I concur in the result reached in the majority opinion in that the judgment of the trial court is affirmed, but I dissent to striking down section 9696, C. O. S. 1921, in toto, as being unconstitutional. In my opinion there is no occasion for nullifying this section of the statute which has been standing since 1917, because the Legislature provided therein that "the annual rate of levy of five (5) mills for school purposes may be increased by any school district by an amount not to exceed ten (10) mills on the dollar valuation on condition that a majority of the taxpaying voters thereof voting thereon shall vote for such additional levy, and by their majority vote approve an estimate to be submitted to the county excise board," on the ground that this section requires such voter to be a "taxpaying voter" in contravention to the qualification of a voter set forth in article 3 of the Constitution of Oklahoma. Section 9, art. 10, of the Constitution is not a grant of power to the school district, but is a limitation upon the Legislature and said district in the levying of taxes for such school district, and this section provides that this levy may be increased by any school district by an amount over the five-mill levy, not to exceed ten mills on the dollar valuation on condition that the majority of the voters thereof voting at an election vote for said increase.
Said section 9696 is the only section of our statute which permits the voters of a school district to vote for an additional levy and approve an estimate for current expenses to be submitted to the county excise board. If the single word "taxpaying" preceding the word "voter" in said section is eliminated, then this section of the statute does not conflict with section 9 of article 10 of the Constitution.
The majority opinion says:
"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."
And in the sixth paragraph of the syllabus, it is said:
"There is nothing in the statutes of Oklahoma requiring an estimate of needs of the common school district to be approved by a majority of the voters of the school district."
There is no provision of the statutes of Oklahoma requiring the estimate of the school district to be approved by the majority of the voters of the school district, but section 9696, supra, gives such voters, but not taxpaying voters, the right to approve an estimate which, when done, in my opinion, is binding upon the excise board, and which right, to approve an estimate, the majority opinion denies to such qualified electors of such school district.
Section 9708 and section 10339, C. O. S. 1921, do not give such voters this right. It is my opinion that when a majority of the voters at a school election vote for an increased levy and by their majority vote approve the estimate for current expenses to be made to the county excise board in an amount equal to the sum derived from such increased levy, the same is binding and conclusive, upon the excise board, and that said board under section 9698 is then without authority to reduce the same. In this case the certification was made that the increased levy was voted by a unanimous vote, and in my opinion that by such vote the voters at such election thereby approved the estimate which was afterwards made by the school district board to the county excise board. The majority opinion also says:
"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 out a statement of the estimated needs of the school district for the current or ensuing fiscal year. The Legislature has made no provision for the calling or the 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."
The majority opinion ignores section 9707, C. O. S. 1921, which provides for an election for an increased levy to be called by the excise board, if such board is of the opinion that such increase is reasonable and necessary for the current expenses of the school district. The qualified electors of the school district are vitally concerned in the conduct of the school system in their municipality. If section 9696, supra, is held *Page 272 unconstitutional in its entirety, such electors would be deprived of the right to vote on a final estimate for the current expenses of their school district. If the district school board fails to include in the estimate what might be reasonably necessary for the next ensuing fiscal year, then such electors must rely upon the excise board to call an election for an increased levy if in its opinion such excess is reasonably necessary for the current expenses of the municipality, and the excise board, if in its opinion such excess is not reasonably necessary, may refuse to issue a call for an election on said increased levy. The electors of such school district should not be denied this statutory right given to them under section 9696, supra.
The majority opinion conflicts and is repugnant to the opinion of City of Ardmore v. Excise Board of Carter County,155 Okla. 126, 8 P.2d 2, wherein the court says:
"It is said that the inclusion in section 3 of the act (section 9696, C. O. S. 1921) of the provision that the excise board shall have no authority to reduce the estimate of a school district, by implication, is a grant of authority to the excise board to reduce the estimates of other taxpaying units. We do not agree with that contention. No confusion can arise therefrom when the distinction made in Thurston, County Treasurer, v. Caldwell, supra, is kept in mind. Under the rule stated therein and consistently followed since that time, the maintaining of a public school system is a matter in which the state has a sovereign interest. It is not a matter of purely local or municipal concern. Atchison, T. S. F. Co. v. State,28 Okla. 94, 113 P. 921, 40 L. R. A. (N. S.) 1. In the absence of the prohibition contained in section 9696, supra, the excise board as a state agency would have supervision over estimates for school district purposes, and, under the provisions of section 9698, supra, would have the authority to reduce the estimate therefor. The prohibition was included in section 9696, supra, to prevent the excise board from exercising the authority granted to it by section 9698, supra, to reduce estimates involving matters in which the state has a sovereign interest, and there is nothing in section 9696, supra, which even by inference authorizes the excise board to reduce estimates for matters of purely local or municipal concern, except as hereinbefore stated."
The construction placed upon said section 9696, supra, in that case is not reconcilable with the majority opinion in this case. In the case of the City of Ardmore, v. Excise Board of Carter County, supra, the court clearly states that the state has a sovereign interest in the public school system and by reason of this sovereign interest the excise board as a state agency has supervision over estimates for school purposes, and under the provisions of section 9698, C. O. S. 1921, would have authority to reduce the estimates except for the provisions contained in section 9696, supra.
It is my opinion that section 9696, supra, is valid in every respect except in so far as it attempts to provide that the votor must be a taxpayer.