Kay County, Excise Bd. v. Atchison, T. S. F. R. , 185 Okla. 327 ( 1939 )

The majority opinion holds that section 1, art. 2, chap. 34, S. L. 1936-1937, amendatory of section 6867, O. S. 1931, 70 Okla. Stat. Ann. § 189, vests in the board of education of independent school districts broad powers and discretion in the maintenance and operation of its school system; that it does not restrict such board to incurring expenses only for things indispensable to such maintenance and operation and concludes that "such expenses as are convenient, useful, appropriate, suitable, proper, or conducive to the desired ends of the general program, and to the conduct of such school system, are authorized to be incurred thereunder, in the discretion of the board, unless otherwise restricted by law." I cannot agree that the Legislature intended to confer on boards of education of independent school districts such unfettered discretion and arbitrary power in the expenditure of public funds.

The general rule is that municipal corporations possess such powers as are expressly conferred by statute, those fairly implied from those expressly given, and those that are necessarily incidental or indispensable to the exercise of the granted powers.

The statute under consideration is as follows:

"The board of education shall have power to elect their own officers, except as otherwise provided by law; to make rules and regulations governing the board and the schools and school system of their respective districts; to maintain and operate a complete public school system of such character as the board of education shall deem best suited to the needs of the school districts; to provide, when deemed advisable, cafeterias, or other eating accommodations; thrift banks or other facilities for the teaching and practices of thrift and economy; book stores; print shops; to incur all expenses, within the limitations provided by law, necessary to carry out and fulfill all powers herein granted; to contract with and fix the compensation of all officers, servants and employees and exercise sole control over all of the schools and all school property of the district."

The powers expressly granted are obvious. There is no express provision for the employment of superintendents, teachers, janitors, etc., but all reasonable persons would agree that the services of such employees are necessarily incidental and indispensable to the operation of the public schools. Many additional services and numerous school supplies can undoubtedly be provided for legally by the school board under powers fairly implied from the express power "to maintain and operate a complete public school system."

The statute empowers the school board "to provide, when deemed advisable, cafeterials, or other eating accommodations," but it does not follow that the board may furnish, gratis, to the pupils in the schools three meals a day. The board also has power to provide print shops, but it has no power, express or implied, to provide special clothing for the pupils working therein. The board undoubtedly had discretion to determine what courses shall be taught in its schools, but they have no power to furnish free school books to the pupils pursuing those courses of study.

So, in the instant case, while the school board could legally exercise its discretionary implied power and provide instruction in band music, it had no more power to expend public funds to clothe the pupils in uniform dress merely because it was "convenient, useful, appropriate, suitable, proper, or conducive to the desired ends of the general program" than it had to furnish food and warm clothing to any underprivileged pupils in the school because thereby they might derive greater benefits from instruction in reading or arithmetic. If it could clothe these band music pupils in uniforms at public expense, it could with equal reason mount them on bay horses at public expense.

The members of the school board are trustees for the taxpaying public in expending public funds in the maintenance and operation of the public schools. They must find authority in some statute before they can legally appropriate and spend such funds. In re Protest of Chicago, R.I. P. Ry. Co.,164 Okla. 239, 25 P.2d 690. That is not to say, however, that the various items for which funds may be appropriated and expended must be specifically named in the statute.

The majority opinion holds in effect that by the statute under consideration the school board is empowered to expend its funds for any purposes which the board, in its discretion, deems useful or appropriate, unless prohibited by some other statute. The holding is contrary to our former decisions, as well as those of the other states.

I am authorized to say that Justices RILEY, OSBORN, and HURST join in this dissent.