Opinion
No. 24490
Opinion Filed June 6, 1933.
(Syllabus.)
1. Taxation — Procedure for Appeal From Court of Tax Review — Notice of Appeal.
Either the protestant or the county may appeal from the final decision of the Court of Tax Review to the Supreme Court of the state, and it shall be sufficient to perfect such appeal if the appellant shall, within ten days after the filing of such decision with the State Auditor, cause to be filed with the State Auditor a statement in writing that appellant does appeal.
2. Same — Time for Perfecting Appeal.
Initiative Petition No. 100 is a law complete unto itself. It provides the method for appeal from judgments of the Court of Tax Review and, together with the rules of this court, it provides the time within which such appeal must be perfected.
3. Same — General Provision of Six Months Time for Appeal not Applicable.
The general provision of six months time in which to appeal from a judgment is not applicable to appeals from judgments of the Court of Tax Review under the provisions of Initiative Petition No. 100.
4. Same — Time for Filing Petition in Error — Dismissal for Noncompliance.
That portion of Initiative Petition No. 100 requiring the party appealing to file in said cause with the Clerk of the Supreme Court a petition in error within ten days after the filing of the transcript on appeal, means within ten days after notice of the filing of the transcript on appeal, and is mandatory, and where the same is not complied with, the appeal will be dismissed by this court upon its attention being called thereto.
Appeal from Court of Tax Review; Porter Newman, Asa E. Walden, and O.C. Wybrant, Judges.
In the matter of the protest of St. Louis-San Francisco Railway Company against illegal and excessive tax levies for the fiscal year beginning July 1, 1931, and ending June 30, 1932, by the County Excise Board of Comanche County. Protest sustained and protestee appeals. Appeal dismissed.
Dwight Malcolm, Co. Atty., Owen Black, City Attorney, and J.F. Thomas, for plaintiff in error.
Cruce Franklin, for defendant in error.
This is an attempted appeal from a judgment of the Court of Tax Review which was rendered on January 26, 1932, the journal entry of which was filed with the State Auditor on August 17, 1932. Notice of appeal was given under date of February 6, 1932. No petition in error has been filed, although notice of the filing of the transcript in this court was duly given under date of March 3, 1933.
The motion to dismiss was filed on March 27, 1933. Although this court has twice granted permission for the filing of a response thereto, no response has been filed.
It is contended in the motion to dismiss that the time for the filing of a notice of appeal should run from the date of the judgment. That contention is in conflict with the provision of section 12310, O. S. 1931, which provides for written notice of appeal to be filed "within ten days after the filing of such decision of the court with the State Auditor." The statute is controlling. We do not consider it necessary to discuss the reasons for the statutory provision. If the filing of the decision of the court with the State Auditor is delayed by one party, there is nothing to prevent the other party from causing it to be filed.
The general provision requiring an appeal to be perfected within six months from the date of the final order appealed from is not applicable under the provisions of Initiative Petition No. 100. That law is complete unto itself. In re Magnolia Petroleum Co., 138 Okla. 205, 280 P. 574. It provides a complete method for appeal and, together with the rules of this court, the time within which such appeal must be perfected.
For the failure of the plaintiff in error to file a petition in error, this appeal must be dismissed under the rule stated in Re Magnolia Petroleum Co., supra; In re Faught's Protest, 143 Okla. 96, 287 P. 997; In re Protest of Frick-Reid Supply Co. et al., 143 Okla. 96, 287 P. 996, and Protest of Chicago, R.I. P. Ry. Co., 146 Okla. 23, 294 P. 169.
The appeal from the judgment of the Court of Tax Review is dismissed.
RILEY, C. J., CULLISON, V. O. J., and SWINDALL, McNEILL, BUSBY, and WELCH, JJ., concur. OSBORN and BAYLESS, JJ., absent.