Oklahoma County, Excise Bd. v. Kurn , 189 Okla. 203 ( 1941 )

I think the judgment of the trial court should be affirmed.

The majority opinion concedes that other legal methods existed whereby the revenue for purchase of equipment. might have been raised. This circumstance in itself is sufficient to destroy the basic principle upon which is founded the general rule that express statutory or constitutional powers carry with them all incidental powers reasonably necessary to the accomplishment of the express powers.

Since other methods existed whereby funds could be obtained for the purchase of equipment, the holding that such purchase was a power reasonably necessary to be implied hardly carries conviction. Especially is this true in view of the rule that the powers of public officials in the matter of levying taxes are to be strictly construed. Price v. Mahoney, 175 Okla. 355,53 P.2d 257.

This rule of strict construction of the statutory and constitutional powers of public officials in levying taxes has been stated innumerable times and always consistently since the adoption of our Constitution and the erection of our state. But now, in order to reach its conclusion, the majority opinion liberally construes the constitutional provision for increasing the rate of taxation for the purpose of "erecting public buildings" to mean erecting and equipping such newly constructed public buildings. No authority directly in point is cited. Some reliance is placed on Territory v. Baxter,16 Okla. 359, 83 P. 709, wherein it was held that the statutory power to erect a courthouse and issue bonds in payment therefor included the "necessary and indispensable power to purchase fixtures and permanent furnishings for the completion of such courthouse, to place the same in fit condition to be used for the transaction of public business, and to issue bonds in payment therefor." The court was there construing section 1, art. 1, ch. 12, S. L. 1897 (now sec. 7505, O. S. 1931, 19 Okla. Stat. Ann. § 734). But it is to be noted that the law in force at that time authorized the county commissioners to submit to a vote of the people any question involving an extraordinary outlay of money by the county (sec. 1408, Wilson's Stat. 1903). This the commissioners did in that case. Along with the question of erecting the courthouse, the question of the purchase of furniture and fixtures was also submitted. There was full statutory authority to become indebted for the fixtures, and therefore there was no necessity for searching for implied powers.

The case of Hudgins v. Mooresville Consolidated School Dist.,312 Mo. 1, 278 S.W. 769, cited in support of the majority view on the particular question, is not in point. While the section of the Missouri Constitution there construed contains a provision similar to our section 10, art. 10, there are many other provisions found in the same section. That case involved a bond issue for building purposes, and the funds derived therefrom. In this state a bond issue would be controlled by section 26, art. 10, of the Constitution, and not by section 10, art. 10. The Missouri case held that the bond issue was proper under provisions similar to said section 10. But section 10 merely authorizes the levy of a tax for building purposes, not the creation of a debt for that purpose by bond issue as does section 26, art. 10. Kirk v. School Dist. No. 24, Greer Co., 108 Okla. 81, 234 P. 596. The holding in the cited case is so dissimilar to our own decisions in the matter of interpretation of the constitutional provisions that it does not constitute authority for the majority view. However, the Court of Appeals of Missouri has since held that a school district may not use any of a bond issue money for furnishings of a school building where the proposition on bond issue election did not include furnishings. Rector v. Consolidated School Dist. No. 3, etc. (Mo. App.) 58 S.W.2d 785. This is not in accord with the decision in the Hudgins Case.

In Hendricks v. School Dist. No. 1, 44 Wyo. 204,10 P.2d 970, cited in further support of the majority opinion, the court based its statements mainly on the Hudgins Case, above. In the Wyoming case it is shown that the Constitution of that state contained the following provision:

"Provided further, that any school district may be authorized to create an additional indebtedness, not exceeding 4 per centum on the assessed value of the taxable property therein as shown by the last preceding general assessment, for the purpose of the erection or enlargement of school buildings therein."

This provision was vitalized by an act whereby school boards were authorized to vote bonds for the purpose specifically set out in the Constitution, above, within the limit therein provided.

It was contended in that case that the funds derived from a bond issue should be limited to the construction of schoolhouses; that furniture could not be purchased by implied power. While the court did not fully determine the question, it was said that the power to erect the building would ordinarily include the power to equip.

But the question was determined in the later case of Jewett v. School Dist. No. 25 in Fremont County, 49 Wyo. 277,54 P.2d 546, cited in the majority opinion. It was there held that the above constitutional provision authorzing the erection or enlargement of a schoolhouse included the power to equip.

The Wyoming cases, above, are silent as to whether there are other legal methods whereby school districts may equip school buildings than by bond issue under the section of the Constitution quoted above. The laws of that state have been searched, and no such authority has been found in the statutes or the Constitution. That fact alone would distinguish the cases from the present one, for, as stated before, it is conceded that other adequate methods of equipping public buildings exist in this state.

In the Louisiana case of Board of Directors, etc., v. Ruston State Bank, 133 La. 109, 62 So. 492, it was held that a constitutional provision authorizing the issuance of bonds for funds to erect buildings necessarily carried the authority to purchase the building site. The case merely follows the general rule that express powers carry with them all powers necessarily implied. The case does not disclose whether the Constitution authorizes the purchase of sites by other methods. And the Constitution and statutes of Louisiana seem not to contain express authority for raising funds for the purchase of building sites.

In Board of Commissioners, etc., v. C. N. Malone Co.,179 N.C. 110, 101 S.E. 552, relied on by the majority opinion, it was held that the statutory power to "raise the means and erect a new building" for school purposes included the right to procure and pay for ordinary equipment. But it does not appear whether the laws of North Carolina contain any provision authorizing the purchase of equipment for school buildings.

In Midland Special School Dist., etc., v. Central Trust Co. of Illinois, 1 F.2d C.C.A. 124, bonds were issued under a special act of the Arkansas Legislature authorizing indebtedness "for the erection, alteration or improvement of school buildings." The bonds on their face stated that they were issued for the purpose of equipping certain school buildings, and to refund existing indebtedness. The court held that the recital concerning equipment did not invalidate the bonds as being beyond the statutory authorization, saying that there was no contention that the bonds were in fact used for such purpose. It was further said that "the erection, alteration or improvement" of buildings would fairly include many things commonly called equipment. It was also held that due to certain provisions in the statute the bonds were legal as funding bonds. The case cannot be said to be in point here.

In holding that only such equipment as will necessarily become a permanent part of newly constructed buildings can be purchased from the increased levy, the majority opinion invades the province of the Legislature. Conceding it to be a judicial question, the appeal does not present it and so all that is said with reference to it is dictum.