Oklahoma County, Excise Board v. Kurn , 189 Okla. 203 ( 1941 )

This is an appeal from a judgment of the Court of Tax Review sustaining a protest against the levy made by the excise board of Oklahoma county for the estimated financial needs of consolidated school district No. 9.

The controversy involves the surplus remaining in the building fund at the close of the tax year 1939-1940, and the application thereof to the estimated needs of the district for the succeeding fiscal year, and consequent reduction of the tax levy therefor as provided by law. Section 1, art. 13, chap. 66, S. L. 1935; sec. 1, chap. 85, S. L. 1933, 68 Okla. St. Ann. §§ 289, 290. It is alleged that said surplus, as the same was shown in the financial statement submitted by the school district to the excise board, was less than that actually remaining in the appropriation and by reason thereof the levy for the current year was in excess of the legal rate to the extent of the difference between the amount so reported and the balance actually on hand. The Court of Tax Review sustained the protest and ordered the levy decreased accordingly.

The discrepancy in amount comes about by reason of an alleged illegal warrant issued and outstanding against said appropriation. The warrant was given in payment for certain equipment in the form of seats or desks purchased for a new school building in said district. The building fund aforesaid was created by additional tax levies for the purpose of erecting said school building as provided by section 10, art. 10, of the Constitution.

The only question urged by protestants was that by reason of provisions of section 10, the erection of the new building, based on the additional levy aforesaid, could not be applied to the purchase of equipment, such as seats or desks, for said building, but should have been confined wholly and exclusively to the expense of erecting the building. Said section 10 reads as follows:

"For the purpose of erecting public buildings in counties, cities, or school districts, the rates of taxation herein limited, may be increased, when the rate of such increase and the purpose for which it is intended shall have been submitted to a vote of the people, and a majority of the qualified voters of such county, city, or school district, voting at such election, shall vote therefor: Provided, That such increase shall not exceed five mills on the dollar of the assessed value of the taxable property in such county, city, or school district."

The respondent excise board urges that the purchase of such equipment was necessary to the proper use of the school building and was within the powers to be implied from the express powers granted; that the above section authorizing a direct levy for school building purposes includes the implied power to equip such building from said levy, to the extent necessary to place it in condition to use for school purposes.

Protestants argue, however, that the installation of seats and desks, though necessary to the full use of the building, was not a power to be implied from the express power to erect the building as provided in said section, for the reason that there are other methods whereby revenue may be raised for the purchase of equipment for public buildings. To support this reasoning protestants state: The district may become indebted and issue bonds for that purpose (sec. 26, art. 10, Constitution; State ex rel. Grimes et al. v. Board of Education of Oklahoma City et al., 186 Okla. 665, 99 P.2d 876); and may appropriate for that purpose within the current expense fund (sec. 9, art. 10, Constitution, as amended; sec. 12677, O. S. 1931, as amended, 68 Okla. St. Ann. § 289; Excise Board of Oklahoma County v. Board of Education of Oklahoma City,178 Okla. 545, 61 P.2d 693).

From the foregoing citations we believe it is clear that there are other methods, in addition to section 10, supra, whereby the school district may raise funds for the purpose of erecting a school building and purchasing seats and desks therefor. However, we are of the opinion that none of such methods are exclusive, but all are cumulative, and that either method may be followed by the school board. Clearly, sections 9 and 10 of art. 10 of the Constitution do not conflict with the provisions of section 26, art. 10, and both sections are intended for different purposes. Board of Education of Oklahoma City et al. v. Woodworth et al., 89 Okla. 192, 214 P. 1077; Kirk v. School District No. 24, Greer County, 108 Okla. 81,234 P. 596; Adams v. City of Hobart, 166 Okla. 267, 27 P.2d 595; Kansas City Southern Ry. Co. et al. v. Le Flore County,187 Okla. 630, 105 P.2d 240. We are of the opinion that the sensible view should be that seats and desks for a newly erected school building could be purchased under any of the methods referred to in the preceding paragraph, so that the governing board of the school district could choose the method that to it would seem most proper and expedient.

Protestants argue that, since under section 9, art. 10, the school district is granted the power to use its general or current expense fund for almost any purpose, including equipment for school building, and since under this court's construction of section 26, art. 10, a school district can also issue bonds for the purpose of erecting and equipping school buildings, that if it were intended by section 10, art. 10, that this power be granted to a school district, the framers of the Constitution would have so provided instead of using the language, "for the purpose of erecting public buildings in . . . school districts."

This court has never before passed upon section 10, supra, with reference to the identical question herein involved. In deciding this question we must therefore call into aid the established rules we have heretofore adopted in construing constitutional provisions in general. It also becomes necessary to review the authorities of other states to obtain a better and more comprehensive view of the issues.

We have held that the construction of a constitutional provision must not be so strict or technical as to defeat the evident object and purpose of its adoption. State ex rel. Edwards v. Millar,21 Okla. 448, 96 P. 747; Jurney et al. v. Harlow et al.,157 Okla. 54, 10 P.2d 271. We have also held that where a power is given by statute there is carried with it power to do everything reasonably necessary to make it effective. Missouri, O. G. Ry. Co. v. State, 29 Okla. 640, 119 P. 117.

Section 10, supra, has been held to be self-executing. This section is a grant of power to the people of the municipalities, complete in itself and needing no legislation to put it in force. Protest of Chicago, R.I. P. Ry. Co.,160 Okla. 226, 16 P.2d 855.

In the case of Territory ex rel. Overholser v. Baxter, Auditor, 16 Okla. 359, 83 P. 709, this court held that the power to erect a courthouse includes, by implication, the necessary power to purchase fixtures and permanent furnishings therefor. It is true that the above opinion was adopted in territorial days, under a territorial statute, before the adoption of our Constitution, and while the case is not directly in point, the reasoning therein is of value in the consideration of the present case.

The general rule involving constitutional construction of implied powers is stated in 12 C. J. 719, as follows:

"It would not be practicable, if possible, in a written Constitution, to specify in detail all of its objects and purposes or the means by which they are to be carried into effect. Such prolixity in a Code designed as a frame of government has never been considered necessary or desirable; therefore, constitutional powers are often granted or restrained in general terms from which implied powers and restrictions to be found in constitutional provisions are therefore a very important element to be considered. It is an established rule of construction that, where a Constitution confers a power or enjoins a duty, it also confers, by implication, all powers that are necessary for the exercise of the one or for the performance of the other. . . ."

In the case of Hudgins et al. v. Mooresville Consol. School District, 312 Mo. 1, 278 S.W. 769, the court had under consideration a provision of the Missouri Constitution which is in terms very similar to the provisions of section 10, art. 10, supra. There the court held that the authority granted by the Constitution, when its requirements are complied with to increase a levy for the erection of a school building, carries with it, as a necessary sequence to its erection, the right to equip same.

There are very few decisions covering the involved question. The weight of authority, however, seems to be that the constitutional and statutory power to erect a building, by implication, includes the power to put into it by the same levy the equipment necessary to place it in condition for its intended use.

Defendants in error cite the case of Grabe v. School District No. 20, 53 S.D. 579, 221 N.W. 697, and quote from same at length. The opinion supports their theory, but the reading of it discloses that it is not supported by authority except its peculiar interpretation of the constitutional provisions as reflected by statutory construction prevailing in South Dakota. The conflict of this case has been recognized in later decisions and rejected as unsound. In Hendricks et al. v. School District No. 1 et al., 44 Wyo. 204, 10 P.2d 971, referring to this case on this point, it was said:

". . . There is a conflict in the authorities on that point. Grabe v. School District 20, 53 S.D. 579, 221 N.W. 697, seems to sustain that contention. The reasoning in other cases would lead to the contrary conclusion."

The Wyoming opinion, supra, then cites other authorities to the contrary and concludes as follows:

"Power to erect a schoolhouse should ordinarily, doubtless, be held to include power to put into it the necessary equipment, such as desks, boards, etc., just as much as a heating plant. . . ."

It has been held a number of times that a grant of power includes the necessary power to carry it out. 56 C. J. 477; Board of Directors of Public Schools of Parish of Lincoln v. Ruston State Bank,133 La. 109, 62 So. 492; Midland Special School Dist. of Sebastian Co., Ark., v. Central Trust Co. of Illinois, 1 F.2d 124.

In the case of Board of Com'rs of Buncombe County et al. v. C. N. Malone Co., 179 N.C. 110, 101 S.E. 552, the holding is confined to the rule that power to erect a building includes the power to equip it with all necessary things which permanently become a part thereof.

The Supreme Court of Wyoming in a recent decision (Jewett et al. v. School Dist. No. 25 in Fremont County, 49 Wyo. 277,54 P.2d 546) again passed on the question involved herein, and we think the reasoning therein is sound. The court reviewed the authorities in an exhaustive opinion which we believe to be decisive of the question before us. In the body of this opinion it is said:

". . . Every school building, or an enlargement thereof, requires some equipment which becomes part of the building, and we think that the better authority is to the effect that power to erect or enlarge a building should be construed as impliedly and necessarily including equipment of that nature, and we so hold. . . ."

We conclude that section 10, art. 10, of the Constitution, authorizing a direct levy for the purpose of erecting school buildings, includes the inherent and implied power to apply a portion of the proceeds derived from such increase to the purchase of necessary equipment which permanently becomes a part of such newly constructed buildings, and we so hold. We further conclude, and hold, that seats and desks for such a building are proper and necessary equipment therefor. In so holding, however, we desire to make it clear that under our decision it is necessary to install said equipment as a part and parcel of the building when the erection takes place. Otherwise, it would be in the nature of repairs, which is not covered by section 10, supra.

The protest is hereby denied.

WELCH, C. J., CORN, V. C. J., and RILEY, OSBORN, BAYLESS, HURST, and ARNOLD, JJ., concur. GIBSON, J., dissents.