I heartily concur in that part of the majority opinion wherein it says:
"It is conceded that the control of the fiscal affairs of the state is a legislative function and that the power of the Legislature in the exercise of such control is plenary, subject only to constitutional restrictions and the power of the people to legislate by means of the initiative and referendum. This court is not concerned with the wisdom or expediency of the act. It is our sole function to determine whether or not the act contravenes the provisions of the Constitution."
In addition I desire to emphasize the time-honored and well-known principle of law that a legislative act should never be nullified by judicial decision except where it plainly and unmistakably violates the provisions of the Constitution. In other words, when the legislative branch of the state government has enacted a law and the executive branch has approved it, then the judicial branch is justified in nullifying or voiding it only when it plainly violates some provision of the Constitution.
When the constitutionality of an act is questioned it is the solemn duty of the court to lay the act alongside the Constitution and with the instrument, alone, as the yardstick conscientiously and fearlessly decide the question according to the applicable rules of law, irrespective of popular clamor, indifferent to public criticism and oblivious to political consequences.
With these principles in mind and guided by a wealth of adjudicated cases on the subject, I would find no difficulty in concurring in the principles of law announced in the majority opinion in so far as they conform to what was heretofore said in Zachary v. City of Wagoner, 146 Okla. 268, 292 P. 345, if I did not feel bound by the contrary rule subsequently announced by this court in Baker v. Carter, 165 Okla. 116,25 P.2d 747, but I cannot concur in the reasons given, the argument used, the attempted distinction between the two cases nor the attempted distinction between Baker v. Carter and the instant case.
I think that the rule announced in Baker v. Carter is contrary to, and in effect overrules, Zachary v. City of Wagoner, notwithstanding the attempted distinction; and I think the majority opinion, in the instant case, likewise, in effect, overrules Baker v. Carter, notwithstanding the attempted distinction.
A proper explanation of the foregoing statements necessitates an examination of the facts and circumstances surrounding the litigation in these cases.
The city of Wagoner made a contract and purchased certain Diesel engines with which to operate its municipally owned light plant, agreeing to pay for them from the savings in cost of operation. A taxpaying citizen brought suit in which he attacked the validity of the contract as *Page 445 violative of the Constitution. This court upheld his contention (Zachary v. City of Wagoner, supra), and in the third paragraph of the syllabus said:
"The fact that an indebtedness incurred by a municipality is to be paid only from some source other than ad valorem taxation does not render inoperative the limitation contained in section 26, article 10, of the Constitution, or extend the grant of authority contained in section 27, article 10, of the Constitution."
In the body of the opinion this language is used:
"We are not unmindful of the rule followed in some jurisdictions that the purchase of property does not create anindebtedness if the purchase price is to be paid out of theincome therefrom (Winston v. City of Spokane, 12 Wash. 524, 41 P. 888; Faulkner v. City of Seattle, 19 Wash. 320, 53 P. 365; Joliet v. Alexander, 194 Ill. 457, 62 N.E. 861; East Moline v. Pope, 224 Ill. 386, 79 N.E. 587, and other cases), but wecannot follow such holding. In our opinion, this is but another attempt to nullify and evade the wholesome constitutional limitations upon the power of the municipalities to create indebtedness and to usurp powers never intended to be granted to municipal officers. * * * Sections 26 and 27, article 10, supra, contain nothing that limits their application to indebtedness to be paid from funds derived from ad valorem tax levy. They are general in their terms and they will be appliedby this court to all manner of indebtedness, no matter howcreated or from what source the indebtedness is to be paid.
"* * * That section is placed in our Constitution for a distinct purpose. This court will not destroy the effect of that section by saying that municipal officers may evade its force by purchasing equipment for a public utility to be paid for out of the saving to the municipality from the use of the equipment so purchased."
This opinion cites, quotes from, and discusses former opinions of this court, to wit: Byrum v. City of Shawnee,63 Okla. 16, 200 P. 183; City of Sapulpa v. Land, 101 Okla. 22,223 P. 640; In re Bliss, 142 Okla. 1, 285 P. 73.
I, then a practicing lawyer, was one of the attorneys for the city of Wagoner. This court refused to follow our contention, but I could not in good conscience criticise the opinion, for it appeared to be based upon sound logic, good reasons, and salutary constitutional provisions. I, in common with other members of the legal profession, as well as the courts, assumed that Oklahoma had taken its place among that group of states which refused to follow the special fund doctrine and thought the law on that subject was definitely settled.
Eight members of the court concurred in the opinion, the ninth being absent. The depression came on. The 13th Legislature was in session. The Agricultural and Mechanical College needed additional dormitory facilities to accommodate the great number of students who were clamoring for the educational advantages to be obtained at that institution. The federal government, with a generous hand, was assisting the states and the various units and municipalities thereof in their relief burdens by providing labor for the unemployed and markets for building materials by encouraging people to build needed and worthwhile buildings and make necessary additions, repairs, and improvements. Responding to the emergency and desiring to take advantage of the federal government's generous assistance, the Legislature authorized the issuance and sale of Oklahoma Agricultural and Mechanical College dormitory bonds in the sum of $450,000 to provide necessary accommodations for the students. The only provision made for the payment of interest and principal of these bonds was to pledge the income and revenue from the dormitories for that purpose. Mr. Baker, a taxpaying citizen, attacked the validity of the bonds upon substantially the same grounds as Mr. Zachary attacked the contract of the city of Wagoner for the purchase of Diesel engines (Zachary v. City of Wagoner, supra). When the case reached this court the entire personnel (with one exception) had changed since the opinion in the Zachary Case had been promulgated. In upholding the validity of the bonds an opinion covering 13 pages in the Oklahoma Reports was written in which practically all the special fund doctrine cases were cited with approval, discussed, and analyzed, finally concluding as follows:
"An examination of many authorities cited in the brief and a research of many others conducts us to the conclusion that, so far as the special fund doctrine is concerned, the majority rule as set forth in the case of Garrett v. Swanton et al., supra [Cal. 13 P.2d 725], announces the correct rule that a limitation upon state or municipal indebtedness is not violated by an obligation which is payable out of a special fund, if the state or municipality is not liable to pay the same out of its general fund should the special fund prove to be insufficient. * * *" [Baker v. Carter, 165 Okla. 116, 128, 25 P.2d 747, 758.] *Page 446
Thus in Zachary v. City of Wagoner, supra, we rejected the special fund doctrine when we said:
"We are not unmindful of the rule followed in some jurisdictions that the purchase of property does not create an indebtedness if the purchase price is to be paid out of the income therefrom (citing cases) but we cannot follow suchholding."
And in Baker v. Carter we adopted the special fund doctrine when we said that:
"* * * The majority rule as set forth in the case of Garrett v. Swanton et al., supra, announces the correct rule thata limitation upon state or municipal indebtedness is notviolated by an obligation which is payable out of a specialfund. * * *"
In th light of our later expression, above, the legal profession, the courts, and the Legislature were justified in the conclusion that we had receded from our announced rule in Zachary v. City of Wagoner and had adopted the special fund doctrine recognized by, at least numerically, the greater weight of authority, including our sister states of Washington, Oregon, South Carolina, New Mexico, Alabama, California, and Kansas.
The 15th Legislature, no doubt guided by what we had previously said in Baker v. Carter, authorized the issuance of bonds in the aggregate sum of $1,850,000 to build dormitories at nine different state institutions, providing for the retirement of the bonds in substantally the same manner as the 13th Legislature had provided for the retirement of the bonds of the Agricultural Mechanical College Case. So far as I am advised, no question was ever raised as to the validity of these bonds.
Then came the 16th Legislature. The depression was still upon us. Thousands of our citizens were out of employment and our relief burdens were reaching staggering proportions. The federal government was still assisting with a generous hand. The legislators were again confronted with the task of meeting the emergency. They doubtless read our opinion in Baker v. Carter, supra, and observed that we had relaxed the rule laid down in Zachary v. City of Wagoner and had adopted the more liberal and more generally followed "special fund doctrine" and concluded that the relief burden could more easily and quickly be met and the assistance and co-operation of the federal government more readily obtained by building and maintaining needed roads and highways throughout the state with no additional tax burden, and enacted the legislation now under consideration, and in doing so specifically provided that the bonds to be issued should never be a debt of the state, and that they should so show upon their face. In this they apparently attempted to make doubly sure that the act came within the rule laid down in Baker v. Carter, supra.
The constitutionality of the act was attacked by a taxpaying citizen in much the same way the attack was made in the cases of Zachary v. City of Wagoner and Baker v. Carter, and it is doubtful if there has ever been a case before this court of more importance in its far-reaching effects, or in which there has been a greater public interest, and the members of the court have industriously and conscientiously devoted themselves to a study, research, and discussion of the questions presented. The task has not been easy. Some of the questions presented are decided with little, if any, precedent. Changed conditions and necessitous circumstances of the past few years have caused some jurisdictions to relax, to some extent, the hard and fast rule of interpretation heretofore valuable as precedents. As human beings, justices and judges cannot be oblivious, or even indifferent, to the probability that the dire distress of thousands of our citizens had something to do with the enactment of this and similar legislation, as a part of the relief program of the state in which the federal government would participate, and thereby furnish work for our great army of unemployed to build and maintain the contemplated highway system. And, too, I have felt that it is not entirely inappropriate to consider empty stomachs and naked backs as well as the cold and unsympathetic principles of law, so longas we may do so without doing violence to fundamental rules oflaw. We have not all agreed, hence the dissenting opinions.
I cannot follow the reasoning of the majority opinion (in its efforts to now uphold the Dormitory Bonds Case and at the same time reannounce the rule in the City of Wagoner Case) wherein the majority opinion says:
"The fund created was in no sense derived from a tax of any kind * * * the public revenues of the state were not concerned"
— remembering that in the City of Wagoner Case we said that the provisions of the Constitution "will be applied by this court to all manner of indebtedness, no matter how created or from what source the indebtedness is to be paid."
Stress is apparently laid upon the fact that the A. M. College is a public corporation of the state, but, as I see it, that fact *Page 447 is of no consequence, because the A. M. College is as completely an arm, branch, or agency of the state as is the Highway Commission. In Oklahoma Agricultural Mechanical College v. Willis, 6 Okla. 593, 52 P. 921, the Territorial Supreme Court held that that institution, while a public corporation, was an arm of the territory, could not be sued without specific authority, and that the obligations of that institution were the obligations of the territory, and its creditors must look to the territory for payment of their claims.
In the recent case of State v. Miser, 72 P.2d 408, in disposing of a question similar to the one under consideration here, the Supreme Court of Arizona said:
"The fact that the university is incorporated does not make it any the less an arm, branch, or agency of the state."
It is my belief that the public revenues of the statewere concerned. As I view it, the rentals from these dormitories constitute a part of the revenues of the state as fully and completely as do royalties from oil wells, in which the state has an interest, the rentals from the cigar stand or cafeteria in the Capitol; they are all public revenues — just as the gasoline tax — and are subject to distribution or allocation by the Legislature. I think it may correctly be said that any income to the state, from any of its arms, branches, or agencies, whether it be from toll bridges, dormitories, gasoline tax, or otherwise, is public revenue.
In Moses v. Meier, 148 Or. 185, 35 P.2d 981, the court was considering a question similar to the one before us. It too was confronted with its own prior decision wherein bonds for building a university dormitory had been upheld. The act in question in the dormitory case had not even constituted the university a "separate entity," as was the situation in our own dormitory case. It followed its dormitory case decision and said:
"In this state there is the closely analogous case of McClain v. Regents of University, 124 Or. 629, 265 P. 412. The act involved therein authorized the regents of the university,acting as an agency of the state, to sell bonds for the purpose of constructing a dormitory and provided that the principal and interest of the bonds should be paid solely from the net income from the rentals of the building. This court upheld the constitutionality of the act, since there was no liability against the state and the bondholder was obliged to look exclusively to the special fund consisting of the net rentals and income from the building. We see no substantial differencebetween that case and the one at bar."
Neither can I follow the majority opinion in its discussion and application of the "restricted special fund doctrine" and the "expanded special fund doctrine," and attempts to make distinctions not heretofore undertaken by this court in any authorities to which my attention has been called. In one part of the opinion it is stated that:
"The special fund doctrine was specifically rejected by this court in the case of Zachary v. City of Wagoner"
— and in another part of the opinion it is stated that:
"It is said that the special fund doctrine has been recognized and applied by this court in the case of Baker v. Carter, and so it has."
We either have the special fund doctrine or we don't have it. The people of this state, and especially the legal profession, the judges, and the Legislature, have a right to somedependable rule of law. In the Zachary Case, as I interpret it, we say in substance that we will have nothing to do with the special fund doctrine. In the Baker Case, as I interpret it, we embrace it wholeheartedly, attempting a distinction between that and the former decision, and in the instant majority opinion we attempt to recognize them both.
I am not greatly concerned as to which rule we follow, but I am deeply concerned as to the clarity, stability, and permanency of our decisions. Recently an eminent jurist was credited with the statement, in reference to the interpretation of the Constitution of the United States, that "The Constitution is what the Judges say it is." If there is any reason for saying that the Oklahoma Constitution is "what the Judges say it is," then we should not say it is one thing today and another thing tomorrow. The public, the legal profession, the courts, the Legislature, and all citizens have a right to assume that when the Supreme Court of the state of Oklahoma announces a certain rule of law, particularly as applied to a public policy of the state, it will continue to be the law, and that the business of the state may accordingly be shaped, formed, and transacted assuming that the law will not be changed by any judicial pronouncement; subject always, of course, to the right and duty to overrule or modify a decision when it is found to be clearly erroneous, but when this is done it should be done by plain, clear, and unequivocal language.
Holding to this view, I am not willing to *Page 448 follow the majority opinion wherein it joins that group of states which reject the special fund doctrine and announces that because thereof the Constitution has been violated, as in the case of Zachary v. City of Wagoner; and then about-faces, and joins that group of states which recognize the special fund doctrine and say that because of such recognition the Constitution has not been violated, as in Baker v. Carter; and then, as in the majority opinion, attempts to recognize both rules.
We should either go down one road or the other, and if we are to follow the former rule, we should frankly say so and overrule the case of Baker v. Carter. If we are to follow the latter rule, then we should say so and definitely abandon the position taken in Zachary v. City of Wagoner.