Battles v. State ex rel. Oklahoma Commission for Crippled Children

• Decision Date: 20 November 1951
• Docket Number: No. 34996,34996
• Citation: 206 Okla. 444,244 P.2d 320
• Parties: BATTLES et al. v. STATE ex rel. OKLAHOMA COMMISSION FOR CRIPPLED CHILDREN.
• Court: Oklahoma Supreme Court

Page 320

244 P.2d 320

206 Okla. 444

BATTLES et al. v. STATE ex rel. OKLAHOMA COMMISSION FOR CRIPPLED CHILDREN.

No. 34996.

Supreme Court of Oklahoma.

Nov. 20, 1951.

Rehearing Denied May 13, 1952.

Syllabus by the Court.

1. Under Article XXI of the Constitution the University Hospital, a state institution maintained by the state, must be maintained at the expense of the state.

2. If the constitutional and unconstitutional portions of the section of the statute are so dependent upon each other as to warrant the belief that the Legislature intended them to take effect in their entirety, it follows that, if the whole cannot be carried into effect, it will be presumed that the Legislature would not have passed the residue independently, and accordingly the entire section is invalid.

3. Title 10, chapter 8, section 13, Session Laws of 1949, 10 O.S.1949 Supp. § 172.13, held unconstitutional.

Ed Edmondson, Jr., County Atty., Muskogee, for Muskogee County Excise Board and Board of County Commissioners, intervenor.

Ben Franklin, Oklahoma City, Chal Wheeler, Muskogee, for Muskogee County Excise Board and Paul Cooke, intervenor.

Andy Wilcoxen, Muskogee, for City of Muskogee, intervenor.

Mac Q. Williamson, Atty. Gen., James C. Harkin, Asst. Atty. Gen., Julian B. Fite, Muskogee, for defendant in error.

DAVISON, Justice.

This is an appeal from a judgment of the District Court of Muskogee County, Oklahoma, ordering, upon application of The State of Oklahoma ex rel. Oklahoma Commission for Crippled Children, as plaintiff, the issuance of a writ of mandamus, requiring the defendant, the Excise Board of said county, to comply with the provisions of the Crippled Children's Act relative to the appropriation of revenue from ad valorem taxes as therein required, 10 O.S.Supp.1949, § 172.13. The other parties to the action are intervenors.

Section 172.13 of Title 10 O.S.Supp.1949 provides: 'It shall be the mandatory duty of the board of county commissioners of each county of the State of Oklahoma to include in their respective estimates, and of the excise board of each county of the State of Oklahoma to appropriate for each fiscal year hereafter a sum equal to not less than the net proceeds of one-fifth (1/5) of one mill on the assessed valuation of their respective counties. Said appropriation is to be included within the regular county general fund appropriation for current expenses and set aside to care for the children accepted by the Commission upon application by the respective county court as provided in Section 12 of this Act (10 O.S.1949 Supp. § 172.12). This appropriation shall be known as the Crippled Children's Budget Account, and it shall be unlawful to use said Budget Account for any purpose other than those authorized in this Act (10 O.S.1949 Supp. §§ 172.1 through 172.16). No county shall be liable for any charge beyond the respective Crippled Children's Budget Account of the fiscal year and no more than twenty (20%) per cent of the total Crippled Children's Budget Account of any one county may be expended for any one patient during any fiscal year. Claims filed by the Commission for payment by the county shall be sent to the respective county clerk and shall be allowed by the respective board of county commissioners if the same are found to be in keeping with the provisions of this Act.'

For the fiscal year 1950-51, the Board of County Commissioners of Muskogee County, in the estimate of needs and request for appropriations, included an item of $6600.00 which met the requirements of the above-quoted statute. The total amount of all appropriations requested by said board for said year for all county purposes exceeded by approximately $119,000.00 the income and revenue apportioned to the county for that year. The Excise Board of said County, after tentatively fixing the apportionment of income and revenue and in order to make the appropriations for all county purposes come within the amount of income available for the payment thereof, made appropriations in amounts for less than those requested and estimated by the Board of County Commissioners, to be necessary. In effecting such reductions, one of the items entirely omitted from the appropriations was the above-mentioned $6600.00 requested for the Crippled Children's Budget Account.

The defendant then made an apportionment of the tax levy among the various municipal subdivisions and filed the same together with the revised budgets and proposed appropriations with the State Auditor. Plaintiff brought this action during the protest period while the apportionment and budgets were on file with the State Auditor. Alternative writ was issued to the defendant who made a return thereof and filed answer thereto. After permission of the court was granted, petitions in intervention were filed by the Board of County Commissioners, the City of Muskogee and Paul Cooke, a resident taxpayer. The principal defense set up by the defendant and the intervenors was the assertion of the unconstitutionality of the above-quoted statute. Trial was had resulting in the granting of a peremptory writ requiring the excise board to set up an appropriation in conformity with that requested by the county commissioners and as required by said legislative act. This appeal was taken from that judgment and the funds were ordered impounded not to be spent until the matter was finally determined by this court.

Defendants contend that the above-quoted statute is in conflict with the Oklahoma Constitution, while plaintiff urges that the question of the constitutionality of the statute is not here properly presented for determination. It is, however, decisive of the issues involved and in such situations, it is the policy of this court if 'a public question is involved and confusion may occur in the making of levies for' subsequent fiscal years 'to express our view upon the question'. Atchison, T. & S. F. Ry. Co. v. Excise Board of Washington County, 168 Okl. 619, 35 P.2d 274, 277.

Whether or not the Legislature could, by the act under consideration, Crippled Children's Act, apportion therefor a part of the limit of levy provided by Article X, sec. 9 of the Constitution would first depend upon its authority to apportion funds of the various counties to the specific purposes covered by the act. Article XXI of the Oklahoma Constitution provides, 'Educational, reformatory, and penal institutions and those for the benefit of the insane, blind, deaf, and mute, and such other institutions as the public good may require, shall be established and supported by the State in such manner as may be prescribed by law.' In construing that article of the Constitution, this court has held that counties cannot be required to contribute to the treatment and support of patients in a state tubercular hospital. In re Protest of St. Louis-S. F. Ry....