Smith ex rel. State v. State Bd. of Equalization

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Smith ex rel. State v. State Bd. of Equalization
1981 OK 57
630 P.2d 1264
Decided: 05/15/1981
Supreme Court of Oklahoma

FINIS W. SMITH, JOHN W. YOUNG, EX REL. STATE OF OKLAHOMA, PETITIONERS,
v.
STATE BOARD OF EQUALIZATION ET AL., RESPONDENTS.

APPLICATION TO ASSUME ORIGINAL JURISDICTION and PETITION FOR WRIT OF MANDAMUS.

¶0 Original proceeding involving application to assume original jurisdiction and petition for writ of mandamus to direct the State Board of Equalization to perform its constitutional duty, pursuant to the Okla.Const. Art. 10, § 23 , to make an itemized estimate and certify the revenues accruing to the General Revenue Fund and each special fund during the last preceding fiscal year.

ORIGINAL JURISDICTION ASSUMED. WRIT OF MANDAMUS GRANTED.

Finis W. Smith, and John W. Young pro se, for petitioners.

Yvonne Sparger Nichols, Edmond, for respondents.

Jan Eric Cartwright, Atty. Gen. by John F. Percival, Asst. Atty. Gen., Oklahoma City, amicus curiae.

HODGES, Justice.

[630 P.2d 1265]

¶1 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 ,

¶2 The Board by a majority vote

[630 P.2d 1266]

¶3 It is undisputed by the parties that this is a matter of publici juris and that this Court has jurisdiction.

¶4 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.

¶5 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.

¶6 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.

¶7 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 .

¶8 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.

¶9 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.

¶10 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.

¶11 ORIGINAL JURISDICTION ASSUMED. WRIT OF MANDAMUS GRANTED.

¶12 BARNES, V.C.J., and LAVENDER, HARGRAVE and OPALA, JJ., concur.

¶13 WILLIAMS, SIMMS, and DOOLIN, JJ., concur in part, dissent in part.

¶14 IRWIN, C.J., dissents.

Footnotes:

1 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; . . ."

2 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

3 State v. State Board of Equalization, 552 P.2d 1134, 1137 (Okl. 1975).

4 The Okl.Const. Art. 10, § 23 (5) provides in pertinent part:

". . . Such estimate shall be filed with the Governor, The President and President Pro Tempore 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; . . ."

5 Oklahoma Alcoholic Beverage Control Bd. v. Moss, 509 P.2d 666, 668 (Okl. 1973).

6 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).

7 Edwards v. Childers, 102 Okl. 158, 228 P. 472, 473 (1924); Menefee v. Askew, 25 Okl. 623, 107 P. 159, 161 (1910).

8 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. . . ."

9 See 68 O.S.Supp. 1978 §§ 5101 , 5104 .

10 Austin, Nichols & Co., Inc. v. Okl. County Bd. of Tax-Roll Corrections, 578 P.2d 1200 (Okl. 1978).

11 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).

IRWIN, Chief Justice, dissenting:

¶1 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.

¶2 The majority states:

[630 P.2d 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 ."

¶3 I agree that Hawkins holds that the gasoline excise tax was subject to Art. 10, § 23

¶4 Although Art. 10, § 23 , has been amended since our 1969 decision in Hawkins, such amendments are not material to the issues presented here.