I concur in the conclusion that the writ should issue to compel the State Auditor to issue nonpayable warrants, but only up to the point where the reasonably anticipated revenue to be collected and to accrue to the general revenue fund during the present fiscal year will be exhausted. It does not appear that that point has been reached or will be reached prior to April. Warrants so issued do not constitute debts, but are proper charges against such fund. Kelley v. Baldwin (Pa. 1935)179 A. 736; State Budget Commission v. Lebus (Ky. 1932)51 S.W.2d 965; State v. Medbery (1857) 7 Ohio St. 522.
I dissent, however, to the reasoning of the majority in holding that there is no constitutional limitation on debts that may be created by appropriations in excess of the revenue provided, followed by the issuance of warrants in excess of the revenue actually collected during the fiscal year, followed by the issuance of funding bonds to take up such warrants. The result of this process is a debt for current expenses to pay casual deficits or failure in revenue.
Warrants issued in excess of the revenue undoubtedly constitute a form of debt, for it is held in the funding bond cases that the issuance of funding bonds to take up such warrants does not increase the debt, but simply changes the form of an existing debt. It is well settled in other jurisdictions having similar constitutional provisions that such warrants do constitute a debt, but an invalid debt unless approved by the people in the manner authorized by constitutional provisions similar to our section 25, art. 10. See Rowley v. Clarke (Iowa, 1913) 144 N.W. 908, 912; State v. State Board of Examiners (Mont. 1921) 197 P. 988; Billeter Wiley v. State Highway Commission (Ky. 1924) 261 S.W. 855; In re State Warrants (S.D. 1895) 62 N.W. 101; Fergus v. Brady (Ill. 1917) 115 N.E. 393. While such warrants do not constitute enforceable obligations, they probably constitute moral obligations so that under section 3 of art. 10 they may be paid by appropriations during succeeding fiscal years if the Legislature elects to do so.
The funding bond decisions construed the debt limitation provisions of the Constitution as not being a barrier to the unlimited issuance of funding bonds to take up warrants issued in excess of the revenue actually collected. Now the majority opinion in this case in effect says that there is no barrier to the issuance of such excessive warrants, and it will go to the extent of compelling, by the discretionary writ of mandamus, their issuance. Thus the constitutional prohibitions against excessive spending are, by process of interpretation, rendered ineffective and the power of the Legislature to create debts for current expenses is unlimited, and this despite the provisions of sections 2, 23, 24, and 25 of art. 10 of the Constitution that "The Legislature shall provide by law for an annual tax sufficient, with other resources, to defray the estimated ordinary expenses of the state for each fiscal year" (sec. 2) and "The state may, to meet casual deficits or failure in revenue, or for expenses not provided for, contract debts; but such debts, direct and contingent, singly or in the aggregate, shall not at any time, exceed four hundred thousand dollars, * * *" *Page 580 (sec. 23.), and "In addition to the above limited power tocontract debts, the state may contract debts to repel invasion, suppress insurrection or to defend the state in war. * * *" (sec. 24.) And "Except the debts specified in sections twenty-three and twenty-four of this article, no debts shall be hereafter contracted by or on behalf of this state" unless approved by a vote of the people of the state. (sec. 25.)
The effect of the funding bond decisions and the majority opinion in this case is simply this: The word "shall" used in section 2 is held to mean "may," so that the Legislature is simply advised that it may balance the budget, contrary to the rule for construing it in the Constitution. 11 Am. Jur. 687. The words of section 23 that debts arising out of casual deficits, failures in revenue, or for expenses not provided for "shall not, at any time, exceed four hundred thousand dollars" are rendered ineffective. The words "limited power to contract debts" used in section 24, referring to the four hundred thousand dollar provision of section 23, are made to mean "unlimited power to contract debts" to meet casual deficits, failures in revenue, or expenses not provided for. The provision of section 25 that, except for the limited power to contract debts as provided in sections 23 and 24, "no debts shall be hereafter contracted by or on behalf of this state" without the sanction of the people, is rendered worthless. Just two years ago, this court, in Boswell v. State (1937)181 Okla. 435, 74 P.2d 940, held that "the debt limitation provisions of the Constitution are a vital part of that document." But if the funding bond decisions and the majority opinion in the instant case are to be adhered to, where is there any vitality left in said provisions? There is not a word used in these provisions that the average layman would not understand without consulting a dictionary. We should not seek some hidden meaning in these provisions, nor should we place a forced or unnatural construction on the language used. Our duty is to apply them as they were understood by the framers of the Constitution and the average laymen who adopted the Constitution in 1907, for to do otherwise is to amend the Constitution and change its meaning under the guise of construction. In Boswell v. State, supra, we quoted from Cooley Rules of Construction, applied these principles of construction to these sections, and held that the word "debt" must be given its ordinary meaning.
In the former decisions, this court has been faced with the issue of approving funding bonds to take up warrants previously issued in excess of the revenue collected, and I think the court in those decisions misconstrued the debt limitation provisions. I stated my views on this question with citation of authorities supporting them in a specially concurring opinion in Re Funding Bonds of 1939, 185 Okla. 10, 90 P.2d 19. In three other cases (Graham v. Childers, 1925, 114 Okla. 38,241 P. 178, Davis v. Childers, 1937, 181 Okla. 468, 74 P.2d 930, and Schmoldt v. Bolen, 1938, 183 Okla. 191, 80 P.2d 609) this court required the issuance of warrants, but it did not appear in those cases that a deficit was likely to result from the issuance of the warrants, as appears in this case.
It is argued that under the doctrine of stare decisis we are committed by these prior decisions to a construction of the Constitution so as to require the issuance of warrants up to the limit of the appropriations, and the refunding of those in excess of the revenue actually collected. Of course, I agree that the rule of stare decisis is a good one and makes for stability in decisions, and under it prior decisions should not be overruled except for impelling reasons. As I have pointed out, in none of the cases has this court been faced with the precise question here involved (requiring the issuance of warrants when a deficit is reasonably certain to result), and in such a case the doctrine of stare decisis does not apply. 14 Am. Jur. 289. Furthermore, there is a rule that "in matters involving the interpretation of the Constitution it is usual and proper *Page 581 to give less force to the doctrine of stare decisis than in other cases." 14 Am. Jur. 288. This rule is based upon the proposition that the Constitution, being difficult to change, should be construed according to its true meaning, and its meaning should not be changed by erroneous decisions which have the effect of amending it in a manner not provided in the Constitution.
"The rule will not be invoked to sustain and perpetuate a principle of law which is established by a series of decisions clearly erroneous, unless property complications have resulted therefrom and a reversal which result in greater injury and injustice than would ensue by following the rule." 14 Am. Jur. 291.
It was under this rule that three members of this court concurred specially in the 1939 Funding Bond Case. In two early decisions (In re Menefee v. State, 22 Okla. 365, 1908, 97 P. 1014, and Campbell v. State, 23 Okla. 109, 1909, 99 P. 778) written by Justice Williams, and concurred in by Justices Hayes and Kane, all members of the Constitutional Convention, language was used indicating that the debt limitation provisions should be held to forbid a debt for casual deficits in excess of $400,000. Then, in Re Application of State to Issue Funds to Fund Indebtedness (1912) 33 Okla. 797,127 P. 1065, by a three to two decision, it was held that funding bonds could be issued to take up warrants, issued pursuant to appropriations, when the warrants were more than $400,000 in excess of the actual collections for the fiscal years during which they were issued. Justice Harrison, the sole member of the Constitutional Convention participating, dissented. Thus it appears that all the members of the Constitutional Convention, who as members of this court have spoken or voted on the subject, have entertained the view that the $400,000 provision is a limitation on the power of the Legislature to create debts and should be made to mean what it plainly says.
The result of following the last-cited decision is shown by a tabulation of the fiscal condition as it exists today submitted by the State Auditor. The state has operated on a deficit during eight of the last ten years, the total deficit for the eight years being $42,247,894.04. The present bonded indebtedness resulting from those deficits is now $25,373,681. The annual expense of paying the interest on, and amortizing the principal of, this debt is $2,353,053.28, and is payable out of the general revenue fund.
Under these circumstances I think the mischief that will be caused by following prior decisions justifies us in re-examining the constitutional provisions, before any further warrants are issued in excess of the revenue collected, and we should not permit the rule of stare decisis to stand in the way. It was admitted in oral argument that the constitutional provisions define the public policy of a balanced budget, but it was contended that the Legislature may disregard such public policy. It was also admitted that the funding bond decisions probably are contrary to the true meaning of the debt limitation provisions of the Constitution, but it was stated that they should be followed under the rule of stare decisis. Contrary to this argument, I think these sections of the Constitution not only define the public policy of a balanced budget, but they make it the mandatory duty of the Legislature and the Governor to balance the budget, with the proviso that a margin of $400,000 in excess of the collected revenue is allowed to meet casual deficits, failure in revenue, or to pay expenses not provided for, but the debt for such purposes shall not at any one time exceed $400,000. These provisions apply to all manner of debts. They are restrictions on the power of the Legislature to plunge the state into debt by appropriations and issuance of warrants in excess of the revenue, as well as by other methods. To hold otherwise is to remove all restraint on the Legislature. See State of Ohio v. Medbery et al., supra; Opinion of the Judges (Colo. 1889) 22 P. 464; People v. Johnson (Cal. *Page 582 1856) 6 Cal. 499; Campbell v. State, (1909) 23 Okla. 109,99 P. 778; State ex rel. Jones v. McGraw (Wash. 1895) 41 P. 893; In re State Warrants (S.D. 1895) 63 N.W. 101; Commonwealth v. Liveright (Pa. 1932) 161 A. 697; Kelley v. Baldwin, supra. These provisions should be binding on all departments of the government, and were intended to constitute a barrier beyond which the departments of the government may not lawfully go. They should not be disregarded through any consideration of expediency or to meet a temporary condition. They were written into the Constitution to protect the people from the effects of pressure by the various departments, institutions, and special groups against the Legislature for appropriations, in excess of the revenue provided for. They enjoin upon the Legislature a rule of sound public finance. The philosophy underlying these constitutional provisions was stated in strong language in 1857 by the Supreme Court of Ohio, construing provisions of the Ohio Constitution practically identical with sections 2, 23, and 24 of our Constitution, in State v. Medbery, supra, as follows:
"There is a wholesome, practical wisdom in the two constitutional provisions which require appropriations for expenditures, and the assessment of taxes to meet them, to be made by the same general assembly. Each member is thus compelled, during his official term, to visit upon his constituents the pecuniary consequences of his sanction of liabilities to be incurred and of appropriations made, and he places himself and his consummated acts in direct and immediate communication with his tax-paying constituents at the right time, and in a manner which servile partisans may heed, and corrupt and mercenary leaders understand. Payment not only goes hand in hand with expenditures, but wasteful expenditures, instead of being concealed or mitigated by delay of payment or the creation of debts, must be immediately made known to the people, through the demands of the tax-gatherer for the money. This system is wholesome in its effect upon those who control and can squander the taxes. They are made sensible that their delinquencies will be known by being immediately felt by their constituents. It is wholesome in its effect upon the people. Their self-interest is provoked to prompt scrutiny into the conduct of their public agents. Aside from its economical effects, it is a wise policy. It tends to protect the state from the corruption which inevitably follows generous expenditures, an evil much greater than unnecessary and burdensome taxation."
It appears here from the record that the Seventeenth Legislature, conceiving it to be its duty to balance the budget, appointed a joint committee to make a survey and report an estimate as to the probable amount of revenue that would accrue to the general revenue fund of the state. This committee reported that the probable amount of such revenue would be $19,281,089.85 for each of the fiscal years 1939-1940 and 1940-1941. So great was the pressure upon the Legislature that the approved appropriations payable out of the general revenue fund for the fiscal year 1939-1940 aggregated $7,232,750.34 in excess of the estimated revenue, and this in spite of the earnest desire and effort to balance the budget. Of course there are so many factors to be considered that it is not possible to estimate to a mathematical certainty the revenue that will be collected in the future. The best that can be done is a fair approximation based upon the collections for prior years and present trends. In fact, the collections accruing to the general revenue fund from the five main sources for the first six months of the present fiscal year (1939-1940) were $1,723,954.38 less than for the same period of the preceding fiscal year, a greater percentage of decrease in revenue than the committee had estimated. Considering all the facts to which our attention has been called, I think the conclusion of the State Auditor that if warrants are issued up to the full amount of the appropriations there will be a deficit of some $6,000,000 for the present fiscal year is justified. It follows from what I have said that I think it the duty of *Page 583 the State Auditor to issue no warrants after the probable income for this fiscal year has been exhausted, and this court should not use language to the effect that his duty is to the contrary. In determining such amount the Auditor should resolve the doubt in favor of a balanced budget rather than a deficit.
The state must eventually come to the point of a balanced budget. We should not wait until the credit of the state is impaired by what the State Auditor refers to as a "perfect but simple circle" of excessive appropriations, followed by the excessive issuance of warrants, followed by the issuance of funding bonds, resulting in a constantly increasing debt. The taxpayers do well to pay the ordinary current expenses of government, without being required to pay large sums for the ordinary expenses of prior years.
The Constitution provides a way out of the present temporary financial difficulties. A special session of the Legislature could be immediately called and charged with the duty of balancing the budget by canceling or reducing appropriations, increasing present rates on existing sources of revenue (there is no constitutional limit on such rates), tapping new sources of revenue, or transferring present earmarked revenue to the general fund. I realize that this constitutes a difficult task, but it is far better than continuing the present unsound policy of recurring annual deficits and piling up debts contrary to the spirit and letter of the Constitution. It is the hard but sound way. And, of course, I mean no reflection on the present or past Legislatures or Governors by any language I have used or quoted. And difficult as their tasks are, the constitutional restraints are not satisfied by earnest efforts to comply with them, but only by actual compliance.
For the foregoing reasons I concur in the conclusion but respectfully dissent to the reasoning.