Graham v. Childers

W. A. Graham sought an injunction against C. C. Childers as State Auditor, and A. S. J. Shaw, State Treasurer of the state of Oklahoma. The judgment of the district court of Oklahoma county sustained a demurrer to the evidence offered by the plaintiff and dismissed his petition. To reverse this judgment, the plaintiff prosecutes error.

The injunction was sought to restrain the State Auditor from issuing a warrant to pay for school books, as contemplated by Senate Bill 87, which is chapter 16, Session Laws of Oklahoma, 1925. (Reference is made to said act for its provisions.) This act was approved April 19, 1925. It appropriated, out of the moneys in the state treasury not otherwise appropriated, the sum of $650,000, or so much thereof as might be needed to supplement the appropriation made by section 1 of chapter 175, Session Laws of Oklahoma, 1923. Said last-named act was entitled, "An Act providing for a system of state text-books in the public schools of Oklahoma, appropriating and setting aside the net proceeds of money collected from all foreign insurance companies doing business in the state of Oklahoma (foreign fire insurance companies excepted) and establishing a fund to be known as the state text-book fund; directing the State Insurance Commissioner to deposit said money with the State Treasurer, who shall designate said deposit as the state text-book fund; providing a method of distributing and otherwise putting into use said text-books in all the public schools of the state beginning August 1, 1924; amending and repealing certain existing text-book laws, making an appropriation to carry out the purposes of the act and declaring an emergency." (Reference is made to said chapter 175, Session Laws 1923, for the provisions thereof.) To epitomize the said state textbook bill, it required the adoption, by the designated board, of text-books to be used in the public schools of the state up to and including the eighth grade. It requires the publishers, to whom contracts for such books as were adopted were divided, to establish, at Oklahoma City, a depository, from which all immediate demands could be supplied. Books were to be obtained therefrom by requisitions made by the State Superintendent of Public Instruction. The contracting publishers, under penalty, were to furnish the books needed and they were to be supplied to each school district of the state through the respective county superintendents of schools in each county; distribution to be made to the school children throughout the state in each district of all books required to be used in the grades above mentioned, without cost to the children. To begin the work contemplated by said act, the sum of $600,000 was appropriated for the fiscal year beginning July 1, 1923, and ending June 30, 1924; $350,000 for the fiscal year beginning July 1, 1924, and ending June 30, 1925. The purchase of the books was to be made by the State Superintendent of Public Instruction, the same to be approved by the State Board of Education.

After the said act became effective and the number and cost of the books required to be supplied thereby was ascertained, it developed that to fully comply with said act would require an expenditure of approximately $1,600,000. The State Superintendent of Public Instruction requisitioned from the publishers whose books had been adopted by the board only so many books for which the money appropriated by the said last named act would pay. While it is insisted by the plaintiff, Graham, through a vigorous argument made by his counsel, that the superintendent in reality contracted for and undertook to bind the state to pay for approximately $1,600,000 worth of books in violation of the provisions of the Constitution and law of the state hereinafter referred to, the evidence offered shows that he cautiously stayed within the appropriation and did not in reality undertake to bind the state to pay for the extra books required to fulfill the purposes of said act in supplying free text-books to the school children in each school district of the state for no law even purported to give him authority to create a debt, and without such, no officer could effect such purpose. The publishers, recognizing the public policy of Oklahoma touching its public school system, as set forth in said chapter 175, supplied, in the nature of a loan, the books of value in excess of the appropriation available to pay for, subject to their being purchased on the convening of the next Legislature. The said first-named appropriation bill of the 1925 Legislature was passed to meet this situation.

Plaintiff contends that said appropriation was without legal force and effect for that there were no funds in the state treasury, or provided at the time, to pay said amount, for the reason that appropriations theretofore made exhausted all the revenue provided for the current year, and that said last-named appropriation violates the "cash or pay as you go" policy alleged to be fixed by the Constitution and laws of the state; the plaintiff contending in his brief: "The expense of government of each year must be taken care of by the revenue of that particular year, and no fiscal year has the right to unload any of its financial burdens upon the succeeding year or years." The constitutional provisions drawn into his contention are:

Section 55, art. 5, which provides: treasury of this state, nor any of its funds,

"No money shall ever be paid out of the nor any of the funds under its management except in pursuance of an appropriation by law. * * *"

Section 2, art. 10:

"The Legislature shall provide by law for an annual tax sufficient, with other resources, to defray the estimated ordinary expenses of the state for each fiscal year."

Section 3, art. 10:

"Whenever the expense of any fiscal year shall exceed the income, the Legislature may provide for levying a tax for the ensuing fiscal year, which, with other resources, shall be sufficient to pay the deficiency as well as the estimated ordinary expenses of the state for the ensuing year."

Section 23, art. 10:

"The state may to meet casual deficits or failure in revenues, or for expenses not provided for, contract debts; but such debts, direct and contingent, singly or in the aggregate, shall not, at any time, exceed four hundred thousand dollars, and the moneys arising from the loans creating such debts shall be applied for the purposes for which they were obtained or to repay the debts so contracted, and to no other purpose whatever."

In conjunction with these sections plaintiff presents section 9690, C. O. S. 1921, which levies, as directed in said section 2, art. 10, of the Constitution, supra —

"Annually an ad valorem tax upon all property in this state which may be subject to taxation upon such basis, a tax sufficient, in addition to the income from all other sources, to pay the expenses of the state government for each fiscal year ending on the thirtieth day of June and to pay the deficiency, if any, for the year next preceding. * * *"

The latter part of said section seems to have been amply within constitutional authority as contained in section 3, art. 10, which provides:

"Whenever the expenses of any fiscal year shall exceed the income, the Legislature may provide for levying a tax for the ensuing fiscal year, which, with other resources, shall be sufficient to pay the deficiency as well as the estimated ordinary expenses of the state for the ensuing year."

It is the contention of the plaintiff that the fiscal system is the "pay as you go" system and is clearly in intendment to be the same as that of municipal subdivisions of the state to the extent that the needed expenses may be ascertained for maintaining the state government as the law has directed it to be maintained. He cites Campbell v. State, 23 Okla. 109,99 P. 778; O'Neil Engineering Co. v. Ryan, 32 Okla. 738, 124 P. 19; State v. Stanfield, 34 Okla. 524,126 P. 239. These cases deal only with municipal subdivisions and have no reference to the sovereign. We do not find fault with the plaintiff for making this contention. An examination of the Constitution and statutes shows there is little if any analogy between the fiscal system of the municipal subdivisions of the state and that of the sovereign itself. This is true for what might be termed an axiomatic principle of the law, to wit: That the municipal subdivisions can, in the exercise of their contractual power, do only those things, which incur an expenditure of public funds, which are expressly authorized by the Constitution and statutes of the state, whereas, the rule governing the sovereign is entirely to the contrary. The sovereign speaks through its legislative body, and the legislative body determines the policy of the sovereign, which has no limitation as to expenditures, save and except those which are expressly placed on its exercise by the Constitution of the state. So we find that municipal subdivisions must have express authority, while the sovereign, to be limited, must have express limitations. We find this clear distinction pointed out in no less a document than the Constitution itself. Sections 2, 3, and 9, art. 10, of the Constitution are limitations so far as ordinary expenses are concerned. The first of said sections commands the Legislature to provide by law for an annual tax to defray the estimatedordinary expenses for each fiscal year. This constitutional provision is the basis for said section 9690, C. O. S. 1921. Section 3 of the Constitution provides that when the expense of any fiscal year exceeds the income, the Legislature may provide for levying a tax the ensuing fiscal year to pay the same. This last named section is the basis for the concluding part of section 9690, C. O. S. 1921. We find no limitation upon the amount the Legislature may appropriate save and except that found in section 9 to the effect that the said levy shall not be more than 3 1/2 mills; this, of course, on the ad valorem valuations of the state as equalized by the State Board of Equalization, which said equalization board is provided for by section 21, art. 10. Its duties are: (1) To equalize the valuations of the state; (2) to assess public service corporations; and (3) to perform such other duties as may be prescribed by law. One duty prescribed by law is to provide for a sufficient tax to take care of a deficiency of a preceding year. The tender of proof made to the trial court in the instant case, which was rejected, went only to this extent, that the plaintiff offered proof, by the Assistant State Treasurer, that the levy for the fiscal year 1924-1925 had been made by the Board of Equalization (of course he meant by this that the board had certified the number of mills necessary to raise the estimated ordinary expenses as referred to in said section 2 of art. 10, for the Legislature makes the levy, and not the the board) before the instant appropriation was made; that the $650,000 was not within the estimated needs made by the board, and that there was a deficit in the treasury anticipating all uncollected revenues which would accrue for the fiscal year ending June 30, 1925, on the mills levy fixed by the board. How any man could know and testify to this state of facts offered, no attempt is made to show.

By the sections of the Constitution above set out, and others, it is clear that the Legislature is the tax-levying authority for state purposes. The limitation directed against this authority is found in sec. 9, art. 10, supra, i. e., the 3 1/2, mill limitation on an ad valorem basis, and we would, with great reluctance, leave any impression that the Legislature could evade this maximum amount for any given fiscal year by any indirect method or by attempting to do so under section 3, art. 10, supra, as vitalized by section 9690. But there is no tender of proof in the instant case that at the time of the enactment of the bill, drawn in question, the appropriations already made would exceed a 3 1/2 mill ad valorem levy and the income of the state from other sources. This appropriation bill was in the nature of a remedial legislation or a curative statute. By chapter 175, Laws of the regular biennial session, 1923, a policy or purpose had been declared, and direction given to the proper officers to carry the same into effect, and that policy was to furnish free text-books to the public school children within certain grades in the state of Oklahoma. The mere fact that the Legislature, perhaps from lack of proper statistical information, failed to make an appropriation sufficient to carry out this purpose, would in no wise preclude it from doing so, if it can be done within the constitutional limitations at a subsequent session held during the biennial term. The money appropriated was intended to be spent in supplementing or adding to the former appropriation what the facts demonstrated was necessary to properly carry out the purpose of the original act. No one would gainsay that the amount of the appropriation now drawn in question would have been within the power of the Legislature to have incorporated in the first-named bill (ch. 175, S. L. 1923). If, at a later date, the Legislature obtained information that the amount designated in said first bill was insufficient, it could cure the defect. He who contends that an act of the sovereign legislative body is in excess of its constitutional authority must sustain the burden of showing a state of facts — if facts are drawn in issue — which, when the applicable provisions of the Constitution are considered, show the attempted exercise of power to be beyond constitutional limitations. Until that is done, the courts indulge every presumption that the legislative conclusion, which was reached by its passage of the act, that the provisions of the act are in fact within its authority was correct. The tender of proof as made was immaterial to any issue raised. The Legislature is convened by the Constitution biennially in January. While so convened, it makes appropriations for two fiscal years; the first beginning July 1st, following the constitutional convening date. The whole taxes for the first of such fiscal years do not, under the law, become due — the details of the statute being complied with by the taxpayer — until June following, and, no doubt, the bulk of such revenue does not actually reach the state treasury until months or years later. In exercising its legislative duty in calculating the necessary mill levies to meet the estimated expenses, the Equalization Board can, at no time, determine accurately the amount of mills necessary, for the perfectly apparent reason that there can be no known method to ascertain how much revenue will come into the state treasury during any given fiscal year from sources other than ad valorem taxation. Therefore, the balance sheet, when finally closed for a given fiscal year, may show a surplus in a large amount, while for another fiscal year it may show a deficit. Conditions beyond the foresight of anyone may bring about this situation; hence, foreseeing this last contingency, said section 3 of art. 10 was made the safety valve. That is to say, when within the constitutional limitations appropriations have been made, the Equalization Board may take into consideration such deficit in calculating the mill levies for a succeeding year, but by this no inference must be drawn that if the maximum provided by section 9 of article 10, supra, has been fixed for a given fiscal year by the board, an appropriation made which should require a levy in excess of that, that this could be done either for the fiscal year for which the appropriation was intended, or make the levy for a subsequent year beyond the 3 1/2 mills. There is nothing in the instant case to even indicate that the appropriation in question herein goes to either extent.

The act of the Legislature appropriating money sets aside the amount specified for the purpose designated, out of the money in the treasury not otherwise appropriated, either there at the time or that may lawfully be brought there. Moreover, such appropriation is legislative direction to the auditor to draw his warrant for the purpose designated, and is a further direction in effect to the State Board of Equalization that sufficient mills be levied to raise same, and to that extent specifically supplements the general statute, supra, which vitalizes said section 2, art. 10.

Plaintiff again says the act of the State Superintendent was in fact an attempted purchase of books in excess of the appropriation, and the method called a loan was a subterfuge. Suppose this be conceded. We are not to condemn or condone, except in so far as the law drives us. It was certainly the intent of the original bill that the necessary books be supplied. They were supplied, and even should it be conceded in doing so the zeal of the officers led them beyond the pale of the then legal appropriation, there was no binding obligation on the sovereign Legislature to follow such officers and make it good. But if, on the other hand, the Legislature saw fit to do so, and authorized the payment and its act did not step beyond the constitutional limits, the courts cannot strike down its deliberate enactment. Federation v. Salt Lake County (Utah) 61 P. 222; New Orleans v. Clark, 24 L.Ed. (U.S.) 521; Guilford v. Cornell, 18 Barb. (N.Y.) 615; Lycoming v. Union, 15 Pa. St. 166; People v. Burr, 13 Cal. 343; Black, Const. Law. 135; Cooley, Const. Law, 466. See, also, Cayuga Conty v. State, 183 N.Y. Supp. 646; Oswego Syracuse R. R. Co. v. State,226 N.Y. 351; Ulster v. State (N.Y.) 69 N.E. 370.

But plaintiff further contends that said act violates said section 23, art. 10. If it does, it cannot be justified or sustained, whatever be our personal inclinations. Said section 23 is quoted above. This section was found in the Constitutions of many states and had been considered by the courts of such states long before it became a part of the Constitution of Oklahoma.

The words "state debt" are shown by section 4, art. 10, of the Constitution, to have a fixed meaning, or to convey a definite idea of a condition; that is, it is such an obligation as the Legislature is required to provide for by levying a tax to pay the annual interest and sinking fund to liquidate the principal at maturity. Section 23 of art. 10 authorizes such a state debt to meet casual deficits, or failure in revenue, etc., limiting the same at any one time to $400,000; and further provides the moneys secured by such loans shall be used for the purposes intended.

In the instant case, the Legislature did not attempt to create such a debt, and section 23 has no application to the situation here presented.

The Legislature determined the specific amount to be paid out and named the specific purpose for which it was to be paid; the moneys to come from the public moneys of the state. In so far as any showing is made in the record, in doing so it was amply within its authority, whether the revenue for that particular year was, with all other appropriations, sufficient to meet it, or some part of it must be supplied by an extra amount raised in the ensuing year.

Lastly, as to plaintiff's contention as to the title of the act. All the provisions relate to the manner of expenditure of the appropriation made in the act, and are germane to the subject of the expenditure. Leatherrock v. Lawter,45 Okla. 715, 147 P. 324; Pond Creek v. Haskell, 21 Okla. 711,97 P. 338, 357.

The trial court is affirmed.

NICHOLSON, C. J., and HARRISON, MASON, LESTER, CLARK, and RILEY, JJ., concur.

PHELPS and HUNT, dissent.