Hawks v. Bland

• Decision Date: 09 February 1932
• Docket Number: 22906.
• Citation: 9 P.2d 720,156 Okla. 48,1932 OK 101
• Parties: HAWKS et al. v. BLAND.
• Court: Oklahoma Supreme Court

9 P.2d 720

156 Okla. 48, 1932 OK 101

HAWKS et al. v. BLAND.

No. 22906.

Supreme Court of Oklahoma

February 9, 1932

Rehearing Denied March 29, 1932.

Syllabus by the Court.

1. Money in the state treasury cannot be (a) appropriated by a joint resolution, (b) a resolution is the mere expression of an opinion and not an enactment of law, (c) there is no condition precedent to the passage of a resolution as is required by section 34, art. 5, Constitution, for the enactment of a bill into a law, (d) section 55, art. 5 Constitution, inhibits the paying out of money from the state treasury, except in pursuance of an appropriation by law. Held, a joint resolution is not the enactment of such a law.

2. Section 18, c. 48, Sess. Laws 1923-24, creates the state highway construction and maintenance fund. By chapter 50 art. 4, Sess. Laws 1931, appropriation is made of all moneys in said fund to payment of the actual and necessary operating expenses of the state highway department, including salaries compensation, bond premiums, and, expenses of commissioners and employees, and for premium on workmen's compensation insurance, or, in lieu thereof, for the payment of claims for injuries arising under the terms of the Workmen's Compensation Act, and for expense of road and bridge construction, repair, maintenance, and expense of collection and distribution of motor vehicle license tax. Held there is no provision in said statutes authorizing use of said fund for payment of a claim for death of an employee of the state highway department. Held, further, by reason of section 19, art. 10, Constitution of Oklahoma, the moneys in said fund, having been levied and collected for the purpose designated, may not now be devoted to another purpose.

3. Section 32, art. 5, Constitution, inhibits consideration by Legislature of a special or local law until notice of intended introduction of it shall have been published and proof of publication filed with the secretary of state.

4. The Legislature has no right to appropriate money in payment of a claim for death loss to a state employee, as the state is neither liable on general principles of law, nor under any statute, whereas such an appropriation is clearly a "gift" within the prohibition of the Constitution of Oklahoma, section 14, art. 10, section 15, art. 10.

Appeal from District Court, Oklahoma County; Sam Hooker, Judge.

Mandamus action by Mrs. Charles A. Bland against Sam Hawks and others. Judgment for plaintiff, and defendants appeal.

Reversed.

Rehearing denied; LESTER, C.J., and KORNEGAY, J., dissent.

LESTER, C.J., CLARK, V. C.J., and McNEILL and KORNEGAY, JJ., dissenting.

J. Berry King, Atty. Gen., and W. C. Lewis, Asst. Atty. Gen., for plaintiffs in error.

Calvin P. Boxley and Blakeney, Ambrister & Wallace, all of Oklahoma City, for defendant in error.

RILEY J.

Here is involved a gift of public money for private purposes. This is an action in mandamus whereby it is sought to force the state highway commission to audit, allow, and pay a claim of $5,000, to Mrs. Bland, based upon a claim for the death of her husband, a former employee of the state in its highway department, whose death was caused by a strain and injury to his intestines resulting from his attempt to push a state-owned automobile.

There is no appropriation out of which this claim can be paid; there was no money appropriated by the resolution, con ceding for the moment that an appropriation may be made by a resolution which is not the case, for a resolution is the mere expression of an opinion and not an enactment of law. Words and Phrases, First, Second & Third Series.

A bill and a resolution of the Legislature are entirely different in their creation, nature, and purpose. Such difference is shown in the case of Hawes & Co. v. Wm. R. Trigg Co., 110 Va. 165, 65 S.E. 538; Words and Phrases, Second Series, vol. 2, page 1234: "An act of Congress governs all persons under the jurisdiction of the enacting power; whereas, a 'joint resolution' is merely a rule for the guidance of the agents and servants of the government."

And again at page 6173, Words and Phrases, First Series, vol. 7: "A resolution is not a law, but merely the form in which the legislative body expresses an opinion." Village of Altamont v. Baltimore & O. S.W. Ry. Co., 184 Ill. 47, 56 N.E. 340; Chicago & N. P. R. Co. v. Chicago, 174 Ill. 439, 51 N.E. 596; Reynolds v. Blue, 47 Ala. 711.

The characteristic feature of a resolution of a legislative body is its enacting clause, "Be it Resolved." State v. Delesdenier, 7 Tex. 76.

"A resolution is ordinarily passed without the forms and delays which are generally required by constitutions * * * prerequisites to the enactment of valid laws. * * * It need be read but once and may be passed by a viva-voce vote, without calling the ayes and noes. * * *" Cape Girardeau v. Fougeu, 30 Mo.App. 551; Words and Phrases, supra; Sawyer v. Lorenzen & Weise, 149 Iowa, 87, 127 N.W. 1091, Ann. Cas. 1912C, 940; Pensacola v. S.W. Bell Telephone Co., 49 Fla. 161, 37 So. 820; City of Jacksonville v. Ledwith, 26 Fla. 163, 7 So. 885, 9 L. R. A. 69, 23 Am. St. Rep. 558.

This resolution declares that: "Section 1. There is appropriated out of any moneys in the State Treasury, to the credit of the Highway Construction and Maintenance Fund, not otherwise appropriated, the sum of Five Thousand Dollars," etc.

Whereas there is no money in the state treasury to the credit of the highway construction and maintenance fund not otherwise appropriated, but to the contrary the very specific whole of the highway construction and maintenance fund is by its creation made an appropriation for construction of highways. Section 18, c. 48, S. L. 1923-24; chapter 50, art. 4, S. L. 1931.

Since the said construction and maintenance fund is appropriated for road purposes, since it is constituted of taxes levied and collected for the designated purpose, by the highest of mandate, section 19, art. 10, Constitution, its use for any other purpose is inhibited.

If the resolution has the standing and dignity of a law, it is a special law, and, if it is a special law, it is unconstitutional unless it be advertised as required by the Constitution as a condition precedent to enactment of a special or local law. Section 32, art. 5, Constitution.

These highway commissioners are directed by the writ to pay this claim. They cannot do so. The state treasurer is the state's paymaster, but he is not a party to the action. The state auditor is not a party. However, we pass the question of defect of necessary parties to the action, and revert to the original issue that herein is involved a gift of public money for private purposes.

"To justify any exercise of this power," says R. C. L. in reference to the power to levy taxes, "the expenditure * * * must be for some public service, or some object which concerns the public welfare." "This principle," says the text, "is fundamental and underlies all government that is based on reason rather than force."

But let us contemplate the foundation of this fundamental law, for it is quite firm. It is: "To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law. * * * This is not legislation. It is a decree under legislative forms." So adjudged the Supreme Court of the United States. Citizens' Sav., etc., Ass'n v. Topeka, 20 Wall. 655, 664, 22 L.Ed. 455.

Please note in the cited decision that, on gifts of public money by the Supreme Court of the United States, the basis is not the Constitution, but the unalienable right of man as known to the Declaration of Independence. In other words, neither governments nor Constitutions exist, for the purpose of making the rich richer nor the poor poorer, nor for the purpose of bestowing gratuities upon any citizen, whether that citizen be rich or poor.

In the case of Bourn v. Hart, 93 Cal. 321, 28 P. 951, 952, 15 L. R. A. 431, 27 Am. St. Rep. 203, it was held that the Legislature had no right to appropriate money in payment of a claim for injuries to a guard at a state prison, occasioned by the negligence of his superior officers in directing him to assist in recapturing escaped convicts, as the state was neither liable on general principles of law, nor under and by virtue of statute, whereas the appropriation was clearly a "gift" within the prohibition of constitutional provisions.

It is the constitutional right of all citizens of this state to know that no favored individual will receive bounty from the state treasury. Hanson v. Vernon, 27 Iowa, 28, 1 Am. Rep. 231; Union Ice & Coal Co. v. Town of Ruston, 135 La. 898, 66 So. 262, L. R. A. 1915B, 859, Ann. Cas. 1916C, 1274; 1 Bl. Com. 127; Murchie v. Cornell, 155 Mass. 60, 29 N.E. 207, 14 L. R. A. 492, 31 Am. St. Rep. 526; 1 Thomp. Corp. 48; State v. American Sug. Ref. Co., 108 La. 606, 32 So. 965. When such is not the case, governments sometimes sink into the slough of financial despondency, and, unless they right themselves, as governments they cease to be.

R. C. L. points out (par. 27, p. 43, vol. 26) that, while it is universally agreed that an attempt to raise or spend tax money for private purposes is unconstitutional, the authorities are not in agreement in respect to the particular constitutional provision thereby violated. The power to tax and the power to appropriate money of the public treasurer to public purpose is expressly thereto limited in many Constitutions.

Section 14, art. 10, Constitution of Oklahoma: "Taxes shall be levied and collected by general laws, and for public purposes only."

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