State Ex Rel. City of Okmulgee v. Moroney

McNEILL, J. This is an appeal from the judgment of the district court of Okmulgee county, state of Oklahoma, rendered on the 1st day of October, 1931, in favor of the excise board of said county against the city of Okmulgee on plaintiff’s petition for a writ of mandamus to require said excise board to approve its financial statement and budget of estimated needs for current expenses and library purposes for the city of Ok-mulgee for the fiscal year commencing July 1, 1931, and ending June 30, 1932. Plaintiff is a city of the first class operating under a freeholder’s charter, and through the commissioners of said city prepared a financial statement and budget of the estimated needs for the fiscal year aforesaid and filed the same as provided by law with the county clerk of Okmulgee county as the secretary of the county excise board of said county. Thereafter said financial statement and budget of estimated needs for said fiscal year was returned by the county excise board of said county with the request that the same be revised and reduced. The commissioners of said city in an endeavor to conform therewith revised and reduced the same, and, after the same had been revised, it was filed on or about August 24, 1931, with said county clerk as the secretary of said county excise board, which board reduced the same over the objections of said plaintiff. Plaintiff contends that the excise board is without right or authority to make such a reduction, when such estimate comes within the constitutional and statutory limitations, and that the action of said excise board discharges employees of said city and prevents the expenditure of items of expense which are needed and necessary for the needs and proper conduct of the -affairs of said city. The defendants allege in their answer: “That the state of Oklahoma has by law placed upon them the final duty and responsibility to the citizens of the state, resident or owning property in Okmulgee county, to see that the burden of taxation for all governmental functions of said county and the municipal subdivisions thereof is legally and equitably placed, and that in the discharge of said duty it is not only their, privilege, but their obligation! to see that all restrictions of law, and of expedience within the law, are observed in estimating the needs, and the receipts, and fixing the limit *201 of the tax levy for said county and the several municipal subdivisions therein.” The trial court rendered judgment against plaintiff denying its application for a writ of mandamus and dismissed plaintiff’s petition. Plaintiff has appealed from said judgment. An examination of the record shows that the city commissioners asked for 79 different items in the budget and that the excise board eliminated five items and reduced 41 of the other' items; that the said city commissioners asked for the fiscal year ending June SO, 1932, for the sum of $182,500, which was $55,264.30 less than that approved for the fiscal year ending June 30, 1931. On August 29, 1931, the excise board approved the sum of $135,735.61, thereby reducing the estimate which the city commissioners had asked for in the sum of $46,-764.50. The revised estimate was $100,-028.80, less than the amount levied for the fiscal year ending June 30, 1931. The following are items excluded by the excise board. VI Engineer & St. Dept. 2, Spec, services_$ 324.00 VIII Police Dept. 3, Office Supplies_ 200.00 IX Eire Dept. 7, Equipm’t & Apparatus_ 2425.00 X ¡Sanitary Dept. 2, Special Services_ 182.00 XIII Water Dept. 14 New Automobiles _ 600.00 The following are items which the excise board reduced. Plaintiff contends that said •board had no authority to reduce these items. Amt. Reduced I Governing Board 1. Salaries etc. _$ 7,050.00 VI Engin. & St. Dept. 8, Street Light __ 4,000.00 VIIIPolice Dept. 1, Salaries _ 6,080.00 IXEire Dept. 1, Salaries _16,212.00 XSanitary Dept. 1, Salaries _ 1,000.00 XIII Water Department 1, Salaries_ 2,880.00 Separate Eunds B Street Paving & Repair, Total _ 1,581.97 D Library Elmd, Total, incld. salaries_ 2,820.00 This case presents to this court a clear cut proposition of law in reference to the right and authority of the excise board to revise and reduce the budget and estimate of the plaintiff. No question of the lack of good faith or officious intermeddling enters into the controversy herein. The excise board was endeavoring to exercise what it considered its duty, right, and authority for a commendable purpose to lighten the burden of taxation upon those who are called upon to assume these pecuniary obligations, which now under depressed conditions are readily apparent to the taxpaying public. Counsel for plaintiff set forth several assignments of error, but concisely states his contentions, in his brief, as follows: “The only question for consideration here is whether or not the county excise board of Okmulgee county is authorized under section 9698, C. O. S. 1921, to revise and correct the budget or estimated needs of the city of Okmulgee for all necessary purposes for the fiscal year ending June 30, 1932, as prepared by the city of Okmulgee, by either striking items therefrom, increasing, or decreasing items thereof, or adding items thereto — that is, can the excise board discharge employees of the city of Okmulgee, by refusing to approve the amount of salary fixed by the city commissioners, or to lower the amount asked for salaries of employees and fixed as provided by the .terms of the city charter of Okmulgee?” Many cases have ¡been cited in the briefs filed in this ease in support of the contentions raised on the question at issue. It seems unnecessary to comment on these various cases. The former county excise board was created in 191)7 (Laws 1917, ch. 2Í26), and the present county excise board was created by the 13th Legislature, the act being passed on the 21st day of March, 1917, and is found in section 2, ch. 66, art. 2, p. 265, Session Laws 1981, the duties of which are set forth in section 3 of said act which reads as follows: “The board of equalization and excise board for each county in the state, created and appointed as hereinbefore provided, shall succeed to and exercise all the duties, powers, and authority now vested in the board of equalization and excise board of each county, under existing laws. * * *” The present board differs from the former board only in the number and manner of the selection of its members. The Legislature, in view of the various decisions of our court interpreting the legislative enactment of the creation! of said excise board by the Act of 1917, did not see fit to change, alter, or modify any of the duties, powers, and authority which were heretofore vested in the board of equalization and the excise board of each county. This is pointedly significant in determining the issues involved in the instant case. We must assume that the Legislature in 1931 had full knowledge of its former acts, and was cognizant of the decisions of this court on the precise question of whether the county excise board had authority to revise and correct a budget or estimate of the probable needs of a city for necessary municipal purposes for the ensuing year as prepared by a city. This question was before the court in the case of Bodine v. City of Oklahoma City, 79 Okla. 106, 187 P. 209. The opinion was rendered on the 17th day of December, 1919, by Mr. Justice Higgins and was concurred in by all the Justices of said court. In that case the city had prepared a tax *202 budget and filed the same with the proper county officers, as provided for by its charter. The' county excise board claimed to have authority to revise and correct said budget by either altering, changing, increasing, decreasing, or rejecting items set forth in said budget claimed by the commissioners to be necessary for municipal purposes. Th© city instituted suit against the members of the county excise board and the trial court enjoined them from revising or correcting said tax budget. The precise question was raised in that case which is attempted to be raised in the present case, and which has apparently given rise to some misunderstanding throughout the state as to the duties, powers, and authority of the excise board as now constituted. The brief of the city of Oklahoma City, in the case of Bodine v. City of Oklahoma City, supra, contains the following language: “The real question involved in this case, and one which we conceive to be of very great importance not only to the city of Oklahoma City, defendant in error, but to a great many other cities in Oklahoma operating under freeholders’ charters, is: “Does the city of Oklahoma City, operating and existing under a freeholders’ charter adopted pursuant to see. 3(a), art. 18, Constitution of Oklahoma, have the authority and right to levy and collect its taxes for municipal purposes without supervision of, or interference by, the county excise board; or, transversely, is the county excise board charged with the duty and clothed with the authority to modify, chango, or alter the tax budget, or items thereof, as prepared by the board of commissioners of the city of Oklahoma, upon which to base the levy of taxes to defray the governmental expense of said city; the city having under its charter provisions a complete system for the assessment, levy and collection of its taxes without reference to the county excise board ?” In the body of the opinion, the court said: “The only question for consideration here is whether or not the county excise board is authorized under section 5 to revise and correct the budget or estimate of the probable needs of the city for all necessary municipal purposes for the ensuing year as prepared by the city.” In the sixth paragraph of the syllabus, the court said: “In the instant case we hold that the power and authority to revise and correct the tax -budget or estimate of the city of Oklahoma City is with the mayor and city commissioners, and that the county excise board has no authority thereover.” We think the opinion in that case is a final answer to the issues raised in the instant case. Also, in the case of City of Pawhuska v. Pawhuska Oil & Gas Co. (in 1926) 118 Okla. 201, 248 P. 336, this court said: “The sole purpose of the creation of the excise board appears to have been to provide a board whose sole duties are to levy the necessary ad valorem taxes to meet the needs of the various subdivisions of the state, and to keep such levies within the limitations fixed by the Constitution andi the various statutes in matters relating to governmental affairs. “We find no language in the statute from which it may be inferred that it was the intention of the Legislature to authorize or empower the excise board to exercise any supervisory control over the expenditures of incorporated cities and towns in the operation of public utilities owned exclusively by such municipalities.” The Legislature in 1931, with full knowledge of the interpretation given by this court as to the powers of the excise board to revise and correct such budget or estimate of the needs of the city prepared by its officials and which they considered necessary for municipal purposes, did not change, modify, or alter in any respect the powers or duties of the present excise board. Had the Legislature seen fit to change, modify, or alter such powers of such board, it is reasonable to assume that it would have sought to provide in the Act of 1931, in clear, positive, and unmistakable language, permitting nothing in that regard to be uncertain or obscure, as to the rights of such board to modify, change, alter, or reduce such an estimate, provided such estimate came within the constitutional and statutory limitation. This court has no> power or authority to judicially legislate any new or additional powers in such board. When questions have been deliberately examined and decided by courts of last resort, the same should be settled law and closed. We consider it unnecessary to discuss other questions presented in the briefs. We conclude that the Bodine Case, supra, which has been cited with approval in several of the opinions by this court, is controlling on the question at issue, and that the excise board is without authority to proceed in the instant case in the changing, altering, or reducing of the estimated needs of said, city for its necessary current expenses for the fiscal year in question. The judgment of the trial court is reversed and remanded, with directions to pro- *203 eeed not inconsistent with, the views herein expressed. RILEY, HEFNER, CULLIS'ON, SWIN-DALL, and ANDREWS, JJ., concur. LESTER, O. J., CLARK, Y. C. L, and KORNE-GAY, J., dissent.