We first consider the protested levy of joint union graded school district No. 1. This school district lies mostly in Tulsa county, but includes some territory in Pawnee county. The district, however, is managed and controlled by the county superintendent of Tulsa county. The estimates of the district are filed with and approved by the excise board of Tulsa county, and the tax levy is spread and extended upon the order of the excise board of Tulsa county. The estimate for the fiscal year 1936-37 was so approved. By former general allocation order the Tulsa county excise board had allocated the 15-mill limit of levy so that so far as that limit was concerned the levy for this district could be made up to 6 mills. The levy was made for 6 mills. The protest is based upon the allegation that theretofore the excise board of Pawnee county had so made its allocation order that 4.75 mills was the limit of school district levies in Pawnee county in districts situated as was that portion of this district which is in Pawnee county. It is urged here that the excise board of Tulsa county in approving estimates of this school district, and approving the levy on property in that district in Tulsa county, could not go beyond the limit fixed by the allocation order of the Pawnee county excise board as to the limit of levy in Pawnee county. No authority is cited to sustain that contention. The contrary is demonstrated by our constitutional and statutory provisions relating to the levy of such taxes. There is no specific statutory provision for the levy of taxes in joint school districts. The financial statements and estimates are submitted and approved and the tax levy spread or extended as in the case of other school districts. The limit of levy in each subdivision or municipality of each county of the state is fixed by the allocation order of the excise board in that county under section 9, art. 10, of the Constitution, as amended in 1933. Atchison, T. S. F. Ry. Co. v. Excise Board of Washington County, 168 Okla. 619, 35 P. (24) 274.
When the Tulsa county excise board approved the estimate of this school district, the only limit applicable thereto was the limit of 6 mills theretofore allocated by the Tulsa county excise board. There was no authority of law for that board to look to or be bound by the allocation order of the excise board of any other county. This ad valorem tax levy against taxable property in Tulsa county was approved by the excise board of Tulsa county, and Was within the limit of levy theretofore allocated by that board, and was therefore a legal levy. The protestant points out that this may result in a slight difference of levy in that part of this district situate in Pawnee county. If that be true, it does not necessarily follow that the levy in that part of the district in Tulsa county here under attack is illegal. This is a levy in Tulsa county, and if it meets all the tests of the legal levy for school districts of this character in Tulsa county, then it is a legal levy in Tulsa county. The protestants here urge an inequality of taxation between taxpayers in this district in Pawnee county and those in Tulsa county. Generally, of course, there is no requirement that levies in different counties be uniform or equal one with the other, and much inequality may exist where each of the county excise boards is made a separate allocation agency, as is true under the constitutional provision referred to. If it be that such difference of levy or inequality of levy (if that be the proper term) should not exist, and if it be true that uniformity should exist even in cases such as this, then that result must be achieved *Page 289 by constitutional or statutory provision. This court should not indulge in judicial legislation upon the subject. Since this levy was made in Tulsa county pursuant to approval of the estimate by the excise board of that county, and meets the test of a legal levy in Tulsa county, we hold that there is no illegality in the levy subject to protest under the provisions of section 12306, O. S. 1931. The Court of Tax Review sustained this protest apparently upon the theory that it was illegal when subjected to the test of legality of levy in Pawnee county. This we hold to be an erroneous test of legality of levy in considering a protest under the statute just referred to. The judgment of that court as to this item of protest is therefore reversed, with directions to deny this protest.
We next consider the levy of school district No. 26 in Tulsa county. A portion of the assessment was successfully protested on the theory that the levy was not in accord with the allocation of limit previously made by the excise board. The excise board for the year involved adopted a system of classification in connection with its apportionment of limitations under section 9, art. 10, of the Constitution, as amended in 1933. The apportionment resolution provided:
"In instances involving cities and incorporated towns and school districts having a valuation of less than fifty million dollars, the allocation shall be: To cities and incorporated towns not to exceed 4.531 mills and to school districts not to exceed 5 mills."
And:
"In instances not involving cities and incorporated towns, the allocation shall be to school districts, having a valuation less than fifty million dollars, 6 mills."
This procedure appears to be in fair accord with the rule of Atchison, T. S. F. Ry. Co. v. Excise Board of Washington County, 168 Okla. 619, 35 P.2d 274.
School district No. 26 had a valuation less than fifty million dollars. It had a town within its bounds, but no levy was made for the town.
It is suggested by the excise board that the allocation thus made is neither arbitrary nor capricious, and that view is supported by the rule of St. L.-S. F. Ry. Co. v. Tulsa County,171 Okla. 180, 42 P.2d 537.
School district No. 26 had an assessed valuation of less than fifty million dollars and had a town within its bounds. Its allocated limit of levy was therefore 5 mills by the quoted allocation order. No levy was made for the town, and the school district levy was made at 6 mills. It appears that the school district levy was made at 6 mills (1 mill more than the allocated limit of levy of 5 mills) on account of the fact that the town located within the school district did not require a town levy within its allocated limit.
The language employed by the excise board in its resolution heretofore quoted is clear. There is no provision anywhere contained in the resolution or allocation order which apportions to school districts more than 5 mills where such school district has a city or town within its bounds.
The Court of Tax Review held that this 6-mill levy was illegal by one mill as being to that extent in excess of the 5-mill limit applicable to the district by the allocation order. That portion of the judgment is affirmed.
The next item of protest involves a failure to transfer to the sinking fund, moneys received into the general fund during the fiscal year 1934-35 as collection of delinquent taxes levied for the general fund in prior fiscal years. The protestant contends that such moneys should be required to be transferred to the sinking fund and used in payment or partial payment of certain judgments against the county. Material facts are that unpaid general fund warrant indebtedness, represented by county warrants held as investments of the sinking fund of the city of Tulsa by the city treasurer of that city, was reduced to judgment. These warrants consisted of $191,637.12 of 1931-32 warrants, and $57,541.05 of 1929-30 warrants. These judgments have not been paid.
If the general fund warrants had not been reduced to judgment, the moneys collected for delinquent taxes for any prior year would unquestionably be devoted to the payment of outstanding unpaid warrants issued against general fund appropriations for that year. The question now is whether such moneys will follow the obligation into the sinking fund to the extent necessary to pay the unpaid portion of the judgment.
It seems clear that these judgments became sinking fund obligations to be paid by annual sinking fund levies. See section 28 of article 10 of the Constitution; section 5913, O. S. 1931, as amended by chapter 27, S. L. 1933.
No distinction is made as to judgments which are recovered by reason of prior general fund obligation or liability, but under *Page 290 such provisions of the Constitution and statutes all judgments are made sinking fund obligations, with specific provision for sinking fund levies to pay them. No provision is made for any moneys properly in the general fund to be expended in payment of any judgment against the county, nor for any such moneys to be transferred to the sinking fund to be there used in payment of any judgments.
The protestant cites section 19, art. 10, of the Constitution as follows:
"Every act enacted by the Legislature, and every ordinance and resolution passed by any county, city, town, or municipal board or local legislative body, levying a tax shall specify distinctly the purpose for which said tax is levied, and no tax levied and collected for one purpose shall ever be devoted to another purpose."
It is urged that this provision expressly requires that these moneys now properly in the general fund must be transferred to the sinking fund for use as above indicated. We do not find that the quoted provision contains such requirement, in view of the specific provision as to judgments in section 28 of article 10. The original tax levies were not in fact made for the specific purpose of the appropriations against which these warrants were drawn. Those levies were made to generally finance, or for the general fund requirements of the county. When thereafter the taxes are collected and the money properly used in the general fund for purposes for which general fund moneys may be properly used, it would seem that the quoted provision of section 19 of article 10 of the Constitution is not violated.
When these taxes were originally levied and it came time to "specify distinctly the purpose for which said tax is levied" (as provided in section 19, article 10, supra), the only "purpose" that could be "specified distinctly" was for general fund purposes or for the purpose of financing the general fund. No portion of the county general fund levy could be "specified distinctly" for the "purpose" of any particular general fund appropriation or any particular general fund warrant. While money received in the general fund is in a sense pledged to pay general fund obligations, it must be remembered that these warrants had ceased to be general fund obligations. They had been merged into a judgment, which was a sinking fund obligation. The Constitution itself preserves the severalty and distinction between the general fund and the sinking fund, and between the obligations of the general fund and the obligations of the sinking fund.
It is suggested, with some supporting logic, that it would be better business policy to adopt and follow the plan contended for by protestant, in the case of judgments recovered on warrants. If that be true, such result should be accomplished by proper change of law. This court is not the proper agency to bring it about. The Court of Tax Review sustained the protest as to this item, and thereby erred. The judgment on this item is reversed, with directions to deny.
OSBORN, C. J., BAYLESS, V. C. J., and PHELPS, CORN, and HURST, JJ., concur. BUSBY, J., dissents. RILEY and GIBSON, JJ., absent.