St. Louis S. F. R. v. Lindsey, Cty. Tr.

This action was brought by the plaintiff in error to enjoin certain taxes in Murray county. A temporary injunction was granted, afterward dissolved, and a demurrer sustained to plaintiff's petition; then the cause brought here for review. Stipulation was entered into and filed in this cause as follows:

"It is hereby stipulated and agreed by and between the parties hereto that briefs are not to be filed by either party in this case until after the determination by this court of the case of St. Louis San Francisco Railroad Company v. J. P.Thompson et al., No. 2909, in which the construction of the act of the Legislature of March 17, 1910, is involved.

"It is further stipulated and agreed that, should the contention of the plaintiff in error in said cause be sustained as to the invalidity of levies producing an amount in excess of the estimates under said 1910 law, then this cause should be reversed, and the demurrer overruled; should it be held by this court in that case that levies producing an amount in excess of the estimates under the said 1910 law are not invalid to that extent, then this case should be affirmed; should said case No. 2909 be decided by this court without passing upon the question of law involved, then the parties hereto shall file briefs prior to the submission of this cause to the Supreme Court."

The case referred to in the stipulation (St. Louis S. F. R.Co. v. Thompson, County Treas., et al., No. 2909) was decided by this court on December 3, 1912, and is reported in35 Okla. 138, 128 P. 685; and the question involved in that action was decided as contemplated by the above stipulation. The first paragraph of the syllabus is as follows:

"By reason of the act of the Legislature entitled 'An act to provide for the levying of taxes on an ad valorem basis.' etc. (chapter 64, Session Laws 1910, p. 109), the county excise board is without power to levy during any one year for township purposes in any township a tax in excess of the amount estimated by the directors of said township as necessary to defray the current expenses of said township during the ensuing fiscal year as approved by the county excise board and an additional amount of 10 per cent. thereon for delinquent taxes. Any tax levied by the excise board in excess of such an approved estimate of the township officers and an additional 10 per cent. for delinquent taxes is, as to such excess levied, illegal and void."

Upon the stipulation of the parties, and under the decision of this court in the case of St. Louis S. F. R. Co. v.Thompson, County Treas., et al., supra, this cause should be reversed and remanded, with instructions to overrule the demurrer.

By the Court: It is so ordered.