Calvey v. Daxon

Calvey v. Daxon
2000 OK 17
997 P.2d 164
71 OBJ 721
Case Number: 93903
Decided: 03/14/2000
Mandate Issued: 04/10/2000
Supreme Court of Oklahoma

REP. KEVIN CALVEY, REP. FRED MORGAN, REP. CHRIS BENGE, REP. FORREST CLAUNCH, REP. ODILIA DANK, REP. BILL GRAVES, REP. TODD HIETT, REP. MARK LIOTTA, REP. JOHN NANCY, REP. WAYNE PETTIGREW, REP. GREG PIATT, REP. TIM POPE AND REP. CURT ROGGOW, Appellants/Plaintiffs/Petitioners

 STRATTON TAYLOR, President Pro Tempore, Oklahoma State Senate, Appellee/Defendant/Intervenor.

[997 P.2d 165]
APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY;
Honorable Nancy Coats, District Judge.

¶0 The appellants, eleven members of the Oklahoma House of Representatives [Representatives], sought declaratory judgment that two bills transferring fee-generated monies into the Special Cash Fund were unconstitutional for failure to meet the procedural requirements of the Okla. Const. art. 5, §33. The Representatives also sought writs of mandamus and prohibition and injunctive relief to prevent the appellee, Director of State Finance Tom Daxon [Director], from executing the transfers. Arguing that the bills were not revenue bills within the meaning of the constitution, the Director and the appellee/intervenor, President Pro Tempore of the Oklahoma State Senate Stratton Taylor [President Pro Tempore], opposed the requested relief and moved for summary judgment. The trial judge, Honorable Nancy Coats, sustained the motion and the funds were transferred. We hold that legislative acts transferring monies from fee-generated funds to the special cash fund are not "revenue bills" or "bills for raising revenue" subject to the procedural requirements of the Okla. Const. art. 5, §33. Our holding is based on determinations that: 1) the addition of procedural requirements to the constitutional provision did not alter the settled definition of revenue laws within the meaning of the Oklahoma Constitution; 2) our jurisprudence holding that laws imposing a tax or a license fee incidental to legislation do not raise revenue within the meaning of art. 5, §33; and 3) the Legislature's express authority under art. 10, §23 to transfer monies among funds.

AFFIRMED.

Kevin Calvey, Del City, Oklahoma, For Appellants.

Neal Leader, Senior Assistant Attorney General Oklahoma City, Oklahoma, For Appellees.

Lee Slater, Mark H. Ramsey, Oklahoma City, Oklahoma, For Appellee/Intervenor.

[997 P.2d 166]

¶1 KAUGER, J.:

¶2 The dispositive issue presented is: whether House Bill 15741 and Senate Bill 165,2 transferring monies from fee-generated funds3 to the state's Special Cash Fund,4 violate the constitutional requirement of the Okla. Const. art. 5, §335 that revenue bills [997 P.2d 167] be passed by a super-majority of each house of the Legislature or that they be submitted to a vote of the people. We hold that they do not.

UNDISPUTED FACTS

¶3 At the close of the first regular session of the Forty-Seventh Legislature, House Bill 1574 and Senate Bill 165 were adopted. The Governor approved the bills on May 27, 1999. The bills contain multiple provisions requiring the appellee, Director of State Finance Tom Daxon [Director], to transfer monies from various funds to the Special Cash Fund of the State Treasury. House Bill 1574 and Senate Bill 165 do not levy taxes or increase monies paid into state coffers. Rather, they require a transfer of existing cash on hand from several fee-generated funds to the Special Cash Fund of the State Treasury.6 Monies transferred pursuant to the two bills have been appropriated to various state boards and agencies to fund operations.7

¶4 On June 22, 1999, the appellants, eleven members of the Oklahoma House of Representatives [Representatives], filed a declaratory judgment action8 challenging the constitutionality of the bills. The Representatives alleged that the bills were subject to the Okla. Const. art. 5, §33 requiring that revenue bills be passed by a super-majority of each house of the Legislature or that they be submitted to a vote of the people. The Representatives also sought writs of mandamus and prohibition and injunctive relief to prevent the Director from executing the transfers.

¶5 After a hearing on June 25, 1999, the trial judge denied the request for writs of prohibition and mandamus and refused to issue a preliminary injunction. Subsequently, the Director executed the monetary transfers.9 The Director and the appellee/intervenor, President Pro Tempore of the Oklahoma State Senate Stratton Taylor [President Pro Tempore], filed motions for summary judgment on July 12, 1999, asserting that neither bill was a "revenue bill" or a "bill for raising revenue" subject to the procedural [997 P.2d 168] requirements of art. 5, §33. On October 22, 1999, the trial court sustained the motions. The Representatives appealed, and we retained the cause on January 12, 2000.

¶6 LEGISLATIVE ACTS TRANSFERRING MONIES FROM FEE-GENERATED FUNDS TO THE SPECIAL CASH FUND ARE NOT "REVENUE BILLS" OR "BILLS FOR RAISING REVENUE" SUBJECT TO THE PROCEDURAL REQUIREMENTS OF THE OKLA. CONST. ART. 5, §33.

¶7 The Representatives assert that House Bill 1574 and Senate Bill 165 violate art. 5, §33 of the Oklahoma Constitution by raising revenue without a vote of the people or a three-fourths majority of the House and the Senate. The Director and the President Pro Tempore insist that the definition of a "revenue bill" or a "bill for raising revenue" is well settled in Oklahoma law and that a mere transfer from fee-generated funds to the Special Cash Fund is not subject to the strictures of art. 5, §33. We agree.

A.

¶8 THE ADDITION OF PROCEDURAL REQUIREMENTS TO THE OKLA. CONST. ART. 5, §33 DID NOT ALTER THE SETTLED DEFINITION OF "REVENUE BILLS" OR "BILLS FOR RAISING REVENUE" WITHIN THE MEANING OF THE CONSTITUTIONAL PROVISION.

¶9 The terms "revenue bill" and "bill for raising revenue" are used interchangeably in art. 5, §33.10 The Court first considered the meaning of the terms in 1908, only thirteen months after the provision first became effective. In Anderson v. Ritterbusch, 1908 OK __, ¶__, 98 P. 1002, the Court traced the origins of the Oklahoma provision to the British House of Commons. Considering the origin, the history, the treatment by federal and state courts, and the evils intended to be avoided by similar provisions, the Anderson Court held that: 1) revenue bills are those laws whose principal object is the raising of revenue and which levy taxes in the strict sense of the word; and 2) laws under which revenue may incidentally arise are not "revenue bills" or "bills for raising revenue" within the meaning of the Oklahoma Constitution.

¶10 The original version of art. 5, §33 considered in Anderson provides:

All bills for raising revenue shall originate in the House of Representatives. The Senate may propose amendments to revenue bills. No revenue bill shall be passed during the last five days of the session.

The provision was amended in 1931 with the only change being to reorder the last phrase of §33 to read "the five last days" rather than "the last five days" of the legislative session. From 1908 to the present, in an unbroken line of cases, we have reinforced the definition first promulgated by the Anderson Court.11

¶11 Art. 5, §33 was amended by an election held on March 10, 1992. Before [997 P.2d 169] being submitted to the people, the legal sufficiency of the initiative petition was challenged - In re Initiative Petition No. 348, State Question No. 640,

The Petition, if adopted, would require all revenue raising bills [FN3] be approved by a majority of the people at the next general election unless such revenue bill was approved by a three-fourths vote of both houses.

FN 3. 'Revenue Bills' are those that levy taxes in the strict sense of the word and are not bills for other purposes which may incidentally create revenue. Pure Oil Co. v. Oklahoma Tax Commission, 179 Okla. 479, 482,

¶12 Title

¶13 Although an amendment to a constitutional provision that has been judicially interpreted is presumed to change existing law,

¶14 Constitutional provisions are applied giving effect to the intent of the people voting on them.

B.

¶15 UNDER OKLAHOMA JURISPRUDENCE, LAWS IMPOSING A TAX OR A LICENSE FEE INCIDENTAL TO LEGISLATION DO NOT RAISE REVENUE WITHIN THE MEANING OF THE OKLA. CONST. ART. 5, §33.

¶16 Initially, the Representatives contend that all legislation imposing a fee or a tax must conform to the procedural requirements of art. 5, §33.

¶17 The Director counters that because the bills neither increase the size of state coffers nor impose a tax in the strict sense of the word, they are not subject to the procedural requirements of art. 5, §33. The President Pro Tempore agrees asserting that [997 P.2d 171] enactments imposing fees or taxes incidental to a regulatory scheme are not revenue bills.

¶18 The Representatives' assertion that all fee-generating legislation is subject to the procedural requirements of art. 5, §33 is unconvincing. It is well settled in our jurisprudence that laws imposing a tax or a license fee incidental thereto are not revenue raising laws under art. 5, §33.

C.

¶19 THE LEGISLATURE HAS EXPRESS AUTHORITY PURSUANT TO THE OKLA. CONST. 
ART. 10, §23 TO TRANSFER MONIES AMONG FUNDS.

¶20 The Representatives do not address the Legislature's constitutional authority to transfer existing revenues or unappropriated cash on hand from one state fund to another. The President Pro Tempore alleges that the Legislature was authorized to make the transfers encompassed in House Bill 1574 and Senate Bill 165 under art. 10, §23 of the Oklahoma Constitution.

¶21 Except where it encounters a specific constitutional prohibition, the Legislature has the right and the responsibility to declare the fiscal policy of Oklahoma. This Court has no authority to consider the desirability, wisdom, or practicability of fiscal legislation.

¶22 Art. 10, §23 - known as the balanced budget amendment - provides that "the Legislature may . . . enact laws . . . transferring the existing revenues or unappropriated cash on hand from one fund to another . . .". In City of Sand Springs v. Department of Public Welfare,

¶23 It is uncontested that monies moved from the fee-generated funds had been collected before the transfers were accomplished - the transfer did not generate the funds or increase the value of existing monies. Cash on hand was moved from various funds to a central location, the Special Cash Fund, so that it could be appropriated by the Legislature. The Legislature utilized House Bill 1574 and Senate Bill 165 as cash flow management devices - an action specifically authorized by the clear language of the Okla. Const. art. 10, §23. We hold that the transfers are constitutional.

CONCLUSION

¶24

¶25 We hold that legislative acts transferring monies from fee-generated funds to the special cash fund are not "revenue bills" or "bills for raising revenue" subject to the procedural requirements of the Okla. Const. art. 5, §33. Our holding is based on determinations that: 1) the addition of procedural requirements to the constitutional provision did not alter the settled definition of revenue laws within the meaning of the Oklahoma Constitution; 2) our jurisprudence holding that laws imposing a tax or a license fee incidental to legislation do not raise revenue within the meaning of art. 5, §33; and 3) the Legislature's express authority under art. 10, §23 to transfer monies among funds.

AFFIRMED.

¶26 ALL JUSTICES CONCUR.

FOOTNOTES

1The Director is directed to make the following transfers by House Bill 1574: $4,300,000.00 from the Waste Tire Recycling Indemnity Fund of the Oklahoma Tax Commission to the Special Cash Fund of the State Treasury; $500,000.00 from the Reduction-In-Force Emergency Cost Fund of the Office of State Finance to the Special Cash Fund of the State Treasury; $1,772.995.00 from the Ad Valorem Reimbursement Fund of the Oklahoma Tax Commission to the Special Cash Fund of the State Treasury; $19,400,000.00 from the Capital Improvement Revolving Fund to the Special Cash Fund of the State Treasury.

2The Director is ordered to make the following transfers by Senate Bill 165: $200,000.00 of the amount of $5,250,432.00 originally appropriated to the Office of Personnel Management to the Special Cash Fund of the State Treasury; $50,000.00 of the amount of $3,371.499.00 originally appropriated to the Office of State Treasurer to the Special Cash Fund of the State Treasury; $200,000.00 of the amount of $18,309.981.00 originally appropriated to the Department of Commerce to the Special Cash Fund of the State Treasury; $100,000.00 of the amount of $7,112.622.00 originally appropriated to the Department of Central Services to the Special Cash Fund of the State Treasury; $250,000.00 from the Bond Oversight Revolving Fund of the Department of Central Services to the Special Cash Fund of the State Treasury; $400,000.00 from the Revolving Fund of the Office of the Secretary of State to the Special Cash Fund of the State Treasury; $1,297.014.00 from the Public Health Special Fund of the State Department of Health to the Special Cash Fund of the State Treasury; $2,000,000.00 from the Federal Funds of the State Department of Health to the Special Cash Fund of the State Treasury; $300,000.00 from the Banking Department Revolving Fund of the Banking Department to the Special Cash Fund of the State Treasury; $300,000.00 from the Waste Tire Recycling Indemnity Fund of the Tax Commission to the Special Cash Fund of the State Treasury; $50,000.00 from the Mortgage Brokers Recovery Fund of the Consumer Credit Department to the Special Cash Fund of the State Treasury; $1,200,000.00 from the Insurance Commissioner Revolving Fund of the Insurance Commission to the Special Cash Fund of the State Treasury; $100,000.00 from the Oklahoma Certified Real Estate Appraisers Revolving Fund of the Insurance Commission to the Special Cash Fund of the State Treasury; $100,000.00 from the Bailbondsmen Revolving Fund of the Insurance Commission to the Special Cash Fund of the State Treasury; $400,000.00 from the Oklahoma Securities Commission Revolving Fund of the Securities Commission to the Special Cash Fund of the State Treasury; $500,000.00 from the Public Utility Regulation Revolving Fund of the Corporation Commission to the Special Cash Fund of the State Treasury; $200,000.00 from the Corporation Commission Revolving Fund of the Corporation Commission to the Special Cash Fund of the State Treasury.

3Title 27A Supp. 1997 §2-11-403 [Imposes assessments on sale of tires, a portion of which is allocated to administer the requirements of the Oklahoma Waste Tire Recycling Act under §2-11-405.]; Title 62 O.S. Supp. 1999 §276.1 [Creates revolving fund for Office of the Secretary of State consisting of fees and monies received for reproduction costs and other miscellaneous receipts.]; Title 63 O.S. 1991 §1-107 [Creates Public Health Special Fund made up of all monies, fees and revenues collected by the State Commissioner of Health or the State Department of Health.]; Title 6 O.S. Supp. 1997 §211.1 [Creates revolving fund for the Banking Department consisting of all monies received by the Banking Commissioner.]; Title 59 O.S. Supp. 1998 §2085 [Imposes licensure fees for mortgage brokers to be deposited in the Oklahoma Mortgage Brokers Recovery Fund.]; Title 59 O.S. Supp. 1996 §858-708 [Imposes fees under the Oklahoma Certified Real Estate Appraisers Act. Pursuant to §858-701, the purpose of the act is to provide appraisers a process for certification.]; Title 59 O.S. Supp. 1995 §§1308 and 1309 and 59 O.S. Supp. 1998 §1308.1 [All three statutes relate to fees imposed for examination and renewals of bailbondsmen licenses.]; Title 71 O.S. Supp. 1999 §412 [Creates the Oklahoma Department of Securities Revolving Fund consisting of fees and other charges collected by the Securities Administrator.]; Title 17 O.S. 1998 Supp. §180.11 [Authorizes the Corporation Commission to assess fees against public utilities sufficient to fund the operations of the Commission's Public Utility Division.].

4Title 62 O.S. 1991 §253 provides:

"There is hereby created in the State Treasury a special fund to be designated the 'Special Cash Fund'. Said fund shall be subject to legislative appropriation or transfer as provided by law and shall consist of such monies as the Legislature may direct to be transferred to said fund."

5The Okla. Const. art. 5, §33 provides:

"A. All bills for raising revenue shall originate in the House of Representatives. The Senate may propose amendments to revenue bills.

B. No revenue bill shall be passed during the five last days of the session.

C. Any revenue bill originating in the House of Representatives shall not become effective until it has been referred to the people of the state at the next general election held throughout the state and shall become effective and be in force when it has been approved by a majority of the votes cast on the measure at such election and not otherwise, except as otherwise provided in subsection D of this section.

D. Any revenue bill originating in the House of Representatives may become law without being submitted to a vote of the people of the state if such bill receives the approval of three-fourths (3/4) of the membership of the House of Representatives and three-fourths (3/4) of the membership of the Senate and is submitted to the Governor for appropriate action. Any such revenue bill shall not be subject to the emergency measure provision authorized in Section 58 of this Article and shall not become effective and be in force until ninety days after it has been approved by the Legislature, and acted on by the Governor."

6Affidavit of Tom Daxon, Finance Director for the State of Oklahoma, providing in pertinent part at pp. 1-2:

". . . In my capacity as Finance Director, I am familiar with both of the legislative enactments challenged in this lawsuit, House Bill 1574 and Senate Bill 165, which direct me to transfer various funds to the Special Cash Fund in the State Treasury. Neither bill raises or in any way increases the revenue of the State of Oklahoma. Rather, both bills merely require that I transfer existing cash on hand to the Special Cash Fund of the State Treasury. No additional revenue comes to the State by virtue of those bills. . . ." [Emphasis in original.]

7Senate Bill 146 makes appropriations to the Department of Human Services, the Department of Rehabilitation Services, the Office of Juvenile Affairs, and the State Department of Health. House Bill 1571 makes appropriations to the Department of Rehabilitation Services, the Office of Juvenile Affairs, the Oklahoma Education Television Authority, the Oklahoma State Regents for Higher Education, the State Board of Vocational and Technical Education, the Office of the Auditor and Inspector, the Department of Central Services, the Oklahoma Department of Commerce, the Office of the Lieutenant Governor, the Department of Human Services, the Oklahoma Commission on Children and Youth, the Department of Mental Health and Substance Abuse Services, the State Department of Agriculture, the Oklahoma Tourism and Recreation Department, the Oklahoma Historical Society, the Department of Public Safety, and the Supreme Court for operation of the District Courts.

8Title 12 O.S. 1991 §1651.

9Affidavit of Tom Daxon, Finance Director for the State of Oklahoma, providing in pertinent part at p. 2:

". . . As required in House Bill 1574 and Senate Bill 165, I have transferred the designated funds to the Special Cash Fund. . . ."

10Anderson v. Ritterbusch, see note , infra.

11Fent v. Oklahoma Capitol Improvement Auth., see note at ¶2, infra; In re Initiative Petition No. 348, 1991 OK 110, ¶3, 820 P.2d 772; Board of County Comm'rs v. Oklahoma Public Employees Retirement Sys., 1965 OK 111, ¶¶22-23, 405 P.2d 68; Leveridge v. Oklahoma Tax Comm'n, 1956 OK 77, ¶0, 294 P.2d 809; Pure Oil Co. v. Oklahoma Tax Comm'n, 1936 OK __, ¶__, 66 P.2d 1097; Wallace v. Gassaway, 1931 OK __, ¶__, 298 P. 867; Ex parte Sales, 1924 OK __, ¶__, 233 P. 186; Lusk v. Ryan, 1918 OK __, ¶__, 171 P. 323; In re Lee, 1917 OK __, ¶__, 168 P. 53; Trustees', Executors' & Securities Ins. Corp., Ltd. v. Hooton, 1915 OK __, ¶__, 157 P. 293; Cornelius v. State ex rel. Cruce, 1914 OK __, ¶__, 140 P. 1187; Anderson v. Ritterbusch, 1908 OK __, ¶__, 98 P. 1002; Walters v. State ex rel. Oklahoma Tax Comm'n, 1996 OK CIV APP 154, ¶__, 935 P.2d 398, cert. denied, 522 U.S. 908, 118 S. Ct. 266, 139 L. Ed. 2d 192 (1997), reh'g denied, 522 U.S. 1009, 118 S. Ct. 592, 139 L. Ed. 2d 4289 (1997); Meek v. State, 1933 OK CRIM __, ¶__, 54 Okla.Crim. 415, 22 P.2d 933. See also, Annot. "Application of Constitutional Requirement that Bills for Raising Revenue Originate in Lower House," 4 A.L.R.2d 973 (1949); Ramsey, "What is a 'Revenue Bill' within the Meaning of Our Most Recent Constitutional Amendment," 63 O.B.J. 1567 (1992).

12The Okla. Const. art. 24, §1 provides in pertinent part:

". . . No proposal for the amendment or alteration of this Constitution which is submitted to the voters shall embrace more than one general subject and the voters shall vote separately for or against each proposal submitted; provided, however, that in the submission of proposals for the amendment of this Constitution by articles, which embrace one general subject, each proposed article shall be deemed a single proposal or proposition."

13Title 34 O.S. Supp. 1992 §3 provides in pertinent part:

". . . A simple statement of the gist of the proposition shall be printed on the top margin of each signature sheet. . . ."

Title 34 O.S. Supp. 1992 §9 was amended in 1994. Although the language differs slightly, the same requirements are imposed under both statutes. Therefore, reference is made to the current version providing in pertinent part:

". . . B. . . .The suggested ballot title:

1. Shall not exceed two hundred (200) words;

2. Shall explain in basic words, which can be easily found in dictionaries of general usage, the effect of the proposition;

3. Shall be written on the eighth-grade reading comprehension level;

4. Shall not contain any words which have a special meaning for a particular profession or trade not commonly known to the citizens of this state;

5. Shall not reflect partiality in its composition or contain any argument for or against the measure;

6. Shall contain language which clearly states that a 'yes' vote is a vote in favor of the proposition and a 'no' vote is a vote against the proposition; and

7. Shall not contain language whereby a 'yes' vote is, in fact, a vote against the proposition and a 'no' vote is, in fact, a vote in favor of the proposition. . . ."

14The United States Const. art. IV, §4 provides in pertinent part:

". . . The United States shall guarantee to every State in this Union a Republican Form of Government . . ."

15Title 34 O.S. Supp. 1994 §9(B), see note 13 , supra.

16Williams Natural Gas Co. v. Perkins, 1997 OK 72, ¶14, 952 P.2d 483. See also, Texas County Irrigation & Water Resources Ass'n v. Oklahoma Water Resources Bd., 1990 OK 121, ¶6, 803 P.2d 1119.

17The Okla. Const. art. 5, §33, see note ; Fent v. Oklahoma Capitol Improvement Auth., 1999 OK 64, ¶1, 984 P.2d 200, cert. denied, ___ U.S. ___, 120 S. Ct. 531, ___ L.Ed.3d ___ (1999).

18The Okla. Const. art. 5, §33, see note 5 , supra; In re Initiative Petition No. 348, see note , supra.

19Independent School No. 19 for Fiscal Year 1997-98, 1998 OK 43, ¶7, 959 P.2d 580; Hendrick v. Walters, 1993 OK 162, ¶7, 865 P.2d 1232.

20Smith ex rel. State v. State Bd. of Equalization, 1982 OK 57, ¶9, 630 P.2d 1264; Austin, Nichols & Co., Inc. v. Oklahoma County Bd. of Tax-Roll Corrections, 1978 OK 65, ¶6, 578 P.2d 1200.

21Wimberly v. Deacon, 1944 OK __, ¶__, 144 P.2d 447.

22In re Initiative Petition No. 348, State Question No. 640, see note 11, supra. The ballot title in the cause provides in pertinent part:

"This measure amends the State Constitution. It adds new provisions to Section 33 of Article 5. These would change the method by which state government makes laws that raise revenue. . . ."

23Plaintiff's Response Brief to Defendant's and Intervenor's Motions for Summary Judgment providing in pertinent part at p. 8 of 17:

". . . [N]o fee or tax may be raised without a vote of the people. Thus the statutes underlying the tire fee and other fees which support the funds from which monies are transferred by HB 1574 and SB 165, are unconstitutional. . . ."

24Leveridge v. Oklahoma Tax Comm'n, see note 11, supra [Bill declaring motor vehicle excise tax is not a revenue bill.]; Pure Oil Co. v. Oklahoma Tax Comm'n, see note 11, supra [Payment of tax or fee for use of public highways was not revenue raising measure]; Wallace v. Gassaway, see note 11, supra [Act providing for resale by county treasurer of realty for delinquent taxes not a revenue bill.]; Ex parte Sales, see note 11, supra [License fee for operation of transportation lines not a revenue law.]; Ex parte Tindall, 1924 OK __, ¶__, 229 P. 125 [Fees for use of public highways by transportation companies not revenue bills.]; Lusk v. Ryan, see note 11, supra [Procedure for recovery of illegal taxes paid not a revenue bill.]; In re Lee, see note 11, supra [Docket fee collectable as a cost was not a revenue raising bill.]; Trustees', Executors' & Securities Ins. Corp., Ltd. v. Hooten, see note 11, supra [Registration tax on privilege of recording instruments not a revenue bill.]; Cornelius, Register of Deeds v. State ex rel. Cruce, see note 11, supra [Tax on mortgages is not a revenue measure.];Walters v. State ex rel. Oklahoma Tax Comm'n, see note 11, supra [Bill changing method of calculating state income tax not a revenue bill.]. See also, Meek v. State, note 11, supra [Securities fee not a revenue raising measure but a proper exercise of the police power.]

25The Representatives' response brief to the Director's and the President Pro Tempore's Motions for Summary Judgment provides in pertinent part at p. 14:

". . . The purpose of the tire fee and other fees, after the transfers effectuated by HB 1574 and SB 165, is nothing other than to raise revenue for the general purposes of government. The purposed [sic] to which the tire fee funds have been transferred contain no reference to any broader regulatory scheme for which the revenue in question is to pay. Instead, the revenue is transferred into the Special Cash Fund of the State Treasury, a fund from which over 80 different line item appropriations were made by the Legislature in FY 2000. . . ." [Footnote listing the various funds omitted.]

26The Okla. Const. art. 10, §23(2) provides in pertinent part:

". . . [T]he Legislature may . . . enact laws . . . transferring the existing revenues or unappropriated cash on hand from one fund to another . . .".

27Matter of Application of Oklahoma Capitol Improvement Auth., 1998 OK 25, ¶9, 958 P.2d 759; In re Initiative Petition No. 347, 1991 OK 55, 813 P.2d 1019; State ex rel. York v. Turpen, 1984 OK 26, ¶12, 681 P.2d 763.

28Matter of Application of Oklahoma Capitol Improvement Auth., see note 27, supra; In re Initiative Petition No. 347, see note 27, supra; Palmer Oil Corp. v. Phillips Petroleum Co., 1950 OK__, 231 P.2d 997, appeal dismissed, 343 U.S. 390, 72 S. Ct. 842, 96 L. Ed. 1022.

29Earlier, in Draper v. State Bd. of Equalization, 1966 OK 87, ¶¶5, 12, 414 P.2d 276, we held that art. 10, §23 superseded a 1944 constitutional amendment dealing with the transfer of funds from the general revenue fund to a sinking fund to retire state bonds. Without discussing art. 10, §23 we determined that a statute transferring monies from the teachers' retirement system to the education employees' group insurance reserve fund was constitutional in Taylor v. State & Educ. Employees Group Ins. Program, 1995 OK 51, ¶20, 897 P.2d 275.

30Matter of Application of Oklahoma Capitol Improvement Auth., see note 27, supra; Gilbert Central Corp. v. State, 1986 OK 6, ¶7, 716 P.2d 654, 658.

31Matter of Application of Oklahoma Capitol Improvement Auth., see note 27 , supra; Tate v. Browning Ferris, Inc., 1992 OK 72,¶18, 833 P.2d 1218, 1229.