Opinion
No. 20041
Opinion Filed May 3, 1932.
(Syllabus.)
1. Taxation — Time for Payment of Illegal Taxes Under Protest and Recovery by Suit — Effect of Legislative Resolution Extending Time for Paying Taxes.
By the provisions of Joint Resolution No. 3 (chapter 228, Session Laws 1927), approved January 31, 1927, the statutory time for the payment of taxes for the year 1926 was extended, and by the provisions of section 9971, C. O. S. 1921, illegal ad valorem taxes paid under protest within the time prescribed by that resolution may be recovered in a timely action brought for that purpose.
2. Same — Effect of Delay in Certifying Tax Rolls to County Treasurer.
Sections 9719 and 9971, C. O. S. 1921, contemplate that county taxing officials will perform their duties in ample time so that a taxpayer may have the benefit of the provisions thereof. There is nothing in said sections to provide that a tax will become delinquent before the tax rolls are certified to the county treasurer. Taxpayers have a constitutional right to a reasonable time in which to pay taxes after payment thereof is possible and before the same become delinquent and to recover illegal taxes paid under protest. Where the county taxing officials have failed to certify the tax rolls to the county treasurer at the time and in the manner provided by the statutes fixing the date of maturity and delinquency thereof, payment under protest may be made by a taxpayer and a suit maintained by him to recover the alleged illegal tax notwithstanding payment of the tax is made after the date of delinquency provided by the statute.
3. Taxation — Legislature Held Without Authority to Provide for Refund of Taxes From Sinking Fund.
The Legislature is without authority to provide that refunds of taxes shall be made from a sinking fund which accrued pursuant to the provisions of sections 26, 27, and 28, art. 10, of the Constitution, for the reason that under the provisions of section 19, art. 10, of the Constitution, taxes levied and collected for one purpose shall never be devoted to another purpose.
4. Same — Tax Levy for Sinking Fund Purposes Which Includes Amount for Refunding Taxes Held not Authorized.
The constitutional provisions for the levying of taxes for sinking fund purposes are sections 26, 27 and 28, art. 10, and legislative provisions therefor are sections 4276, 4550, $8571, 8574, 9698, 9699, and 9700, C. O. S. 1921. There is no authority in any of those provisions for the making of a tax levy for sinking fund purposes which includes an amount for the refunding of taxes. Since the Constitution does not require a sinking fund tax levy for such a purpose, and since the Legislature has not provided for such a tax levy, there is no authority for such a tax levy.
5. Courts — Supreme Court — All Causes Assigned for Oral Argument or Submission Before Whole Court.
This court has adopted no rule providing for a division of the court into two divisions and the hearing and determination of causes by each of the two divisions, as authorized by section 3034, C. O. S. 1921, and all causes are assigned for oral argument or submission before the whole court.
6. Same — Majority of Members of Court Constitute Quorum and Concurrence of Majority Suffices for Decision of Court.
By the provisions of section 3, art. 7, of the Constitution, a majority of the members of this court shall constitute a quorum, and the concurrence of a majority of the members is necessary. When a majority of the members of this court have concurred in a decision of this court, it is the decision of this court, although some of the members of the court were not present at the time of the adoption of the decision or did not participate therein.
7. Hospitals — Care of Tubercular Patients — Statute Placing Tax Burden on Counties Instead of on State Held Unconstitutional.
Under article 21 of the Constitution of Oklahoma, institutions for the care of tubercular patients, when maintained by the state, shall be at the expense of the state. Section 8970, C. O. S. 1921, which attempts to place that tax burden upon counties, is in violation of the Constitution and inoperative.
8. Statutes — Special Statute as Superseding General Statute on Subject-Matter.
A statute which is enacted for the primary purpose of dealing with a particular subject, and which prescribes the terms and conditions of that particular subject-matter, prevails over a general statute which does not refer to the particular subject-matter, but does contain language which might be broad enough to cover the subject-matter if the special statute was not in existence.
9. Statutes — Courts Without Authority by Construction to Aid Defective Execution of Powers Given by Statute.
Courts have no rightful authority, by mere construction, to aid the defective execution of a power given or created exclusively by statute, nor dispense with those formalities which the Legislature has seen fit to provide to secure its due execution.
10. Taxation — Necessary Publication of Financial Statement and Estimate of Needs — Appropriation Limited to Items in Estimate — Exception as to Appropriations and Rates of Levy for Sinking Fund.
The financial statement and estimate required by the provisions of sections 9695 and 9698, C. O. S. 1921, must be published as therein provided, and an appropriation may be made for only those items for which estimates have been made and published, but this rule has no application to appropriations and rates of levy for sinking fund purposes.
11. Municipal Corporations — Disposal of Profits From Municipally Owned Utility not Prescribed by Law and Such Profits not Required to Be Appropriated to Sinking Fund.
There is no constitutional or legislative provision specifically prescribing the purpose to which profits derived by a municipality from the operation of its municipally owned public utilities must be appropriated, and such profits are not required to be appropriated to the sinking fund of the municipality.
12. Same — 25-Year Funding Bond Issue — Annual Tax Levy to Pay Interest and for Sinking Fund.
Where funding bonds are issued by municipal corporations, under authority of article 4, chap. 25, C. O. S. 1921, and in compliance therewith, to mature in 25 years, the tax levying authorities of the county in which such bonds are issued may make an annual levy for the purpose of paying the annual or semi-annual interest as it becomes due, and an annual levy for a sinking fund for the purpose of paying 1/25 of the principal when it matures, and begin making such levy on the 25th year before the maturity of such bonds, and a levy so made is held to be valid. And the provision in section 4276, C. O. S. 1921, to wit, "But in every instance in which such bonds shall be issued for more than 20 years, it shall not be necessary to create a sinking fund, or to levy a tax therefor, until the 20th year prior to the maturity of such bonds," is not mandatory as to postponing a levy for a sinking fund until the 20th year before maturity of a 25-year bond issue, nor an absolute inhibition against beginning such sinking fund levy on the 25th year before maturity of bonds maturing 25 years from date of issue.
13. Same — Duty to Levy Tax for Sinking Fund not Dependent Upon Publication of Financial Statement and Estimate.
The right of bondholders and the duty to levy a tax for a sinking fund are not dependent upon the publication of a financial statement and estimate, and they exist although no publication of a financial statement and estimate has been made.
14. Same — Controlling Constitutional and Statutory Provisions.
Sections 26, 27, and 28, art. 10, of the Constitution and sections 4276, 4550, 8571, and 8574, C. O. S. 1921, were adopted and enacted for the primary purpose of dealing with a particular subject, to wit, the making of tax levies for sinking fund purposes. They require tax levies for sinking fund purposes to be made each year. The provisions thereof prevail over the provisions of sections 9695, 9698, 9699, and 9700, C. O. S. 1921, where they are in conflict therewith.
15. Same — Duty of Excise Board to Provide for Sinking Though Municipal Officers Fail to Publish Financial Statement and Estimate.
It is the duty of a county excise board to make appropriations for sinking fund purposes and to compute rates of levy therefor, notwithstanding the failure of municipal officers to cause a financial statement and estimate to be published in the manner provided by law.
Appeal from District Court, Ottawa County; J.J. Smith, Judge.
Action by the Commerce Trust Company, of Kansas City, Mo., against E.D. Morris, County Treasurer of Ottawa County. Judgment for defendant, and plaintiff appeals. Affirmed in part and reversed in part.
Joseph C. Stone, Charles A. Moon, and Francis Stewart, for plaintiff in error.
Perry Porter, Commons Chandler, A.G. Croninger, and Wm. M. Thomas, for defendant in error.
This is an appeal by the plaintiff in error, who hereinafter will be referred to as the protestant, from a judgment of the district court of Ottawa county in favor of the defendant in error, who hereinafter will be referred to as the protestee. The issues involve taxes for Ottawa county and for the city of Miami for the fiscal year commencing July 1, 1926.
This is a companion case to case No. 20042. Bank of Picher v. Morris, Co. Treas., 157 Okla. 122, 11 P.2d 178. They were briefed together. By agreement of the parties the decision in that case is adopted as the decision in this case as to the issues which are the same. In addition thereto we have for consideration in this case protests as to certain funds of the city of Miami.
The protestant contends that the levy for current expense purposes for the city of Miami is excessive and void for a number of reasons, only one of which needs be considered. The publication of the estimate of the city of Miami was in but one issue of a daily newspaper. For that reason the county excise board was without authority of law to make an appropriation and fix a rate of levy for the city for current expense purposes. The levy made for that purpose is void. The trial court was in error in denying the protest as to that item, and its judgment thereon is reversed.
The protestant contends that the sinking fund of the city of Miami is excessive and void by reason of an erroneous application of the proceeds from a municipal water and light plant. This court has held to the contrary in St. Louis-S. F. Ry. Co. v. Andrews, Co. Treas., 137 Okla. 222, 278 P. 617, Pitts, Co. Treas., v. Allen, 138 Okla. 295, 281 P. 126, and subsequent decisions of this court. There was no error in denying the protest as to that item.
The protestant contends that the sinking fund of the city of Miami was excessive by reason of an erroneous computation of the accrual on outstanding funding bonds. It admits that its contention is in conflict with the decision of this court in Payne, Co. Treas., v. Gypsy Oil Co., 129 Okla. 18, 263 P. 138, and it contends that that decision is wrong in its premises and in its conclusion; that it is contrary to former decisions of this court, and that it overlooks well-known and common rules of statutory construction. We cannot agree with those contentions. Under the rule stated in that case there was no error in the denial of the protest as to that item.
The protestant contends that the sinking fund levy for the city of Miami is excessive and void for the reason that there was no legal publication of the financial statement and estimate as required by the provisions of section 9695, C. O. S. 1921. In support of its contention it cites the decision of this court in Pitts, Co. Treas., v. First Nat. Bank of Muskogee, 138 Okla. 284, 281. P. 133. Therein was involved the question of the legality of a levy for sinking fund purposes in which were included certain funding bonds theretofore issued by Muskogee county. In the language of this court therein:
"The question here presented is whether it is incumbent upon a municipality to present to the excise board for its consideration its proposed levy for sinking fund purposes."
This court therein held that it was necessary that that be done. The effect of a failure to publish a financial statement and estimate of needs was not therein presented, considered, or decided. That decision is not an authority on the issue presented at this time.
We have for consideration at this time the question: May an appropriation be made by an excise board for sinking fund purposes and may a rate of levy for sinking fund purposes be fixed by an excise board where there has been no legal publication of the financial statement and estimate? We have heretofore herein held that no appropriation may be made and no rate of levy may be fixed for current expense purposes where a legal publication of the financial statement and estimate has not been made. Is a different rule applicable to the sinking fund?
In St. Louis-S. F. Ry. Co. v. Andrews, supra, this court said that the Legislature can neither take away the right of a city to issue bonds pursuant to constitutional provisions nor relieve a city of the duty imposed upon it to provide for the annual tax therein required when bonds are issued pursuant thereto. To the same effect is the decision of this court in Pitts v. Allen, supra.
The right of bondholders and the duty to levy a tax, as stated therein, are not dependent upon the publication of a financial statement and estimate, and they exist although no publication of a financial statement and estimate has been made.
By the provisions of section 26, art. 10, of the Constitution, a city which incurs an indebtedness, requiring the assent of the voters as provided by that section, "* * * shall, before or at the time of doing so, provide for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof within 25 years from the time of contracting the same." By the provisions of section 27, art. 10, of the Constitution, the same requirement is made. By the provisions of section 28, art. 10, of the Constitution, cities are required to "* * * levy sufficient additional revenue to create a sinking fund to be used, first, for the payment of interest coupons as they fall due; second, for the payment of bonds as they fall due; third, for the payments of such parts of judgments as such municipality may, by law, be required to pay." By the provisions of section 4276, C. O. S. 1921, the proper officers are required to create a sinking fund and there shall be levied annually a sufficient tax therefor for the redemption of bonds. By the provisions of section 4550, C. O. S. 1921, a city council is required to provide for taxes to pay bonds at their maturity and their interest coupons as they respectively become due. By the provisions of section 8571, C. O. S. 1921, it is made the duty of the officers of each city authorized to levy taxes "* * * to make a levy each year for a sinking fund, which shall, with the money already in such fund, be sufficient to pay all the bonded indebtedness of such municipality coming due during the following year; one year's interest on all outstanding bonds of such municipality; * * * and an additional sum equal to one-third of the original amount of all outstanding judgments against the municipality. * * *" By the provisions of section 8574, C. O. S. 1921:
"Such sinking funds shall be used:
"First. For the payment of interest coupons as they fall due.
"Second. For the payment of bonds falling due, if any such there be, and,
"Third. For the payment of judgments against the municipality, if any there be; provided, that when any sinking fund has been used or may hereafter be used to pay judgments as herein provided, that notwithstanding the fact that such judgment or judgments have been paid with such sinking fund, it shall be the duty of the proper officers to make levies to pay such judgments same as if the same had not been paid out of such sinking fund, and when so levied and collected the same shall be turned into the sinking fund out of which such judgment or judgments was paid."
There are similar requirements as to bonds issued by other political subdivisions of the state. By the provisions of section 9699, C. O. S. 1921, the excise board is required to make a levy for sinking fund purposes.
Sections 26, 27, and 28, art. 10, of the Constitution and sections 8571, 8574, 4276, and 4550, C. O. S. 1921, were adopted and enacted for the primary purpose of dealing with a particular subject, to wit, the making of tax levies for sinking fund purposes. They require tax levies for sinking fund purposes to be made each year. The provisions thereof prevail over the provisions of sections 9695, 9698, 9699, and 9700, C. O. S. 1921, where they are in conflict therewith, for the reason that those sections are general and apply to all tax levies. See Hayes v. City of Muskogee, 117 Okla. 158, 245 P. 842.
Under the uniform practice in the issuance of bonds pursuant to the provisions of the Constitution, municipal officers, by resolution, provide for the collection of the annual tax therein required prior to the issuance of the bonds. Without such action such bonds would not be merchantable. The people, by their vote, authorize that action when they authorize the issuance of municipal bonds.
It is the duty of the excise board to make appropriations for sinking fund purposes and to compute rates of levy therefor, notwithstanding the failure of municipal officers to cause a financial statement and estimate to be published in the manner provided by law.
There was no error in denying the protest as to the sinking fund of the city of Miami, and the judgment of the trial court thereon is affirmed.
The cause is remanded to the district court of Ottawa county, with directions to enter judgment in conformity herewith.
RILEY, HEFNER, SWINDALL, and McNEILL, JJ., concur. LESTER, C. J., CLARK, V. C. J., and CULLISON, J., absent. KORNEGAY, J., dissents.
Note. — See under (6) 7 R. C. L. 998. (7) 13 R. C. L. 939. (8) 25 R. C. L. 927; R. C. L. Perm. Supp. p. 5625; R. C. L. Pocket Part, title Statutes, § 177.