PROTEST OF EVANS et al. EVANS et al. v. EXCISE BOARD OF MUSKOGEE COUNTY.

PROTEST OF EVANS et al. EVANS et al. v. EXCISE BOARD OF MUSKOGEE COUNTY.
1931 OK 628
4 P.2d 1030
153 Okla. 191
Case Number: 21342
Decided: 10/20/1931
Supreme Court of Oklahoma

PROTEST OF EVANS et al. EVANS et al.
v.
EXCISE BOARD OF MUSKOGEE COUNTY.

Syllabus

¶0 1. Bridges--Statute Requiring E x c i s e Board's Appropriations for New Bridges to Be Itemized Held Mandatory.
Section 9698, C. O. S. 1921, relating to appropriations for construction of bridges, requiring itemization showing location of each proposed bridge and the amount appropriated therefor, separately stated, is mandatory.
2. Same--Appropriation for Culverts not Required to Be Itemized as to Locations.
"Bridges" and "culverts" are not synonymous. An item contained in an appropriation for construction of culverts is not required to be itemized as to location of proposed culverts.
3. Same--Authority of Excise Board to Eliminate "Bridges" from Item for "Bridges and Culverts" Without Re-advertisement.
By virtue of section 9698, C. O. S. 1921, an excise board has authority within the exercise of its discretion to impose and prescribe additional restrictions as to the expenditure of any item of appropriation, and where items of an estimate are submitted showing a sum for construction of bridges and culverts, but the proposed bridges are not itemized as to location, the excise board may strike "bridges" from the item, thus permitting the appropriation to stand for construction of culverts alone and such action is not an increase of the estimate for culverts so as to require re-advertisement.

Appeal from Court of Tax Review; Hal Johnson, Harve L. Melton, and T. G. Chambers, Judges.

Protest by Walter A. Evans et al. against certain tax levies by the Excise Board of Muskogee County. Judgment for protestee, and Protestants appeal. Affirmed.

Charles A. Moon and Francis Stewart, for plaintiffs in error.
S. H. Lattimore, for defendant in error.

RILEY, J.

¶1 Protestants contend the appropriation made by the protestee for items: "6. Construction of Culverts--$ 9,000; 11. Construction of Culverts and Roads--$ 22,500; 15. Construction of Culverts--$ 3,500," were illegal and void, and that the action of the excise board in amending the said items by striking therefrom the word "bridges" was in excess of its jurisdiction and therefore void.

¶2 These items of appropriation as originally appearing in the budget and containing the word "bridges" were not in compliance with the statute, but contrary thereto, for the locations of the bridges for which the money was sought to be appropriated were not designated. Section 9698, C. O. S. 1921. Grubb v. Smiley,

¶3 When the protest came before the Court of Tax Review upon the original estimate made and approved it was apparent that these items were levied in contravention of statute. It was also apparent that the 60 days time had not expired allowed by section 2 of Initiated Bill No. 100 for reconvening of the excise board, after filing of the budget and levy with the State Auditor for correction by reduction of any protested budget and levy. So, over the objection of protestant, the Court of Tax Review allowed protestee to withdraw the estimate made and approved, for correction. Within 60 days as aforesaid the excise board did correct said items by striking therefrom the word "bridges." The matter was not resubmitted to the board of county commissioners, nor was there a re-advertisement of the proposed action of the excise board.

¶4 The protestant filed a supplemental protest contending that items 6, 11, and 15 were void for the reason that the excise board has no authority to amend an estimate made for county highway fund purposes by the board of county commissioners, except to reduce items thereon; that the purported amendment striking the word "bridges" was in excess of authority of the excise board; that re-advertisement of the enlargement of the items was not made as required by law; that said amendment was not made by the proper authority; and that culverts proposed to be constructed by the items are not itemized as to location.

¶5 The Court of Tax Review denied the protest as to the matter herein stated, otherwise the judgment rendered is not contested and the same stands affirmed.

¶6 The words "bridges" and "culverts" are not synonymous. Cleveland v. Town of Washington, 79 Vt. 498, 65 A. 584;; Carroll Co. v. Bailey, 122 Ind. 46, 23 N.E. 672. There is a well-defined distinction in this state.

¶7 Section 9698, C. O. S. 1921, requires appropriation for bridges to be itemized so as to show location of each bridge. Appropriations for culverts are not required to be so itemized.

¶8 We hold that the striking of the word "bridges" from the items by the excise board was not an increase of the other named objects of expenditures included in the items. This for the reason that originally, with the appropriation made for "bridges, culverts, and roads," the whole sum, if lawfully levied, could have been spent for any one of the objects, roads, culverts, or bridges. Thus striking an object does not increase the expenditure that otherwise could have been made for any of the objects, but merely eliminated an alternative, admittedly illegal.

¶9 Since there was no increase in the estimate, there was no necessity of republication as contemplated by section 9698, C. O. S. 1921, as a condition precedent to such increase. See Protest C., R. I. & P. Ry. Co.,

¶10 We hold that the excise board was and is the proper authority to review and revise an estimate such as this, and that it is possessed of authority and empowered by law upon review to revise such an estimate, so as to impose and prescribe additional restrictions upon the expenditure of any item of appropriation within its proper discretion.

¶11 The reason we so hold is that section 9698, supra, vests such authority in said board, for that section of the statute reads in part as follows:

"Such appropriations as to counties, cities, towns, townships and school districts may be further detailed and itemized at the discretion of said excise board, and the said board shall have the authority to impose and prescribe such additional restrictions as to the expenditure of any item of appropriation as it may deem meet and proper."

¶12 Thus a proper function of the excise board was exercised by the amendment to the estimate, and, e. g., the item "6. Construction of bridges and culverts $ 9,000," was by the amendment, eliminating the word "bridges," further detailed and itemized by imposition of the restriction that no appropriation was made for bridges, but the whole amount limited to culverts. Thus making the item a lawful appropriation.