Graham v. Childers
| Decision Date | 03 November 1925 |
| Docket Number | Case Number: 16573 |
| Citation | 241 P. 178,114 Okla. 38,1925 OK 888 |
| Parties | GRAHAM v. CHILDERS, State Auditor, et al. |
| Court | Oklahoma Supreme Court |
¶0 1. States--Statutes -- Validity of Appropriation Act Within Constitutional Limit of Tax Levy.
To be invalid, when otherwise within its authority, an appropriation, regularly made by the Legislature and approved by the Governor, must appear to require a tax levy in excess of 3 1/2 mills for the fiscal year for which made, in violation of section 9, art. 10, of the Constitution. When an appropriation is made during a current fiscal year to supplement a former one to be used during such year, after the State Equalization Board has fixed the mill levy to raise the estimated expenses for such year, it is valid for the purpose intended in the absence of proof that the previously authorized legal expenditures would consume more money than could be raised for such fiscal year by a levy of 3 1/2 mills, on an ad valorem basis, other revenues considered.
2. Same -- Supplemental Appropriation for Schools Not "Debt."
An appropriation supplementing a prior one to carry out a policy of the state as to its public schools, which is to be paid from current revenues, is in no wise a debt within the meaning of section 23, art. 10, of the Constitution.
Error from District Court, Oklahoma County; Wm. H. Zwick, Judge.
Injunction by W. A. Graham against Charles C. Childers, State Auditor, and another. Judgment for defendants, and plaintiff appeals. Affirmed.
Langley & Langley, for plaintiff in error.
Lydick, McPherren & Wilson, George F. Short, Atty. Gen., and J. Berry King and V. P. Crowe, Asst. Attys. Gen., for defendants in error.
¶1 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.
¶2 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 text-book 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.
¶3 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.
¶4 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:
"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."
"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."
¶10 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."
¶11 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...
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