Sch. Dist. No. 85, Kay Cnty. v. Sch. Dist. No. 71, Kay Cnty.

• Decision Date: 27 November 1928
• Docket Number: Case Number: 17734
• Citation: 276 P. 186,1928 OK 689,135 Okla. 270
• Parties: SCHOOL DIST. No. 85, KAY COUNTY, v. SCHOOL DIST. No. 71, KAY COUNTY.
• Court: Oklahoma Supreme Court

1928 OK 689

276 P. 186

135 Okla. 270

SCHOOL DIST. No. 85, KAY COUNTY, v. SCHOOL DIST. No. 71, KAY COUNTY.

Case Number: 17734

Supreme Court of Oklahoma

Decided: November 27, 1928

Syllabus

¶0 1. Schools and School Districts--Right to Sue Another District for Transfer Fees Dependent on Inclusion of Such Item of Expense in Annual Estimate of Needs of District.

The right of a public school district to recover or maintain an action for transfer fees contemplated by article 20, ch. 86, C. O. S. 1921, is dependent upon an estimate made and approved in which is included an item to pay such transfer fees.

2. Same--Statute Requiring School Board to Provide for Transfer Fees Fund in Annual Estimate Held not Mandatory.

Section 10606, C. O. S. 1921, is directory and not mandatory.

3. Same -- Statutes -- Statute Authorizing Excise Board to Make Levy to Cover Transfer Fees When Item not Included in School Board's Estimate Held Unconstitutional.

Section 10607, C. O. S. 1921 is violative of article 5, sec. 59, Constitution of Oklahoma. It violates article 10, sec. 20, Constitution of Oklahoma, also it is in contravention of section 26, art. 10, of the Constitution. Consequently it is void.

4. Statutes--"Local or Special Laws.

Local or special laws are all those that rest on a false or deficient classification. Their vice is that they do not embrace all the class that they naturally embrace. They create preference and establish inequality. They apply to persons, things, and places possessed of certain qualities or situations and exclude from their effect other persons, things, or places which are not dissimilar in this respect.

5. Same.

Special laws are not all local, but all local laws are special.

6. Same--Validity of Special Law--Applicability of General Law to Subject--Province of Legislature.

The applicability of a general law to a subject of legislation is a legislative question pending passage of an act, and where the Legislature takes recourse to a special law, such a statute will not be declared unconstitutional except where it clearly appears that the Legislature was mistaken in its belief that a general law could not be made applicable.

Error from District Court, Kay County; Claude Duval, Judge.

Action by School District No. 71, Kay County, against School District No. 85, Kay County. Judgment for plaintiff, and defendant brings error. Reversed.

H. S. Braucht, for plaintiff in error.

F. C. Duval, R. O. Wilson, and O. S. Ellifrit, for defendant in error.

RILEY, J.

¶1 A question here presented is whether recovery by a school district of "transfer fees" for instruction given is dependent upon the existence of an item being in the estimate made and approved of the school district sought to be charged. Involved also is whether an excise board may arbitrarily make an appropriation for transfer fees for a school district.

¶2 Presented here are two causes of action. As applied to the first, there was at no time an item, estimate, appropriation, or provision for paying the transfer charge; as applied to the second, the excise board of Kay county of its own volition, without suggestion or approval on the part of either school district affected thereby, inserted an item in the estimated needs of school district No. 85, for the fiscal year ending Jan. 30, 1924, for "transfer fees," which item so inserted increased the total amount of the estimated needs of that school district. There was no advertisement by the excise board of the increased estimate so made and approved as required by section 9698, C. O. S. 1921. C., R. I. & P. Ry. Co. v. Pourron, 118 Okla. 80, 246 P. 835.

¶3 It appears that school district No. 85 considered minutely its financial budget and each item of its estimated needs, and at its annual meeting on March 28, 1922, it voted exactly four mills additional levy over the base levy of five mills provided by statute. No item was made that year for transfer fees, either by the school board or the excise board.

¶4 Concerning the second cause of action, at the annual meeting of district No. 85, on March 27, 1923, the district considered its itemized requirements and authorized an additional levy of exactly five mills over and above the five-mills base levy provided by law for school purposes. At that meeting the district considered and rejected a proposed item for transfer fees and definitely refused to authorize any item of the appropriation in any amount for transfer fees. The appellant school district contends that the item for transfer fees subsequently inserted in the estimate made and approved by the excise board for the fiscal year ending June 30, 1924, was unauthorized, illegal, null and void, contrary to and subversive of the rights of the taxpayers of school district No. 85, Kay county, and violative of the provisions of the Constitution of this state. It contends that no funds were legally provided by the tax levy or otherwise to pay the alleged claims.

¶5 Contracting the statement of facts, we may say that the school district sought to be charged has in every manner affirmatively and definitely declined to make provision or to pay transfer fees, whereas the county excise board has by its act sought to make provision for the school district to pay these charges included in the second cause of action, and the trial court, by its judgment, has directed payment therefor to be made in both causes of action.

¶6 We may well consider what is commonly called the transfer law; it is contained in article 20, chapter 86, the same being sections 10591 to 10610, C. O. S. 1921. The particular section directly applicable here is section 10606, which in the use of words makes it the duty of the school boards from which transfers are made to include in their annual estimate a transfer item. The statute is as follows:

"It shall be the duty of the school boards from which transfers have been made, in compliance with this act, to include in their annual estimate the amount for transfer fund as shown by statement referred to in section 5 of this act."

¶7 The school board of district No. 85 obeyed the will of the school district expressed by the records of the annual meeting, rather than the appellees' interpretation of the statute.

¶8 If we consider the provisions of section 10606, supra, mandatory, then the school board failed to perform its duty. If we consider the provisions of the statute directory, the school board elected not to be governed thereby, but, on the other hand, to be directed by the will of the school district as expressed by the minutes of the annual meeting, and section 10339, C. O. S. 1921, which section provides in part:

"Following the annual school meeting and on the first Tuesday in July, it shall be the duty of the school district board to meet and make out the report required by law to be filed with the excise board showing the fiscal condition of the school district at the close of the previous fiscal year and the statement of the estimated needs thereof for the current or ensuing fiscal year."

¶9 As to powers of the assemblage at the annual meeting, see section 10342, C. O. S. 1921, and Tilley v. Overton, 29 Okla. 292, 116 P. 945.

¶10 In Palmer v. Yale Consolidated School, 115 Okla. 70, 241 P. 495, we are afforded a helpful and sound decision. There a transfer was made, but the Yale consolidated school refused to receive the pupil for the reason that no levy had been made by the transferring school district and because instruction ought not to be given the "transferred" without compensation. The excise board was made a party defendant, and mandamus was sought to compel the levy to be made by that board. The excise board, in conjunction with the transferring district No. 1, showed requested transfers amounting to $ 1,700, and a levy of 15 mills required and voted in district No. 1 for estimated needs, exclusive of transfer items. This court there held to three basic principles: (1) The school district was not authorized to cause a tax levy to be made in any one year for school purposes in a sum greater than a 15-mill levy by reason of the restriction contained in section 9, art. 10, Constitution. (2) The right of transfer was dependent upon an estimate made and approved therefor. (3) That school district No. 1 and the excise board were justified, "in the exercise of their judgment," in eliminating the item estimated for transfer fees so as to reduce the estimated needs to 15 mills, and that it was within the exercise of discretion to eliminate wholly the item for transfer fees, rather than to include such item and reduce the other estimated needs.

¶11 See, also, School Dist. No. 61, Payne County, v. Consolidated District No. 2, Logan County, 110 Okla. 263, 237 P. 1110, as to the provisions of section 10602, C. O. S. 1921, concerning notice of application for transfer being directory rather than mandatory.

¶12 The Palmer Case, supra, is decisive of the issue here presented in the first cause of action, for there was no estimate made and approved, nor levy made to pay that claim alleged. Since a recovery for the transfer fees is dependent upon an appropriation therefor, and since there was no such item contained in the estimate made and approved for the fiscal year 1923, the first cause of action must fail. There can be no quantum meruit recovery. The lack of power to contract such indebtedness bars every form of action and every legal device by which recovery is sought. Fairbanks-Morse Co. v. Geary, 59 Okla. 22, 157 P. 720. The structural base of municipal finance, for current indebtedness, is the pay as you go plan.

¶13 Appellee seeks aid and comfort under a theory that when a transfer is made by the county superintendent, then the transfer fees, based upon a per capita cost of instruction, is saddled upon the district from which the transfer is made, as an involuntary obligation imposed by statute.

¶14 Transfer fees cannot be classed as involuntary obligations, for those obligations classified as...