
    RYAN, Co. Treas., v. BASS FURN. CO.
    No. 15942
    Opinion Filed July 14, 1925.
    Rehearing Denied Sept. 8, 1925.
    (Syllabus.)
    Counties — Invalidity of Excess Tax Levy Due to Overestimate of Liabilities.
    The county invested certain of its sinking ..unds in county warrants, and when it made Its financial statement to the excise board jsi, included said investment as an asset, but in its report of its liabilities charged said investment of such fund to the sinking fupd account. Held, that in charging said investment against such fund as a liability it was without warrant or authority of law, and by so doing it caused an arbitrary increase of levy for the current year and the plaintiff is entitled to recover the excess levy caused thereby.
    x/rror from District Court, Oklahoma County; Wm. H. Zwick, Judge.
    action by the Bass Furniture Company against M. S. Ryan, Treasurer of Oklahoma County. Judgment for plaintiff, and aeiendant brings error.
    Affirmed.
    K. Wright, Co. Atty., and John Howaru Payne, Asst. Co. Atty., for plaintiff in error.
    Adelbert Brown, for defendant in error.
   juSSTER, J.

The parties will be referred to as they appeared in the court below. Plaintiff brought suit for the recovery of certain tax paid under protest. The issues in the court below were determined in favor of plaintiff, and the defeadant prosecutes this appeal to reverse the judgment rendered in the district court adverse to the defendant. The issues presented for review arose out of the financial statement made by Oklahoma county for the fiscal year ending June 30, 1923, relating to the sinking fund account, said statement being as follows:

Assets
Cash on hand June 30. 1923, county sinking fund ___________________$211,460.56
Investments, bonds and warrants ______________________________ 75,759.36
Taxes 1922, in process of collection--------------$ 22,265.93
Less 10 per cent reserved for delinquencies __________ 15,880.03
Net taxes available ---------$ 6,385.90 6,385.90
Total assets ----------------$293,605,90
Liabilities
Coupons matured and outstanding ---------------$ 4,995.00 (Warrants outstanding, excess investment county warrants 75,759.36 Reserves:
Accrued liability on 'bonds— 182,726.38
Appropriations_______________ 27,275.89
Total liability and reserves------------290,756.63
Surplus assets over liabilities and reserves ------------------------ __ 2,849.19

Plaintiff claimed that the sum of $75,-759.36, belonging to the sinking fund, which was invested in county warrants, should be treated as an asset only, and that when the county undertook to list the same as a liability and the said item was deducted as a liability, it thereby caused an arbitrary increase of the ad valorem tax levy for the current year and that the same was an illegal levy and compelled the plaintiff to pay .52 mills and an illegal tax off $154.12. The defendant claims that the investment of said amount in county warrants was unauthorized, and that while it was listed as an asset, it should also be listed as a liability. The trial court fouud this issue against the defendant and rendered judgment in favor of the plaintiff for the sum of $154.12. Section 9699, Comp. Stat. 1921, reads in part as follows:

“When the excise board shall have ascertained the total assessed valuation of the property taxed ad valorem in the 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 lor delinquent tax, they shall thereupon make the levies therefor, after deducting from the total so computed the amount of any surplus balance or revenue or levy, ascertained to be on hand from the previous fiscal year or years, t( gether with the amount of the probable income of each from all sources other than ad valorem taxation, provided, that in no event shall tbe amount of such estimated income exceed the actual colleetic ns from such source for the previous fiscal year. * * * ”

It is apparent that if the excise board considered a liability of $75,759.36, Which did not in fact represent an obligation of or charge against said fund, the surplus was understated to this extent, and if the surplus was understated, the net amount to be raised by ad valorem taxation was in excess of tbe actual requirement for said fund to the extent of $75,759.36.

“Any tax levied in excess of that required by the estimates of the township or school district officers for a fiscal year is illegal and void.” Frisco v. Haworth, 48 Okla. 132, 149 Pac. 1086; Frisco v. Thompson, 35 Okla. 138, 128 Pac. 685; Frisco v. Amend, 44 Okla. 602, 145 Pac. 1117; Frisco v. Tate, 35 Okla. 563, 130 Pac. 941; Frisco v. Lindsey, 42 Okla. 198, 140 Pac. 1158: El Reno Wholesale Gro. Co. v. Taylor, 87 Okla. 140, 209 Pac. 749; McGee v. School Dist., 82 Okla. 18, 198 Pac. 61.

There is no authority of law permitting the county to list the amount invested out of the sinking fund in county warrants as a liability. While the investment in county warrants may not have been authorized, yet it is not shown that such investment has resulted in a loss to the county- The amount represented as an investment in county warrants was derived from the taxpaying public in order to create a sinking fund, and it should not again be .charged against it as a liability, unless, perhaps, thereafter, if the same resulted in, a loss to the sinking fund, it might then be deducted from its assets. The officers of government charged with the duty of estimating tax levies should rigidly follow the constitutional and statutory provisions relating thereto, and should refrain from any ingenious device to impose heavier burdens upon the taxpayer, other than that permitted by the plain expression of the Oonstitution and laws of the state. The judgment is affirmed.

Note. — See under (1) 37 Oye. p. 638 (1926 Anno).

NICHOLSON, O. J'„ and (HARRISON!, MASON, PHELPSl, HUNT, dLARK. ,and RILEY, JJ., concur.  