Smith Ex Rel. State v. State Board of Equalization
Smith Ex Rel. State v. State Board of Equalization
Opinion of the Court
The question presented by this application to assume original jurisdiction and petition for writ of mandamus is whether the State Board of Equalization [Board] is required, pursuant to the Okl.Const. Art. 10, § 23,
The Board by a majority vote
It is undisputed by the parties that this is a matter of publici juris and that this Court
The petitioners and the amicus curiae allege that Art. 10, § 23 requires that the Board “shall” estimate revenues accruing to the General Revenue Fund and each special fund; and that both classifications are subject to the constitutional limitations to prevent non-appropriated expenditures and to prevent deficit spending. The assertion is also made that the estimation of all revenues is not an impossible task nor is it unduly complicated or burdensome. We agree.
The constitutional requirement that the Board shall certify the total amount of revenue which accrued to the General Revenue Fund and each special fund during the last preceding fiscal year is clear, mandatory, and unambiguous. “Shall” is commonly understood to be a word of command which must be given a compulsory meaning.
The crux of this question is what is a special fund within the contemplation of Art. 10, § 23? This Court in Draper v. State Bd. of Equalization, 414 P.2d 276, 279 (Okl. 1966) defined special funds as including only those funds which are supported by direct taxes, fees, or other revenue.
We are not persuaded by the argument that continuing funds are not subject to certification. The court adopted the premise in State ex rel. Hawkins v. Oklahoma Tax Commission, 462 P.2d 536 (Okl. 1969) that the earmarked continuing special gasoline excise tax was subject to the provisions of Art. 10, § 23.
For example, the Technical and Scientific Education Special Fund, a separate and continuing fund, created for the general purpose of technical and scientific education in vocational, technical and scientific schools or junior colleges receives 92% of the documentary stamp tax.
Article 10, § 23 was adopted by the people in 1941 to provide for budget balancing in this state. There is no room for construction or provision for further inquiry when the Constitution plainly speaks. A constitutional amendment should be construed in consideration of its purpose and be given a practical interpretation to carry out the plainly manifested purpose of the people who adopted it.
Because of the long standing administrative interpretation by the Board of Art. 10, § 23, we find that it would not be wise to disrupt governmental functions in process during fiscal year 1981.
ORIGINAL JURISDICTION ASSUMED. WRIT OF MANDAMUS GRANTED.
. It is provided by the Okl.Const. Art. 10, § 23 in pertinent part:
“Not more than forty-five (45) days or less than thirty-five (35) days prior to the convening of each regular session of the Legislature, the State Board of Equalization shall make an itemized estimate of the revenues to be received by the state under the laws in effect at the time such estimate is made, for the next ensuing fiscal year, showing separately the revenues to accrue to the credit of the General Revenue Fund and each special fund of the state. The estimate shall not exceed an amount which shall be determined by the following procedure:
(1) Certify the total amount of revenue which accrued to the General Revenue Fund and each special fund during the last preceding fiscal year; ...”
. The Board of Equalization is constitutionally comprised, pursuant to the Okl.Const. Art. 10, § 21, of the Governor, State Superintendent of Public Instruction, President of the Board of Agriculture, State Auditor, State Treasurer, Lieutenant Governor, and Attorney General.
. State v. State Board of Equalization, 552 P.2d 1134, 1137 (Okl. 1975).
. The Okl.Const. Art. 10, § 23(5) provides in pertinent part:
“.. . Such estimate shall be filed with the Governor, The President and President Pro Tem-pore of the Senate, and the Speaker of the House of Representatives. The Legislature shall not pass or enact any bill, act or measure making an appropriation of money for any purpose until such estimate is made and filed, unless the State Board of Equalization has failed to file said estimate at the time of convening of said Legislature, then in such event, it shall be the duty of the Legislature to make such estimate pursuant to the provisions of this amendment, and all appropriations made in excess of such estimate shall be null and void;..."
. Oklahoma Alcoholic Beverage Control Bd. v. Moss, 509 P.2d 666, 668 (Okl. 1973).
. Globe Indemnity Co. v. Bruce, 81 F.2d 143, 153 (10th Cir. 1935) cert. den’d. 297 U.S. 716, 56 S.Ct. 591, 80 L.Ed. 1001 (1936).
. Edwards v. Childers, 102 Okl. 158, 228 P. 472, 473 (1924); Menefee v. Askew, 25 Okl. 623, 107 P. 159, 161 (1910).
. This Court in Draper v. State Bd. of Equalization, 414 P.2d 276, 279 (Okl. 1966) said:
“Our attention is invited to the Emergency Appropriation Fund which was created by the Legislature in 1947. 62 O.S.1961, Sec. 9.1-9.8. It is argued that the Emergency Appropriation Fund may be treated as a ‘special fund’ under Section 23, Constitution, supra. This argument is untenable. Special funds, in the contemplation of Section 23, include only those funds that are supported by direct taxes, fees or other revenue. The Emergency Appropriation Fund consists of ‘all moneys transferred, or authorized to be transferred by the Legislature from any surplus cash arising incidentally from receipts in excess of appropriations to the credit of other funds in the State Treasury.’ 62 O.S. 1961, Sec. 9.2. In other words, accruals in the Emergency Appropriation Fund are not revenue, but such fund is simply a convenient account in which to transfer surplus funds from the General and Special Funds not needed to pay current year appropriations.... ”
. See 68 O.S.Supp.1978 §§ 5101, 5104.
. Austin, Nichols & Co., Inc. v. Okl. County Bd. of Tax-Roll Corrections, 578 P.2d 1200 (Okl. 1978).
. Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 14 L.Ed.2d 601, 608 (1965); Great Northern Ry. Co. v. Sunburst Oil & Rfg. Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932).
Dissenting Opinion
dissenting:
In my opinion, Art. 10, § 23, Okl.Const., does not require the State Board of Equalization (Board) to make an itemized estimate and certify the revenues accruing to a “special fund” where such revenues have been earmarked and dedicated for a specific purpose by a continuing appropriation. I am of the view that the Board is required to estimate and certify only those revenues that must be appropriated by the succeeding Legislature and it is not required to estimate and certify those funds that are earmarked and dedicated and requires no legislative action before they can be encumbered.
The majority states:
*1268 “We are not persuaded by the argument that continuing funds are not subject to certification. The Court adopted the premise in State ex rel. Hawkins v. Oklahoma Tax Commission, 462 P.2d 536 (Okl. 1969) that the earmarked continuing special gasoline excise tax was subject to the provisions of art. 10, § 23.”
I agree that Hawkins holds that the gasoline excise tax was subject to Art. 10, § 23
Although Art. 10, § 23, has been amended since our 1969 decision in Hawkins, such amendments are not material to the issues presented here.
In Hawkins, we discussed in detail Art. 10, § 23, which is known as the “1941 Budget Balancing Amendment” and the 1941 Legislative enactment vitalizing the 1941 amendment. (62 O.S. 1941, § 8.1-8.18). In my opinion, Hawkins, in so far as pertinent here, supports the following:
(1) The Legislature can constitutionally earmark or make a continuing appropriation to a special fund the revenues arising from a special tax and allocate or dedicate such revenues to a special purpose.
(2) If the Legislature does not provide that the unencumbered balance at the end of the fiscal year in such special fund shall be transferred, it is a “non-fiscal year fund” and the balance at the end of the fiscal year will remain in the same fund for the subsequent fiscal year and can be expended at any time without any legislative action.
(3) There are no constitutional limitations2 upon the expenditure of such funds, but the state may not incur an indebtedness in excess of the unencumbered balance of surplus cash on hand in contravention of Art. 10, § 23.
If the Board is required to estimate and certify earmarked funds it would appear that there would be a conflict between two very important provisions in § 23. One proviso prescribes that all appropriations made in excess of the Board’s estimate shall be null and void. Another proviso prescribes that a department operating on revenues derived from any law or laws which allocate the revenues to such department shall not incur obligations in excess of the unencumbered balance of cash on hand. If the Board’s estimate is less than the cash actually accruing to an earmarked special fund, one of the above provisions would have to give way to the other. I say that both should be operative under any and all circumstances because in my opinion the “estimate and certification” requirements of § 23 are not applicable to funds that are earmarked and dedicated by a continuing appropriation where no legislative action is necessary to encumber the balance of cash on hand.
Petitioners state that prior to 1947 the Board meticulously estimated all funds, including earmarked funds, and it was not until 1947 that the Board simply stopped estimating the earmarked funds. The 1941 budget balancing amendment has been amended twice, in 1968 and in 1975, since its adoption. If there had been any intent to change the funds which the Board was required to estimate, surely the Joint Resolution proposing the two amendments, and the amendments, would have contained some language indicating a change. I am unable to find any intent to require the Board to estimate funds that have been earmarked and already appropriated and in my opinion, § 23 may not be construed to require such estimation. The estimation required by § 23 is directed only to those
I respectfully dissent.
. It is subject to the proviso of Art. 10, § 23 that provides: “Any department ... operating on revenues derived from any law or laws which allocate the revenues thereof to such department . . . shall not incur obligations in excess of the unencumbered balance of cash on hand.”
. Art. 5, § 55, Okl.Const. provides: “No money shall ever be paid out of the treasury of this State . .. except in pursuance to an appropriation by law, nor unless such payments be made within two and one-half years after the passage of such appropriation act . . . ”
Dissenting Opinion
dissenting in part:
I dissent in part to the prospective application in the majority opinion of the Sunburst Doctrine, 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932).
The duty to certify by the Board of Equalization is applicable, yesterday, today and tomorrow; for so long as the Constitution remains unchanged.
I am authorized to state that WILLIAMS and SIMMS, JJ., support this dissenting position.
Reference
- Full Case Name
- Finis W. SMITH, John W. Young, Ex Rel. STATE of Oklahoma, Petitioners, v. STATE BOARD OF EQUALIZATION Et Al., Respondents
- Cited By
- 34 cases
- Status
- Published