CHICAGO R. I. & P. RY. CO. v. EXCISE BD. OF OKLAHOMA COUNTY

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CHICAGO R. I. & P. RY. CO. v. EXCISE BD. OF OKLAHOMA COUNTY
1934 OK 349
33 P.2d 1081
168 Okla. 428
Case Number: 24941
Decided: 06/12/1934
Supreme Court of Oklahoma

CHICAGO, R. I. & P. RY. CO.
v.
EXCISE BOARD OF OKLAHOMA COUNTY.

Syllabus

¶0 1. Counties--Salaries of County Commissioners in Counties of Over 110,000 Population.
The salaries of county commissioners in all counties of this state having a population of over 110,000 as shown by the next preceding federal census are governed by the bracket relative to such counties in section 7858, O. S. 1931.
2. Same--Salaries of County Attorney and County Judge in Counties of Over 55,000 Population.
The salaries of the county attorney and county judge in each county having a population of more than 55,000 as shown by the last federal census is $ 4,000 per annum payable monthly.
3. Schools and School Districts--Invalidity of Appropriation for Expenses of Officers Attending National Convention and for Medical and Dental and Nurse Service and Car Service.
There is no authority of law for an appropriation for a school district for a salary or expense of a principal and a supervisor while attending a meeting of the National Educational Association, a salary of a medical director, nurse service, medical supplies, a salary of a dentist, dental supplies, and car service.
4. Same--Statutory Authority for Appropriation for Physical Education Supplies.
An appropriation for physical education supplies is authorized by the provisions of section 6817, O. S. 1931, for common schools, by the provisions of sections 6894 and 6895, O. S. 1931, for independent schools, and by sections 12674, 12676, and 12677, O. S. 1931, for separate schools.
5. Same--Statutory Authority for Appropriation for Truant Officers.
An appropriation for the salary of one or more truant officers for schools in cities and incorporated towns is authorized by the provisions of section 7003, O. S. 1931.
6. Taxation--Protest of Taxes Involving Question of Fact to Be Supported by Evidence.
A protest of taxes which involves a question of fact must be supported by evidence.
7. Appeal and Error--Assignments of Error not Relied on in Brief Waive&
Assignments of error in a petition in error are waived when they are not presented or relied on in the brief of the plaintiff in error.
8. Counties--Statutory Authority for Appropriation for Fees of Register of Vital Statistics.
An appropriation for the payment of fees of the registrar of vital statistics is authorized by the provisions of section 4515, O. S.
931.
9. Counties--Taxation--Legality of Appropriation for Refund of Taxes.
An appropriation for refund of taxes paid is authorized by and for the purpose stated in section 12749, O. S. 1931.
10. Townships--Illegality of Township Appropriation--not Itemized as Required by Statute.
Appropriations for townships are required to be itemized ly and in the manner provided in section 12677, O. S. 1931, except as stated in Protest of Chicago, R. I. & P. Ry. Co., 158 Okla. 135, 12 P.2d 902, and Protest of St. Louis-S. F. Ry. Co., 149 Okla. 45, 299 P. 184, and a protest of such an appropriation without itemization will be sustained.
11. Counties--Validity of Appropriation for Sinking Fund to Pay Part of Judgment not Shown Invalid by Judgment Roll.
An appropriation for sinking fund purposes which includes an amount for the payment, in part, of a judgment may not be reduced by the Court of Tax Review because of the invalidity of the judgment, unless the invalidity thereof is shown by the judgment roll.
12. Judgment--Validity of Judgment Though Rendered on Defective Petition.
Though a petition does not perfectly state a cause of action, a valid judgment may be rendered thereon.
13. Same--Judgment not Subject to Collateral Attack.
Where the district court had jurisdiction of the subject of the action, and of the parties, its judgment cannot be attacked collaterally on the ground that the petition in said action either defectively stated a cause of action or failed to state one.
14. Same--Validity of Judgment Against Municipalities.
If a political subdivision of the state is sued in a court of competent jurisdiction having jurisdiction of the subject-matter of the action, and that political subdivision is brought before the court by proper service of summons, or if it files its answer which, by its terms, contests the claim and in no wise confesses the claim or the facts upon which the claim is based, and the court renders a judgment thereon within its jurisdiction, that judgment, unappealed from, is binding and conclusive upon the political subdivision of the state and upon the taxpayers thereof, subject only to the right to have the same vacated, set aside, or held for naught in a proper proceeding. Such a judgment may not be collaterally attacked. It must be given full force and effect by the municipal officers, the excise board, and the courts.
15. Same--Judgment Against County Without Service of Summons or Valid Appearance Void, and Subject to Collateral Attack.
A judgment against a county rendered without service of summons or valid entry of appearance by the county is void and may be collaterally attacked.
16. Counties--Action Against County--Requisite Procedure for Service of Summons or Entry of Appearance.
Jurisdiction of a county may be obtained only by valid service of summons on the county clerk or by entry of appearance by the county after valid action by the board of county commissioners authorizing such entry of appearance.

Appeal from Court of Tax Review; Porter Newman, Asa E. Walden, and O. C. Wybrant, Judges.

Protest by the Chicago, Rock Island & Pacific Railway Company against certain tax levies made by the Excise Board of Oklahoma County. Protest sustained as to certain items, and both parties appeal. Affirmed in part and reversed in part.

W. R. Bleakmore, W. L. Farmer, John Barry, and Robert E. Lee, for plaintiff in error.
Frank Wilkins, Lewis Morris, Co. Atty., and B. C. Logsdon, Asst. Co. Atty., for defendant in error.
Suits & Disney, for cross-petitioner in error.

ANDREWS, J.

¶1 This is an appeal by both the protestant and the excise board from a judgment of the Court of Tax Review sustaining the protest of the plaintiff in error as to some of the items protested and denying its protest as to some of the items protested. The items protested were for the fiscal year commencing July 1, 1932. The cause was not briefed in this court until after the beginning of the fiscal year commencing July 1, 1933. The Parties hereinafter will be referred to as protestant and protestee.

¶2 The protestant's first contention is that there was error in denying its protest relating to the salary of the county attorney, county treasurer, county commissioners, county clerk, county superintendent, county assessor, court clerk, and county judge of Oklahoma county.

¶3 The excise board, appropriated for the salary of the county judge and county attorney the sum of $ 5,000 each, and for the other elected officers named the sum of $ 4,000 each, under the authority of the provisions of chapter 328, Session Laws 1929. That act was construed by this court in Protest of (Chicago, R. I. & P. Ry. Co., 164 Okla. 239, 25 P.2d 690, and Protest of Downing et al., 164 Okla. 181, 23 P.2d 173, after the judgment of the Court of Tax Review in this case. We hold that the protest should have been sustained and appropriations made in conformity with the provisions of section 7841, O. S. 1931 (chapter 166, Session Laws' 1923), section 7858, O. S. 1931, and the rules stated in the decisions cited. That portion of the judgment is reversed and remanded, with directions to the Court of Tax Review to enter judgment accordingly.

¶4 The protestant contends that there was, error in denying the fourth item of its protest involving the independent separate schools fund of Oklahoma county for Oklahoma City school district. The items of appropriation appealed from are:

¶5 Physical Education Supplies $ 500.00

¶6 Salary Attendance Department 1500.00

¶7 Magazines and Supplies 100.00

¶8 Medical Director 900.00

¶9 Nurse Service 1440.00

¶10 Supplies for Nurse 150.00

¶11 Concerning the items for medical director, salary for nurse service, and supplies for nurse, the protestee confesses error under the authority of Protest of Chicago, R. I. & P. Ry. Co., supra. The judgment of the Court of Tax Review as to those items is reversed and remanded, with directions to sustain the protest.

¶12 The item of $ 500 for physical education supplies is authorized. See section 6817, O. S. 1931, as to district schools, and sections 6894 and 6895, O. S. 1931, as to independent district schools. The school board of the independent school district is the board of the separate school district and is required under the provisions of sections 12674, 12676, and 12677, O. S. 1931, to make an estimate of needs of the independent district school, including the separate school. The judgment of the Court of Tax Review as to that item of the protest is affirmed.

¶13 As to the item of $ 1500 for salary for attendance department, the judgment of the Court of Tax Review disallowing the protest is affirmed. Such an appropriation is authorized by section 7003, O. S. 1931.

¶14 As to the item of $ 100 for magazines and supplies, the purpose is not shown by the evidence. A protest of taxes which involves a question of fact must be supported by evidence. The judgment of the Court of Tax Review disallowing the protest is affirmed.

¶15 The third assignment of error presents error in denying the 29th item of the protest, which involves the general fund of the independent school district for:

¶16 Salary of Medical Director $ 4,380.00

¶17 Nurse Services Salary 6,710.00

¶18 Medical Supplies 1,125.00

¶19 The want of authority for these expenditures is shown by Protest of Chicago, R. I. & P. Ry. Co., supra, which is controlling The judgment of the Court of Tax Review denying the protest as to those items is reversed and remanded, with directions to sustain the protest.

¶20 The protestee presented seven assignments of error in its cross-petition in error and only four in its brief. Thereby it waived the others.

¶21 The protestee contends that the Court of Tax Review sustained the protest as to the item of $ 2,000 for registration fees of vital statistics. The protestant contends that it was not sustained. The judgment does not disclose whether or not the item was sustained. Under the provisions of section 4515, O. S. 1931 (chapter 13, section 1, Session Laws 1923), that item should have been allowed. If the protest thereof was sustained, the judgment of the Court of Tax Review is reversed, with directions to deny the protest. Otherwise, it is affirmed.

¶22 The second assignment of error of the protestee relates to the action of the Court of Tax Review in sustaining the protest as to an item of $ 2,000 appropriated by the excise board for refunds by the board of county commissioners on tax sale certificates erroneously issued. It is contended by the protestant that the protest on that item was denied by the Court of Tax Review. Section 12749, O. S. 1931, is authority to sustain the contention of the protestee. If the protest was sustained by the Court of Tax Review, the judgment as to that item is reversed, with directions to deny the protest. Otherwise, it is affirmed.

¶23 The third assignment of error of the protestee relates to the action of the Court of Tax Review in sustaining the protest under items 12, 13, 15, 17 and 22 for the construction and maintenance funds, respectively, of Choctaw, Council Grove, Crutcho, Elk and Oklahoma townships. The protest was on the ground that the respective appropriations were not itemized.

¶24 Subdivision (c), section 12677, O. S. 1931, provides:

"The appropriations for townships shall be itemized so as to show in separate items the amount of funds appropriated; for salaries and compensation of officers; for office supplies, blank books, stationery and printing; for compensation of supervisors and road work, for building bridges, culverts and purchase of right of ways; for tools and equipment' for such other expenditures as may be necessary and authorized by law, that not herein enumerated."

¶25 The only itemization shown in the funds appropriated was: Construction $ --. Maintenance $ --. Itemization of county appropriations is required. C. D. Coggeshall & Co. v. Smiley, Co. Treas., 142 Okla. 8, 285 P. 48, and Grubb v. Smiley, Co. Treas., 142 Okla. 19, 285 P. 38. It is contended by the protestee that under the provisions of section 10195, O. S. 1931, the township is required to select from its township road system the roads to be dragged for one year; that by the provisions of section 10196, O. S. 1931, money appropriated to the township for construction and maintenance of roads may be expended at the discretion of the township board, or board of county commissioners where township government has been abolished, and that where the same is to be expended on the designated roads, it is not necessary that the appropriations be itemized.

¶26 The protestee relies upon the holding of this court in Protest of Chicago, R. I. & P. Ry. Co., 158 Okla. 135, 12 P.2d 902. No such designation as was there shown is shown in the items here protested.

¶27 In Protest of Chicago, R. I. & P. Ry. Co., 146 Okla. 23, 294 P. 169, this court held that:

¶28 The drag fund for a township is a single item. It may be used for drag purposes only and no itemization is necessary."

¶29 In Protest of St. Louis-S. F. Ry. Co., 149 Okla. 45. 299 P. 184, this court held:

"The provisions of section 10203, C. O. S. 1921, requiring the designating of dragable roads, and the appointment of the township superintendent, are directory and not prerequisite and jurisdictional to the right of the county excise board to levy a road drag tax of two mills for road drag purposes."

¶30 Since it is shown by the record that a separate item was approved for a drag fund, it is apparent that those authorities have no application. The judgment of the Court of Tax Review is affirmed.

¶31 The fourth assignment of error of the protestee relates to the action of the Court of Tax Review in sustaining the protest under item 4 of the levy for the sinking fund for paying annual installments on judgments against Oklahoma county.

¶32 The first of those judgments, cause numbered 71635, was for publishing proceedings of the board of county commissioners, as required by section 7687, O. S. 1931. for publication of financial statements, as required by section 12680, O. S. 1931; notice of meeting of equalization board, as required by section 12646, O. S. 1931; for publication of notice of sale of oil and gas leases by the board of county commissioners, as required by section 7664, O. S. 1931, and for publication of warrant calls, as required by section 5431, O. S. 1931. The petition was regular, and alleged that the amount prayed for "was within the limit of amount as prescribed by law," and that when the claim was presented for payment, the amount appropriated therefor had become exhausted and the claim disallowed for want of sufficient funds. Proper service was had and a general denial of each and all of the allegations of the petition was filed. The journal entry shows that the parties were present in court with their attorneys' that testimony was heard: that the allegations of the petition were found to be true, and that the court found that the defendant was legally and justly indebted to the plaintiff in the amount prayed for.

¶33 The protestant alleged that the appropriation was illegal, but did not allege or show that the judgment roll showed that the judgment was void. In so far as the judgment roll is concerned, the judgment is valid and not subject to collateral attack. Protest of Kansas City Southern Ry. Co., 157 Okla. 246, 11 P.2d 500; Protest of St. Louis-S. F. Ry. Co., 157 Okla. 131, 11 P.2d 189. See, also, Henson v. Oklahoma State Bank, 165 Okla. 1, 23 P.2d 709. The judgment of tim Court of Tax Review as to judgment in cause numbered 71635 is reversed and remanded, with directions to deny the protest.

¶34 The judgments in causes numbered 69754, 69509, and 69439 were based upon services rendered and supplies furnished in the hospitalization of indigent patients of Oklahoma county. The claims upon which the judgments were based were investigated and approved by the county welfare department, as authorized By section 7589. O. S. 1931. Each of the petitions stated a cause of action. Process was served and answers filed denying generally and specifically the allegations of tim petitions. Hearings were had, evidence introduced, and the court found in each case that the plaintiff had proved the allegations of the petition and was entitled to judgement. The protestant did not allege that the judgments are void on the face of the judgment roll. It is not contended that any of the jurisdictional elements entering into the validity of any judgment was wanting. The protestant contends that the plaintiffs did not allege and that the court did not find that at the time the services were performed or material furnished, there was an appropriation for the payment of the same. Though a petition does not perfectly state a cause of action or allege sufficient facts to constitute a cause of action, a valid judgment may be rendered thereon. Henson v. Oklahoma State Bank, supra; Latimer et al. v. Haste, Adm'r, et al., 101 Okla. 109, 223 P. 879. In Lindeberg v. Messman, 95 Okla. 64, 218 P. 844, this court held:

"Where the district court had jurisdiction of the subject of the action, and of the parties, its judgment cannot be attacked collaterally on the ground that the petition in said action either defectively stated a cause of action, or failed to state one."

¶35 See Faught v. City of Sapulpa, 145 Okla. 164, 292 P. 15.

¶36 The judgment of the Court of Tax Review sustaining the protest against the levy to pay judgments in causes numbered 69754, 969509, and 69430, is reversed and remanded, with directions to deny the protest.

¶37 As to judgments in causes numbered 69540 and 69837, the judgment rolls show that there was no service of process in either case, trot answers were filed for the defendant by the county attorney. The claims upon which the judgments were based were for food and lodging for poor and indigent persons purchased by the board of county commissioners. The trial court had no jurisdiction over the defendant. A county attorney has no jurisdiction to enter an appearance for a county. The invalidity of the judgments was shown by the judgment roll. The judgment of the Court of Tax Review is affirmed.

¶38 As to judgment in cause numbered 69493, the judgment roll shows that the claim was based upon a claim for electric current furnished to the courthouse, jail, poor farm, and other institutions maintained and operated by Oklahoma county. The service was based upon a contract with usual schedule of rates for similar service. It was not alleged that an appropriation had been made in any sum to pay for the service to be rendered when the contract for service was entered into. The judgment roll further shows that the defendant board of county commissioners filed an answer admitting all of the allegations of the petition and confessing indebtedness in the full amount claimed, and alleging that the claim was disallowed because the appropriation therefor had been exhausted. The answer contained a request that the matter be "heard and determined immediately or at any time by the court without other or further notice to this defendant." There was, in effect, a complete waiver of notice. No service of summons was shown. Under the rule stated in Protest of Kansas City Southern Ry. Co., supra, the trial court did not have jurisdiction of the defendant and it was without authority to render the judgment.

¶39 The judgment of the Court of Tax Review is affirmed.

¶40 Judgment in cause numbered 69953 was based on all account of the Oklahoma City Service Company for laundry for the county farm. The judgment roll shows a petition in usual form, but no mention of an appropriation having been made. Answer was filed denying generally and specifically the allegations of the petition. A hearing was had and judgement rendered There is nothing in the judgment roll to show that the judgment is void. It is not subject to collateral attack. Protest of Kansas City Southern Ry. Co., supra. The judgment of the Court of Tax Review thereon is reversed and remanded, with directions to deny the protest.

¶41 The cause is remanded to the Court of Tax Review, with directions to render judgment in conformity with the rules herein expressed.