
    PRINCE, Co. Treas., v. ATCHISON, T. & S. F. RY. CO.
    No. 18457.
    Opinion Filed Oct. 23, 1928.
    
      Roseoe Cox, Co. Atty., and Erwin & Erwin, for plaintiff in error.
    Rainey, Flynn, Green & Anderson and M. M. Gibbens, for defendant in terror.
   MASON, Y. C. J.

This cause was commenced in the district court of Lincoln county by the defendant in error railway company, on January 23, 1926, and involves the payment of taxes for the first half of the fiscal year beginning July 1, 1925, and ’ending June 30, 1926, which were paid by said railway company to the plaintiff in error, Paul Prince, as county treasurer of Lincoln county.

The petition contained ten different causes of action, all of which, except the first, were settled by stipulation of the parties and judgment rendered thereon in the trial court, from which no appeal has been taken.

The first cause of action is based on the alleged invalidity of 1.5 mills for th'e county highway fund in excess of the 4 mills allowed by law for current expenses. Trial was had on January 25, 1927. The record discloses that the parties stipulated as follows :

“Mr. Gibbens (attorney for plaintiff railway company) : It is agrteed by and between the parties to this action, that the total assessed valuation of all taxable property in Lincoln county, for the year 1925, was $27,400,000, and that the total assessed ■valuation for the property of the plaintiff in said county for said year was $1,930,-317. That no special eleotion was held for the purpose of increasing the levy for current county expense above the statutory limit of 4 mills. That the county 'excise board of said county, for said year, made a levy for general fund purposes of 7.4446 mills.
“Mr. Erwin (attorney for defendant treasurer) : Let’s do not stipulate as to the last, unless! you are going to set out the different items here.
“Mr. Gibbens: Which includes a levy for current expenses of 4 mills; for free fairs of .3667| mills; for treatment of tuberculosis patients of .0579 mills; separate schools 1.52 mills; county highway 1.5 mills.”

Plaintiff then offered in evidence a portion of the final statement and estimate for said year. It was further stipulated that the plaintiff paid its taxes in accordance with the provisions of the statutes and that it gave due. notice of protest, as provided by statute, and that summons was duly served upon the defendant within proper and legal time. Plaintiff then rested its case and the defendant’s demurrer to the plaintiff’s evid'ence was overruled. Defendant offered no evid'ence, and the court rendered judgment for the plaintiff for $1,447.74, this being the amount of the first half of the alleged excessive taxes for said year, paid by the plaintiff under the levy of 1.5 mills made for county highway fund.

Defendant filed motion for new trial on the next day, January 26, 1927. which was overruled on February 17, 1927, at which time, the court granted, the defendant an extension of 90 days from said date to make and serve case-made. The case-made was served April 28, 1927, and the petition in error with the ease-made attached was filed in this court on June 23, 1927.

At the outset, we are met by a motion of the railway company to dismiss th'e appeal. Counsel contend that the cause was tried on a stipulation of facts dictated into the record, and that, inasmuch as the only question raised in the lower court and on appeal is a question of law, a motion for n'ew trial was unnecessary, and the filing thereof and the ruling thereon by the trial court did not extend the time for the service of the case-made upon the plaintiff company and that the time expired, under provisions of section 785, C. O. S. 1921, on February 9, 1927.

It se'ems to be tbe contention of counsel that tbe portion of tbe final statement introduced. in evidence was a part of tbe agreed statement of facts. Tbe record dotes not support sucb contention. In addition to this, tbe clerk’s minutes and tbe journal entry of tbe judgment of tbe trial court, wbicb was approved by counstel for tbe railway company, disclose that evidence was introduced by tbe plaintiff.

Tbe rule is well established that, when any evidence at all is offered in addition to tbe agreed statement of facts, a motion for new trial is necessary. Jones v. Fearnow, 47 Okla. 586, 149 Pac. 1138; Garland v. Union Trust Co., 49 Okla. 654, 154 Pac. 676. Therefore, tbe motion of tbe defendant in error to dismiss tbe appeal is denied.

For reversal, plaintiff in error contends that the trial court erred in not sustaining bis demurrer to the evidence of tbe railway company and in not rendering) tbe judgment in bis favor.

Tbe question involved herein has been before this court in two recent castes wherein it was held that, under tbe provisions of chapter 48, Session Laws 1923-24, it was not necessary that tbe levy for county highway fund purposes should be included within tbe statutory limit of 4 mills for current expenses, but that a levy for sucb purpose was valid even though made in addition to tbe statutory limit so long as it was within tbe constitutional limit of 8 mills. Franklin v. Ryan, 125 Okla. 161, 256 Pac. 932; St. L.-S. F. Ry. Co. v. Bailey, 125 Okla. 183, 257 Pac. 784.

It is insisted, however, that chapter 48, Session Laws 1923-24, is unconstitutional and for that reason the rule announced in tbe cases just cited cannot stand.

Counsel then cite tbe last portion of section 23 of chapter 48, supra, as follows:

‘•Provided, that in all places in any of tbe Compiled Oklahoma Statutes, 1921, or tbe Session Laws of 1923, providing for tbe construction and maintainance of tbe roads and bridges, of tbe state, where the words ‘state road’ or ‘state highways’ are used, the same shall be construed to mean ‘county roads’ or ‘county highways.’ ”

Oases are then cited wbicb support tbe rule that tbe Legislature has no authority to construe or interpret tbe laws of the state and that tbe attempt of tbe Legislature to usurp tbe powers of the courts in this re-pect is unconstitutional.

An examination of Franklin v Ryan, supra, discloses that this section of chapter 48, Session Laws of 1923-24, was not before tbe court, and was not considered in that opinion, but that tbe opinion was based solely upon section 8 of said act. Tbe contention is, therefore, without merit. In addition to that, tbe record does not disclose that this question was presented in tbe trial court, and this court is committed to the rule that tbe constitutionality of a statute cannot be raised for tbe first time on appeal in this court. Fast v. Gilbert, 102 Okla. 245, 229 Pac. 275.

Following tbe rule announced in Franklin v. Ryan, supra, tbe judgment of tbe. trial court is reversed, and tbe case is remanded, with directions to render judgment for tbe defendant.

BRANSON, C. J., and LESTER, HUNT, OLARK, and HEFNER, JJ., concur.  