Chi., R. I. & P. R. Co. v. Excise Bd. of Stephens Cnty.

• Decision Date: 29 June 1934
• Docket Number: Case Number: 25419
• Citation: 168 Okla. 519,1934 OK 392,34 P.2d 274
• Parties: CHICAGO, R. I. & P. R. CO. v. EXCISE BOARD OF STEPHENS COUNTY.
• Court: Oklahoma Supreme Court

1934 OK 392

34 P.2d 274

168 Okla. 519

CHICAGO, R. I. & P. R. CO. v. EXCISE BOARD OF STEPHENS COUNTY.

Case Number: 25419

Supreme Court of Oklahoma

Decided: June 29, 1934

Syllabus

¶0 1. Taxation--Effect of Constitutional Amendment of August 15, 1933, Upon Existing Statutes--Authority of County Excise Board to Apportion Maximum of Tax Levy Between County and Political Subdivisions.

Under the Provisions of section 9, art. 10, of the Constitution, as amended by adoption by vote of the people on August 15, 1933, the limitations as to tax levies by municipal subdivisions of the state provided in chapter 122, Session Laws 1933 (House Bill No. 387), were abrogated and authority was vested in the excise board of the several countries to apportion between county, city, town, and school district the maximum of mills on the dollar until such time as the regular apportionment is otherwise provided for by the Legislature.

2. Hospitals--Provision of Crippled Children's Act Making Expense of Maintaining State Hospital in Part a County Charge Held Unconstitutional.

Under article 21 of the Constitution, the University Hospital, a state institution maintained by the state, must be maintained at the expense of the state. In so far as chapter 14 of art. 5, O. S. 1931 (commonly known as the Crippled Children's Act), attempts to impose a portion of the burden of maintenance on the county, it is unconstitutional and inoperative.

3. Statutes--Statute Valid in Part Where Uncostitutional Portion Severable--Crippled Children's Act Held Valid in Part.

If the unconstitutional portions of a statute are severable from the remainder of the act in such a way that it may be presumed the valid portions would have been enacted with the invalid portions eliminated, the failure of the latter will not render the entire statute void. On the contrary, the statute will be enforced as to the valid portions. The unconstitutional portion of chapter 14, art. 5, O. S. 1931, is severable and the remainder of the act valid, and enforceable.

4. Same--Tax Levy to Create Crippled Children's Fund Hold not Void Because no Part Can Be Paid to Maintain State Institution.

A county levy made to create a crippled children's fund is not void by reason of the fact that no portion thereof can be paid to maintain the University Hospital, a state institution, there being other legitimate purposes for which such fund can be expended.

5. Statutes--Constitutional Requirement as to Titles of Acts.

The provisions of section 57 of art. 5 of the Constitution, relating to titles of legislative acts, are mandatory, but are not to be enforced or applied in such a technical manner as to unreasonably cripple legislation. The title need not abstract the contents of the act.

6. Same--Title of Act Held Sufficient to Support Provision Authorizing Tax Levy to Create "Crippled Children's Fund."

The title to chapter 81, S. L. 1927 (chap. 14, art. 5, O. S. 1931), examined and held sufficient to support the provision in the body of the act authorizing a levy (in excess of the maximum statutory limitation or levies) to create a "crippled children's fund."

7. Same--Title of Act Hold Sufficient to Support Provision for County Tax Levy for Home Demonstration Work.

The title to chapter 154, S. L. 1933, examined, and held sufficient to support the provisions in the body of the act authorizing a county levy (in excess of the maximum statutory limitation on levies) for home demonstration work.

Appeal from Court of Tax Review; Porter Newman, Asa E. Walden, and O. C. Wybrant, Judges.

Protest of the Chicago, Rock Island & Pacific Railway Company against certain tax levies made by the Excise Board of Stephens County. From an adverse judgment, protestant appeals. Affirmed.

W. R. Bleakmore, W. L. Farmer, John Barry, and Robert E. Lee, for plaintiff in error.

Jerome Sullivan, Co. Atty., and Arthur J. Marmaduke, Asst. Co. Atty., for defendant in error.

Hunt & Eagleton, amici curiae.

BUSBY, J.

¶1 This action involves protested tax levies of Stephens county for the fiscal year of 1933-34. It comes to this court on appeal from decision of the Court of Tax Review holding the levies involved to be valid.

¶2 The Chicago, Rock Island & Pacific Railway Company, a corporation, plaintiff in error, was protestant in the lower court, and the excise board of Stephens county, defendant in error herein, was protestee before the court below. For the sake of convenience the parties will be referred to in this opinion as protestant and protestee, respectively, when not otherwise designated.

¶3 The total assessed valuation of Stephens county was $ 12,610,274. The maximum ad valorem tax levy authorized for county current expense purpose was 4.5 mills by virtue of the provisions of grammatical paragraph No. 5 of subdivision (a) of sec. 1 of chapter 122, S. L. 1933. The protestee made a levy of 4.80 mills, asserting that it was authorized to exceed the maximum levy prescribed by the Legislature by virtue of authority granted to it by section 9 of art. 10 of the Constitution, as amended at the special election of August 15, 1933. This levy was Protested be, fore the Court of Tax Review on the theory that the maximum levy prescribed by existing law at the time of the adoption of the constitutional amendment could not be exceeded by the excise board. The lower court denied the protest and sustained the levy. The decision of the Court of Tax Review should be affirmed under authority of Atchison, T. & S. F. Ry. Co. v. Excise Board of Washington County, 168 Okla. 619,35 P.2d 274, in which we held in substance that the limitations on levies prescribed by chapter 122, S. L. 1933, were abrogated by section 9 of art. 10, Oklahoma Constitution, as amended.

¶4 The next item of protest to be considered involves the levy for the crippled children's fund of Stephens county. This levy was made pursuant to legislative authority (granted by chapter 81, S. L. 1927, chapter 14, art. 5, sections 1748-1755, O. S. 1931). It was protested on the theory that certain provisions of section 9 of art. 10, and the provisions of article 21 and of section 57 of art. 5, of the state Constitution were thereby violated. The Court of Tax Review denied the protest. The decision of that court will be affirmed for the reasons hereafter stated.

¶5 It is contended by the protestant that a portion of the fund created by the levy may be used to maintain and support the University Hospital, a state institution. That a levy made for such a purpose is in contravention of that part of section 9 of article 10 of the state Constitution, as amended on August 15, 1933, which reads:

"No ad valorem tax shall be levied for state purposes, nor shall any part of the proceeds of any ad valorem tax levy upon any kind of property in this state be used for state purposes."

¶6 And that it violates article 21 of the state Constitution, Which 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."

¶7 This latter provision has been held to prevent a county from contributing in whole or in part to the support and maintenance of a state institution. Board of Commissioners of Logan County v. State ex rel. Short, Atty. Gen., 122 Okla. 268, 254 P. 710; St. L.-S. F. Ry. Co. v. Morris, 143 Okla. 160, 288 P. 306; Protest of C., R. I. & P. Ry. Co., 164 Okla. 118, 23 P.2d 157. The provision of section 9, art. 10, as amended, quoted, supra, constitutes an additional reason for adhering to the views announced in the cited cases.

¶8 Section 2 of the act in question (sec. 1749, O. S. 1931) provides, in part:

"* * * The court, with the consent of the parent or parents, guardian or other persons having the legal custody of said child, shall enter an order, directing that the said child be taken or sent to the University Hospital, situated in Oklahoma City, Okla., for free medical and surgical treatment and hospital care. Provided, that if the child is afflicted with some deformity or malady which falls within the field of plastic or orthopedic surgery, the court may order said child sent to other hospitals of the state of Oklahoma, if the parent or guardian is willing and such hospitals are willing to accept cases under the provisions and compensation as set out in this act."

¶9 The above-quoted provision would seem to contemplate medical and surgical treatment and hospital care of crippled children free of charge to either county or parents. However, in contrast, the latter portion of section 4 (sec. 1761, O. S. 1931) provides:

"Provided, that no county shall be held liable for indebtedness incurred under the provisions of this act during the fiscal year in an amount greater than the sum lawfully available under said levy; provided, further, that when claims equal to the funds lawfully available under said levy in any county have been duly presented to, and allowed by, the board of county commissioners of said county, said board shall give written notice that said crippled children's fund is exhausted. Accompanied by a certified account of all expenditures under this act to the judge of the juvenile court of said county and to the University of Oklahoma School of Medicine: and provided, further, that after such notice has been given, the said judge may commit patients from such county to the University Hospital of the state of Oklahoma, and that said hospital shall accept such patients under the terms of section 3 of this act, and the expense incurred for the care and treatment of such patients shall be borne entirely by the funds regularly established for the maintenance and support of said hospital."

¶10 Which...