Excise Board of Oklahoma County v. Board of Educ. , 178 Okla. 545 ( 1936 )

A writ of mandamus was issued by the trial court, at the instance of the board of education, to compel the excise board, plaintiff in error, to approve a supplemental appropriation for building sites in the total sum of $119,710.

While supplemental or additional appropriations are authorized by section 12680, O. S. 1931, certain conditions must exist before supplemental appropriations may be made. Among these is the requirement that the additional appropriation sought to be made must be for "current expense purposes."

Ordinarily, as measured by the decisions, uninfluenced by statutes and common acceptation, a capital investment, such as the purchase of land for building sites, does not fall within a current expense. However, under our statute, section 12677, O. S. 1931, subdivision (d), amended article 13, chapter 66, S. L. 1935, the item of appropriation "for the purchase of building sites" was grouped and classified as a current expense. This item is, by the statute, listed with other items of expense purely current in their nature, such as salaries, office supplies, lights, fuel, water, etc. This legislative classification of the item for building sites may have been in view of unusual conditions frequently arising in Oklahoma. The Legislature no doubt knew this to be a rapidly developing state, where, in the production of natural resources, such as petroleum, there is often a massing of the citizenship engaged in such industries. In connection with such situations it may be that occasionally, subject to original appropriations, a supplemental appropriation might be required for building sites upon which to locate temporary structures for schools, in order to educate children of people gathered in "mushroom" towns or rapidly developing communities. Such a situation might justify a supplemental appropriation for such a purpose, but such a situation constitutes an emergency, and the requirement for supplemental or additional appropriation is a showing of need of the public welfare. Protest of Cities Service Gas Co.,162 Okla. 130, 19 P.2d 546, par. 3, syllabus.

Contrary, or aside from the ruling expressed in State ex rel. Morley, 168 Okla. 259, 34 P.2d 258, it is thought a legal discretion is vested in the excise board when that board acts under the provisions of section 12680, supra, to consider a request for a supplemental appropriation. But aside from the question as to whether legal discretion is vested in the excise board under such circumstances, it seems certain that agency is only empowered to act in this matter as provided by statute. Whenever the conditions expressed in the statute do not exist or do not affirmatively appear, then there is but one duty to be performed by the excise board, and that is to decline to act. The statute in this regard reads:

"Whenever the public welfare or the needs of any * * * school district shall require, the excise board may, on call of the chairman, convene at any time for the purpose of making supplemental or additional appropriations, for current expense purposes. * * *"

Then follows statutory inhibitions: (1) Such appropriations shall come within the limits of section 26, article 10, Constitution. (2) No such appropriation shall be in excess of the income and revenue, provided or accumulated for the year. Then follows procedure which requires a financial statement in detail, a finding by the excise board of a surplus in revenue for current expenses, or a revocation or cancellation of existing appropriations whereby funds may be made available.

In the case of counties and cities the financial statement and request for supplemental appropriations is required to be published.

Throughout the text of the statute authorizing the excise board to act, conditions must be made to appear to the excise board. It is the excise board that makes findings. It is the excise board that finally acts, and unless the showing required by statute is made to appear to the excise board, it is without power or jurisdiction to approve such an appropriation. In the absence of such a showing in facts as distinguished from conclusions of the petitioning agency, it may be said that no discretion is vested in the excise board. Its only duty in such an event is to deny the request.

The first and foremost of these conditions expressed in the statute is a showing of facts constituting a requirement of public welfare. The statute reads:

"Whenever the public welfare or needs of any * * * school district shall require."

It is not enough that the school district express its conclusion. A set of facts showing the need is the statutory requirement.

In Bartlesville Water Co. v. Brann, 166 Okla. 253,27 P.2d 345, it was said:

"It cannot be denied that the city of Bartlesville required a supplemental appropriation in the amount requested for the protection of its citizens and their property against loss by fire."

In the Morley Case, supra, the supplemental appropriations sought were for salaries, legal expense, audit, janitor supplies, etc., all purely current needs, the necessity of which could hardly be disputed, but herein there are no facts or circumstances exhibited to the excise board to show the necessity within the fiscal year drawing to a close at the time of the request, or any other time, for the purchase of the land. Such items might well be considered in the next original appropriation in the absence of a showing of necessity for the present purchase. Such a decision by this court would tend to discourage the practice said to be indulged by some public agencies, whereby accumulated revenues are sought to be expended near the close of the fiscal year to avoid a reduction in tax levies and to enlarge the function performed by the municipal subdivision. Such expenditures are not based on the needs or requirements of the public welfare.

By the enactment of chapter 85, S. L. 1933, stricken down in the Morley Case, the Legislature evidenced its desire and intention to revert to a sound governmental policy by requiring the use of surplus revenues for the reduction of tax levies. The Morley Case should be limited to the facts shown by that record. It should be distinguished from the facts now confronting the court. If necessary, it should be overruled. Adherence should be had to this court's, ruling stated in Protest of Cities Service Gas Company, 162 Okla. 131,19 P.2d 546, par. 3, syllabus:

"Supplemental appropriations are only authorized when the public welfare or the needs of the county, city, town, township, or school district require it."

For these reasons, I respectfully dissent.