I cannot concur in the majority opinion wherein it reaches the conclusion that the act under consideration is a general law. In my judgment it violates both sections 32 and 59 of article 5 of the Constitution. Section 32 reads as follows:
"No special or local law shall be considered by the Legislature until notice of the intended introduction of such bill or bills shall first have been published for four consecutive weeks in some weekly newspaper published or of general circulation in the city or county affected by such law, stating in substance the contents thereof, and verified proof of such publication filed with the Secretary of State."
Section 59 reads as follows:
"Laws of a general nature shall have a uniform operation throughout the state, and where a general law can be made applicable, no special law shall be enacted."
In the first paragraph of the syllabus of the majority opinion it is stated that the act under consideration "is not special and local, but is general legislation," and paragraph 2 of the syllabus correctly defines the meaning of "general law," but my objection to it is that the act under consideration does not come within that definition. In School District No. 85 v. School District No. 71, 135 Okla. 270,276 P. 186, in the 4th paragraph of the syllabus, we said:
"Local or special laws are all those that rest on a false or deficient classification. Their vice is that they do not embrace all the class that they naturally embrace. They create preference and establish inequality. They apply to persons, things, and places possessed of certain qualities or situations and exclude from their effect other persons, things, or places which are not dissimilar in this respect."
Many authorities are cited and discussed in this opinion and counsel cite many others in which we have discussed at length and in detail the distinction between local or special and general laws and their relation to the above-quoted sections of the Constitution. Some of these authorities are as follows: Territory v. Okla. County School Dist. 83, 10 Okla. 556,64 P. 241; Diehl v. Crump, 72 Okla. 108, 179 P. 4; Board of Com'rs, Grady Co., v. Hammerly, 85 Okla. 53, 204 P. 445; Bradford v. Cole, 95 Okla. 35, 217 P. 470; Levine v. Allen, 96 Okla. 252,221 P. 771; Simpson v. Butts, 99 Okla. 168, 226 P. 332; City of Sapulpa v. Land, 101 Okla. 22, 223 P. 640, 35 A. L. R. 872; Key v. Donnell, 107 Okla. 157, 231 P. 546; C., R.I. P. Ry. Co. v. Carroll, Brough, Robinson Humphrey, 114 Okla. 193,245 P. 649; Holland v. Ownbey, 121 Okla. 102, 247 P. 1106; White v. Infield, 122 Okla. 4, 250 P. 81; School Dist. No. 85 Kay Co., v. School Dist. No. 71, Kay County, 135 Okla. 270, 276 P. 186; School Dist. No. 4, Garfield County, v. Independent School Dist. No. 4 1/2, Garfield County, 153 Okla. 172,4 P.2d 1031; Welch v. Holland, 177 Okla. 585, 61 P.2d 559.
As I view it the act in question violates article 5, section 59 of the Constitution last above quoted, and in this connection I call attention to the fact that before this act was passed there was in effect in this state a comprehensive "Conservancy Act" as applied to waters and water courses (article 5 of chapter 70, O. S. 1931, and amendments). Under this act section 13249, O. S. 1931, provides a specific method of establishing districts to perform practically the identical functions to be performed by the act under consideration, and this general law is available to the people in all districts, sections, and parts of the state alike, enabling them to do almost, if not all, the things that may be done under the provisions of the act in question.
Then, as we have a general law covering this subject, I can reach no other conclusion than that article 5, section 59 of the Constitution has been violated by the enactment of this law which applies to only a restricted district or a part of the state, and since it applies to only a restricted district and the benefits to be derived therefrom are available only to the residents of the district, I cannot follow the reasoning of the majority opinion when it declares that it is a general law.
As evidence that the act in question is a local or special law I call attention that it provides rights and benefits to the people living within the district that are not conferred or enjoyed by other citizens of the state living outside the district. For instance, *Page 31 the nine directors must be resident freeholders of the districtand must have resided therein for at least five years. The Authority may store the waters of Grand River Dam and its tributaries "within the boundaries of the district," it may"sell the same within the boundaries of the district," and it may "develop and generate water power and electric energywithin the boundaries of the district." It will thus be seen that the citizen residing — for instance — in Creek county is eligible for appointment to the board of directors, while his neighbor, living only a few hundred feet across the section line in Okfuskee county, is denied that privilege. Or a citizen living in McIntosh county may buy the water for irrigation purposes, a privilege denied his neighbor living across on the other side of the section line in Pittsburg county. If this were a general law, as the majority opinion states, then under its provisions a group of counties along the watershed of the North Canadian river might form a district to do the same things that are to be done by the Grand River Dam Authority, or a group of counties along the Washita, or a group of counties along the Cimarron, might enjoy the benefits of this law, but does anyone contend that the counties within the watersheds of those rivers could avail themselves of this law and obtain the same benefits and privileges as are conferred upon the citizens of those counties within the Grand River Dam Authority? The answer is obvious. If the people residing in the counties within these watersheds desire to do the same things that are to be done in the Grand River Dam Authority district, they must do so under the general law of the state, as provided in chapter 70 of article 5, O. S. 1931, and amendments. Then if other districts or localities cannot avail themselves of the rights and privileges conferred by the act under consideration, how can it be said that it is a general law? If the Legislature has the authority to pass this law specifically naming the 17 counties of the state to be embraced in the district and excluding the other 60 counties from its operations and benefits, it follows that it would have the same authority to single out and name one county and authorize it to be embraced in a similar district. If the Legislature should pass an act in the verbatim language of this act authorizing — for instance — Tulsa county alone within the Arkansas river watershed to do all things to be done by the 17 counties embraced in this district, making no mention of any other county or counties of the state, and permitting no other part of the State except Tulsa county to avail itself of the benefits of this act, would anyone say that it was a general law?
Therefore, my conclusion is that the Legislature was without authority to pass the act in question as a special law for the reason that the general law could have been made applicable, and if it attempted to pass the measure as a special law, it is invalid for the want of the published notice provided for in the Constitution.
Neither can I agree with the second proposition discussed in the majority opinion. As I view it, the act in question clearly and unmistakably is violative of section 26, article 10 of the Constitution, which provides that:
"No county, city, town, township, school district, or otherpolitical corporation or subdivision of the state, shall be allowed to become indebted in any manner, or for any purpose, to an amount exceeding in any year, the income and revenue provided for such year, without the assent of three-fifths of the voters thereof, voting at an election, to be held for that purpose. * * *"
In Zachary v. City of Wagoner, 146 Okla. 268, 292 P. 345, in the 3rd syllabus we 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."
And in emphasizing the construction to be placed on this proposition of the Constitution, in the body of the opinion, 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 (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 municipalities to create indebtedness and to usurp powers never intended to be granted to municipal officers. The reasoning in support thereof is theingenious argument by which such attempts have ever beensupported. Under the decisions of this court and the Constitution and laws of Oklahoma, the agreement to pay for the material purchased creates an indebtedness no matter from whatsource the funds are to be derived from which the *Page 32 payment is to be made. 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 applied to thiscourt to all manner of indebtedness, no matter how created orfrom 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."
The construction thus placed upon this provision of the Constitution was followed with approval in City of Tecumseh v. Butler, 148 Okla. 151, 298 P. 256, wherein we said:
"The debt creation that is set out in this case, as it appears to us, is forbidden by sections 26 and 27 of article 10 of the state Constitution, and this feature of a similar contract has heretofore, in an opinion by this court in the case of Zachary v. City of Wagoner, 146 Okla. 268, 292 P. 345, been considered: and it was there held that the scheme here set out would violate those sections of that article."
This same question was again before us in the recent case of Boswell v. State, 181 Okla. 435, 74 P.2d 940, and we cited, relied upon, and emphasized the rule announced in the two cases last above cited. In that opinion we said:
"The special fund doctrine was specifically rejected by this court in the case of Zachary v. City of Wagoner. * * * We have not departed from the principles there enunciated. See Layne-Western Co. v. City of Depew, 177 Okla. 338,59 P.2d 269."
I dissented to that opinion because the opinion attempted to follow the rule laid down in Zachary v. City of Wagoner and Tecumseh v. Butler, supra, without overruling the case of Baker v. Carter, 165 Okla. 116, 25 P.2d 747, in which we had departed from, and in effect overruled, the rule announced in Zachary v. City of Wagoner and Tecumseh v. Butler, and it appeared to me that we were getting our decisions in such hopeless conflict on this subject that the trial courts and the legal profession would have difficulty in determining just what course we were following. But when the opinion was promulgated I considered it, in true effect, overruled what we had said in Baker v. Carter, supra, despite the attempted distinction, and that the rule announced in Zachary v. City of Wagoner. Tecumseh v. Butler, and Boswell v. State, would hereafter be the law of this state, but the majority opinion in the instant case adds still more confusion by attempting to recognize and follow the rule in Baker v. Carter, supra. Thus we have Zachary v. City of Wagoner, Tecumseh v. Butler, and Boswell v. State, specifically and definitely repudiating the "special fund doctrine;" and we have Baker v. Carter and the instant opinion specifically recognizing the "special fund doctrine," and I cannot sanction a course that leads us into such a hopeless morass of doubt and confusion "as to what the law is in this state on that subject.
Neither can I follow the logic or reasoning of the majority opinion wherein it states:
"The act does not create a political corporation or subdivision of the state within the meaning of section 26 of article 10."
The language of the Constitution is (sec. 26, art. 10):
"No county, city, town, township, school district, or otherpolitical corporation, or subdivision of the state. * * *"
The language of the act in question is as follows:
"Such district shall be, and is hereby, declared to be a governmental agency and body politic and corporate, with powers of government and with the authority to exercise the rights, privileges, and functions hereinafter specified. * * *"
Section 9719, O. S. 1931, provides that:
"Corporations are either:
"First. Public; or,
"Second. Private."
And section 9720. O. S. 1931, states:
"Public corporations are formed or organized for the government of a portion of the state. * * *"
6 Words and Phrases (First Series) p. 5444, says:
"A political corporation is one which has principally for its object the administration of government, or to which the powers of government, or a part of such powers, have been delegated. It does not depend upon the magnitude or variety of the subjects over which power is granted by the Legislature, nor does its character as a political corporation depend on how much of the authority vested in the corporation is exercised directly by the people, and how much through a committee or commission. Auryansen v. Hackensack Imp. Commission, 45 N.J. Law (16 Vroom) 113, 115.
"A political corporation is a public corporation *Page 33 created by the government for political purpose, and having subordinate and local powers of legislation. It is synonymous with municipal or public corporation. Curry v. District Tp. of Sioux City, 17 N.W. 191, 192, 62 Iowa 102 (cited in Cook v. Port of Portland, 27 P. 263, 264, 20 Or. 580, 13 L. R. A. 533).
"The term 'political corporation' is synonymous with the term 'municipal corporations' or 'public corporations.' It is often used to signify a community clothed with extensive civil authority. Winspear v. Holman Dist. Tp., 37 Iowa 542, 544."
Under the head of "Political Corporations," Ballentine's Law Dictionary, at page 981, says:
"A public corporation is one that is created for political purposes, with political powers, to be exercised for purposes connected with the public good, in the administration of civil government; an instrument of the government, subject to the control of the Legislature and its members, officers of the government, for the administration or discharge of public duties, as the cases of cities, towns, etc. 'Public corporations are synonymous with municipal or political corporations.' (6 Words and Phrases, p. 5781.) Public corporations, commonly called municipal corporations, are not associations, but subdivisions of the state. See Phillips v. Mayor and City Council of Baltimore, 110 Md. 431, 25 L. R. A. (N. S.) 711, 715, 72 A. 902."
Pope's Legal Definitions, vol. 2, p. 1196, says:
"A political corporation is one which has principally for its object the administration of the government, or to which the powers of government or a part of such powers have been delegated."
In concluding that the Grand River Dam Authority is not such a corporation as contemplated by the above-quoted section of the Constitution the opinion says:
"The people have no voice in the management or government of the Authority, and no power of taxation has been conferred as in the case of counties, cities, towns, townships and school districts. The Authority was not organized for political or governmental purposes and does not possess political or governmental powers other than necessary to carry out the specific purposes for which it was created."
My attention has not been called to any authority holding that in order for an agency of the state to be a political corporation it must be governed and managed directly by the people themselves instead of by a board of directors as under this act. Neither has my attention been called to any authority holding that the power of taxation must be conferred in order to bring the agency within the term 'political corporation," and I call attention to the fact that the only political or governmental powers that a township or school district, or any other subdivision of the state, has, is only that power necessary to carry out the purposes for which it was created.
Then, to summarize: I can arrive at no other conclusion than that the act under consideration is, under the weight of authority, a special law and its enactment violates the specific provisions of the Constitution.
The majority opinion attempts to uphold the prior decisions of this court both approving and repudiating the "special fund doctrine" with an analysis which, to my mind, is far from satisfactory in both logic and conclusion; and finally concludes that the Grand River Dam Authority does not create such a political corporation as contemplated by section 26, article 10, of the Constitution, which conclusion I believe to be fundamentally erroneous.
Considering this to be a worthy, meritorious, and valuable project for the state, yet this does not justify us in departing from fundamental rules of law and the plain provisions of our Constitution in order to further its consummation.
To the end that the decisions of this court may be in harmony in upholding section 26, article 10, of the Constitution, we should adhere to the wholesome and salutary rules laid down in Zachary v. City of Wagoner, Tecumseh v. Butler, and Boswell v. State, and refuse to further follow the rule announced in Baker v. Carter. The constitution itself makes ample provision for the passage of special laws such as I consider this to be, and also provides a method by which municipalities may incur indebtedness. These provisions are not unreasonable and I conceive it to be our duty to preserve the integrity of the Constitution by refusing to sanction such evasive procedure.
I therefore most respectfully dissent.