Opinion No. 69-191 (1969) Ag ( 1969 )

Health Department — Levy — Purposes Monies collected by means of the constitutional health levy for public health purposes (Article X, Section 9A Oklahoma Constitution) may be utilized for the construction of a public health facility if the facility is needed to maintain an already existing Department of Health. It should be noted, however, that funds derived pursuant to Article X, Section 9A Oklahoma Constitution, may be used in this manner only to "maintain" a Department of Health already in existence, but may not be used to create such a department. Any conclusions reached in Attorney General Opinion No. 69-106 which are in conflict with this opinion are hereby overruled and withdrawn. The Attorney General has had under consideration your request for an opinion wherein you in effect ask the following question: Can money collected by means of the constitutional health levy for public health purposes be utilized for construction of a public health facility? Article X, Section 9A Oklahoma Constitution, provides as follows: "For the purpose of maintaining or aiding in maintaining a department of health within any county of the State, an additional levy not to exceed two and one-half mills on the dollar of the assessed valuation of the county may be levied annually, when such levy is approved by a majority of the qualified ad valorem tax paying voters of the county, voting on the question at an election called for such purpose by the Board of County Commissioners, or by initiative petition by voters of a county. A maximum levy of two and one-half mills may be made for such purpose after such approval until repealed by a majority of the qualified ad valorem tax paying voters of the county, voting on the question at an election called for such purpose by the Board of County Commissioners, or by initiative petition by voters of a county. Such department of health may be maintained jointly or in conjunction with one or more counties, cities, towns or school districts, or any combination thereof, and shall be maintained as now or hereafter provided by law. Nothing herein shall prohibit other levies or the use of other public funds for such department of health." (Emphasis added) O.S.L. 1963, ch. 325, Art. 2, Section 205 (a) (63 Ohio St. 1-205 [63-1-205](a) (1968)), states: "The County Board of Health may, with the approval of the State Commissioner of Health, establish and maintain a County Department of Health, the maintenance and operation of which is hereby declared to be a function of county government for which appropriations may be made from the General Fund of the county and the proceeds of a levy made in accordance with Section 9A, Article 10, Oklahoma Constitution." (Emphasis added) Also O.S.L. 1963, ch. 325, Art. 2, Section 223 (63 Ohio St. 1-223 [63-1-223] (1968)) states: "A levy of not to exceed two and one-half (2 1/2) mills on the dollar of assessed valuation of a county may be levied annually in accordance with the provisions of Section 9A, Article 10, Oklahoma Constitution, for the purpose of providing funds to maintain or aid in maintaining a County, District or Cooperative Department of Health, where such levy is approved by a majority of the qualified ad valorem taxpaying voters of the county, voting on the question at an election called for such purpose; and the amount of the levy so approved may continue to be made annually until repealed by a majority of the qualified ad valorem taxpaying voters of the county, voting on the question at an election called for such purpose." (Emphasis added) The Oklahoma Constitution and several Oklahoma Statutes provide different methods of constructing necessary county buildings. The assumption could be made that a building to house the Department of Health of a county would be such a necessary building. See Article X, Section 26 Oklahoma Constitution. Title 19 Ohio St. 381 [19-381] (1961) et seq. and Sections 19 Ohio St. 731 [19-731] et seq. Also, O.S.L. 1963, ch. 325, Article VII, Section 19 (63 Ohio St. 1-719 [63-1-719] (1968)), provides for the issuance of bonds for the purposes of constructing health facilities. In State v. State Board of Education, 97 Mont. 371,34 P.2d 515 (1934), the Montana court held that pledging part of the income from a land grant for state normal schools to pay bonds issued in financing construction of buildings, and interest thereon, was within the spirit and letter of a constitutional provision stating that income and funds belonging to state institutions of learning shall be devoted to "maintenance" and "perpetuation" of such institutions. The court stated: "The term ``maintenance' as applied to a school, does not necessarily mean that it should be maintained perpetually. The admitted facts in this case are that the Eastern Montana Normal School has been established for some seven years; it has been operated during that time in rented buildings; it is entirely within the realm of possibilities that the buildings which are now rented for the conduct of this institution may not be available at a not far distant date, and no other buildings can be secured if those occupied are lost to the school. Buildings are necessary for the continuance of the school for an indefinite time — for its perpetuation. . . ." In the case of Madeley v. Trustees of Conroe Independent School Dist., Tex., 130 S.W.2d 929 (1939), it is stated that the term "maintenance" of schools does not include the cost of the construction of school houses. However, this Court also said that where a surplus in the maintenance fund was not needed for the purpose of maintenance, the fund, having fully effectuated the purpose of the statute, ceases to be a "statutory fund" and became a "constitutional fund", and trustees of the district were authorized under the Constitution to use the fund for purposes of erecting and equipping school buildings. It is clear the purpose of Article X, Section 9A Oklahoma Constitution and to maintain or aid in maintaining a Department of Health. To maintain a Department of Health, it is, of course, necessary that buildings be provided in which the Department may operate. There is a distinction which should be made between "maintaining or aid in maintaining a Department of Health and "maintaining or aid in maintaining a Department of Health building". Article X, Section 9A, deals with maintaining the Department of Health and not maintaining a building. Therefore, it is the opinion of the Attorney General that monies collected by means of the constitutional health levy for public health purposes (Article X, Section 9A Oklahoma Constitution) may be utilized for the construction of a public health facility if the facility is needed to maintain an already existing Department of Health. It should be noted, however, that funds derived pursuant to Article X, Section 9A, Oklahoma Constitution, may be used in this manner only to "maintain" a Department of Health already in existence, but may not be used to create such a department. Any conclusions reached in Attorney General Opinion No. 69-106 which are in conflict with this opinion are hereby overruled and withdrawn. (Tim Leonard)