State Ex Rel. v. Moroney , 156 Okla. 200 ( 1932 )

I concur in the opinion of the majority of this court in this cause and I desire to express views not expressed in the opinion of the majority.

In the opinion of this court, in Bodine v. City of Oklahoma City, 79 Okla. 106, 187 P. 209, the opinions of this court, in Rogers, Co. Treas., v. Bass Harbour Co., 64 Okla. 321,168 P. 212, and City of Collinsville v. Ward, 64 Okla. 30,165 P. 1145, in so far as they held that a city operating under a charter form of government could only levy a tax for purely municipal purposes, were expressly overruled. In City of Collinsville v. Ward, supra, it was held that section 14, art. 10 of the Constitution was not intended to prohibit cities from adopting charter provisions authorizing the levy and collection by such cities of taxes for purposes that are purely municipal. By that decision the distinction pointed out in Thurston v. Caldwell, 40 Okla. 206, 137 P. 683, between taxes imposed for purely municipal purposes and taxes imposed for purposes in which the state has a sovereign interest, although of a municipal character, was pointed out and applied. Therein this court said:

"That the framers of the Constitution in writing said provision, and the people by adopting it, intended that it should be given effect and should have operation in some sphere, cannot be doubted. Other provisions of the Constitution indicate that the people recognized the right of the municipality in matters of purely local or municipal concern to levy taxes, as is shown by section 19, art. 9, which declares that every ordinance and resolution passed by any county, city, town, or municipal board or local legislative body levying a tax, shall specify distinctly the purposes for which said tax is levied, and by section 28, art. 10, requiring such municipality to levy sufficient additional revenue to create a sinking fund to be used for the purposes required by law. Gray's Lim. of Taxing Power and Public Indebtedness, sec. 677 (a), p. 35.

In Rogers, Co. Treas., v. Bass Harbour Co., supra, it was held that section 20, art. 10 of the Constitution does not constitute a limitation upon the power of the Legislature to impose taxes for purposes in which the state has a sovereign interest, although of municipal character. The same reasoning was applied, the same authorities were cited, and the same result was effected. Those decisions were overruled by this court in Bodine v. City of Oklahoma City, supra, only in so far as they held that a city operating under a charter form of government could only levy a tax for purely municipal purposes, and it was therein held that a city operating under a charter form of government could levy a tax for all legitimate and necessary municipal purposes consistent with and subject to the Constitution and laws of the state and that such a city is not limited merely to the levying of a tax for purposes purely municipal.

It is said that the Bodine Case has been overruled by implication by certain decisions of this court. It would seem, inasmuch as the Bodine Case, in terms, overruled prior decisions of this court, that, if it was to be overruled, it would be overruled in terms. It has not been overruled in terms. It has been cited by this court in Re Initiative Petition, City of Okmulgee, 89 Okla. 134, 214 P. 186, City of Sapulpa v. Land, 101 Okla. 22, 223 P. 640; Caruth v. State,101 Okla. 93, 223 P. 186; Oklahoma News Co. v. Ryan, Co. Treas.,101 Okla. 151, 224 P. 969; Ryan, Co. Treas., v. Roach Drug Co.,113 Okla. 130, 239 P. 912, and City of Okmulgee v. Okmulgee Gas Co., 140 Okla. 88, 282 P. 640.

In Re Initiative Petition, City of Okmulgee, supra, it was held that it was beyond the power of the Legislature to run counter to the provisions of a charter or to interfere with municipal officers and inhabitants of a city in a matter of purely municipal concern.

In City of Sapulpa v. Land, supra, there was involved the question of the right to establish a lien on real estate for taxes and to foreclose the same. There was no question therein as to the making and approval of a budget for municipal purposes. With reference to the Bodine Case, it was therein said:

"It is conceded that in the Bodine Case the precise question in the case at bar was not involved. The only question involved in the case, supra, was whether or not the county excise board had authority to revise and correct the budget or estimate of the probable needs of the city for municipal purposes. It is apparent that the matter of the budget for the needs of a city is purely a municipal matter so long as the cost of such budget is within the limitation of the law."

In Caruth v. State, supra, the issue before this court was the question of the right to a writ of mandamus to require the mayor call a special election for the purpose of submitting to the qualified electors of a city the question of whether or not the charter of said city and all of the amendments there of should be repealed. There was no question therein of the making or approval of a budget by municipal officers for municipal affairs.

In Oklahoma News Co. v. Ryan, supra, the action was to recover taxes paid under protest. It was therein contended that the city of Oklahoma City was not limited by the legislative limitation as to the rate of taxes and that the city could provide for a rate of levy within the constitutional limitation as to the rate of taxes. It was therein held that the rate of levy in excess of the legislative limitation was authorized and void. There is nothing in that decision to the effect that a chartered city may not provide for a rate of tax within the legislative limitation.

In Ryan v. Roach Drug Co., supra, the action was to recover taxes paid under protest. The city had wholly failed to submit its proposed budget to the excise board for any purpose. The question of the right of the county excise board to change an estimate made by a city within the limitation authorized by law was not before this court in that case, and this court so stated in the decision. The authority of the excise board was therein stated as follows:

"* * * and therefore the excuse board of the county had exclusive jurisdiction to review the estimate submitted by the city for the purpose of determining whether the items submitted were within the limitation fixed by the statute and such other purposes as general laws of the state."

In City of Okmulgee v. Okmulgee Gas Co., supra, the Revocable Permit Law, chapter 102, Session Laws 1925, was in issue. The Bodine Case was not cited in the opinion, but it was cited in a dissenting opinion by Mr. Justice Hunt.

In Gilbert, Co. Treas., v. Fisher, 108 Okla. 67, 230 P. 705, the question presented was whether or not a city was limited as to the rate of taxation to the legislative limitation, or whether it could exceed the legislative limitation so long as it remained within the constitutional limitation. It was held that the statue fixing the rate for current expenses at not to exceed six mills is binding upon cities in this state, notwithstanding a city charter to the contrary.

In Jones, Co. Treas., v. Kennedy, 118 Okla. 224, 247 P. 53, no financial statement and estimate was submitted to the excise board, and it was held that a budget for municipal purposes must be submitted to the excise board.

There is nothing in those decisions as to the right of a city to a tax levy within the legislative limitation when the budget of the city has been submitted to the county excise board. From all of those decisions of this court, I can conclude nothing other than that the rule stated in the Bodine Case is the applicable rule in the case at bar.

Had this court never spoken on the subject, I would be of that opinion, for, by the provisions of section 2, art. 18, of the Constitution:

"Every municipal corporation now existing within this state shall continue with all of its present rights and powers until otherwise provided by law, and shall always have the additional rights and powers conferred by this Constitution."

Therein are two constitutional provisions as to the rights of municipal corporations, one, that they shall continue with all their existing rights and powers until otherwise provided by law, and another, that they shall have the additional rights and powers conferred by the Constitution. With reference thereto, the codifiers included as a note thereunder, the following:

" 'Probably no Constitution was ever drafted that refers to the people so much power to be exercised by direct vote. Municipal corporations are given the right by direct vote to the people to form their own municipal charters. This general underlying idea that the people themselves have the power by direct vote to control their own affairs argues persuasively that it was the intention of the Constitution to give to municipal corporations directly the right to become indebted by vote of the taxpayers for the construction of public utilities.' Kane, J., in State v. Millar, 21 Okla. 448,96 P. 747."

Prior to statehood, municipal corporations had been authorized to provide a rate of taxation almost without limitation. The rate of taxation for those purpose was limited by the provisions of section 9, art. 10, of the Constitution, and the Legislature imposed a further limitation. Section 9692, C. O. S. 1921. The Legislature has never provided that municipal corporation shall not fix rates of taxation for municipal purposes. Since there is no such inhibition, the rights granted by section 2, art. 18, supra, remain with the municipalities.

In addition to the rights enjoyed by municipal corporations at the time of the adoption of the Constitution, as recognized by the provisions of the section quoted, such municipalities were given the additional rights and powers conferred by the Constitution.

Article 10 of the Constitution relates to revenue and taxation. By section 2 of that article, the Legislature is required to provide by law for an annual tax sufficient, with other resources, to defray the estimated ordinary expenses of the state for each fiscal year. By section 20 of the article, the Legislature is prohibited from imposing taxes for the purpose of any county, city, town, or other municipal corporation. When those two sections are considered together, there can be no question as to the constitutional intent. By section 9 of the article, any county may make an additional levy for county high school and aid to the common schools. Therein, in terms, the county is authorized to levy a tax. In the same section provision is made for school districts to exceed the fixed limitation on condition that a majority of the voters thereof voting at an election vote for the increase. By section 11 of the article, a criminal penalty is imposed upon any officer of any city who directly or indirectly receives any interest, profit, or perquisites arising from the use or loan of money raised through his agency for city purposes. The language of section 13 of the article is:

"The state may select its subjects of taxation, and levy and collect its revenues independent of the counties, cities, or other municipal subdivisions."

By the provisions of section 19 of the article, every ordinance and resolution passed by any city board or legislative body, levying a tax, shall specify distinctly the purpose for which said tax is levied. By the provisions of section 20 of the article, the Legislature is authorized, by general laws, to confer upon the proper authorities of a city the power to assess and collect taxes. By the provisions of section 26 of the article, a city incurring an indebtedness pursuant to the provisions of that section is required, before or at the time of doing so, to provide for the collection of an annual tax sufficient to pay the interest on the indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof. There is an almost identical provision in section 27 of the article. In section 28 of the article, cities are required to levy sufficientadditional revenue to create a sinking fund. The word "additional" therein may not be disregarded. When that word is given effect, it is apparent that it refers to rates of levy for current expense purposes. Neither can we disregard the language of section 20 of the article limiting the power of the Legislature to conferring upon "the proper authorities" of the municipal corporation the power to assess and collect municipal taxes. With reference to that language, I desire to call attention to the language of this court in Smartt v. Board of Com'rs, 67 Okla. 141, 169 P. 1101, wherein it was said:

"There has been much controversy among publicists and thinkers and much conflict in the decisions of the courts as to the proper and necessary limitations upon the powers delegated to the different departments and arms of the state government, but it is conceded by all that certain necessary fundamental functions must always be actively exercised in order to preserve the existence of the state and secure to the people the rights guaranteed to them, among which are the right to life, liberty, the possession of property, and the pursuit of happiness, and should the state become so impotent as to be unable to discharge these functions, there would result a failure of the purposes for which government was established. The surest way to bring about this result is to construe the Constitution in such a way as to place it in the power of one set of officials to deprive another of the means necessary for the performance of the duties imposed upon that other. If we give the Constitution such construction the enforcement of laws for the regulation and protection of the public peace and safety in any county might, in its ultimate analysis, depend upon the whim and caprice of certain local officials who might, by failing and refusing to make proper provision therefor, render it impossible to secure an enforcement of such laws by the officers charged with the duty of so doing."

If three members of an excise board, no one of which is required to live within a city, may be granted authority by the Legislature; to refuse to make proper provision for the current expenses of the municipality and to interpose their discretion in conflict with the discretion of the municipal officers, similar authority might be granted to three members of a board, no one of whom would be required to live within the county, and, under that construction, the Legislature might provide for one board, consisting of three men sitting in Oklahoma City, with authority to say how much money might be raised by ad valorem taxation for the support of all of the municipalities of the state and the purpose for which money so raised might be used. In my opinion the excise board is not the proper authority of a city within the meaning of section 20 of the article. See School Dist. No. 85 v. School Dist. No. 71, 135 Okla. 270,276 P. 186.

I cannot give my consent to such a departure from the principle of representative government. Those principles are well stated in McQuillin on Municipal Corporations, section 246, as follows:

"The right of local self-government, as an undoubted right of the people, is regarded as an inseparable incident to our republican form of government, and, therefore, all our Constitutions assume its continuance. As expressed in substance by Judge Cooley, all delegations of powers which they make, and the express and implied restraints which they impose' upon the several departments of government are to be always construed in the light of all recognized pre-existing rights and privileges of the people, either in their individual, or aggregate capacity as a local community.

"The Legislature cannot take away from the people of a town or city rights and privileges which they possessed as citizens of the state before the incorporation unless such rights have been expressly surrendered by organic provisions. As heretofore pointed out, the principal object of incorporation is to enable them to supply local needs and conveniences, or, additional rights and powers are granted to enable them better to govern themselves in all matters of local concern, and not to take away any rights or privileges they possessed before such grant was made."

— by the Supreme Court of Nebraska, in State ex rel. Smyth v. Moores, 76 N.W. 175, as follows:

"The right of local self-government in cities and towns (i. e., the power of the citizens thereof to govern themselves, as to matters purely local in their nature, through officers of their own selection) existed in this state at the time the present Constitution was framed, and was not surrendered upon the adoption of that instrument, but is vested in the people of the respective municipalities, and the Legislature is powerless to take it away."

— in Rathbone v. Wirth, 40 N.Y. S. 535, as follows:

"The principle I refer to is the principle of local self-government. * * * Local self-government is the which fits people for self-government. Local self-government is the result, and also the most efficient preserver, of civil liberty. * * * The principle is one that runs through our entire system of government, from the road and school district up to the federal government. * * *"

— and by the Supreme Court of Iowa, in State ex rel. White v. Barker, 89 N.W. 204, as follows:

"The argument is that the intention to preserve and perpetuate the ancient right of local self-government, which the law recognizes as of common-law origin, and having no less than common-law franchises, is apparent throughout the scope of most American Constitutions. Some of the judges even go so far as to say 'that, local self-government having always been a part of the English and American system, we shall look for its recognition in any such instrument (Constitution); and, if not expressly recognized, it is still to be understood that all these instruments are framed with its present existence and anticipated continuance in view'; 'that back of all Constitutions are certain usages and maxims that have sprung from the habits of life, mode of thought, methods of trying facts, and mutual responsibilities in neighborhood interests; precepts that have come from revolutions which overturned tyrannies; sentiments of manly independence and self-control, which impelled our ancestors to summon the local community to redress local evils, instead of relying upon king or Legislature at a distance to do so; that form of living spirit of the lifeless skeleton known as the Constitution; that gives it force and attraction, and that distinguishes it from the numberless so-called Constitutions of Europe; and that this so-called living spirit should supply the interpretation of the words of the written charter.' * * *"

The judgment of the trial court is erroneous not only under the rule stated in the Bodine Case, but under the rule stated in Rogers, Co. Treas., v. Bass Harbour Co., supra, City of Collinsville v. Ward, supra, and School Dist. No. 85 v. School Dist. No. 71, supra, and there is no decision of this court holding that the discretion of city officers as to the rate of levy within the three legislative limitations for a city is subject to the discretion of three men, no one of whom is required to be a resident or a taxpayer of the municipality.

Under the authorities cited, the judgment of the trial court is properly reversed.