CHICAGO R. I. & P. Ry. Co. v. POURRON Co. Treas.

CHICAGO R. I. & P. Ry. Co. v. POURRON Co. Treas.
1926 OK 487
246 P. 835
118 Okla. 80
Case Number: 16491
Decided: 05/25/1926
Supreme Court of Oklahoma

CHICAGO, R. I. & P. Ry. Co.
v.
POURRON, Co. Treas.

Syllabus

¶0 1. Townships--Increase of Estimate for Road Drag Expense--Power of County Excise Board.
The county excise board is without authority to increase an estimate made by a township for road dragging expense, unless the proposed increase be first advertised, as provided by section 9698, C. O. S. 1921.
2. Same -- Judgment Sustaining Tax Levy Reversed.
Record examined; held, to be insufficient to support judgment against the plaintiff.

W. R. Bleakmore, A. T. Boys, John Barry, and W. F. Collins, for plaintiff in error.
George F. Short, Atty. Gen., and V. P. Crowe, Asst. Atty. Gen., for defendant in error.

STEPHENSON, C.

¶1 The Chicago, R. I. & P. Ry. Co. commenced its action against G. F. Pourron, as county treasurer of Grant county, as provided by statute, to recover alleged illegal taxes levied and collected against the property of the plaintiff. The trial of the cause resulted in judgment for the defendant. The plaintiff had perfected its appeal, and seeks the reversal of the cause on the ground that the judgment is contrary to the law and the facts.

¶2 Several townships situated in Grant county made an estimate of expense for road dragging, pursuant to section 10203, C. O. S. 1921. The material part of the section reads in the following language:

"For this purpose (road dragging) there shall be expended under the direction of the township board, through the road superintendent, upon the township road system, not more than two mill drag tax herein authorized to be levied."

¶3 The section in question provides that the township board shall select from its township road system the roads to be dragged. Then follows the provision above quoted. The statute does not expressly point out the board which shall make the levy, or designate the machinery which shall be employed to cause the levy to be made and collected. As the statute is silent in this respect, the inference is that the same machinery should be employed in causing the levy to be made and collected as applies to any other item of tax levied by the township. The further inference from the statute above quoted is, that it is the duty of the township to make an estimate for the road drag tax, in the same manner as it makes an estimate for other expenses involved in the township government.

¶4 The county excise board of Grant county increased the estimated items made by the several townships for road drag tax without first publishing the notice of the proposed increase. It is the contention of the railway company that the county excise board was without authority to make the increase unless it first advertised the proposed action, pursuant to section 9698, C. O. S. 1920 The section in question appears to be applicable to all estimates made by townships. It does not make any distinction among the several items the township is authorized to levy. The material part of section 9698, supra, is:

"The said board shall have power and authority to revise and correct any estimate certified to them by either striking items therefrom, * * * or adding items thereto, when in its opinion the needs of the municipality shall require."

¶5 It is the contention of the Attorney General that the sentence quoted authorizes the county excise board to increase any and all items of the estimate, subject, however, to the sentence which follows the quoted part, being in the following language:

"All revisions and corrections shall be as to specific items of the estimate, and in no event shall any item or items of the estimate for current expense purposes be increased, or any item added thereto, until such proposed increase or additional item shall have been advertised and published by the excise board in some newspaper of general circulation in the county, in one issue, if published in a weekly paper, and two consecutive issues, if published in a daily paper."