
    FEARNSIDE, County Treas., v. LINDHARD.
    No. 20185.
    Opinion Filed Jan. 27, 1931.
    Broaddus & Ambrister and S. II. Latti-more, for plaintiff in error.
    Stone, Moon & Stewart, for defendant in error.
   ANDREWS, J. W.

L. Lindhard, the defendant in error, who will he hereinafter referred to as plaintiff, instituted this proceeding in the district court of Muskogee county against the plaintiff in error, who will be hereinafter referred to as defendant, to recover money paid under protest under certain tax levies for the fiscal year commencing July 1, 1927. The case was tried to the court without a jury, and the court rendered judgment in favor of the plaintiff on the fourth cause of action. The defendant brought the cause to this court on appeal.

There is herein presented the validity of a cemetery! levy made under the provisions of chapter 8, S. L. 1927, a library levy made under the provisions of chapter 7, S. L. 1927, and a city park levy. The trial court sustained the contention of the plaintiff as to the cemetery levy and library! levy and denied the contention of the plaintiff as to the city park levy.

The parties herein have stipulated that the issues in this cause shall be submitted to this court for its consideration on the briefs filed in this court in the case of J. R. Jones, County Treasurer of Okmulgee County, v. Chas. Blaine, No. 20026, 149 Okla. 153, 300 Pac. 369.

Under the decision of this court in that case, this d'ayi decided, the cemetery levy was void. The judgment of the trial court as to that levy is affirmed. Under that decision the library levy is valid. The judgment of the trial court as to that levy is reversed. The question of the levy for the city park was not presented in that ease, and, not having 'been briefed, the judgment of the trial court as to that levy is affirmed.

The cause is remanded to the district court of Muskogee county, with directions to render judgment in conformity herewith.

RILEY, HEFNER, CULLISON, SWIN-DALL, and McNEILL, JJ., concur. LESTER, C. J., and LANGLEY, J., absent. CLARK, V. C. J., dissents as to cemetery levy.  