowed."

"2. The total amount of the assessment of personal property, public service corporations, and other assessments and all other taxable property of the district."

"3. The total amount of money that will be received from state and county apportionments during the ensuing school year."

"Therefore, we, the legal voters of said district, for above reasons, herewith authorize the school board to certify to the county excise board an excess levy over the five mills allowed by law, any number of mills not exceeding ten, which will be needed to raise the necessary funds for maintaining school for the ensuing school year."

"This resolution offered and adopted this 31st day of March, 1925, and the vote as to the excess levy was: Ayes, 15; nays, 0."

"Ralph Barnard",

"Director or Chairman of Meeting."

"Joseph Hart, Clerk."

"It appears, that a resolution in like form was sent by the county superintendent to all the school districts involved in this action with the request that it be adopted. The resolution is signed by the director or chairman of meeting and the clerk."

"If this were the only showing made of authority for the

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