Bonaparte v. Nelson

1929 OK 385, 285 P. 100, 142 Okla. 54, 1929 Okla. LEXIS 41

• Court: Supreme Court of Oklahoma
• Decided: October 1, 1929
• Docket: 20068
• Status: Published

Opinions

SWINDALL, J.

This action comes to this court on appeal from the district court of Oklahoma county, wherein George P. Nelson, as plaintiff, commenced an action against E, B. Bonaparte, county treasurer of Oklahoma county, Okla., as defendant, to recover certain taxes paid by him under protest for the fiscal year ending June 30, 1928, and which he claims were illegally levied.

Briefly stated, the defendant in error contends that the tax is illegal upon five distinct and separate grounds, namely: (1) That the financial statement and estimate of needs was not published as is by law required ; (2) that the financial statement and estimate of needs was not certified to the excise board as is by law required; (31 the minutes and records of the purported action of the excise board was never authenticated or certified to: (4) that the financial statement and estimate of needs was not properly signed or certified by the members of the exci.se hoard; (5) the levies as purported to have been made by the excise board were never certified to the officer whose duty it is io make up the tax roll. Defendant in error contends that all five of these omissions were established by positive facts at the trial.

The plaintiff in error contends that the defendant in error wholly failed to sustain the allegations of ids petition and amendment thereto by a preponderance of the evidence.

The issue for us to determine is whether or not the ad valorem tax questioned in this action was levied in substantial compliance with the laws of this state.

By section 9694, C. O. S. 1921, there is created in each and every county in this state an excise board to be composed of the county clerk, county attorney, county treasurer, county judge, county superintendent of public instruction, county assessor, and one member of the board of county commissioners to be designated by said board, “which shall perform duties as hereinafter provided without additional compensation.’’ The county judge shall be chairman and the county clerk secretary of said board.

Under section 9695, C. O. S. 1921, “each board of county commissioners, the mayor and council of each city, or the officers exercising like power in any city having a charter form of government, the board of trustees of each incorporated town, the directors of each township, and the board of education of each independent school district, shall meet on the first Monday in July of each year, and the directors of each school district shall meet on the second Tuesday in July of each year, and shall respectively make in writing a financial statement showing the true .fiscal condition of their respective municipalities as of the close of the previous year, and an itemized statement of estimated needs and probable income from sources other than ad valorem tax of each thereof for current expense for the current fiscal year. The financial statement shall be supported by schedules or exhibits showing by classes the amount of all receipts and disbursements, and shall be sworn to as being true and correct. The statement of estimated needs shall be itemized so as to' show by classes: (1) The several amounts necessary for the current expense of the municipality, and each officer and department thereof; (2) the amount required by law to he provided for sinking fund purposes : (3) the probable income that will he received from all sources other than ad va-lorem taxes, and shall be detailed in form and amount so as to disclose the several items for which the excise board is authorized and required in section 5 hereof to approve estimates and make appropriations. Each financial statement and estimate for county, city, incorporated town, township and hoard of education, as prepared in accordance with the provisions of this section shall be published in some newspaper published in said municipality, in one issue, if published in a weekly newspaper, and in two consecutive issues if published in c aily; and if there be no paper published in each county, city, incorporated town or township, then a copy of such statement and estimate shall be posted in at least five public I laces therein, which posting shall be made in each instance within five days after the meeting of said municipal board; said publication or posting shall be made in each instance by the board or authority making the estimate. Said estimate so made out and published as aforesaid shall, as soon as completed, be certified to the excise board of the county together with an affidavit attached shewing the publication or posting thereof as required by this act. The estimates and statements provided for in section 4 shall also at the same time be transmitted to the excise board.”

The section 4 referred to herein is the same as section 9697, O. O. S. 1921, and provides that “each officer, board or commission of any county, city, township and school district or town, and all employees charged with the management or control of any department or institution or either thereof, shall on or before the first Monday in July of each year, make and file with the board or commission charged with the duty ot reporting to the excise board, a report in writing showing by classes the earnings and cost of maintaining their respective o fices or departments for the previous .fiscal year, together with an itemized statement and estimate of the probable needs thereof for the current or ensuing fiscal year. Provided, that the report relative to the construction and repair of bridges shall be made bj county commissioners and county surve; conjointly, and shall be itemized so a show the location of each proposed bridge, and estimated cost thereof, and vided, further, that the report relativ the probable needs of the courts of re shall be made by the court clerk and county attorney conjointly, and shall be itemized so as to show separately the respective n of each court.” the yors s to new pro-e to cord eeds

Section 9698, C. O. S. 1921, requires excise board to meet at the county seat on the last Saturday of July, and authorizes said board to adjourn from day to day and time to t'me for the purpose of examining the financial statements for the previous fiscal year as submitted by the county and the several cities, towns, townships and school districts, and ascertaining the true financial the condition of each thereof at the close of such year; and for the further purpose of examining the statements of estimated needs for current expense purposes for the current year as certified by each of said municipalities ; and determining the items and amounts for which appropriations shall be made for such year, detailed as to each officer, board or department. The said board shall have power and authority to revise and correct any estimate certified to them by either striking items therefrom, increasing or decreasing items thereof, or adding items thereto, when in its opinion the needs of the municipality shall require. All revisions and corrections shall be as to specific items of the estimate, and in no event shall any item or items of the estimate for current expense purposes be increased or new items added thereto, unless such proposed increase or additional item shall have been advertised and published by the excise board in some newspaper of general circulation in the county, in one issue, if published in a weekly paper, and two consecutive issues, if published in a daily paper. The cost of any such publication shall be paid by the municipality. When the excise hoard shall have examined, revised and adjusted the items of the respective estimates of the several municipalities, and shall have ascertained in. separate items the-needs of each, if the sanie shall be within the limits for current expenses as provided by law, they shall approve the said items and appropriate the respective amounts thereof for the purposes so found to be necessary. The appropriations made for the use of each separate office, board, commission, or department of the several municipalities shall be stated in separate items, and no appropriation shall be available for the use of more than one office, board, commission or department.

Section 9699, C. O. S. 1921, provides that “when the excise board shall have ascertained the total assessed valuation of the property taxed ad valorem in tne county and in each municipal subdivision thereof and shall have computed the total of the several items 'of appropriations for current expense and sinking fund purposes for the county and each municipal subdivision thereof with ten per cent, added thereto for delinquent tax, they shall thereupon make the levies therefor, after deducting from the total so computed the amount of any surplus balance of revenue or levy, ascertained to be on hand from the previous fiscal, year or years, together with the amount of the probable income of each from all sources other than ad valorem taxation, provided, that in no event shall the amount of such estimated income exceed the actual collections from such source for the previous fiscal year. The rates of levy for current expense purposes and sinking fund purposes shall be separately made and stated and the revenue accruing therefrom shall be known as the general fund and sinking fund, respectively; and shall, when so made, be certified to the officer whose duty it is to make up the tax rolls. The secretary of the excise board shall immediately certify the appropriation so made by the excise board to the clerk or other issuing officer of the municipality for which the same is made. The several items of the estimate as made and approved by the excise board for each fiscal year shall constitute and are hereby declared to be an appropriation of funds for the several and specific purposes named in such estimate, and the ai>propriation thus made shall not be used for any other fiscal year or purpose whatsoever. Each clerk or other issuing officer shall open and keep an account with the amount of each item of appropriation showing the purpose for which the same is appropriated and the date, number and amount of each warrant drawn thereon. No warrant or certificate of indebtedness in any form, shall be issued, approved, signed, attested or registered on or against any appropriation for a purpose other than for which the said appropriation was made, or in excess of the amount thereof.”

We feel that the sections and portions of the sections of the statutes above mentioned are sufficient, for the purposes of this case.

The excise boards of the several counties of this state are composed of the county officials named in section 9694; the county judges and county clerks being chairman and secretary, respectively, of said boards. These boards act as a body and not individually, and their proceedings are disclosed by the minutes and resolutions kept by the secretary of the board. There is no special form authorized and provided for by law for keeping the minutes, resolutions, and proceedings of the county excise boards. The excise boards, like municipal boards and other public officers, are presumed to discharge tlie duties which the law imposes upon them, and the same is true relative to the board of county commissioners and the school district boards and other municipal bodies that are required by law to make financial statements and estimates of needs and that are required to publish the same. and in the absence of proof it will be presumed that the officers upo* whom acts and duties are enjoined by law performed those dut.es. This presumption continues in favor of the acts of such officers until it is affirmatively shown by competent evidence to the contrary. Hicks v. Sanders, County Treasurer, 132 Okla. 242, 269 Pac. 297; Southern Surety Co. v. Waits, 45 Okla. 513, 146 Pac. 431; Southwestern Surety Ins. Co. v. Davis, 53 Okla. 332, 156 Pac. 213; Board of County Com’rs of Garfield County v. Field, 63 Okla. 80, 162 Pac. 733; Garrett v. State, 113 Okla. 63, 238 Pac. 846; Williamson-Halsell-Frazier Co. v. State, 68 Okla. 40, 171 Pac. 453.

There is no dispute that the various boards that were required to make in writing financial statements showing the true financial conditions of their respective municipality as of the close of the previous year, and that an itemized statement of estimated needs and probable income from sources other than ad valorem taxes, met as required by law, and made said statements supported by schedules or exhibits, as required by law, but it is contended that it is not shown that the statements were published as required by law. The presumption of law is that the same were published, and the burden was on the plaintiff to show that this requirement of the law was not met, and this the plaintiff failed to do.

It is next contended that the financial statement and estimate of needs was not certified to the excise board as required by law. An examination of the record discloses that the same was properly certified. The third contention of plaintiff, defendant in error, is that the minutes and records of the purported action of the excise board were never authenticated or certified to. We cannot agree with this contention. The law makes the county clerk the .secretary of the excise board, and the county clerk certified to the record and proceedings in substantial compliance with the statutes. The law provides that the secretary of the excise board shall immediately certify the appropriation so made by the excise board to the clerk or other issuing officer of the municipality for which the same is made.

It seems to be the contention of plaintiff, defendant in error, that ail members of the excise hoard shall sign the certifícale showing the proceedings of the meeting, for llio reason that the State Examiner and Inspector prepared forms with a certificate to lie signed by all snch members: however, the statute does not require that all menibers of the excise board sign the minutes or certificate. Hence, when the records show that the meeting was held, and how the members voted and that the levies were voted and were within the constitutional and statutory limit and the clerk ordered to certify the same and the clerk does so, and proper minutes of the meeting are kejt or such note or memorandum is compiled by the secretary in accordance with the find :ngs, vote, and directions of the county excise board, then the law is substantially implied with. The objects of the statute are to require the county commissioners and the officers of cities, towns, townships, and school districts to make financial statements of the needs of thfc, respective bodies and to publish the same, showing to the taxpayers the necessity for making ad valorem tax levies and the amount necessary to be rsised in requiring the excise board to make le vies in accordance with the estimates.

The precise question relative to the keep ing of the minutes of the county excise board does not appear to have ever been before this court for determination, but has been decided in accordance with the v: ews herein'expressed by other courts of last resort having similar statutes on the sutject under consideration. Becker v. Malheur Co. (Ore.) 33 Pac. 543; Vaughn v. School District (Ore.) 39 Pac. 393; The People of the State, etc., v. Eureka Lake and Yuba Canal Co. et al., 48 Cal. 143; Kansas City, F. S. & G. R. Co. v. John Tontz, Treasurer, 29 Kan. 360; Boyce v. Auditor General (Mich.) 51 N. W. 457; Beirl v. Columbia County et al. (Ore.) 144 Pac. 457.

Eor the reasons herein stated, we hold that the objections to the financial statement and estimate of needs not having been properly signed by the members of the excise board, and that the excise board never certified to the county assessor the levies as purported to have been made, and never authenticated the minutes and records of the action of the excise board and never properly certified the financial statement and estimate of needs, are not well taken

We further hold that the trial court erred in ruling, finding, and holding that it was necessary for the individual members of the excise board to certify and sign the financial statement and estimate of needs, or to sign the certificate certifying the levies to the county assessor. The county clerk, as secretary of the excise board, keeps the minutes. records, and proceedings of the hoard. and may certify to the same. The minutes of the meetings of the excise board should be signed by the county judge as chairman and properly attested by the county clerk as secretary; however, if this is overlooked, then the genuineness and correctness of the minutes, resolutions, records, and proceedings may be established by the testimony of the clerk or members of the board who were present and can testify as to what was actually done. We think it advisable for the county excise boards to follow the forms prescribed by the State Examiner and Inspector and all members sign the same as a matter of identifying the record and refreshing the memory of the members of the board as to who was present and the dates of the meetings of the board, should future occasion ever demand, but this is not required by the statutes of this state and we will not hold the tax levy illegal because that course is not followed where the 'law does not require it to be done.

We agree with counsel for plaintiff, defendant in error, that the financial statement and estimate of needs must be published substantially in compliance with the laws of this state requiring the same to be fiublished, and if as a matter of fact the same was not published, then the levy would be illegal and void; but the burden was upon' the plaintiff, defendant in error, to establish as an affirmative fact that the financial statement and estimate of needs was not published. The mere fact that the publishers’ affidavit was not attached to the financial statement and estimate of needs that was offered in evidence does not show or tend to show that the estimate so made out was not published and certified to the excise board of the county and that the affidavit showing the publication thereof was not attached to the printed copy. The law presumes that the excise board were in possession of the proof of the publication of the financial statement and estimate of needs when they made the levies, for the reason that the law requires the estimate and financial statement to be publisied and to be certified to them, and the presumption of law is that the commissioners performed their duty and certified and published the financial statement and estimate of needs as by law required, it being one of their official duties to do so. The evidence shows that the original was properly prepared, and the photostatie copy disclosed by the case-made at pages 164-179 is! in the usual form retained by the county clerk, and the cleric testified that said financial statément and estimate oí needs, marked “Exhibit E,” being the one above mentioned, reflects the truth, and this evidence was not denied. It is claimed, however, that it was not signed by some of the members of the excise board until in the spring following the levy. The law was complied with when these officers performed their duties, and the fact that the clerk may have overlooked some purely ministerial duty in keeping his records will not defeat the tax levy.

The deputy court clerk, who was also deputy secretary of the county excise board by virtue of his office, was called as a witness and could have been interrogated concerning the publication of the financial statement and estimate of needs, and if the same had not been published and proof of publi-1 cation was not on file in his office, this fact could have been determined by asking him the question, “Was the financial statement and estimate of needs published in a weekly or daily newspaper of general circulation in Oklahoma county?” If his answer had been in the negative, then the tax levy would have been illegal and void, but if in the affirmative, then the levy, in so far as the publication was required, would have been legal.

Proof of publication or failure to publish could have been easily established. Counsel for plaintiff, defendant in error, knew that this court had repeatedly held that public officers were presumed to perform their duty, and also knew that, one of the duties of the excise board was to publish the financial statement and estimate of needs, and likewise knew that the presumption of law was that the same had been published as required by law and that all the necessary proceedings and steps relative to the making and publishing of the financial statement and estimate of needs and relative to the levy of the tax required by the several officers to be made, were presumed to have been performed as by law required, and that this court had i-epeatedlv held that it would indulge in the presumption that public officers had performed their duty until the contrary was established by evidence, and the defendant in error, plaintiff in the trial court, having failed to offer proof to establish the contrary, failed to sustain the material allegation of his petition, and the trial court erred in rendering .-judgment ⅛ favor of the plaintiff. defendant in error.

This court has never held that a tax levy will be sustained as valid unless it was levied in substantial compliance with the sfatutes. in order that the taxpayer may know for what purpose and the amount of the tax being levied and that it is necessary to sustain the needs of the county and the subdivisions thereof and that it comes within the constitutional and statutory limits, and that the taxpayers’ property may not be sacrificed and his rights injuriously affected. On the other hand, where the levy is made in substantial compliance with law, it should be sustained; otherwise the state and county government could not exist and our school system would crumble.

It takes revenue to maintain the state government and the subdivisions thereof, and where the tax is illegal or excessive, then the same should be so held, but where it is just and comes within the constitutional and statutory limits, it should be sustained, and no tax should be held invalid upon mere technical grounds, and where it appears to this court that all the provisions of law relative to making the levy have been substantially complied with', we will hold the levy valid.

For the reasons herein expressed, the judgment of t’ho district court of Oklahoma county is hereby in all things reversed, and said cause is hereby remanded to the district court of Oklahoma county, Okla., with directions to vacate the judgment in this cause and to enter judgment in favor of the defendant, plaintiff in error, and against plaintiff, defendant in error, denying the prayer of plaintiff’s petition at the cost of said plaintiff, and releasing the tax held by the defendant and ordering the same distributed, and to take such other action and proceedings herein as may be consistent with this opinion.

LESTER, Y. O. J., and HUNT, RILEY, CULLISON, and ANDREWS, J.J., concur. CLARK, J., dissents. MASON, C. X, and HEFNER, J., absent and not participating.