Way v. Grand Lake Ass'n, Inc.
| Decision Date | 09 June 1981 |
| Docket Number | Nos. 56406,56731,s. 56406 |
| Citation | 635 P.2d 1010,1981 OK 70 |
| Parties | David W. WAY, Director of State Finance, Appellant, v. GRAND LAKE ASSOCIATION, INC., an Oklahoma Nonprofit Corporation; Oklahoma Tourism and Recreation Commission; Oklahoma Tourism and Recreation Department; Abe L. Hesser, Executive Director of Oklahoma Tourism and Recreation Department, Appellees. David W. WAY, Director of State Finance, Appellant, v. GREAT PLAINS COUNTRY, INC., an Oklahoma Nonprofit Corporation, Frontier Country, Inc., an Oklahoma Nonprofit Corporation, Lake Eufaula Association, Inc., an Oklahoma Nonprofit Corporation, Kaw Lake Association, Inc., an Oklahoma Nonprofit Corporation, Texoma Lake Association, Inc., an Oklahoma Nonprofit Corporation, Fort Gibson Lake Association, Inc., an Oklahoma Nonprofit Corporation, Tenkiller Lake Association, Inc., an Oklahoma Nonprofit Corporation, Fun Country, Inc., an Oklahoma Nonprofit Corporation, Green Country, Inc., an Oklahoma Nonprofit Corporation, Keystone Lake Association, Inc., an Oklahoma Nonprofit Corporation, Red Carpet Country, Inc., an Oklahoma Nonprofit Corporation, Appellees. |
| Court | Oklahoma Supreme Court |
Appeal from the District Court, Oklahoma County; David M. Cook, Trial judge.
On February 6, 1981, the District Court of Oklahoma County, David M. Cook, Judge, issued a writ of mandamus in an action brought therefor by plaintiff, below, Grand Lake Association, Inc., an Oklahoma nonprofit corporation, directing the Oklahoma Tourism and Recreation Commission, Oklahoma Tourism and Recreation Department, Abe L. Hesser, and David W. Way, Director of State Finance, and each and all of them to immediately approve certain claims submitted by plaintiff for payment under the provisions of Laws 1979, c. 289, § 16, as amended, Laws 1980, c. 268, § 4, from the appropriations provided in 1980 Session Laws, c. 354, § 1 as required by law, and issue the warrants necessary for payment of said claims. David W. Way, as Director of State Finance, defendant below, appeals. On April 23, 1981, the same trial judge in another action appealed here under No. 56,731 granted identical relief upon the identical issues and that cause has been consolidated for the purposes of appeal under No. 56,406.
JUDGMENTS AFFIRMED.
Jan Eric Cartwright, Atty. Gen., Manville T. Buford, Asst. Atty. Gen., Chief, Civ. Div., John F. Percival, Asst. Atty. Gen., Oklahoma City, for appellant.
James P. Laurence, Laurence & Harter, P. C., Oklahoma City, for appellee, Grand Lake Association, Inc.
E. Stephen Briggs, Counsel, Oklahoma Dept. of Tourism and Recreation, Oklahoma City, for appellees, Oklahoma Tourism and Recreation Commission, Oklahoma Tourism and Recreation Department, Abe L. Hesser, Executive Director.
This action (56,406) was instituted by Grand Lake Association, Inc., an Oklahoma nonprofit corporation, on a petition for an alternative writ of mandamus to compel defendants below to approve certain claims submitted by plaintiff for payment under the provisions of Laws 1979, c. 289, § 16, as amended, Laws 1980, c. 268, § 4, and 1980 Laws, c. 354, and issue warrants for payment of said claims. On January 8, 1981, the district court issued an alternative writ of mandamus, and upon trial, entered its peremptory writ of mandamus ordering and directing the Oklahoma Tourism and Recreation Commission, Oklahoma Tourism and Recreation Department, Abe L. Hesser, and David B. Way, Director of State Finance, and each and all of them to immediately upon receipt of the writ, approve the claims properly submitted by the plaintiff for payment under the provisions of said statutes, from the appropriations provided in 1980 Session Laws, c. 354, § 1 as required by law, and issue the warrants necessary for payment of said claims.
The Oklahoma Legislature enacted the "Oklahoma Tourism and Recreation Act" 1 creating the Oklahoma Tourism and Recreation Commission (Commission) and the Oklahoma Tourism and Recreation Department (Department). A summary of the act insofar as it pertains to the issues hereinafter presented is as follows:
The declared purpose of the Commission and the Department is to promote the development and use of the state's lodges, parks, and recreational areas; promote tourism by publicity and dissemination of information; assist in promotion of events sponsored by municipalities, associations, and organizations commemorating special events of local or historical interest; and function in an advisory capacity to the Governor, state legislature, state agencies, municipalities, and to private organizations on matters pertaining to tourism and recreation. 2
The Commission is the policy determining agency for the Department and determines the broad plans and programs for the accomplishment of duties and responsibilities vested by law in the Commission. 3
Certain divisions are created within the Department, among which is the Division of Tourism Promotion 4 which is directed (among other things) to assist public and private agencies in the preparation of informational and publicity programs designed to attract tourists to the state; assist in the planning and execution of programs of information and publicity about the tourism and recreational advantages of the state; and support and assist municipalities and public and private associations in soliciting conferences, meetings, and conventions to be held within the state. 5
By legislative amendment 6 it is declared to be the intent of the legislature to encourage the promotion of tourism by multicounty organizations in cooperation with the Tourism and Recreation Department's statewide program. 7
The Department, with the approval of the Commission, is directed to develop rules and regulations to administer the match of one-half of the allowable expenditures of multicounty organizations in accordance with the following legislative guidelines: 8
Matching funds for one-half of the allowable expenditures shall be based upon actual expenditures by the multicounty organization less any discount, refund, or rebate to the multicounty organization.
Each multicounty organization shall prepare and submit appropriate plans, including a budget work program, for the ensuing fiscal year to the Tourism and Recreation Commission to be allowable. The Tourism and Recreation Commission's approval of a multicounty organization budget work program constitutes a firm commitment of the multicounty organization's appropriated funds, subject to any fiscal year limitation, except that the Commission may reallocate unobligated funds as provided by law.
Multicounty organizations shall use a State of Oklahoma notarized claim form with all applicable statements and affidavits to request matching funds.
Each multicounty organization shall be required to submit to an independent and certified audit of the multicounty organization performed by a public accountant or certified public accountant registered with the Oklahoma Board of Public Accountancy to the standards established by the Board of Public Accountancy for audits and shall include the specific requirements set forth in the Act. The audit shall encompass all funds available to the multicounty organization and shall include a statement showing the source of the funds and the fund raising method and the disbursement of all allowable and discretionary expenditures. Failure to submit an audit report shall be cause for withholding of matching funds. Audit reports showing matching of over one-half of the allowable expenditures, matching for unallowable expenditures, or non-compliance with the Act shall be cause for withholding of matching funds until such time as restitution is made to the Department.
"Administrative expenditures" are defined as expenditures for the administration of fundraising and tourism promotion and includes salaries and payroll taxes, personal services contracts, travel expenses, rent of facilities, office supplies, telephone, and audit costs. Such expenditures shall not exceed 40% of the lesser of either the total amount allocated to the organization from legislative appropriations or the total of the matched expenditures.
"Allowable expenditures" are defined as those expenditures by multicounty organizations submitted to the Department of Tourism and Recreation in accordance with the Act and the rules and regulations promulgated by the Commission.
H.B. 1647, 1980 Session Laws, c. 354, § 1 purports to fund the program by a "line item" appropriation to tourism for 15 specifically named organizations, including $40,000 to plaintiff below, Grand Lake Association, Inc.
Plaintiff submitted claims totaling $3,555.11 for match funds which were denied by reason of the opinion of the Attorney General of the State of Oklahoma No. 80-165-B dated 8-19-80 that funding of multicounty organizations as described in section 4 of Enrolled Senate Bill 590, Thirty-seventh Legislature, Second Regular Session, is constitutionally invalid.
Plaintiff filed suit seeking to compel payment through a writ of mandamus. The court below upon trial entered a peremptory writ of mandamus directing defendants to pay the claims properly submitted by plaintiff from the appropriations provided in 1980 Session Laws, c. 354, § 1 as required by law and issue the warrants necessary for payment of said claims. Defendant, David W. Way, Director of Finance, appeals.
The first issue to be considered is whether mandamus is the proper remedy, it being contended by defendant that there is an adequate remedy at law and that the plaintiff may not enforce an alleged contractual right by writ of mandamus.
The Oklahoma Constitution Article 7, section 2 vests the district courts with jurisdiction to issue writs of mandamus. 9
We hold that the allowance of payment of the claims under the circumstances of this case is a ministerial act enjoined upon defendant by statute. State ex rel. St. Louis-San...
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