The opinion
ANDREWS, J.
(dissenting.) I cannot concur with my associates in the opinion and decision of this court in this cause. I desire to express my views on one proposition, which I think is erroneously decided. That proposition, as presented by the defendant in error, is as follows:
“The board of county commissioners failed to certify the financial statements and estimates of needs as required by law.”
The Court of Tax Review found that the board of county commissioners failed to certify the financial statements and estimates of needs in question to the. county excise board and sustained the protest on that ground.
The record shows that no certification of the financial statements and estimates of needs was made to the county excise, board in any form or manner. Certain papers purporting to be the financial statements and estimates of needs were ‘¡‘submitted” to the county excise board. Upon the blank prepared by the State Examiner and Inspector for the use of township officers there, are two forms to be executed by the township officers, or, in ease the duties are to be performed by the board of county commissioners, by the board of county commissioners. Neither of those blanks was executed by the board of county commissioners, who were acting for the township officers. On the blanks “submitted” to the county excise board they appear as follows:
“Financial Statement and Estimated Needs.
“Speairs Township,, Bryan County, State of Oklahoma.
“Statement of fiscal condition for the fiscal year Beginning July 1, 1929, and ending June 30, 1930; and estimated needs for current expenses for fiscal year beginning July 1, 1930, and ending June ’30, 1931.
‘ To tlie County Excise Board :
“County of Bryan, State of Oklahoma.
“Gentlemen:
“Pursuant to the requirements of section 9695, O. O. S. 1921, we submit herewith, for your consideration, the wiihin statement of the fiscal condition of Speairs township, county of Bryan, state of Oklahoma, for the fiscal year beginning July 1, 1929, and ending June 30, 1930,, together with an itemized statement of the estimated income and probable needs of said township for the ensuing fiscal year; also herewith find proof of publication as required by law.
“Dated at Durant, this Q day of July, 1930.
Clerk Trustee
Treasurer.”
—and
“Certificate.
“State of Oklahoma, County of Bryan, ss. ;
“We, the undersigned elected, qualified and acting officers of Speairs township, county of Bryan, state of Oklahoma, do hereby certify that the foregoing statement is true and correct as reflected by the records of the township clerk and treasurer. We further certify that the foregoing estimate for current expenses for the fiscal year .beginning July 1, 1,930, and ending June 30, 1931, as shown by exhibit ‘K’ are reasonably necessary for the proper conduct of the affairs of the said municipality; that the estimated income from sources other than ad valorem taxes is not in excess of the amount collected from the same sources during the fiscal year ending June 30, 1930, and that the said estimates were prepared at a meeting held on the first Monday in July, 1930., the same being the 8 day of July, 1930.
Clerk. Treasurer.
Trustee.
“Subscribed and sworn to before me this— day of July, 1930.
Notary Public.
“My Commission Expires-”
Section 9695, C. O. S. 1921, provides that the .directors of each township shall meet on the first Monday in July of each year and make in writing a financial statement showing the true fiscal condition of the township as of the close of the. previous year, and an itemized statement of estimated needs and probable income from sources other than ad valorem tax of the township for current expense. for the current fiscal year. The financial statement is required to be supported by schedules or exhibits showing by classes the amount of all receipts and disbursements and it is further required that it Be sworn to as being true and correct. That plain ' and mandatory, and what I consider to be extremely necessary, requirement of the statute was entirely ignored. Nowhere does it ap
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p'ear, either from the instruments or from the record, that that statement was sworn to as being true and correct.
Section 9695, Id., further provides that the statement of estimated needs shall be itemized as to show by classes, first, the several amounts necessary for the current expense of the township and each officer and department thereof; second, the amount required by law to be provided for sinking fund purposes ; and third, the probable income that will be .received from all sources other than ad valorem tax,, and it is required to be detailed in form and amount so as to disclose the several items for which the excise board is authorized and required to approve estimates and make appropriations. The section further requires publication of the financial statements and estimates and that “Said estimates so made out and published as aforesaid shall, as soon as completed, be certified to the excise board of the county, together with an affidavit attached, showing the publication or posting thereof, as required by this act.” The estimates of financial needs in this case were not certified to the excise board of the county.
Section 9698, C. O. S. 1921, provides that the excise board shall meet at the county seat on the last Saturday of July, and that it may adjourn from day to day and from time to time, for the purpose of examining the financial statements for the previous fiscal year as submitted by the townships, and ascertaining the true fiscal condition of each thereof at the close of such year, and for the further purpose of examining the statements of estimated needs for current expense purposes for the current fiscal year “as certified” by each of said municipalities, and determining the items and amounts for which appropriations shall be made for such year, and that when the excise board shall have examined, revised, and adjusted the items of the respective estimates and shall have ascertained the needs of each, if the same shall be within the limits for current expenses as provided by law, they shall approve. the said items and appropriate the respective amounts thereof for the purposes so found to be necessary.
Section 9699, O. O. S. 1921, provides that when the excise board shall have ascertained the total assessed valuation of the property taxed ad valorem in the township and shall have computed the total of the several items of the appropriations for current expense and sinking fund purposes with ten per cent, added thereto for delinquent tax, they shall thereupon make the levies therefor, afler deducting from the total so computed the amount of any surplus balance of revenue or levy ascertained to be, on hand for the previous year or years, together with the amount of the probable income of each from all sources other than ad valorem taxation, provided, that in no event shall the amount of such estimated income exceed the actual collections from such sources for the previous fiscal year.
Section 9700, C. O. S. 1921, provides:
■ “Should any municipality fail to make and submit an estimate as herein provided, the excise board shall have authority to make an appropriation for current expense and sinking fund purposes and make such levy therefor as it may find necessary to meet the probable needs of such municipality, provided that no such estimate shall be approved until the same shall have been by the excise board advertised in like manner to items that shad be added to or increased in an estimate.”
That section provides the method for correcting the conditions shown by the record in this case. Under its provisions the excise board could have had the financial statements and estimates certified as required by law by the township officers, or the excise board could have made the appropriations for current expense and sinking fund purposes and computed the rates of levy therefor as it found necessary, by advertising the same as required- by law. The county excise board did neither of those things, but proceeded to act without any authority of law.
Those sections were under consideration by this court in Jones, County Treasurer, v. Blaine, 149 Okla. 153 , 300 Pac. 369 , in which this court said:
“From the information contained in those instruments, the excise board is required to make the appropriations and to compute the rate of levy.”
In Grubb v. Smiley, County Treasurer, 142 Okla. 19 , 285 Pac. 38 , this court held:
“'Where the statute requires a series of acts to be performed before the owners of the property are. properly chargeable with the tax, such are conditions precedent to the exercise of the. power to levy tax, and all the requirements of the statute must be complied with, or that tax cannot be collected.”
That holding was based upon the prior holding of this court in Oklahoma News Co. v. Ryan, 191 Okla. 151 , 224 Pac. 969 ; City of Sapupla v. Land, 101 Okla. 22 , 223 Pac. 640 ; Ryan, County Treasurer, v. Roach Drug Co., 113 Okla. 130 , 239 Pac. 912 , and Ryan v. Cook Building & Investment Co., 113 Okla.
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78, 239 Pac. 919 . In Ryan, Co. Treas., v. Roach Drug Co., supra, Mr. Chief Justice Lester, speaking for the court, said:
“Where property is impressed with a tax levy, such le^y constitutes a lijen thereon which is superior to every other claim, and therefore every safeguard should be used to protect the property of the citizen from an illegal and unwarranted tax levy. We cannot give approval to the language in, the plaintiff's brief that ‘because the defendant did not follow the provisions of the statute in regard to submitting its budget and estimate to the excise board, such failure was a mere technicality, and no harm was thereby done.’ ”
In City of Sapulpa v. Land, supra, this court held:
“Taxes are not debts, but are the positive acts of the government, and are the creatures of statute, and must be enforced in the. manner provided by the statute.”
In Prince, County Treasurer, v. St. Louis & S. F. Ry. Co., 110 Okla. 141 , 237 Pac. 106 , this court held in the second and third syllabus paragraphs:
‘Where tjhe statute requires a series of acts to be performed before the owners of the property are properly chargeable with the tax, such acts are conditions precedent to the exercise of the power to levy the tax, and all the, requirements of the statute must be complied with, or that tax cannot be collected.
“Executive, and ministerial officials enforce the tax laws, but, in doing- so, they must keep strictly within the authority those laws confer. They neither have nor can have a roving commission to levy and collect taxes from the people without authority of law,, but they can only do so in the manner prescribed by the law, which would be the governing-rule for their conduct in levying taxes in all eases.”
As far back as Nelson, Sheriff, v. Oklahoma City & Western Ry. Co., 24 Okla. 617 , 104 Pac. 42 , this court held:
“Where the statute requires a series of acts to be performed before the owners of property are properly chargeable with taxes, such acts are. conditions precedent to the exercise of the power to levy taxes, and all the requirements of the statute must be complied with, or they cannot be collected.”
A -proceeding before the Court of Tax Review is a special proceeding authorized by the people to settle controversies involving-legality of tax levies. It is not a proceeding-in equity. In re Bliss, 142 Okla. 1 , 285 Pac. 73 , and In re C., R. I. & P. Ry. Co., 143 Okla. 217 , 289 Pac. 352 .
The opinion of my associates, in so far as it refers to the contention herein discussed, is based on the decision of the Supreme Court of Oklahoma Territory in the case of Sweet v. Boyd, 6 Okla. 700 , 52 Pac. 939 . That case is not and cannot be in anywise controlling. Therein the proceeding was to enjoin the collection of taxes, and the rule therein announced is applicable only in an equitable case and is limited to an action in equity. That court so limited it and said that where a party invokes the powers of a court of equity to relieve him from the payment of a tax, he must not only show a departure in manner or time from the prescribed proceedings, but that such departure injuriously affects his substantial rights. That has always been the rule in equity and no court of equity has ever been used for the correction of legal wrongs in the absence of a showing of an interference with equitable rights. That case was followed by the Territorial Supreme Court in Boyd v. Wiggins, 7 Okla. 85 , 54 Pac. 411 , in which it was said, “There is no equity in this case,” and in Wilson v. Wiggins, 7 Okla. 517 , 54 Pac. 716 , in which it was said that there could be no “* * * injunction to restrain the collection of a tax, unless the case is brought within some acknowledged head of equity jurisprudence. * * *” It has never been followed by this court prior to the opinion of the majority in this case, and this court, in Nelson, Sheriff, v. Oklahoma City
&
Western Ry. Co., supra, distinguished it in an opinion filed September 14, 1909, wherein Mr. Chief Justice Kane said:
“This case simply holds that mere, irregularity in the levying of taxes does not render the tax void, and, unless the -party who resists the tax can show that he has been injured thereby, he. has no standing in a court of equity. In the case at bar, however, the omission was not a mere irregularity, but there was an absolute and utter failure on the part of the township officers to comply with the requirements of the statute.”
Even though the equitable rule stated in Sweet v. Boyd, supra, was applicable to a proceeding before the Court of Tax Review, it can have no effect under the facts as shown by the record in this case, for the reason that the record in this case shows that the protestant here has been injured -by the method followed in the making of the appropriations and fixing the rates of levy. The nature of that injury will be hereinafter set forth. In Nelson, Sheriff, v. Oklahoma City & Western Ry. Co., supra, the court followed section 4440, Wilson Statutes of 1903, which provided as follows:
“An injunction may be granted to enjoin the illegal levy of any tax, charge, or assess
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ment, or any proceeding to enforce the same. * * *,}
Mr. Chief Justice Kane quoted the rule which, in my opinion, is applicable and should be applied here, and that is:
“Courts have no rightful authority, by mere construction, to aid the defective execution of a power given or created exclusively by statute, nor dispense with those formalities which the Legislature has seen fit to provide to secure its due execution.” (Best v. Gholson, 89 Ill. 465 .)
The Legislature of the state of Oklahoma struck down the effect of the decision in Sweet v. Boyd, supra, by the adoption of section 9971, C. O. S. 1921, which reads as follows:
“In all cases where the illegality of the tax is alleged to arise by reason of some action from which the laws provide no appeal, the aggrieved person shall pay the full amount of the taxes at the time and in the manner provided by law, and shall give notice to the officer collecting the, taxes showing the grounds of complaint and that suit will be brought against the offficer for recovery of them. It shall be the duty of such collecting officer to hold such taxes separate and apart from, all other taxes collected by him, for a period of 30 days, and if within such time summons shall be served upon such officer in a suit for recovery of fiuch taxes, the officer shall further hold such taxes until the final determination of such suit. All such suits shall be brought in the court having jurisdiction thereof, and they shall have, precedence therein; if, upon final detqrminationi :of any such suit, the court shall determine that the taxes were illegally collected, as not being due the state, counts', or subdivision of the county, the court shall render judgment showing the correct and legal amount of taxes due by such person, and shall issue such order in accordance wi.h liie court’s findings, and if such order shows that, the taxes so paid are in excess of the legal and correct amount due, the collecting officer shall pay to such person the excess and shall take his receipt therefor.”
That section was held to be constitutional in Huber v. Akers, 66 Okla. 11 , 166 Pac. 892 , and to be exclusive in Atchison, T. & S. F. Ry. Co. v. Eldredge, Co. Treas., 65 Okla. 317 , 166 Pac. 1085 , and in Duling, Co. Treas., v. First Nat. Bank of Weleetka, 71 Okla. 98 , 175 Pac. 554 . It has been approved by this court many times and, under its provisions, taxpayers who paid taxes under protest sued and recovered the amounts so paid and judgments therefor were affirmed by this court.
That procedure resulted in the securing of refunds of taxes to the disadvantage and detriment of the small taxpayer. After a number of years the people of this state, through the adoption of Initiative Petition No. 100, on the 7th day of August, 1928. established a court of tax review amd provided that any taxpayer might protest in writing “any alleged illegality of any levy.” With knowledge of the existing statutes and the construction that has been placed upon them by the courts, and with knowledge of the action of public officials whose duty it is to fix tax levies and make appropriations for governmental' purposes, the sovereign people of this state, in the highest form of legislative enactment, • provided a remedy whereby every taxpayer could benefit by the judicial determination of the illegality of any tax levy.
The statutes hereinabove quoted authorize the excise board to make appropriations and fix rates of levy for townships. As a condition thereto the township officers must have performed certain duties and, in the absence of the performance of those duties by the township officers, the excise board is without authority either to make appropriations or fix rates of levy except by causing the same to be advertised as provided by section 9700, supra."
There was no advertisement by the excise board in this case and we must look to the proceedings of the township officers for the authority of the excise board to proceed. Those statutes prohibit the making of appropriations in excess of the needs of the township for the ensuing year, and the estimate of the township officers for current expenses must be of an amount reasonably necessary for the proper conduct of the affairs of the township'. The determination of that question is to be made by the township officers and not by the excise board. There must be certified to the excise board not only a set of figures, such as was transmitted to the excise board in this case, but there must be a certification that the estimated needs are reasonably necessary for the proper conduct 'of the affairs of the township during the ensuing fiscal year. The township officers never made any such certificate and there is nothing in this record to show that any individual ever testified or stated that the figures transmitted to the excise board as an estimate of needs were in-amounts reasonably necessary for the proper-conduct of the affairs of the township during the ensuing fiscal year. .The statutes further require that the estimated income shown shall not be in excess of the amount collected from the same sources during the-previous fiscal year. For that purpose there is required to be a showing by the township officers of the amount collected during, the previous fiscal year, and that must be
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a true and correct statement of the records as shown by the books of the township. There must be certified to the county excise board, first, that the figures as to the estimated income are true and correct as shown by the books of the township, and, second, that the estimated income is not in excess of the amount collected from the same sources during the previous fiscal year. The excise board does not have the books and it has no way of acquiring this information except as certified to it by the township officers. In this case there was no certification thereof and no one testified or even stated, so far as this record shows, that the figures' contained in the blank transmitted to the excise board were true and correct, or that they were taken from the books of the township, or that the estimated income shown thereon was not in excess of the amount collected from the same sources during the previous fiscal year.
In my opinion, that initiative petition and the legislation adopted by the affirmative vote of the people thereon should not be struck down by this court by a decision which holds, in effect, that a county excise board may make a tax levy for a township when no township officer has sworn to the correctness of the financial statement or estimates of needs and where no such financial statement or estimate has been certified to the county excise board. It is not sufficient, in my opinion, to say that such financial statement was “submitted to the excise board.” The statutes quoted herein require a record to be made of the procedure leading up to the making of a tax levy. Following those statutes, the State Examiner and Inspector prepared and caused to be printed on the blanks to be used a certificate in conformity with the statute and a place for the verification of the facts therein stated. This record is silent as to the estimate for current expenses being reasonably necessary for the proper conduct of the affairs of the township. It is silent as to the estimated income from sources other than ad valorem taxation not being in excess of the amount collected from the same sources during the previous fiscal year. That is information that is required under the statutes to be given to the county excise board, and it must be given to them in a written form, and verbal testimony thereof, in my opinion, is not sufficient, and in this ease there is not even verbal testimony thereof. When this court approves the levies made for these four townships it is approving the action of the excise board not only without the financial statements and estimates having been certified to it, but without any showing of the correctness thereof, that the estimated amount is reasonably necessary for the conduct of the municipality, or that the estimated income is not in excess of the amount collected from the same sources during the previous fiscal year. We are approving a rule by which the county excise board may act without the information required by the statute to be furnished to it before it can act.
The opinion in this ease establishes a new practice and one in violation of the statutes by permitting an. excítela board to make appropriations and fix rates of levy for townships without the information required to be certified to it before it can proceed to perform its duties. We are not particularly concerned with the distinction between certification and ■transmission or submission. What we are concerned with is a statutory board acting without the information necessary to be had by it before it can act. Herein the excise board did not have the information necessary for it to have before it could proceed with the making of appropriations or fixing of rates of levy for the township.
The majority opinion cites Board of Commissioners of Garfield County v. Field, 63 Okla. 80 , 162 Pac. 733 , and In re Rolater, 67 Okla. 215 , 170 Pac. 507 , to the effect that the requirement that the assessor verify the assessment roll is directory and not mandatory and that the failure upon the p'art of the assessor to attach the oath to the assessment roll will not defeat a tax in a collateral proceeding. Those cases dealt with what is now section 9621, C. O S. 1921, one of the sections in the article dealing with assessment and procedure. The basis of those decisions is that the statute provides a mode by which appeals may be taken from assessments or equalizations and that that remedy is exclusive and tha/t equitable remedies cannot be resorted to. Such is the fourth syllabus paragraph in the first oitefl case and upon which the other is predicated. That was an action for injunction. This is not an action for injunction. There, there was a right of appeal. Here, there is no right of appeal. There, the plain, adequate, and complete remedy furnished by the statute was ignored and a suit for injunction was instituted. Here, the remedy provided by thes people for the correction of illegal tax levies has been followed and the tribunal established by the people has affirmatively found that the tax levies in this case were illegal and void.
While this court in Bonaparte v. Nelson, 142 Okla. 54 , 285 Pac. 100 , announced a presumption rule, that rule can have no application here by reason of the-fact that
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the evidence here shows that there was no certification as required by the statute. Since there was no compliance, there cannot be said to have been even a “substantial” compliance. There is positive proof here rebutting any presumption that might exist. In that case, Mr. Justice Swindall stated that the financial statements must be “certified to the excise board of the county,” but held that the certification might be by the county clerk and that it was not required to bq by the members of the board of county commissioners,' and that they were so certified. Here, there was no certification by anyone.
I might be willing to agree that “transmission” is suffieient in lieu of “ce¡rtification” if the thing transmitted was otherwise correct and in conformity with the statutory requirements, but this record shows that the things required to be certified wqre not even transmitted. The statutes do not require certification of a mass of figures, but of definite facts. Here the record shows that there was no showing, either by certificate or testimony, to the county excise board of the truthfulness and correctness of the financial statement, that the estimated needs were reasonably necessary for the proper conduct of the affairs of the municipality, or that the estimated income was not in excess of the amount collected from the same sources during the previous fiscal year. In the absence of such a showing, the county excise board did not have information from which it could make any appropriation or fix any rate of levy. That information is required by the statute to be furnished to it, and the failure to furnish it is not an immaterial error, but such an error as to defeat the very purpose of the legislation. There is no other -way for the county excise board to procure the information required by it. and the record here shows that when the county excise board acted, it acted without the required information. How did the county excise board know that the estimated needs were reasonably necessary? No official had told them. No official had certified to that fact. It must have acted and did act without that information.
In my opinion, the rule announced by my associates is so far reaching as to destroy the effect of the legislative provision safeguarding the rights of the people, and for that reason I am forced to dissent.