207 P. 321 | Okla. | 1922
The Atchison, Topeka Santa Fe Railway Company, a corporation, instituted two actions in the district court of Osage county against E.J. McCurdy, county treasurer of Osage county, to recover $408.79 taxes paid by the railway company, alleged to have been in excess of the amount authorized and required by law. The actions were consolidated. The trial court sustained a demurrer to the railway company's petition. This appeal is prosecuted by the railway company to reverse the judgment of the court sustaining the demurrer filed by the county treasurer.
Two questions are presented by this appeal for determination. First. Should the excise board of Osage county have deducted from its estimate for current expenses of the county for the fiscal year beginning July 1, 1917, and ending June 30, 1918, the estimate of income to be derived from automobile license taxes? Second. Income to be derived from the gross production tax.
Counsel for the railway company assert that because the petition alleged that the excise board included in its estimate of needs for the county $10,000 for the county road maintenance fund of said county, and the truth of this allegation being admitted by the demurrer, the trial court committed error in sustaining the demurrer. We are unable to concur in the contention male by counsel for the railway company. By virtue of section 11 of Session Laws of *149 Oklahoma 1915, c. 173, p. 329, the county excise board is without authority to make any estimate as to what purpose funds received by the county from automobile license tax may be expended. It is specifically provided in this statute that the 90 per cent. of all moneys received by the counties through the Department of Highways should be used on the draggable roads of the county, and for such purpose only. It is quite clear in this situation that the county excise board in making up an itemized estimate of the needs of the county for current expenses has nothing to do with the funds derived from automobile license tax, and the reasonable inference is that the board in preparing its statement of current expenses, including a county road maintenance fund, did so in contemplation of the law providing how the funds arising from the motor license tax must be expended.
The contention of the counsel for the railway company seems to be made upon the assumption that the fund derived from the motor tax when paid to the county treasurer becomes a part of the item estimated by the excise board for a county road maintenance fund. We are unable to concur with counsel in this assumption or the conclusion reached. The county excise board has nothing to do with making an estimate for the expenditure of this fund, for the obvious reason the statute does not vest the board with any discretion in the matter, but specifically provides how the fund shall be expended. It is a special fund to be used only for a special purpose, and is, therefore, not to be deducted from any estimate made by the county excise board for current expenses or any item of current expenses such as road maintenance. Atchison, Topeka Santa Fe Railway Company v. Johnson, Treasurer,
The case of F.A. Gillespie v. State of Oklahoma, decided by the Supreme Court of the United States, 257 U.S. ___, 42 Sup. Ct. 171, 66 L.Ed. ___, October term, 1921, in which the gross production tax arising from restricted Indian lands was held to be invalid, is controlling of the second question presented by this appeal.
Finding no reversible error in the record, the judgment of the trial court is affirmed.
HARRISON, C. J., and KANE, JOHNSON, and MILLER, JJ., concur.
