198 F. 46 | 8th Cir. | 1912
The county treasurer and sheriff of Logan county, Okl., appeal from a decree which enjoins them from collecting the state taxes upon the property of the Atchison, Topeka & Santa Fé Railway Company in that county for the year ending June 30, 1909, which were fixed and levied by the state board of equalization on October 1, 1908. The railway company appeal? from the same decree.
The railway company brought suit against the county treasurer and sheriff, who will hereafter be called the defendants, to enjoin the collection of the taxes on its property for the 19 j/ij months between November 16, 1907, the date when Oklahoma became a state, and June 30, 1909, for school districts, townships, cities, counties, and the state, and after the railway company had paid more than one-half the taxes a temporary injunction was granted against the collection of the remainder of these taxes. Before the final decree was rendered, which is challenged by this appeal, a compromise and settlement of the controversy over all these taxes, except those levied for state purposes, was made, and upon the payment by the railway company of the agreed amount a perpetual injunction against the col
There were averments in this bill to the effect that the taxes for 12 of the 19% months were levied without airy legislative authority, that they were so commingled with those for the other 7% months that it was impossible to separate them, that the scheme of taxation adopted by the state denied to the complainant and other public service corporations notice of and an opportunity for a hearing up'on 1¡he assessment of their property, and an opportunity to have their property equalized with that of other taxpayers, opportunities’which were accorded, to other taxpayers, and that the taxing officers assessed their property at its full value and the property of other taxpayers at 63% per cent, of its value, whereby they were deprived of the equal protection of the laws and their property was about to be taken without due process of law. The bill also contained an allegation that the complainant was- willing to pay into court any amount justly owing, to secure the payment of that amount by a bond, and to let the $29,715.73, which it had already paid, stand as security therefor. These allegations of the bill brought it far within the rule of equity requiring allegations of the tender, payment, or security for the payment of the part of taxes justly due, and there was no error in the overruling of the demurrer and the issue of the temporary injunction.
It seems to be too plain for discussion that no authority was here granted to this board to compute and levy any tax to pay any of the expenses of the state for the year ending June 30, 1909. The power is expressly, limited to fixing the rate and levying the taxes for the expenses and deficiency for the year ending June 30, 1908. Counsel for the state contended, however, that this levy for the year 1909 was authorized by the laws of the territory of Oklahoma on this subject, which he asserted were continued in operation in the state by virtue of section 2 of the Schedule to the Constitution of Oklahoma, which reads, “All laws in force in the territory of Oklahoma at the time of the admission of the state into the Union which are not repugnant to this Constitution, and which are not locally inapplicable, shall be extended to and remain in fórce in the state of Oklahoma until they expire by their own limitation, ór are altered or repealed by law,” and it is assigned as error that the court below overruled this contention, and held (1) that, if the territorial laws on this subject were in force in the state, the levy was not made in accordance with them, and was made without authority from them; (2) that these laws were repugnant to the Constitution of the state and were never in force therein.
“Wlienever tlie expenses ol any fiscal year shall exceed the income the legislature may provide for levying a tax for the ensuing fiscal year, which, with other resources, shall he sufficient to pay for the deficiency as well as the estimated ordinary expenses of the state for the ensuing year.”
But this section authorized the Legislature only, and by the terms of its grant impliedly prohibited the board, without express legislative authority, from making such a provision, and the Legislature by the act of 1908 made provision for levying a tax, and granted to the hoard authority to lay it for the expenses and deficiency of the year ending June 30, 1908, hut withheld and thereby impliedly prohibited the board from exercising any authority to fix the rate or levy the tax for the expenses of the year ending June 30, 1909. There was, therefore, no power in the board, under section 3 of article 10 of the Constitution and the act of 1908, to make any levy of taxes for the expenses of the state for the year ending June 30, 1909.
The levy for 1909 was made on October 1. 1908, without authority in the board to make it under the act of 1908. Conceding, hut not admitting, that the territorial laws on this subject continued in force in the state under section 2 of the schedule to the Constitution, was there error in the conclusion of the court below that this levy was beyond the powers of the board under those laws?
if those laws were applicable to this levy, they provided (section 5994, Wilson’s Statutes of Oklahoma of 1903) that the board of equalization should hold a session commencing on the third Monday in June, 1908, and should decide on the rate of territorial tax to be levied for the current year; by section 5996 that on or before the fourth Monday in June, 1908, the territorial auditor should transmit to the county clerk of each county a statement of the rate of taxation for the general territorial tax as directed to be levied and collected by the territorial board of equalization,, and that if the board failed to fix the rate the auditor should notify the clerk of each county of the rate; and by sections 5997 and 5998 that the county commissioners should meet the third Friday in July, 1908, to make levies for county purposes, that they might adjourn for not exceeding 10 days, and thát if no statement of the rate of the levy for the territorial tax was received during their session they should, before adjourning, levy the general territorial tax at the rate of 2 mills on the dollar. The admitted fact that the rate in this case was fixed and the levy made by the board on October 1, 1908, renders it impossible that they could have been made under or in accordance with these territorial laws, because all the powers of the board and all the powers of the other officers under these territorial laws to make or certify the rate or levy the tax for the year ending June 30, 1909, had, by the terms of
The fact that section 8 of the act of April 17, 1908, authorizes the board of county commissioners to meet on the third Monday in September, 1908, to make a levy of taxes for county purposes for the year ending July 1, 1909, and to adjourn not exceeding 10 days, has not been overlooked. It iá, however,' immaterial, because it makes no provision for or in relation to a levy of a rate for that year for state pürposes, and because the levy in hand was not made by the county commissioners. If it had been, it must have been 2 mills on the dollar for the year ending June 30, 1909, and this levy was 1% mills for 19% months, including the 12 months of the fiscal year ending June 30, 1909. The unavoidable conclusion is that, admitting that the territorial laws upon this subject were in force at the time of the levy by the state board of the taxes here in question, that board was then without power under-the Constitution of Oklahoma and the territorial laws, and it was also without power-under the act of April 17, 1908, to fix the rate for, or to levy any taxes for, the expenses of the state for the year ending June 30, 1909, and there was no error in the decision of the court below that to that extent the levy in question was ultra vires arid void.
This result makes it unnecessary to discuss the question whether these territorial laws continued in force in the state of Oklahoma or were so repugnant to the state Constitution that they ceased to have effect after statehood. Suffice it to say that the majority of the court concurs in the opinion of the court below upon this issue also.
After the court had found that the levy for the taxes of the year ending June 30, 1909, was unauthorized, and that the amount of those taxes might be separated from the amount levied for the 7% months ending June 30, 1908, it set aside the submission of the case, permitted evidence to be taken, found the amount levied for each period, the railway company paid the amount levied for the 7%, months, and the decree for the injunction was rendered. Defendants specify as error the admission of the deposition of R. C. Cain, chief of the accounting office of the State Auditor’s office, over the objection that it was irrelevant, incompetent, immaterial, and not responsive to any questions in the pleadings in the cause. But some parts of the deposition, notably those which stated that the State Auditor was out of the state, and that the witness had charge of all the accounts in the Auditor’s office, including the account of the revenues received by the state from other than direct taxation, were neither incompetent, irrelevant, *nor immaterial, and they and the testimony the witness gave relative to the amount of revenue derived from sources other than direct taxation during the year ending June 30, 1908, were responsive to the issue made by the pleadings, whether the valid and the void taxes were inextricably mingled, and to the order of the court that the parties might take evidence to show what part of the taxes levied ought to be paid.
It is assigned as error that in the separation of the valid from the void taxes the court erred in attributing and crediting to the period from November 16, 1907. to June 30, 1908, any part of the $845,000 which the state board estimated would he derived from sources other than ad valorem taxation. But this assignment is baseless, because the resolution by which the rate was fixed and the levy made itself establishes the fact that this $845,000 was credited by the board to the entire period from November 16, 1907, to June 30, 1909, and there was plenary evidence that the state derived revenue from sources other than ad valorem taxation during the time between November 16, 1907. and June 30, 1908, and the board must have known that fact and taken it into consideration in its estimate.
The motion to dismiss the appeal in this case is not considered, because the conclusion reached upon the merits has the same effect as would a grant of that motion.
The railway company appealed from the decree, but at the argument ■waived its objections thereto. Let the appeal of the railway company be dismissed, with costs, and let the decree of the court below he affirmed, with costs, against the treasurer and the sheriff.