Board of Ed. of Ind. Sch. Dist. 20, Muskogee v. State of Okl.
| Decision Date | 05 May 1969 |
| Docket Number | No. 89-68.,89-68. |
| Citation | 409 F.2d 665 |
| Parties | BOARD OF EDUCATION OF INDEPENDENT SCHOOL DISTRICT 20, MUSKOGEE, OKLAHOMA; Natalie Sams and F. Clarence Sams, minors who sue by their parents, Mr. and Mrs. Nathan Sams, and Mr. and Mrs. Nathan Sams, individually; Thomas Buckley, Robert Buckley and John Buckley, minors who sue by their parents, Mr. and Mrs. William A. Buckley, and Mr. and Mrs. William Buckley, individually; Jennifer Parker, a minor who sues by her parents, Mr. and Mrs. Kenneth Parker, and Mr. and Mrs. Kenneth Parker, individually; and the Class of all those School Districts, School Children, Parents and Property Owners in the State of Oklahoma who are Similarly Situated with the above Named Plaintiffs, Plaintiffs-Appellants, v. STATE OF OKLAHOMA; State of Oklahoma ex rel. the Commissioners of the Land Office; Jack Blackwell, the County Treasurer of Oklahoma County; Jim Parkinson, the County Treasurer of Tulsa County; and Oscar Thomas, the County Treasurer of Muskogee County, in their official capacities and representing the class of all County Treasurers of Oklahoma, Defendants-Appellees, and Board of Education of Independent School District 1, Sulphur, Oklahoma, et al., Intervenors-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Tom R. Mason, Muskogee, Okl., and Maurice H. Merrill, Norman, Okl. (Norman & Wheeler and Bonds, Matthews & Mason, Muskogee, Okl., were with them on the brief), for plaintiffs-appellants.
Bert Barefoot, Jr., Oklahoma City, Okl. (C. J. Engling, Asst. Atty. Gen. for
State of Oklahoma, was with him on the brief), for defendants-appellees.
John A. Claro, Oklahoma City, Okl. (Bert Barefoot, Jr., Edward H. Moler and Barefoot, Moler, Bohanon & Barth, Oklahoma City, Okl., were with him on the brief), for intervenors-appellees other than Independent School Dist. 1 of Tulsa County, Okl.
C. H. Rosenstein, Tulsa, Okl. (Rosenstein, Livingston, Fist & Ringold, Tulsa, Okl., were with him on the brief), for intervenor-appellee Independent School Dist. 1 of Tulsa County, Okl.
Before LEWIS, BREITENSTEIN and HICKEY, Circuit Judges.
The claim of the plaintiffs-appellants is that Oklahoma treats them unequally in the distribution of taxes collected for school purposes from utilities operating in more than one county. Jurisdiction is asserted under 28 U.S.C. § 1343(3) in that plaintiffs are deprived of the equal protection guaranteed by the Fourteenth Amendment. A three-judge district court was requested and denied. The trial court dismissed the action for lack of subject-matter jurisdiction and this appeal followed.
The action was brought by the Board of Education of a Muskogee, Oklahoma, school district and by parents and taxpayers suing in their own behalf and in behalf of their school children. The defendants are the State of Oklahoma and various state and local officials whose duties relate to the collection and distribution of taxes. Several school districts were permitted to intervene on the side of the defendants.
The allegations of the complaint are these. The Oklahoma Constitution, Art. X, § 12a, provides that taxes on utilities operating in more than one county "shall be paid into the Common School Fund * * * of this State." In Linthicum v. School District No. 4 of Choctaw County, 49 Okl. 48, 149 P. 898, the Oklahoma Supreme Court held that this constitutional provision was not self-executing and that in the absence of legislation the county treasurers could not pay into the Common School Fund the mentioned taxes. The Oklahoma legislature has not enacted the necessary implementing legislation. This failure deprives the plaintiffs of equal protection because the children are denied an equal opportunity for education, because the individual taxpayers are required to pay more taxes, and because the school district is denied its "equalized share of the school ad valorem taxes," assured by Art. X, § 12a. The plaintiffs seek a decree enjoining the county treasurers from paying taxes collected on utilities operating in more than one county to the local school districts, directing the state legislature to enact implementing legislation, and, in the event of such legislation, ordering the Commissioners of the Land Office to apportion and distribute the taxes throughout the state as other "Common School Funds."
A single judge may dismiss for lack of subject-matter jurisdiction and his determination is made on the basis of the allegations of the complaint. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152. His refusal to convene a three-judge court may be reviewed by the court of appeals. Idlewild Bon-Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794. If the trial court was correct in holding that subject-matter jurisdiction is not alleged, there is no need of pursuing further the question of the need for a three-judge court.
The complaint before us does not attack the constitutionality of any state statute or of any administrative order. The claims are (1) the decision in Linthicum v. School District No. 4 of Choctaw County, 49 Okl. 48, 149 P. 898, that § 12a of the Oklahoma Constitution is not self-executing is wrong, and (2) accepting Linthicum, the state legislature has denied the plaintiffs equal protection by not implementing § 12a. If the complaint is read liberally, it can be taken as an over-all attack on the Oklahoma system of distribution of school funds. If such is the intent, we do not know what law or...
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