The appeal of the plaintiff in error in this case should be dismissed for the reason that the notice of appeal from the judgment of the Court of Tax Review was not given as provided by law.
The decision of the Court of Tax Review was not filed in the office of the State Auditor until January 14, 1938. It recites that the case came on for trial December 7, 1937. The excise board filed notice of appeal December 10, 1937. The school board filed notice of appeal December 17, 1937, and on the same date the excise board filed another notice of appeal. No other notices of appeal were filed by any of these parties, but on January 14, 1938, the protestant, T.C. Cooper, filed notice of appeal.
In the recent case of In re Protest of Sweeney, decided June 21, 1938, 183 Okla. 211, 80 P.2d 882, we held that this court has no jurisdiction to consider matters on appeal from the Court of Tax Review unless the appealing party files written notice of appeal within ten days after the filing of the judgment of the Court of Tax Review in the office of the State Auditor. Obviously, then, the appeal of the excise board should be dismissed and only the appeal of Cooper should be considered.
But if the rule so recently announced in Protest of Sweeney, supra, is to be ignored, as does the majority opinion, I think the questions presented by the appeal should be considered, and we should refrain from an inappropriate discussion of questions and constructions of statutes that are not involved here.
The city of Oklahoma City filed with the excise board a revised budget and estimate of needs in which all items of current expense in the general fund except the items for park and library purposes were financed by cash on hand and estimated miscellaneous income. Separate appropriations and separate levies were made for the park and the library funds. The protestant Cooper protested a part of the levy for park purposes, but did not complain of the levy because it was made separately as a special levy for park purposes and not as a levy for the consolidated general fund. At the trial the Court of Tax Review did not adjudicate the issues presented, but entered its judgment which in effect struck out the appropriations asked in the special library and park funds, transferred such appropriations to the current expense fund, and in effect declared the levy was being made for current expense purposes. It had no power to enter such a judgment. Oklahoma County Excise Board v. Continental Oil Co.,173 Okla. 577, 49 P.2d 540. When the city revised its budget and estimate, it set up these special appropriations and funds and how they were to be financed. It did not intend to finance them otherwise. How much, if any, the city would have appropriated for these purposes, or what other appropriations would have been eliminated to meet the requirements, if these special funds had not been created, the Court of Tax Review was not told, and we cannot know. The duty of the excise board was not to transfer these appropriations, but to determine whether special levies could be made therefor. My reasons for thinking such special levies illegal are stated in my dissent this day filed in the case of Branch v. Excise Board, 183 Okla. 295,82 P.2d 225, and need not be repeated here.
When the special appropriations for park and library purposes are eliminated, it is apparent that other questions relating to appropriations become moot, since no tax levies would be involved.
The question as to when and how much an amount should be added for delinquent tax (ch. 85, S. L. 1933) naturally can arise only when an ad valorem tax levy that may become delinquent is involved. That question is not in this case. No party to this appeal contends that it is. All that is said *Page 392 about that question in the majority opinion is dictum, and should be omitted.
I, therefore, dissent.