Receipt is acknowledged of your letter of the 20th instant in which you state: "You are advised that the writer as Commissioner of Highways, has recently had occasion to make a trip to Woods County, in response to protests from certain property owners against the location of state roads as designated by the county commissioners. The protestants, as set out in writing in their petition to this department, not only desire that a certain portion of the road be changed, but they request, further, that seven miles of the road designated by the county commissioners as state roads, be omitted, claiming that same would be expensive to construct and maintain and are not necessary to the convenience of the public at this time." You desire to know if you have authority in making a change of location of state roads in any particular county, to omit or to add to the mileage as designated by the board of county commissioners. Referring to our letter to you under date of August 26. 1915, you will note that the Attorney General there held that the State Highway Department could change the maps submitted by the board of county commissioners, after a personal investigation of the proposed roads. Section 3 of Article 2 of Chapter 173, confers this authority upon your department and Section 1 of the same article provides that the board of county commissioners shall select for improvement as provided herein, from the highways of the county, not less than 10 per cent nor more than 15 per cent. of the total mileage, same to be the main traveled roads of the county and which must connect with the principal market places of the county, as well as connect with the state roads in adjoining counties, such roads to be designated as state roads. The word "change" means to alter or to make different. It is broad enough to include the right to omit or to add to, but the State Highway Department would have no authority to omit from the map as presented by the board, an amount of mileage that would reduce the total mileage less than 10 per cent., nor could you add to the map so as to increase the total mileage more than 15 cent. Nor would you have authority to per change the map so as to select a road that was not a main traveled road of the county connecting with the principal market places thereof, nor would you have authority to omit a road that connected with the state roads in another county. It is clearly the intention of the Legislature to provide a system of state roads that connect with each other at the boundary lines of the various counties, so as to permit a traveler to make a continuous journey along an improved road from the principal market places of one county to the principal market places of another. Observing these instructions then and within the limits defined, we think your authority to change, carries with it the power to omit or to add to the mileage designated by the board of county commissioners. Receipt is acknowledged of your letter of the 21st instant, enclosing letter to you under date of the 6th instant from Mr. Clarence A. Wood, County Engineer of Noble County, and requesting that reply be made to Mr. Wood's inquiries. Mr. Wood desires to know in substance, whether or not in constructing roads and bridges in the township road system, it is necessary for the township boards to have the services of the county engineer. Under Section 5 of Article 2, Chapter 173, Session Laws, 1915, all bridges and culverts in the township road system must be of permanent construction as therein defined. tion 11 of the same article provides: Sec "Before beginning in any work upon the township road system, other than hereinbefore described as repair work, the township board may make application to the board of county commissioners, who shall furnish them with an engineer, to be paid out of the county fund, who shall survey and lay off such roads, according to the plans and specifications as heretofore provided for state road system, and the work shall be done in accordance therewith." "Repair work" is defined by Section 7 of the same article as, "work not designated by the Highway Engineer, work of a temporary character or of an immediate necessity, and work necessary to maintain finished roads completed under this act." In our opinion, the word "may" as used in Section 11, supra, should be construed to mean "shall," and therefore, to require the township board to make application for an engineer before beginning any work other than "repair work." Whether the county commissioners would furnish the regular county engineer for township services is a matter to be determined by that board, but in any event the engineer furnished must be possesesd of a certificate of competency issued by the State Department of Highways, and the act as a whole indicates that the commissioners should employ but one engineer in the county. The general supervision of dray work on the township road system, and also repair work, is placed in the hands of the superintendent. It would appear, therefore, that after plans and specifications have been made for the township road system, the services of the county engineer are not longer necessary, except to see that work of a permanent character complies with the requirements of Chapter 173, supra. HON. D. A. BRIDGES, COUNTY ATTORNEY, DUNCAN, OKLA. Dear Sir: Replying to your letter of September 8, 1915, you are advised that the enclosed letters to Mr. Bunch and Mr. Leach are in answer to your first and second inquiries. Your third inquiry, "can the county surveyor continue to hold his office if he fails to qualify as county engineer under the new road law" is answered in the affirmative, but if the county surveyor fails to qualify as an engineer he cannot perform the services required of the engineer under the new road law and the county commissioners may select some one who is qualified to serve as a county engineer and such person shall receive the same fees for such services as the county surveyor receives for similar services. There is no provision that the county engineer shall have an office. The county surveyor is a county officer and is required to keep his office open at certain times and he would receive the compensation provided by law for that purpose, but unless he qualifies as county engineer he could receive no compensation for doing services required under the new road law. Relative to the cases you ask to have advanced, this matter will be referred to Judge McMillan, who is in charge of that department. HON. JOHN F. VAUGHN, COUNTY ATTORNEY, EUFAULA, OKLA. Dear Sir: Receipt is acknowledged of your letters of the 10th and 25th instances, in which you inquire the proper procedure for opening roads on section lines through lands allotted to Creek and Cherokee citizens. You state that according to the act of June 20, 1902, Congress expressly dedicated all section lines in such nations as public highways. The writer is not familiar with the treaty provisions, nor is he informed whether the lands in such nations were selected and allotted subsequent to the passage of such act. If allotted subsequent thereto, then the procedure you indicate would be sufficient, however, if selection and allotment were made prior to the passage of the act of June 20, 1902, condemnation proceedings are, in our opinion, necessary. In condemning this land, we think you should follow the procedure indicated in the letter to Hon. Willard H. Voyles, dated June 19, 1915, copy of which is enclosed herewith. HON. E. B. HOWARD, STATE AUDITOR, CITY. Dear Sir: Receipt is acknowledged of your letter of the 21st instant, enclosing letter to you under date of the 20th, from President Gault of the State Board of Agriculture, in which letter President Gault designates the permanent residence addresses of the various live stock inspectors of this state, and your letter also encloses a claim of one of such inspectors filed with you, in which claim an allowance is asked for money expended for hotel and board at the home town of such inspector, which town is also designated as the official headquarters of the said inspector. You desire to know if the item of appropriation, made to the State Board of Agriculture, by Chapter 220, page 462, Session Laws, 1915, is sufficiently broad and definite to permit of an allowance of this kind. Said item reads as follows: "Expense of live stock inspection, including salaries of inspectors, when needed, at not more than $3.00 per day and their traveling expenses. Section 35, Revised Laws, 1910, creates the positions of live stock inspectors and provides a compensation of three dollars per day. Each successive Legislature has appropriated money to pay the "traveling expenses" of these inspectors. There can be no doubt that where the law requires an officer of this state to maintain his official residence at the seat of government or at some other place, no charge can be made against the state for the living expenses of such officer at such place or places in the absence of an express statute to that effect and a valid appropriation to cover such expenses. "Traveling expenses" mean such expenses as are incidental to travel necessary in fulfilling the duties of the office. Such term is not broad enough to include the living expenses of an officer either at his home or at his official headquarters. In the absence of any statute allowing such living expenses and an appropriation covering same, in our opinion, you are not authorized to allow such an expense against the item appropriation you mention. TO HIS EXCELLENCY, THE GOVERNOR, CITY. Sir: Receipt is acknowledged of your verbal request, asking if the expense of building a residence for the use and occupancy of the superintendent of the fish hatchery can be paid out of the appropriation for purchasing or propagating and distributing game fish, contained in Chapter 160, Session Laws 1915, page 260. In Chapter 32, Section 3293, Vol. 1 of the laws of 1910, after naming the members of the fish commission, it is provided that this commission "shall have power to purchase, hold, convey or encumber real estate and provide all necessary property and apparatus for the propagation of game and fish, and for the establishing and maintaining of propagating farms and fish hatcheries." The Session Laws of 1915, Chapter 160, page 260, in making an appropriation for this department, state that it was for the purpose of paying "the salaries, expenses and maintenance of the State Game and Fish Warden's Department and for the purpose of purchasing or propagating and distributing game and fish for the fiscal years ending June 30, 1916, TELEPHONES SUBJECT TO TAXATION, and June 30, 1917. ALTHOUGH NOT OPERATED FOR PROFIT. It will be observed that in the 1910 Revised Laws, above quoted, the commission was given power to purchase, hold, convey or encumber real estate and provide all necessary property and apparatus for the propagation of game and fish and for the establishment of such farms and fish hatcheries. Under this authority, the Legislature in giving the power to the fish commission, evidently intended that they should purchase any property which they deemed necessary for the establishment and for the maintenance of the fish hatcheries. This was not only the apparent intent of the Legislature, but they in substance have expressed this view. If therefore, the commission feels that it is necessary to purchase or build a house for the use of a superintendent, it is my opinion that full authority is given in Chapter 160, page 260 of the Session Laws of 1915, when read in connection with Section 3293 of the Laws of 1910. The question, therefore, is answered in the affirmative. HON. WM. D. MATTHEWS, COMMISSION- Receipt is acknowledged of your letter of the 11th instant, in which you state that one John Bateman, a ward of the state and an inmate of the Insane Hospital at Vinita, who is a minor, has had his land, consisting of four hundred and ten acres in Rogers County, illegally sold by an order of the probate court of Cherokee County, and that you as next friend of said minor and as authorized by Section 5101 of the Revised Laws of Oklahoma, 1910, have instituted an action in the probate court of Cherokee County, requesting the appointment of a guardian for said ward, and that the probate judge and court clerk at Cherokee County have refused to file the petition unless you make a deposit for court costs. You desire to know whether or not it is incumbent upon you, as the representative of the state in this proceeding, to make a deposit to secure the costs. Replying, you are advised that in our opinion the proceeding authorized by Section 8101, supra, is in effect a proceeding by the state of Oklahoma, and that you are designated as the representative of the state in that proceeding. It is well established that in the absence of an express statute so providing, that the state is not required to pay costs or to give security for costs in any proceeding instituted by it in its own courts. 36 Cyc., pages 923 and 924,and authorities there cited. There being no express statute of this state providing for the payment of costs or the giving of security for costs by the state in its own courts, we reach the conclusion that you are not required to make a deposit of costs in this proceeding. SEN. C. L. EDMONSON, CHANDLER, OKLAHOMA. Dear Sir: Receipt is acknowledged of your letter of the 20th instant, in which you ask for an opinion of this office as to whether or not a system of telephones not operated for profit is subject to taxation. In reply, you are advised that Section 6 of Article 10 of the Constitution contains all the exemptions from taxation which our laws allow, and does not include telephones, which represent an actual value, and are maintained for the benefit and convenience of the owners, and while perhaps not operated for profit, are subject to taxation as other similar property. Receipt is acknowledged of your letter of the 27th ult., calling attention to Chapter 31, Session Laws, 1915, page 44, providing the times taxes assessed on an ad valorem basis shall become due and delinquent and in which you state: "I beg to call your attention to the Aet of February 16, 1915, 1915 Session Laws, pages 44 to 45, with reference to the time for payment of taxes in Oklahoma. "It appears to me that under the provisions of this act the first half of taxes may be paid without penalties at any time on or before January ,rst and that such first half of taxes does not become delinquent if so paid and that if such first half is so paid then the second half of these taxes does not become delinquent until June 15th."' The purposes of this law were evidently twofold. First, to eliminate the ambiguity existing in Chapter 120, Session Laws, 1911, as to the date the first half of such taxes became delinquent. Second, to eliminate from the law the requirement that a notice by mail should be given the taxpayer of the amount of his taxes and when the same will become due and delinquent. Under Chapter 31, supra, the first half of taxes assessed on an ad valorem basis becomes due November 1st and delinquent January 1st following. If such first half is not paid by January 1st, then the entire tax becomes delinquent on that date; if such first half is paid by January 1st, then the taxpayer has until June 15th following to pay the second half without penalty for delinquency. No notice by mail is now necessary. MR. H. S. BLISS, HEAVENER, OKLA. Replying to your letter of the 23rd ult., find enclosed copy of opinion to Mr. L. F. Roberts, dated June 11, 1915. Further, you are ad vised that a city or town cannot levy an occupation tax on a national bank,, as that would be in violation of the United States statutes. Section 5219, Revised Statutes U. S. STATE COMMISSIONER OF HIGHWAYS, CITY. Gentlemen: Receipt is acknowledged of your request of recent date enclosing copy of letter from L. K. Cone of Tulsa, Oklahoma, tendering $2.75 in payment of automobile tax for balance of the calendar year, 1915, and you state that the tax which would be due from July 1st. 1915, to January 1st, 1916, under Article 4, Chapter 173, Session Laws, 1915, would be $5.50. Mr. Cone states that he did not purchase this car until after October 1, 1915, and that he is entitled to pay a pro rata share of the tax for the balance of this year. You desire to be informed if you are authorized, under the provisions of Chapter 173, supra, to accept such pro rata payment and issue license for 1915. Replying, you are advised in the negative. THIRTY-TWO-Law Journal The case of Hart v. Beauregard, 22 La. Am. 238 is in point on this question. Receipt is acknowledged of your letter of the 12th instant in which you inquire: "A resident of Pushmataha County owns a bunch of cattle. He keeps these cattle in Pushmataha County eight months out of the year. In December he moves them to a place of his in this county, where he puts them on feed and they remain from December to March. Should this county or Pushmataha County collect the taxes on said cattle?'' Replying, you are advised that Section 7307, Revised Laws, 1910, as amended by Section 2, Chapter 107, Session Laws, 1915, provides: "All taxable property shall be listed and assessed each year at its fair cash value, estimated at the price it would bring at a fair voluntary sale, in the name of the owner thereof on the first day of January of each year, as soon as practicable on or after the fifteenth day of January, including all property owned on the first day of January of that year, and in case of stocks of goods, wares and merchandise, the statement shall include the average amount of the same for the preceding year ending January first; provided, that when the owner of any personal property resides in a township and the property is located in any city or town, then the property shall be assessed in the township where the owner resides, and provided further, that real property shall be listed and assessed only once in every two years, beginning in the year 1915, and continuing every two years thereafter. If any real estate shall become taxable during the time between the period for assessing real estate, the county assessor shall assess same for taxation and place the same upon the tax rolls." Section 7308, Revised Laws, 1910, as amended by Section 3, Chapter 107, Session Laws, 1915, provides: "The owner of personal property removing the same from one county, town or district to another between January 1st, and September 1st, shall be assessed in either in which he is first called upon by the assessor. When any personal property is brought into or located in this state, between January 1st and September 1st, which shall acquire an actual situs herein before the first of September, such property is taxable where situate, unless an owner thereof has already been assessed upon the same in some other state, for the current year, or the same was in said period originally produced in the state." Section 7312, Revised Laws, 1910, provides: "Whenever any cattle or other live stock belonging to a resident of this state shall be driven or transported from one county to another in the state of Oklahoma, between the first day of September of any year and the fifteenth day of April following, for the express purpose of being fed and being prepared for market, or for the purpose of being winter fed upon grain, fodder or other roughness, the product of such county, such cattle or live stock shall not be listed for taxation for such year in such county, if the owner or agent in charge of said property shall, by affidavit, show that said property was listed for taxation for that year in another county." Your inquiry necessarily involves a construction of the meaning of the foregoing pro visions. The last Legislature amended Sections 7307 and 7308, supra, without making any amendments to Section 7312, unless by implication. The purpose of Section 7307 was to fix the date at which property will become taxable to any particular owner for any particular year. For instance, if you are the owner of cattle or other property on January 1st of any year, the same is to be taxed to you as owner at its fair cash value as of that date. Section 7307 does not fix the situs of property for purposes of taxation. Now the purpose of Section 7308 is to fix the situs of personal property for taxation where the same is moved from one county, town or district of the state to another within the taxing period. And the purpose of Section 7312 is to fix the situs of cattle or other live stock that is moved after the taxing period for feeding purposes without having been assessed for taxation for that year. Beginning on January 15th of each year it is the duty of the assessor to assess for taxation all property in his taxing district subject to the ad valorem tax to the owner thereof at its fair cash value as of date of January 1st preceding. Cattle being property of a corporeal nature, it is our opinion that its situs for the purpose of taxation depends upon its physical presence in the taxing district on the date such property is required to be rendered for taxation. But our Legislature, recognizing the fact that many species of personal property are easily removable from one taxing district to another within the tax rendering period, has seen fit to provide that the owner must list the same in either district he is first called upon by the assessor. Therefore, if a resident of Pushmataha County has cattle in Choctaw County on the first day of January, 1916, and keeps them in such county for any period of time not later than September 1st and during such period he is called upon by the county assessor of Choctaw County to list such property for taxation in that county for that year, it is his duty to do so; but if the owner had removed the cattle from Choctaw to Pushmataha County during that period and the county assessor of Pushmataha County called upon him to list the cattle in that county for that year before any call had been made by the county assessor of Choctaw County, then the owner must list such cattle in Pushmataha County. If the cattle are removed from one county to another for feeding purposes after the 1st of September of any year and before the beginning of the succeeding tax rendering period then the owner must be able to show, as required by Section 7312, by affidavit that said property was listed for taxation in another county for that year. The date of the 15th of April appearing in Section 7312, was carried forward from Territorial statutes, which provided that the tax rendering period begin at that time. Since the present state laws require the assessor to begin his work on the 15th of January, instead of the 15th of April, we think Section 7312 should be treated as amended by implication, so as to read from "the 1st day of September of any year and the 15th day of January following." It seems to us that the history of the state's tax legislation relative to ad valorem taxation would require this construction in order to make the various statutes harmonize. Therefore, we conclude that cattle found in any county in this state between the 1st of January and the 1st of September may be assessed by any assessor that first gets to them, if found after the 1st of September and before the assessment begins on the following 15th of January they may still be assessed in the county where found, unless the owner can show by affidavit that they were assessed in some other county or state during the tax rendering period from January to September immediately preceding. Provision is made for putting omitted property on the rolls by Chapter 177, Session Laws, 1915, page 356. HON. R. H. WILSON, SUPERINTENDENT, CITY. Dear Sir: Receipt is acknowledged of your letter of recent date concerning the right of a board of education to disregard an adoption made by the State Board of Education in the adoption of text books to be used in the common schools of the state. Replying, you are advised that under the law, power is given to the State Board of Education, acting as a text book commission, to make such adoption. If adoptions are made by local boards they are made with the knowledge that the law gives to the State Board of Education, acting as a text book commission, power to make such adoption and when the State Board of Education, acting as such, makes an adoption it supersedes any adoption made by any other board. You are therefore advised that no board of Education in the state has any right to disregard an adoption regularly and legally made by the State Board of Education. In order to press this question beyond the realm of doubt, the Legislature by Sections 7726 and 7727 of the Revised Laws of Oklahoma, Volume 2, made it a criminal offense to disregard an adoption of the State Board of Education. HON. A. J. HARDY, COUNTY ATTORNEY, Receipt is acknowledged of your letter of the 19th instant, relating to the omission of certain pupils of a school district from the school census enumeration list, and a subsequent effort to transfer said omitted children to an adjoining district for school purposes, and asking your opinion thereon. You are advised that under the laws of Oklahoma there is no annual apportionment made by the state to or on account of children not included in the annual enumeration required by Section 3, Article 9, Chapter 219, Session Laws of Oklahoma, 1913. Therefore, in no event, can a transfer of any portion of semi-annual state apportionment be transferred with such children. Again, your attention is called to Section 4, Article 16, supra, which provides as follows: "All hearings on applications for transfers of school children mentioned in the first three sections of this act, shall be had at least two months before the beginning of the schools in either district affected." Will not this provision settle the controversy till the apportionment question shall have passed out of it? |