
    EMPIRE PIPE LINE CO. et al. v. EXCISE BOARD OF CARTER COUNTY.
    No. 23475.
    Opinion Filed June 13, 1933.
    Hunt & Eagleton, for plaintiff in error.
    Marvin Shilling-, Co. Atty., and Eugene Jordan, for defendant in error.
   ANDREWS, J.

This is an appeal by the Protestants from a judgment of the Court of Tax Review denying their protest as to certain tax levies for the fiscal year commencing July 1, 1931.

The plaintiffs in error contend that there was error on the part of the Court of Tax Review in denying- tlieir protest as to the general fund of Carter county, in which they assert that a surplus of 39,654.57 was not considered; that there was error in denying their protest as to the county highway fund, in which they assert that there was a surplus of $3,000.98 which was not considered, and that there was error in denying their protest as to the county separate school fund, in which they assert that there was a balance of $1,146.98 which was not considered. The defense to those items by the defendant in error is that those items involve questions of fact and that the judgment of the Court of Tax Review is sustained by the evidence. We have carefully examined the evidence shown by the record in this case, and we find that the judgment of the Court of Tax Review is not sustained by the evidence. In re Bliss et al., 142 Okla. 1, 285 P. 73; In re Protest of Chicago. R. I. & P. Ry. Co., 143 Okla. 217, 289 P. 352; Protest of Missouri-Kansas-Texas Ry. Co., 149 Okla. 166, 300 P. 713; In re St. Louis-S. F. Ry. Co., 151 Okla. 126, 2 P. (2d) 944, and Protest of Bledsoe et al., 161 Okla. 227, 17 P. (2d) 979.

It is evident from the record that the balances claimed by the plaintiffs in error to have been on hand were actually on hand and that they were disregarded. The judgment of the Court of Tax Review on those three items is reversed.

The plaintiffs in error contend that there was error on the part of the Court of Tax Review in denying their protest as to the general fund of independent school district No. 19. The record shows that in computing the rate of levy for that fund an item was included in the computation for estimated income in an amount $1,297.80 in excess of the amount of estimated income received during the preceding year. That amount was in the hands of the county treasurer and had been apportioned to the school district on the 30th day of .Tune. 1931, but it had not been paid to the school district treasurer. Under the provisions of section 12678, O. S. 1931, and the decisions of this court in Protest of Chicago, R. I. & P. Ry. Co., 150 Okla. 167, 1 P. (2d) 383, In re Protest of Chicago, R. I. & P. Ry. Co., 151 Okla. 137, 1 P. (2d) 674, and In re Bliss et al., supra, the amount estimated was excessive. The judgment of the Court of Tax Review on this item is reversed.

The cause is remanded to the Court of Tax Review, with directions to enter judgment in conformity herewith.

It is further ordered that the time for filing a petition for rehearing herein is limited to ten days from this date.

RILEY, C. X, CULLISON, V. O. X, and SWINDALL, McNE'ILL, BAYLESS, BUSBY, and WELCH, JX, concur. OSBORN, J., absent.  