Childrens Home & Welfare Ass'n v. Childers , 197 Okla. 243 ( 1946 )

Upon petition of Childrens Home and Welfare Association, a corporation of Tulsa, Oklahoma, this court assumed original jurisdiction for the purpose of determining whether to grant the petition for a writ of mandamus directed to C.C. Childers, State Auditor, and A.S.J. Shaw, State Treasurer, directing them to audit, allow, and pay certain claims filed by said Association against the State of Oklahoma. It is asserted by petitioner, and not denied by respondents, that the State Board of Affairs, acting under authority of H.B. 519, 1945 S.L. 437, made a contract with Association to care for certain orphan children at a specified monthly rate; that Association has performed its part of the contract to the extent indicated in the claims filed; and, if the contract is valid, the State of Oklahoma is indebted according to the tenor of the claims. The above-named officials, upon advice of the Attorney General, have refused to audit or allow or pay these claims for the reason hereinafter discussed.

It is conceded that Association is an Oklahoma corporation organized as a charitable body and without profit motive, for the purpose of establishing and maintaining in the city of Tulsa a home for dependent, neglected, and destitute minor children; and that it is entirely secular and free from the control or domination of any sectarian organization. The state officials based their rejection of these claims upon the premise that section 15, art. 10, Constitution of Oklahoma prohibits the giving, pledging, or lending of the credit of the State of Oklahoma to any association and forbids the state to become a stockholder in or to make donation by gift, subscription to stock, by tax arrangements or otherwise to any association.

The issue presented here was also presented in No. 32620, Murrow Indian Orphans Home v. Childers, 197 Okla. 249,171 P.2d 600, in connection with other legal objections to the payment of claims involved in that case. Some of the discussion in that opinion with respect to the state's duty and policy in this matter is applicable to this issue and will not be repeated herein.

Conceding the duty of the State of Oklahoma to care for orphan children, and recognizing the discretion which the Legislature has vested in the Board of Affairs for the handling of this matter, the primary question then remains as to whether section 15 above is violated by the contractual arrangements made. It must be obvious without further discussion that these contracts do not involve a gift or pledge or loan of the state's credit, nor do such contracts amount to a subscription to the capital stock of the corporation or a special tax arrangement for its benefit. No argument is made to this effect. There is left, then, simply the contention that these contracts amount to a donation or gift or arrangement described as "otherwise" to this Association, all being synonymous.

This court had occasion to define the term "gifts" which fall under the ban of section 15, above, which definition is not contrary to our view herein. In Hawks v. Bland, 156 Okla. 48,9 P.2d 720, we said that such gifts were "gratuitous transfers of property of the state voluntarily and without consideration." Following this thought we conclude that where the state receives property or service in return for the payment of its money, even though such payment by the state be voluntary in the sense that the contract whereunder the money was paid was voluntarily entered into, it is not to be treated as a gift. See, also, Carter v. Thomas, 172 Okla. 558,46 P.2d 460. It is not necessary to enter into an extended discussion of the service that is rendered to the State of Oklahoma by Association in taking and keeping and caring for the orphan children involved in this contract, but to the extent that Association renders this service to the State of Oklahoma it is furnishing the state a valuable consideration sufficient to support the payment to Association by the state of the state's money raised by public taxes.

The writ is granted.

HURST, V.C.J., and OSBORN, WELCH, CORN, and DAVISON, JJ., concur. RILEY, J., dissents.