
    CHICAGO, R. I. & P. Ry. Co. v. POURRON, Co. Treas.
    No. 16491
    Opinion Filed May 25, 1926.
    1. Townships — Increase of Estímale for Road Drag Expense — Power of County Excise Board.
    The county excise board is without authority ro increase an estimate made by a township for road dr-.-ngging expense, unless the proposed increase be first advertised, as provided by section 9698, C. O. S. 1981.
    
      2. Same — Judgment Sustaining Tax Levy Reversed.
    Reicord examined; held, to he insufficient to support judgment against the plaintiff.
    (■Syllabus by Stephenson, C.)
    Commissioners’ Opinion, Division No. 4.
    Error irom District Court, Grant County; Claude Duval, Judge.
    Action by the C., It. I. &. P.Ry. Co. against G. E. Pclurron, as County Treasurer of Grane County, to recover, alleged illegal taxes. . Judgment for defendant and plaintiff brings error.
    Reversed.
    IV. It. Bleakmore, A. T. Boys, John Barry, and IV. F. Collins, for plaintiff in error.
    George E. Short, Atty. Gen., and V. P. Crowe, Asst. Atty. Gen., folr defendant in error.
   Opinion by

STEPHENSON, C.‘

The Chicago, R. I. & P. Ry. Co. commenced its action against G. E. Pourron, as county treasurer of Grant county, as provided by statute, to recaver alleged illegal taxes levied and collected against the property of the plaintiff. The trial of the cause resulted in judgment for the defendant. The plaintiff had perfected its appeal, and seeks the reversal of the cause on the ground that the judgment, is contrary to the law and the facts.

(Several townships situated in Grant coun-ljt made an estimate df expense lor road dragging, pursuant to section 10203, O. O. S. 1921. The material part of the section reads in the following language:

“For this purpose (road dragging) there shall be expended under the direction of the township board, throtagh the road superintendent, upon the township road system, not more than two mill drag tax herein authorized to be levied.”

The section in question provides that the township (board shall select from its township road system the ro-aids to be dragged. Them follows the provisidn above quoted. The statute does not expressly point cut the bclard which shall make the levy, or designate the machinery which shall be employed to cause the levy to he made and collected. As the statute is silent in this respect, the inference is that) the same machinery should be employed in causing the levy to be made and collected as applies to any other itean of tax levied by the township. The further inference from the statute above quoted is, that it is the duty of the township to make an estimate folr the road draig tax, in the same manner as it makes an estimate for other espetases involved in the township government.

The county excise board of Grant county increased the estimated items made by the several townships for road' drag Lax without first publishing the ndtiee of the proposed increase. It is the contention of the railw ay company1 that the county excise board w-as without authority to make the increase unless it first advertised the proposed action, pursuant to secticln 9698, O. O. S. 192) The section in questiota appears to be applicable to all estimates made by townships. It- does not make any distinction among the several items the township is authorized to levy. The material part elf section 9698,, supra, is:

“The said board shall have power and authority to revise and corre'et any estimate certified to them by either striking items therefrom, * * * or adding items thereto, when in its opinion the needs of the municipality shall require-”

It is the contention o-f the Attorney General that the sentence quoted authorizes 'che county excise board to increase any and till items of the estimate, subject, however, to the sentence which follows rhe quoted part, being in the follclwing language:

“All revisictas 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 any item -added thereto, until sucb pretposed increase or additional item shall have been advertised and published by tlie excise boaffd 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. ”

It is the further contention of the Attorney General tta-ait the phrase “for current expenses” excludes the roaid drag tax. For support of his position che cases of Lusk v. Starkey, 53 Okla. 794, 158, Pac. 918, and St. L. & S. F. Ry. Co. v. Bockoven, 75 Okla. 145, 182 Pac. 507, are cited, which define the road drag tax to be without the current expense of a township. The defendant in er-rdr treats the sentence) last quoted as a proviso to the first sentence, tol sustain the judgment in his favor. The defendant in error (contends that the first sentence quoted applies to all items of the estimate, and that the following sentence quoted,, by the use of the phrase “current expenses,” excludes the rolad drag tax from the provision requiring a proposed increase to be advertised.

.The first sentence, in pointing out the i cetas which may he increased by the excise board, limits the same by the phrase “the needs of the municipality'’. If we follow the contention of the defendant in error in this respect, a roiad drag tax is not a need of the township, as the cases cited define the tax to be exclusive of the current needs. Evidently, the Legislature used the phrase “needs of the municipality,” and the phrase for “current expenses,” with the■>intention that each phrase should encompass the same ground. If we take the view of the defendant in error, that the phrase “.or current expanses” excludes the rcfcvd drag tax, because it is not a current item of expense as being properly chargeable to the township, we, are without machinery for- the levy and collection of the road drag tax. If we exclude the basing machinery generally applicable ro -township levies, than the action < f the township in making , an estimate, or refusing to make an estimate, for a road drag tax, would be final. There would be no provision for supervising the townships in relation to the road drag tax. We think it was the intention of the legislative body that the road drag tax, which the township is authorized to levy, should he levied-' and co-1kicted under the general provision applicable to the levy and collection of all township raxes. Therefore, the county excise board was without authority to increa°se the estimate made by the townships for road drag tax. without first having advertised the proposed increase, as provided by section 9698, supra.

Note. — See under (1) 38 Cyc. p. 564. (2) 4 C. J. p. 1164 § 3181.

The cause is reversed, and remanded for further proceedings in accordance with the views herein expressed.

By the Court: It is so ordered.  