St. Louis-San Francisco Ry. Co. v. Sanders

• Decision Date: 19 January 1932
• Docket Number: 20602.
• Citation: 7 P.2d 161,154 Okla. 159,1932 OK 38
• Parties: ST. LOUIS-SAN FRANCISCO RY. CO. v. SANDERS, County Treasurer.
• Court: Oklahoma Supreme Court

7 P.2d 161

154 Okla. 159, 1932 OK 38

ST. LOUIS-SAN FRANCISCO RY. CO. v. SANDERS, County Treasurer.

No. 20602.

Supreme Court of Oklahoma

January 19, 1932

Syllabus by the Court.

1.There is no authority of law for using any part of a sinking fund of a county for the purpose of paying paving assessments, and there cannot legally be included in an appropriation for sinking fund purposes an amount for the payment of paving assessments.

2.The inclusion of an item in an estimate for a sinking fund does not change its nature.

3.Unless an act of the Legislature is so drawn as to clearly convey the idea that the levy provided for shall be in addition to the limitations provided in section 9692, C. O S. 1921, it shall be construed to come within the terms and conditions of said section.

4.The provisions of section 8587,C. O. S. 1921, have no application to the paving of streets.

5.Record examined, and held, the judgment of the trial court is contrary to law.

Appeal from District Court, Cherokee County; J. T. Parks, Judge.

Suit by the St. Louis-San Francisco Railway Company against James S Sanders, County Treasurer of Cherokee County.Judgment in favor of the defendant, and the plaintiff appeals.

Affirmed in part and reversed in part, and cause remanded, with directions.

E. T Miller, of St. Louis, Mo., and Cruce & Franklin, of Oklahoma City, for plaintiff in error.

Sanford Martin, Co. Atty., of Tahlequah, for defendant in error.

ANDREWS J.

This is an appeal from a judgment of the district court of Cherokee county in favor of the defendant in error, defendant in the trial court, against the plaintiff in error, plaintiff in the trial court.Hereinafter the parties will be referred to as plaintiff and defendant.

The appeal involved the judgment rendered on the first, second and fourth causes of action.The plaintiff now admits that the law with reference to the issues involved in the first and fourth causes of action has been decided adversely to it, and that those issues need not be further considered.There remains for determination by this court the law with reference to the second cause of action.

The second cause of action involves a tax levy of .79 mill for sinking fund purposes for Cherokee county.The facts with reference thereto, as agreed upon, are as follows: "Upon the second cause of action it is agreed that for said year 1927, the County Excise Board of Cherokee County made a levy for its county sinking fund of an item of .79 mill, which was levied for the purpose of paying paving tax assessments on account of paving constructed on streets abutting upon property owned by said County, towit: The County Court House and grounds, and that in addition thereto, without any election, said County levied for its current expense fund a total of 6 mills, the maximum allowed it by law to be levied for current expenses, without an election; that plaintiff's valuation in said County, upon which it paid tax, for said year, was $974,794.00, and .79 mill thereon amounts to $770.08."

There is no authority of law for using a sinking fund or any part thereof for the purpose of paying paving assessments, and there cannot legally be included in an appropriation for sinking fund purposes an amount for the payment of paving assessments.The inclusion of an item in an estimate for sinking fund does not change its nature.Going, County Treas., v. Atchison, T. & S. F. Ry. Co.,106 Okl. 258, 234 P. 346.The levy for the sinking fund of the county therefore was excessive to the amount of .79 mill.

The provisions of section 8587,C. O. S. 1921, have no application to the paving of streets.

Our attention is called to but one other theory upon which the trial court could have denied the prayer of the plaintiff that is, that a levy for paving assessments is not within the limitations of section 9692,C. O. S. 1921, and can be made in addition thereto within the limitations contained in section 9, article 10 of the Constitution.While no estimate was made for that purpose other than as a part of the sinking fund, and no levy was made therefor, we will consider the question by reason of its public nature.Taxes are required to be levied by general laws (section 14, article 10 of the Constitution) and the Legislature may, by general laws, confer upon the proper authorities of the county the power to...