State ex rel. Murray v. Carter

• Citation: 30 P.2d 700,167 Okla. 473,1934 OK 132
• Decision Date: 27 February 1934
• Docket Number: 25114.
• Parties: STATE ex rel. v. CARTER, State Auditor, et al. MURRAY, Governor,
• Court: Oklahoma Supreme Court

30 P.2d 700

167 Okla. 473, 1934 OK 132

STATE ex rel. MURRAY, Governor, v. CARTER, State Auditor, et al.

No. 25114.

Supreme Court of Oklahoma

February 27, 1934

Rehearing Denied March 20, 1934.

Syllabus by the Court.

1. An appropriation by legislative enactment in this state is an authority of the Legislature given at the proper time and in legal form to the proper officers, to apply a distinctly specified sum from a designated fund out of the treasury in a given year, for a specified object or demand against the state. See Menefee, State Treasurer, v. Askew, State Game and Fish Warden, 25 Okl. 623, 107 P. 159, 27 L. R. A (N. S.) 537.

2. "No arbitrary form of expression or particular words are required by the Constitution in making an appropriation which may be made by implication when the language employed reasonably leads to the belief that such was the intention of the Legislature." Menefee, State Treasurer, v Askew, State Game and Fish Warden, 25 Okl. 623, 107 P. 159, 27 L. R. A. (N. S.) 537.

3. "Said section 55 of art. 5, supra, requires an appropriation bill to meet five requirements, as follows, to wit: (a) Make an appropriation of money, (b) provide for its payment within 30 months, (c) specify the sum appropriated, (d) state the object to which said sum shall be applied, and (e) not require reference to any other law to fix the sum appropriated." Menefee Case, supra.

4. It is a proper exercise of legislative power for the Legislature to make the items of appropriation in an institutional appropriation bill dependent upon the existence of a fact happening or to take effect in the future. There is no efficacy to such items appropriated until it is ascertained that the existence of those facts exists; after such a determination, such items then become operative.

5. "The legislature may delegate to executive officers the power to determine certain facts, or the happening of a certain contingency, on which the operation of the statute is, by its terms, made to depend. * * *" 12 C.J. 846.

6. A provision in an appropriation bill, to wit, provided, that funds appropriated under this act may be transferred from one item to another upon recommendation of the board having control of such institutions, and with the approval of the Governor, but in no event exceed the total appropriation, held, that the same is valid.

7. Record examined; held, demurrer overruled. Writ of mandamus ordered to issue as prayed.

Mandamus action by the State, on the relation of William H. Murray, Governor, against Frank C. Carter, State Auditor, and Ray O. Weems, State Treasurer.

Writ granted.

Hayes, Richardson, Shartel, Gilliland & Jordan, of Oklahoma City, for plaintiff.

J. Berry King, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for defendants.

McNEILL Justice.

This is a mandamus action brought on behalf of the State of Oklahoma ex rel. Wm. H. Murray, Governor, against Frank C. Carter, State Auditor of the state of Oklahoma, and Ray O. Weems, State Treasurer, to compel the defendants to allow and pay eight claims against the state which have been set forth in eight separate causes of action.

The first seven of said claims and causes of action involve claims which were approved by the state board of public affairs to be paid from account No. 15, Fund No. 33; the same being an item of appropriation set forth in House Bill No. 240 of the Thirteenth Legislature of Oklahoma, Session Laws 1931 (Harlow) page 305, for the State Penitentiary at McAlester for the fiscal year ending June 30, 1933, said item of appropriation being as follows: "To be used in case of an increased number of prisoners ...... $92,400.00."

The eighth claim involves a claim which was approved by the state board of public affairs to be paid from account No. 13, fund No. 33; the same being an item of appropriation set forth in said House Bill No. 240, for the Eastern Oklahoma Tubercular Sanatorium at Talahina, Okl., for the fiscal year ending June 30, 1933, said item of appropriation being as follows: "To be used in case of an increased number of patients ...... $30,140.00."

It is alleged in the fifth numbered paragraph of the first cause of action of plaintiff's petition that on June 15, 1933, the state board of public affairs, acting under authority of the following provision of section 1 of said House Bill No. 240, to wit: "Provided, that funds appropriated under this Act may be transferred from one item to another upon recommendation of the board having control of such institutions, and with the approval of the Governor, but in no event exceed the total appropriation * * *"-adopted a resolution providing for the transfer of funds appropriated by said House Bill No. 240, for the fiscal year ending June 30, 1933, for said penitentiary "* * * from different items of said appropriation to the item of the same fiscal year designated 'to be used in case of an increase in the number of prisoners-$92,400.00' and such transfer was approved by William H. Murray as Governor of the State of Oklahoma on June 15, 1933. A copy of said resolution, marked 'Exhibit A,' is hereto attached and made a part of this petition. By such transfer the balance then remaining in said designated item of appropriation, to-wit: $62,600, was increased to the sum of $155,000."

Inasmuch as the claims involved in the second, third, fourth, fifth, sixth, and seventh causes of action of plaintiff's petition only aggregate the sum of $7,020.59, and as the state board of public affairs approved all of said claims to be paid from said account No. 15, fund No. 33, before it approved the claim set forth in the first cause of action of plaintiff's petition to be paid from said fund, there was an ample amount in said fund to pay said claims, even though said transfer had not been made. It is therefore immaterial, in so far as said claims are concerned, whether or not said transfer was authorized by law. However, in so far as the claim mentioned in plaintiff's first cause of action is concerned, inasmuch as same is for $109,756, which is far in excess of the balance remaining in said fund prior to the time said transfer was made, to wit, $62,600, it is absolutely essential, in order for said claim to be paid, that said transfer be legal, otherwise, even though it be conceded for sake of argument that said account 15, fund 33, is a valid item of appropriation, there would not be sufficient moneys in said fund to pay said claim.

To this petition defendants have filed their general demurrer. The defendants urge three propositions:

First proposition: "Each of the two items of appropriation here involved is conditional and contingent, and neither item distinctly specifies 'the sum appropriated and the object to which it is to be applied,' as required by Section 55, of Article 5, of the Constitution of Oklahoma."

Second proposition: "The transfer of $92,400.00 from other items of appropriation of the State Penitentiary to the balance remaining in Account No. 15, Fund No. 33, was invalid."

Third proposition: "Chapter 98, Oklahoma Session Laws 1933, prevents the use of Account No. 15, Fund No. 33, to pay the claim involved in plaintiff's first cause of action."

We consider the first proposition of the defendants. They contend that each of the aforesaid two items, to wit: "To be used in case of an increase in the number of prisoners * * * $92,400.00," and "To be used in case of increased number of patients * * * $30,140.00," are invalid.

They insist: (1) That these items do not distinctly specify (a) the sums appropriated, and (b) the objects to which they are to be applied, as required by section 55, of article 5 of our Constitution. (2) That said items are conditional and contingent.

The specific part of said section 55, is as follows: "No money shall ever be paid out of the treasury of this State * * * except in pursuance of an appropriation by law * * * and every such law making a new appropriation * * * shall distinctly specify * * * the object to which it is to be applied. * * *"

In the case of Menefee, State Treasurer, v. Askew, State Game and Fish Warden, 25 Okl. 623, 107 P. 159, 27 L. R. A. (N. S.) 537, this court in the first paragraph of the syllabus said: "An 'appropriation' in this state is an authority of the Legislature, given at the proper time and in legal form to the proper officers, to apply a distinctly specified sum, from a designated fund out of the treasury in a given year, for a specified object or demand against the state."

Paragraph 2: "No arbitrary form of expression or particular words are required by the Constitution in making an appropriation, which may be made by implication when the language employed reasonably leads to the belief that such was the intention of the Legislature."

But the court further held, in syllabus, fourth paragraph, that: "The provision of section 3, art. 6, providing that the Game and Fish Warden shall be reimbursed for his actual and necessary expenses, including expenses catching and shipping game for propagating purposes, to be paid monthly and in the same manner as his salary and traveling expenses, does not constitute a valid appropriation, as the sum certain appropriated is not distinctly specified."

It will thus be seen that in that case the provision of said legislative act which appropriated the actual and necessary expenses of the game and fish warden was definitely limited for the purposes stated to a definite specified amount, and was held valid, but, when no definite limit was placed upon the expenses of the warden, the attempted appropriation therefor was held invalid.

Each of said items herein restricts the appropriation to a "definite limit for purposes stated." See Edwards v. Childers, State Auditor, 102...