Opinion ( 1969 )

Legislature — Appropriations — Time The 32nd Oklahoma Legislature, Second Session, which convenes January 6, 1970, may appropriate any cash surplus from the fiscal year ending June 30, 1969. The Attorney General has had under consideration your opinion request to recent date wherein you ask: "May the 2nd Session of the 32nd Legislature which convenes on January 6, 1970, then appropriate the cash surplus, if any which accrued through June 30, 1969, in the General Revenue Fund and other special funds for the fiscal year ending June 30, 1969; i. e., the revenues in excess of the amounts necessary to satisfy the valid appropriations for the fiscal year ending June 30, 1969, which were made by the 1969 Legislature "In simpler words, may the 1970 Legislature appropriate the cash surplus from the fiscal year ending June 30, 1969?" Two provisions of the Oklahoma Constitution are pertinent to your inquiry: Article X . Section 23 as amended by State Question No. 453, Referendum Petition No. 166, adopted April 16, 1968, provides in relevant part, ". . . IT he State Board of Equalization shall make an itemized estimate of the revenues to be received by the State under the laws in effect at the time such estimate is made, for the next ensuing fiscal year showing separately the revenues to accrue to the credit of the General Revenue Fund and each special fund of the State, and the total amount of such estimate for such fiscal year shall not exceed the total revenue which accrued to each such fund for the last preceding fiscal year, to which amount shall be added the cash surplus, if any, from such preceding fiscal year in the hands of the State Treasurer to the credit of any such fund and not previously appropriated by the State Legislature at the time such estimate is made. . . provided, however, that the Legislature may at any regular session or special session called for that purpose, enact laws to provide for additional revenues, other than ad valorem taxes, or transferring the existing revenues or surpluses from one fund to another. whereupon it shall be the duty of the State Board of equalization to make an estimate of the revenues that will accrue under such laws and to file the same with the Governor and with the President of the Senate and the Speaker of the House of Representatives, and the amount or any increase or decrease, resulting, for any reason, from such laws shall be added to or deducted from each respective fund, as the case may be. The amount of such adjusted estimate shall be the maximum amount which can be appropriated for all purposes from any fund for the fiscal year estimated." (Emphasis added) Article X, Section 23a provides in part, "Any surplus which has accrued or may hereafter accrue to the General Revenue Fund of the State of Oklahoma during any fiscal year shall be placed monthly in a sinking fund in the State Treasury to be used solely for the purpose of paying the principal and interest of the outstanding and unpaid bonded indebtedness of the State of Oklahoma . When the monies credited to said sinking fund together with the monies set aside to pay said bonded indebtedness, pursuant to the statutes authorizing the issuance of said bonds, are sufficient to pay all outstanding bonds and coupons heretofore issued by the State of Oklahoma, it shall no longer be necessary to credit surplus funds to the Sinking Fund herein created. The sufficiency of said monies to fully pay the State's bonded indebtedness shall be determined by the Governor, State Treasurer, and Attorney General. After such determination any surplus monies thereafter to the credit of the State General Revenue Fund shall be subject to appropriation by the Legislature. " (Emphasis added) Your attention is directed also to the following language in the body of the opinion in the case of Draper v. State Board of Equalization, Okl., 414 P.2d '76 (1966), ". . . Section 23 was adopted in 1941. Article X, Section 23a was adopted in 1944, and to a limited extent, enlarges the Legislature's (but not the board's) powers. In the last sentence thereof, it provides that ``any surplus monies * * * to the credit of the State General Revenue Fund shall be subject to appropriation by the Legislature'. . . ." ". . . However, since Article X Section 23a Oklahoma Constitution authorizes the Legislature to appropriate any surplus monies to the credit of the General Fund, we know of no reason why the Legislature may not have the assistance of the Board in determining the amount of any actual surplus at any suggested date during the current biennium whether in the General Revenue Fund or in the Emergency Appropriation Fund." Any confusion arising in the interpretation of Sections 23 and 23a of Article X, Oklahoma Constitution is generally brought about by a failure to distinguish between the use of the "surplus", if any, by the State Board of Equalization in arriving at the "estimate" or "formula" regarding the revenues available for appropriation by the Legislature for the next succeeding fiscal year and the appropriation of any "surplus" funds in the General Revenue Fund or any special funds by the Legislature at any regular or special session thereof. There appears no restraint upon the Legislature which would prevent it from appropriating actual surplus monies in the General Fund or any special fund at any time such surplus accrues or exists. In fact, the power to appropriate such surplus monies is specifically granted the Legislature in the emphasized portion of Section 23a, supra. It is, therefore, the opinion of the Attorney General that your question should be answered in the affirmative: the 32nd Oklahoma Legislature, Second Session, which convenes January 6, 1970, may appropriate any cash surplus from the fiscal year ending June 30, 1969. (G. T. Blankenship)