
    PROTEST OF ST. LOUIS-S. F. RY. CO. ST. LOUIS-S. F. RY. CO. v. LEFLORE COUNTY.
    No. 20094.
    Opinion Filed May 6, 1930.
    
      E. T. Miller and Cruce & Franklin, for protestant.
   ANDREWS, J.

This is an appeal'from the judgment of the Court of Tax Review denying the protest of the St. Louis-San Francisco Railway Company against the rate of levy fixed by the excise board of LeFlore county for the sinking fund of the town of Talihina for the fiscal year beginning July 1, 1928.

The cause was submitted on an agreed statement of facts, from which it appears that the rate of levy for sinking fund purposes for the town of Talihina was. fixed at 5.279 mills; that that amount was necessary for the purpose of paying the interest and accumulating a fund for the payment of the principal of an electric light bond issue of $15,000, which matures August 4, 1934; that in 1925 the town of Talihina sold its electric light plant to the McCurtain Light & Power Company under an agreement by which the purchaser assumed and agreed to pay the bonded indebtedness and interest aforesaid' as the same became due and payable; that the purchaser paid the amount required to take care of the interest on the bonds from time to time, but has not paid the principal thereof for the reason that it is not yet due; that the purchaser is solvent, and that it has made no protest against performing its obligation. •

- The protestant contends that under this state of facts the excise hoard should not have made a levy for sinking fund purposes.

This court has heretofore held in Protest of Gulf, Colorado & Santa Fe Railway Co., 141 Okla. 34, 283 Pac. 1003.

“The interest on the notes given to evidence the purchase price of the water and light plant and the remainder of the purchase price when paid must be used, so far as is necessary, to pay the interest on the bonds issued for. that purpose and to retire the principal of those bonds”

—and that under the authority of St. Louis-San Francisco Railway Co. v. Andrews, 137 Okla. 222. 278 Pac. 617, and Pitts v. Allen, 138 Okla. 295, 281 Pac. 126, estimated income cannot be considered in determining the rate of levy for sinking fund purposes.

■The income to be derived from the performance of the condition of the contract of sale involved in this action is nothing more than estimated income and under the authorities above cited may not he considered in determining the rate of levy necessary for sinking fund purposes.

There is nothing in the decision in the case of Sutton v. Kalka, 141 Okla. 233, 285 Pac. 1, contrary to this holding. The income there considered was from a tax levied in lieu of ad valorem taxation.

There is no error in the judgment of the Court of Tax Review, and that judgment is affirmed.

MASON, C. J., LESTER, V. C. J., and CLARK, RILEY, HEFNER, and SWINDALL, JJ., concur. HUNT and CULLISON, JJ., absent.  