At the annual meeting of school district No. 34, Marshall county, Okla., a majority of the voters thereof voting at the meeting voted to increase the rate of levy for the school district by an amount of ten mills above the five-mill limitation. Thereafter the school board, at a meeting called for that purpose, prepared, executed, and certified to the county excise board a financial statement and estimate of the needs of the school district for the ensuing fiscal year. They attached thereto their certificate showing the result of the election as to the rate of levy. The certificate showed that 27 voted for the increased levy and that none voted against it. Thereafter the excise board revised the statement of estimated needs certified to it by the school board and reduced the amount thereof for current expenses from $4,322 to $2,804. The excise board fixed the rate of levy at 4.53 mills. Upon the application of the school district, as plaintiff, the district court of Marshall county granted a writ requiring the excise board to approve the estimate certified to it by the school board and to make a levy accordingly. From that judgment the county excise board has appealed.
Among other things, the county excise board contends that it had the authority *Page 263 to reduce both the estimate and the rate of levy for the reason that the action of the school district was void because the estimate certified to and filed with the county excise board by the school board was not voted on and approved by the voters of the school district.
At the time of the adoption of the Constitution of Oklahoma, the Legislature of the territory of Oklahoma had made provision for the levying of taxes. It had provided a maximum and minimum rate of general territorial tax (section 5995, Wilson's Statutes 1903) to be fixed by the territorial board of equalization, the territorial auditor, or the board of county commissioners (section 5998, Wilson's Statutes 1903). Cities had been authorized to levy and collect taxes for general revenue purposes not exceeding a maximum rate fixed. Sections 370 and 466, Wilson's Statutes 1903. The boards of trustees of incorporated towns had been authorized to determine the general amount of tax for the current year. Sections 519 and 521, Wilson's Statutes 1903. The inhabitants of school districts qualified to vote at a school meeting had been authorized to vote annually a tax on all the taxable property in the districts at the annual school meetings for school purposes. Section 6154, Wilson's Statutes 1903. Boards of education of independent school districts had been authorized to levy a tax for the support of schools. Section 6262, Wilson's Statutes 1903. The taxes so levied were required to be certified to the county clerk, who was authorized and required to place the same on the tax roll to be collected by the treasurer of the county.
By the provisions of section 2 of the Schedule of the Constitution, the laws of the territory of Oklahoma, at the time of the admission of the state into the Union, which were not repugnant to the Constitution and which were not locally inapplicable, were extended to and remained in force in the state of Oklahoma until they expired by their own limitation or were altered or repealed by law. By that provision the constitutional convention and the people of the state took notice of the statutes of the territory of Oklahoma. They doubtless had those statutes in mind when they provided by section 20, art. 10, of the Constitution that the Legislature should not impose taxes for the purpose of any county, city, town, or other municipal corporation. That was but a continuation of the territorial policy whereby the territorial Legislature did not impose taxes for the purpose of any county, city, town, or other municipal corporation. Legislation respecting the imposition of taxes for the purpose of any county, city, town, or other municipal corporation is subject to that provision of the Constitution. It was further provided in section 20, art. 10, supra, that the Legislature might, by general laws, confer upon the proper authorities of counties, cities, towns, or other municipal corporations, respectively, the power to assess and collect taxes. That was but a continuation of the existing territorial practice. Legislation with reference to the assessing and collecting of taxes for counties, cities, towns, or other municipal corporations is subject to that provision of the Constitution and the two limitations therein contained: First, it must be by "general laws"; and second, the power may be vested only in "the proper authorities thereof."
Under the territorial statutes, the "proper authorities" of a common school district to levy a tax for the school district were the inhabitants of the school district qualified to vote at a school meeting. Those statutes were extended in force by the Schedule of the Constitution and they were adopted by the terms of section 9, House Bill No. 380, ch. 71, art. 1, Session Laws 1907-08. Thereby they remained "the proper authorities thereof" after the adoption of the Constitution. By the provisions of section 9, art. 10, of the Constitution, they were made "the proper authorities thereof" to increase the annual rate of levy therein provided by an amount not to exceed ten mills on the dollar valuation. That the procedure for the making of a school district tax levy may be changed by the Legislature was held in Tilley v. Overton, Co. Treas.,29 Okla. 292, 116 P. 945, wherein it was held that the procedure to be followed was to be prescribed by the Legislature, and in McCreary v. Lee, 45 Okla. 201, 145 P. 777, wherein it was held that the Legislature was left entirely free to determine how school district elections should be held, the time and place and the manner of holding the same, and what should constitute a legal election. We know of no decision holding that the Legislature may provide a procedure for the making of school district tax levies which is in conflict with the provisions of section 9, art. 10, of the Constitution.
The authority that can be granted by the Legislature "by general laws" to "the proper authorities" of counties, cities, towns, or other municipal corporations is limited *Page 264 by the provisions of section 9, art. 10, of the Constitution. By those provisions limitations are placed upon the maximum rate of taxation on an ad valorem basis that can be authorized by the Legislature and the maximum rate of taxation on an ad valorem basis that can be authorized by a vote of a majority of the voters of the school district voting at an election held for that purpose.
By an exhaustive opinion written by Mr. Justice Hardy, this court, in Trustees, Executors Securities Ins. Corp. Ltd., v. Hooton, Co. Clerk, 53 Okla. 530, 157 P. 293, held that the provisions of section 20, art. 10, of the Constitution did not apply to the tax involved in that action, the tax involved therein being what is commonly known as the "registration of instruments tax." Chapter 246, Session Laws, 1913, as amended by chapter 106, Session Laws 1915. In discussing the question the court quoted from Thurston, Co. Treas., v. Caldwell,40 Okla. 206, 137 P. 683, and said:
"The act does not seek to levy a tax for purely municipal purposes, but, on the contrary, is one in which the state has a sovereign interest, and is not limited by the section mentioned Hocker v. Payne, 40 Okla. 458, 139 P. 121; Thurston Co. Treas., v. Frank, 40 Okla. 463, 139 P. 124; Thurston, Co. Treas., v. Hine, 40 Okla. 465, 139 P. 125; Ex parte Ambler,11 Okla. Cr. 449, 148 P. 1061; A., T. S. F. Ry. Co. v. State,28 Okla. 94, 113 P. 921, 40 L. R. A. (N. S.) 1."
It reviewed the authorities from other states construing constitutional provisions similar to our section 20, art. 10, and holding to the same effect.
An examination of the decision in the case of Thurston, Co. Treas., v. Caldwell, supra, discloses that there was therein involved taxes of the city of Purcell. In the decision of that case the court quoted from the decision of this court in Board of Education of City of Ardmore v. State ex rel. Best,26 Okla. 366, 109 P. 563, as follows:
" 'The organization and maintenance of a free public school system for the education of the children of cities containing a population of 2,000 or over ought to be a matter of as much general state concern as the education of the balance of the children of the state, and ordinarily this function of government is not delegated to such municipalities. "In modern days it is not only considered a governmental function, but also, and especially in the United States, an imperative governmental duty to provide for and maintain a system of public education. This is true not only because through education is the individual rendered better capable of rational and good government, but also because education adds to his economic efficiency." 3 Abbott on Municipal Corporations, 2379.' "
— and it said:
"It is true that some courts and text-writers have taken the view that the local institutions of self-government, regardless of its express constitutional limitations, are so integral a part of American institutions that they are to an extent independent of legislative control. But even those who press this view most extremely acknowledge the absolute supremacy of the Legislature in many matters of chiefly local interest in which, nevertheless, the state has a sovereign interest, among which may be mentioned state control over local police protection; state control over local taxation for streets, highways, and bridges; state control over local taxation for schools; state control over local taxation for the public health. This subject is instructively treated by Mr. Gray, in chapter 7 of his work on 'Limitations of Taxing Power and Public Indebtedness,' where the authorities will be found collected in the notes."
To the same legal effect is the decision of this court in Ex parte Shaw, 53 Okla. 654, 157 P. 900, construing the automobile license law.
In Thompson v. Rearick, 33 Okla. 283, 124 P. 951, the issue before the court was the application of section 9, art. 10, of the Constitution to the road improvement district statute, chapter 124, Session Laws 1910-11, and it was therein held that that act was repugnant to that provision of the Constitution.
In discussing section 9, art. 10, of the Constitution, Mr. Justice Williams, speaking for the court, said:
"It will be observed that it is therein provided, with two exceptions, that the total taxes, on an ad valorem basis, for all purposes, to wit, state, county, township, city or town or school district taxes, shall not exceed in any one year 31 1/2 mills on the dollar. The exceptions relate to county levies for schools not to exceed two mills, and an additional ten mills to be levied by school districts, when voted for by the electors of such district.
"Section 9 is a limitation and not a grant of power; the limitation applying not only to the Legislature, but also to the counties, townships, cities or towns, and school districts."
The language of the last paragraph is general. It must be construed with reference *Page 265 to the issue before the court and concerning which the learned Justice was speaking. Neither of the exceptions stated in the first paragraph quoted were involved in that case. When the language of the last paragraph is examined with reference to the issue before the court at that time, it appears that the limitation referred to in the last paragraph is the limitation as to the total taxes on an ad valorem basis, and that it was not intended by the language of the last paragraph to hold that the exceptions stated in the first paragraph were not grants of power. We are forced to that conclusion, for the writer of the opinion therein said:
"We take it that said section 9 means just exactly what it says; that, except as herein otherwise provided, the total taxes, on an ad valorem basis for all purposes, shall not exceed in any one year 31 1/2 mills on the dollar, with the two exceptions therein enumerated."
We repeat, section 9, art. 10, of the Constitution means just exactly what it says. In Schaff, Rec., v. Rea, Co. Treas.,103 Okla. 62, 229 P. 472, there was a similar general statement with reference to section 9, art. 10, of the Constitution, which was based on the general language used in the decision in Thompson v. Rearick, supra. In the first paragraph of the syllabus it was said:
"* * * Held, section 9 is a limitation, and not a grant of power, the limitation applying not only to the Legislature, but also to the counties, townships, cities or towns, and school districts. * * *"
The issue involved in that case was the question of "what is the limitation of the levy that may be made by the excise board of the county for separate and common school purposes?" As we have heretofore pointed out, the general language so used is not in accord with the provision of the Constitution under consideration here. That provision:
"* * * provided, that the aforesaid annual rate for school purposes may be increased by any school district by an amount not to exceed ten mills on the dollar valuation, on condition that a majority of the voters thereof voting at an election, vote for said increase."
In the language of this court in Board of Education v. Woodworth, 89 Okla. 192, 214 P. 1077: "The natural and appropriate office of a proviso in a statute is to restrain or qualify some preceding matter, and it should be confined to what precedes it, unless it clearly appears to have been intended to apply to some other matter," and the object, in the language of the Supreme Court of Illinois, in Legout v. Price,149 N.E. 427, "* * * is to except something out of the general terms of the grant, statute, or other instrument to which it may be attached." To the same effect is the statement of the Supreme Court of the United States in Minis v. United States, 10 L.Ed. 799, wherein it was said:
"The office of a proviso, generally, is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of its extending to cases not intended by the Legislature to be brought within its purview."
The distinction we have pointed out was recognized by this court in Schaff, Rec., v. Borum, Co. Treas., 82 Okla. 284,200 P. 191, wherein Mr. Justice Kennamer used the following language:
"Section 9 of article 10 of the Constitution, except the provisos regarding extra levies for schools, supra, is a limitation directed to the Legislature. * * *"
The same language was used by Mr. Justice Lester in Simmons v. Stuckey, Co. Treas., 113 Okla. 200, 241 P. 124. In Board of Education of City of Guthrie v. Excise Board of Logan County,86 Okla. 24, 206 P. 517, Mr. Justice Kennamer, in speaking for the court, called attention to the distinction in the following language:
"Section 9, art. 10, of Williams' Constitution imposes a limitation of 8 mills for county current expenses upon the taxing power of the state, which is the Legislature (Schaff v. Borum, County Treasurer, 82 Okla. 284, 200 P. 191), for county purposes. But any county may levy not exceeding 2 mills additional for a county high school and aid to common schools of the county under the proviso to section 9, art. 10."
In Atchison, T. S. F. Ry. Co. v. State, 28 Okla. 94,113 P. 921, Mr. Justice Hayes, speaking for the court concerning the validity of section 2, art. 7, Sess. L. 1909, levying an ad valorem tax of one-fourth of one mill for common school purposes, said:
"It is quite common for the states, in maintaining a system of public schools, not only to levy a state tax to aid in the support of such schools, but to provide school districts with a system of government invested with power to levy tax for school district purposes to supplement the funds and efforts of the state to maintain a public school system, and the various school districts may thereby increase their public school facilities, subject to the limitations upon their power to tax, as the inhabitants of such districts may feel disposed to do. *Page 266 Section 9, supra, does nothing further than place two limitations upon the power of any such school district to levy a tax. The first limitation applies when the levy is made by proper authorities without a vote of the people. The other limitation is upon the increase over the first levy that may be made by the vote of the people of the district."
In Tilley v. Overton, supra, it was held that the provisions of section 9, art. 10, of the Constitution, as to a school district levy for the support of common schools, might "be separated into two parts, the first of which authorizes a levy for a district of not more than five mills on the dollar each year," and the second "authorizes an additional amount to be levied. That additional amount shall not exceed ten mills on the dollar valuation," and that the section "authorizes, unqualifiedly, without restrictions or limitation so far as the Constitution attempts to regulate it, a levy for school district purposes not more than five mills on the dollar." This court said:
"The legislative intent was to authorize first a levy of a tax not to exceed five mills, leaving it to the Legislature to prescribe the manner, time, and by what authority this levy shall be made; but when a levy is to exceed five mills, which is authorized by the second part of the section, then there is placed upon the authority to levy such additional amount the constitutional restraint that it shall not be levied except with the approval of a majority of the voters of the district voting at an election thereon"
— and:
"The first five mills of which may be levied by such authority and under such procedure as the Legislature may from time to time prescribe, and the additional ten mills may be levied in like manner except that such levy shall never be made without the approval of the people of the district as prescribed in the second clause of the section."
Under the authorities cited, we hold that section 9, art. 10, of the Constitution is both a limitation and a grant of power and that it is a grant of power to a majority of the voters of a school district voting at an election held for that purpose to increase the annual rate of taxation on an ad valorem basis for school purposes by an amount not to exceed ten mills on the dollar valuation. By that constitutional provision "a majority of the voters thereof" is made "the proper authorities thereof" to increase the annual rate of taxation on an ad valorem basis for school district purposes by an amount not to exceed ten mills on the dollar valuation. There is no authority for the Legislature to change that constitutional provision by making the action so taken subject to the approval of an excise board, where the rate of levy so authorized is needed for the proper conduct of the affairs of the school district and where the amount of the levy so fixed is not in excess of the amount necessary for the needs of the school district, as shown by the estimate of needs of the school district prepared by the school board and certified to the excise board. The procedure for the fixing of rates of school district levies and for the holding of the elections authorized by the provisions of the section was provided by section 2 of the Schedule of the Constitution, which extended the territorial legislation with reference to the holding of school district meetings and the levying of taxes for school districts. In the language of this court in Tilley v. Overton, supra, section 9, art. 10, supra, supplemented by those territorial statutes "is self-executing." In that case this court held that the territorial statutes above referred to were extended in force in Oklahoma. It is probable that the attention of the court was not then called to the provision of House Bill No. 380, adopted by the Legislature at the 1907-08 Session, ch. 71, art. 1, p. 633, Session Laws 1907-08, in section 9 of which it was provided that:
"All levies for city, town, township and school district taxes for the periods hereinbefore indicated shall be made in the manner now provided by law, on or before the first Tuesday in August of said year, and shall be certified to the county clerk immediately thereafter and by him extended upon the tax rolls in the manner provided by law"
— for there was no reference made thereto in the opinion.
Section 6154, Wilson's Statutes 1903, was revised by the revision commission, and, as revised was adopted as section 7785, R. L. 1910. By the revision, the fifth paragraph thereof was eliminated, the reason assigned therefor in the note thereto being that that paragraph was "conflicting with sections 7376, 7378, et seq., chapter 'Revenue and Taxation'." The evident purpose was to change the provision by which the inhabitants qualified to vote at a school meeting were authorized to vote annually a tax on all the taxable property in the district and distribute the same. However, the change in the procedure was not found to be advisable, for, by the provisions of chapter 199, Session Laws 1915, that provision was *Page 267 changed to provide that the school electors of any district at the annual meeting, shall determine by a majority vote the amount of excess levy, if any, required for the next ensuing fiscal year. Section 1 of that chapter was carried forward by the compilers as section 9708, C. O. S. 1921. There is nothing in that provision requiring the voters of a school district to approve the estimate made by the school officers for the conduct of the school. With reference to that section this court, in Missouri, K. T. Ry. Co. v. Prince, Co. Treas.,133 Okla. 228, 271 P. 253, said:
"Under section 9708, the additional levy may be voted at the annual school meeting, and when such levy is so voted, it then becomes the duty of the school board, when making the estimate for the ensuing year, to attach to such estimate a certificate of the vote had at the annual meeting on the question of making such excess levy, and if such levy carried, if an excess levy is required, shall levy such additional levy not in excess of the amount voted."
It was therein held that the section was not within the inhibition of section 57, art. 5, of the Constitution; that it was not repealed by section 9696, C. O. S. 1921; that it is in harmony with the provisions of section 19, art. 10, of the Constitution, and that it is "* * * a valid enactment."
The conflict between the provisions of section 9708, supra, and section 9696, supra, is the basis of this litigation. The excise board contends that that part of section 9696 prohibiting the excise board from reducing rates of levy or estimates of school districts is unconstitutional, and that under the provisions of section 9698, C. O. S. 1921, the excise board has the power to reduce rates of levy fixed by school districts and estimates made therefor. It contends that even though it has no authority "over the levy voted by the patrons," it has authority over the five mills allowed by law. It points out that there is a distinction between the two and that that distinction has never been passed upon by this court. It says: "Here we have one levy that is allowed by law, under our Constitution, and another levy that is allowed by the legislators of the school district. One is levied by one authority and another by another authority." It is not necessary for this court in this case to determine whether or not the excise board has authority over a five mills school district levy different from that over a 15 mills school levy authorized by the vote of a majority of the voters of the school district voting at an election held for that purpose, for when the voters of the school district have authorized the annual rate for school purposes to be increased by an amount not to exceed ten mills on the dollar valuation, the action of the voters of the school district operates to fix the maximum amount of rate of levy for school district purposes. Neither the Constitution nor the statutes provide for two levies for current expenses of a school district. They provide for only one levy for those purposes. In the absence of the consent of a majority of the voters of the district, the maximum rate of levy is five mills, but with that consent the maximum rate is 15 mills. When they have consented, the maximum rate fixed by them, not exceeding 15 mills, is the rate of levy for the school district.
By the provisions of section 9708, supra, and section 10339, C. O. S. 1921, the Legislature has determined and provided all of the things necessary to be determined and provided, as stated by this court in McCreary v. Lee, supra; that is, it has provided how the election should be held, the time, place and manner of holding the same, and what shall be held to constitute a legal election. Section 9, art. 10, of the Constitution, supplemented by those provisions, is in full force and effect.
Section 9696, supra, was adopted as a part of chapter 226, Sess. L. 1917. By that section it was provided that an increased rate of levy might be made only on condition that a majority of the taxpaying voters of the district voting thereon vote for the additional levy, and, by their majority vote, approve an estimate to be submitted to the county excise board. Thereby the Legislature attempted to impose two conditions upon the power granted to the school districts by the provisions of section 9, art. 10, of the Constitution. Chapter 226, supra, both in the title and in the body of the act, is specific as to the sections repealed thereby. There was no provision therein for the repeal of the provisions of the 1915 act, section 9708, supra.
The constitutional provision (section 9, art. 10, supra) is that the annual rate for school purposes may be increased by any school district on condition that a majority of the voters thereof voting at an election vote for said increase. The Legislature was without authority to impose a condition that the voters thereat should be taxpaying voters, for, by so doing, it deprived the electors of school districts of authority conferred upon them by the provisions of the Constitution. Section 1, art. 3, of the Constitution *Page 268 defines "qualified electors," and section 3, art. 3, provides that female citizens shall be qualified to vote at school district elections. Section 9, art. 10, supra, must be construed in connection with those sections and, when those sections are construed together, they provide the qualifications for electors at school district elections. The term "school district elections," as used section 3, art. 3, supra, is broad enough to embrace an election held for the purpose of authorizing an increased levy of taxes for school district purposes. Vogel v. Steclman, 53 Okla. 557, 157 P. 280. The Legislature is without authority of law to require an elector to be a taxpaying voter in order to vote at a school district election. The language used in section 9, art. 10, supra, is "voters thereof." The language used in section 26, art. 10, of the Constitution is "voters thereof," which refers to school districts. In Jones v. School District No. 96,144 Okla. 10, 289 P. 268, this court said:
"But when we consider the provisions of section 1 of art. 3 in connection with the language of section 26 of art. 10 (of the Constitution), which has express reference to three-fifths of the voters of the school district, it is reasonably clear that the words 'voters in the school district,' or equivalent language, 'voters thereof,' were used in reference to and within the meaning of the other provisions of that said document defining the qualifications of a voter or an elector.
"It has become definitely settled that where the qualifications of electors are fully defined in the Constitution, a law which assumes to prescribe any additional qualification as a condition precedent to the right to vote, or prescribing a longer residence than that required by the Constitution, is unconstitutional and void. 20 C. J. 66; North Carolina v. Canady, 73 N.C. 198, 21 Am. R. 465; Wendover v. Tobin (Tex. Civ. App.) 261 S.W. 434; White v Multnomah County,13 Or. 317, 10 P. 484; Attorney General v. Detroit, 78 Mich, 545, 44 N.W. 388. The rule is stated in Ruling Case Law, vol. 9, p. 1034, in this language:
" 'It is a generally accepted rule that the enumeration in a state Constitution of the classes of citizens who shall be permitted to vote is to be taken as to all matters within the purview of the provisions as a complete and final test of the right to the exercise of that privilege and that the Legislature can neither take from nor add to the qualifications there set out unless the power to do so is expressly or by necessary implication conferred upon it by the Constitution itself.'
"We think that the constitutional provision (art. 3, sec. 1) was intended to be all-embracing; and this being true, any legislative act existing at the time of the adoption of the Constitution or subsequently enacted purporting to prescribe a longer residence as an additional qualification to a right to vote on the issuance of school bonds, is in conflict with the Constitution, and therefore void."
The same reasoning is applicable to a legislative act purporting to prescribe an additional qualification to a right to vote at a school district election by requiring the voter thereat to be a taxpayer. No other construction is warranted by reason of the fact that in section 27, art. 10, of the Constitution the term "qualified property taxpaying voters" is used. Had it been the intention of the makers of the Constitution to require the voters under the provisions of section 9, art. 10, supra, to be taxpaying voters, no doubt they would have used language to that effect. If the Legislature can lawfully provide that a voter at a school district election must be a taxpayer it can provide that a voter thereof must be a real estate taxpayer, and it can thereby deprive tenant farmers of the right to vote at school district meetings on the question of fixing the rate of levy for school district purposes.
There is nothing in section 9, art. 10, supra, or any statute of Oklahoma that requires an estimate for common school purposes to be approved by a majority of the voters of a school district as a condition to the exercising of the authority granted to a majority of the voters of the school district voting at an election held for that purpose to increase the annual rate of taxation for school purposes by an amount not to exceed ten mills on the dollar valuation. For the reasons stated, we must hold that the Legislature was without authority to impose a condition that an estimate of a school district shall be approved by a majority of the taxpaying voters of the school district.
Whether or not the Legislature can lawfully require an estimate of a school district to be approved by a majority of the voters of the school district voting at an election held for that purpose, is not an issue here, for we know of no provision of the statute requiring such approval. By the provisions of section 10339, supra, following the annual school meeting at which an election is held to determine the amount, if any, of increased levy for the school district, and on the first Tuesday in July, it is the duty of the school board to meet and make wit a statement of the estimated needs of the school district for the current or ensuing *Page 269 fiscal year. The Legislature has made no provision for the calling or holding of an election or a school meeting after that date, and had it been the intention of the Legislature to require an estimate so made by the school district board to be approved by the voters of the school district, provision would have been made for the holding of such an election.
Section 9696, supra, has been before this court for consideration in a number of cases, in many of which it appeared that the school district election was held by the voters of the district rather than by the taxpaying voters of the district. Among those we call attention to Prince, Co. Treas., v. St. Louis S. F. Ry. Co., 110 Okla. 141,237 P. 106, in which the certificate attached to the estimate filed with the excise board showed that the rate of levy had been "* * * approved by a majority of the voters of said district voting at said annual meeting, * * *" and in which the levy was sustained. We know of no decision as to the effect of the "taxpaying voter" provision thereof. As presented in this case, the issue as to the effect of section 9696, supra, is clear cut and it is necessary that that provision be construed. For the reasons stated, we hold that section 9696, supra, is unconstitutional and void.
The excise board contends that the levy authorized by the voters of the district was not necessary to meet the estimated needs thereof as certified to it by the directors of the district, and that the election, for that reason, was void. We do not agree with that contention. If the full levy voted was not needed, the excise board was only authorized to make a levy sufficient to meet the required needs. Section 9708, supra; St. Louis-S. F. Ry. Co. v. Thompson, Co. Treas., 35 Okla. 138,128 P. 685; St. Louis-S. F. Ry. Co. v. Tate, Co. Treas.,35 Okla. 563, 130 P. 941. This rule was recognized by the trial court and its judgment only required the excise board to make a levy sufficient to meet the estimated and required needs of the district.
The excise board also claims that the election is void and violated the provisions of section 19, art. 10, of the Constitution, because the people voting at such election failed to distinctly define the purposes for which the revenue to be derived from the excess levy should be used. The voters of the school district voting at the election did not make the levy for taxes. They merely authorized the levy to be made. When the rate of levy is computed and fixed by the excise board, the items of the estimate are before it and the rate of levy is based on the several items of the estimate, which, when approved, are appropriations of funds for the several and specific purposes. A levy so made is not in violation of the provisions of section 19, art. 10, of the Constitution. Missouri, K. T. Ry. Co. v. Prince, Co. Treas., supra.
We quote the language of this court in Tilley v. Overton, supra, as follows:
"At the regular meeting of the voters present voted upon and made the entire levy, and the entire levy of that district for the year involved has received the sanction of a majority of those persons voting thereon; and in so far as the tax below five mills was levied by a vote of the people, it was not done against any prohibition of the Constitution; and in so far as the tax levied exceeds five mills, it was made and levied by a vote of the people of the district in compliance with the mandate of the Constitution"
— and from Board of Education of Guthrie v. Excise Board of Logan County, supra, as follows:
"It is the duty of the proper authorities to raise by taxation for school purposes such sum as is deemed necessary by the board of education for the maintenance of its schools, and where this duty is plainly prescribed by statute, it is a ministerial duty and its performance may be compelled by mandamus. 26 Cyc. pages 162 and 287. In the instant case it appears that the discretion as to the amount of funds necessary for the propor maintenance of the separate schools is vested in the board of education, the district being an independent school district, and upon the board certifying the amount to be levied or appropriated to the excise board, it was the mandatory duty of the board to make the levy sufficient to take care of the budget as prepared by the board of education unless the levy would have exceeded the constitutional and statutory limitations as herein defined."
The same rule is applicable to common school districts. By the provisions of the territorial statute, section 6154, Wilson's Statutes 1903, supra the inhabitants of a school district qualified to vote at a school meeting were authorized to vote annually a tax on all the taxable property in the district at the annual school meeting for school purposes. By the provisions of section 2 of the Schedule of the Constitution, that territorial statute was extended and was controlling after the adoption of the Constitution. By the provisions of the 1915 act, section 9708, supra, and section 10339, supra, the same authority is vested in the *Page 270 school district. By the provisions of section 9, art. 10, of the Constitution, the authority is granted to a majority of the voters of the school district voting at an election held for that purpose to increase the annual rate for school purposes by an amount not to exceed ten mills on the dollar valuation. Those provisions are definite and certain and the specific provisions thereof must control over the general provisions of section 9698, supra. Gardner v. School Dist. No. 87, Kay County, 34 Okla. 716, 126 P. 1018; Muskogee Times-Democrat v. Board of Com'rs of Muskogee County, 76 Okla. 188, 184 P. 591; Prince v. Wild Horse Drainage Dist. No. 1, 145 Okla. 185,292 P. 42.
In the case at bar the excise board determined that the school district had employed too many teachers and in reducing the estimated needs of the district eliminated an item for salary of one of the teachers. It contends that it was authorized so to do by section 1, art. 2, ch. 34, Session Laws 1931. That act provides, in part:
"* * * but any contract entered into after the beginning of the fiscal year shall be binding upon the district unless canceled or annulled, upon the approval of an estimate by the excise board."
That act does not purport to confer authority upon the excise board to determine the number of teachers necessary to be employed by a school district. It simply provides that a contract between a teacher and a school district, unless canceled or annulled by proper authorities, shall be binding upon the school board and teacher upon approval by the excise board of an estimate made for the salary of the teachers.
We know of no statute authorizing the excise board to determine the number of teachers that may be employed by a school district. That question is for the determination of the school district, and the excise board may not usurp that function of the school district by refusing to approve an estimate therefor or by refusing to fix a rate of tax levy therefor where the same can be fixed within the constitutional and statutory limitations as to rates of tax levies for school district purposes and within the amount fixed by a majority of the voters of a school district voting at an election held for that purpose.
Certain taxpayers of the district requested that they be permitted to intervene in the action. Their request was denied by the trial court. This ruling is assigned as error. Assuming, without deciding, that those taxpayers were proper parties, they were not necessary parties, and, since no prejudice could have resulted in denying their request, we deem it unnecessary to determine whether their request might properly have been granted.
In School Dist. No. 4, Garfield County, v. Independent School District No. 4 1/2, Garfield County, 153 Okla. 171,4 P.2d 1031, this court held:
"An estimate made by a school district for the conduct of a school may not be reduced by the excise board, if the rate of levy authorized by the voters of the school district under the statutory and constitutional limitations is sufficient to produce the amount of the estimate made."
We think that that is a correct statement of the law applicable to the facts shown by the record in this case, and it is applied herein.
When the voters of a school district vote for an increased levy as authorized by the Constitution in the manner provided by sections 9708 and 10339, supra, and the school board of the school district certifies the result thereof to the county excise board, together with a financial statement and estimate of the needs of the district as provided by section 9708, supra, it is the duty of the excise board to make a levy in such an amount as will furnish revenue sufficient to meet the estimated needs of the district, but if the levy voted should be more than sufficient to produce the amount of money shown by the estimate to be necessary, it is the duty of the excise board to make the levy no more than is sufficient to produce, with other income, the amount of the estimate. In the language of this court, in Missouri, K. T. Ry. Co. v. Prince, supra,
"The provisions of section 9708, in this respect, are in harmony with section 19, art. 10, of the Constitution. * * *"
As held by this court, in Board of Education of Guthrie v. Excise Board of Logan County, supra:
"Where a writ of mandamus is sought to enforce the performance of a statutory duty, which is plain and definite, the refusal to perform such statutory duty is sufficient to authorize the issuance of the writ."
We find no error in the judgment of the trial court, and that judgment is in all things affirmed.
RILEY and SWINDALL, JJ., concur. CULLISON, J., concurs in conclusion. McNEILL, J., concurs in the result and dissents as to that part of the opinion holding section 9696, C. O. S. 1921, unconstitutional *Page 271 in toto. LESTER, C. J., CLARK, V. C. J. and HEFNER and KORNEGAY, JJ., dissent.