I am unable to agree with the majority opinion filed herein, and submit the following dissenting opinion, which fully expresses my views of the matter and the conclusion I think should have been reached.
W. A. Graham sought an injunction against Chas. C. Childers, State Auditor, and A. S. J. Shaw, State Treasurer, to prevent the expenditure of $650,000 appropriated by chapter 16, Session Laws 1925, for payment of text-books furnished the state. On demurrer to the evidence, the trial court dismissed plaintiff's petition, and it is to reverse this judgment, this proceeding in error is prosecuted. The injunction was sought to enjoin payment for school books acquired by the state, the appropriation act therefor being approved by the Governor on April 9, 1925, without the emergency clause, being Senate Bill 87, chapter 16, Session Laws 1925. The act appropriating the above sum to supplement the appropriation of $950,000 contained in chapter 175, Session Laws 1923, being the free text-book measure. The latter act authorized the State Superintendent of Public Instruction, with the approval of the State Board of Education, to purchase and distribute to the school districts of the state basic text-books for grades one to eight. The State Superintendent purchased books aggregating a cost of approximately $950,000 pursuant to said chapter 175, Session Laws 1923, and at the same time of the purchase and delivery of such books, the book sellers furnished and delivered to the state other text-books in addition to those purchased as aforesaid costing approximately $650,000, no mark or identification being made to distinguish the books purchased and those not purchased.
On April 10, 1925, one day after the Governor approved chapter 16, supra, ten days after the Legislature adjourned and 80 days before the act became effective and after the same Legislature had repealed chapter 175, Session Laws 1923, thus evincing a policy to no longer furnish free text-books, the State Superintendent signed a written order of purchase addressed to the booksellers, purchasing all books furnished by the book companies and not theretofore regularly purchased; all of said books being delivered to the state prior to passage of chapter 16, supra, and prior to order of April 10, 1925.
The record does not disclose whether or not this purchase by the State Superintendent was ever approved by the State Board of Education as required by chapter 175, supra. The plaintiff contends the acquisition by the state of the $650,000 worth of books amounted to a purchase which was not authorized at the time the books were acquired, and therefore ultra vires, and defendants contend that same was only a loan which was later converted into a purchase by the order of the State Superintendent above referred to. It is immaterial whether the books were borrowed or purchased.
The borrowing of property by public officials on behalf of the state, no appropriation existing to pay for the thing borrowed, is the doing of a thing by indirection that cannot *Page 43 legally be done directly, and if permitted to be done would deprive the Legislature of its prerogative of providing for the expense of government, and would subject the Legislature to embarrassment and confusion and make it necessary for it to refuse to pay for property received and used by the state and would violate a well-settled fiscal policy of the state of "cash or pay as you go" relative to the expense of the state government. It is well settled by the law of this state that public officers entrusted with ministerial and executive duties have only such power as is specially delegated by law in relation to administration of our government. National Surety Co. v. Sand Springs State Bank, 74 Okla. 176, 177 P. 574; Farley v. Board of Education. 62 Okla. 181, 162 P. 797.
The limitations placed in article 10 of our Constitution prevail upon us to hold that property needed by the state in the operation of government which cannot be purchased legally cannot by indirection be borrowed, until funds are made available by appropriation of the Legislature with which to pay for same.
Plaintiff's second assignment of error is to the effect that the court erred in sustaining objections to certain testimony offered on behalf of plaintiff. In our opinion this case turns on the proposition of whether or not there was in the hands of the State Treasurer on June 30, 1925, at the time the act here in question became effective, sufficient funds "not otherwise appropriated" to pay the amount appropriated. If not, the appropriation was in excess of the income and revenue provided for that year, and according to the terms of the act itself, which specifically limited it to any funds in the hands of the State Treasurer not otherwise appropriated, cannot be upheld. We are therefore of the opinion that the court erred in rejecting evidence offered by plaintiff to the effect that on the day the $650,000 appropriation act became effective there were no funds in the hands of the State Treasurer or that would get into his hands, considering all uncollected revenues to accrue for the fiscal year ending June 30, 1925, as being in the treasury on that day, "not otherwise appropriated". We are well aware that the state has various sources of revenue other than the tax levy for state purposes, and the revenue from such sources might increase the funds in the hands of the State Treasurer for any one year to an amount far in excess of the amount appropriated for said year, and therefore create a surplus which would constitute funds in the hands of the State Treasurer not appropriated for any purpose, and if so, same would be within the terms of the appropriation act herein complained of. It would seem, therefore, that the testimony offered and rejected was not only competent, but absolutely essential to a proper determination of this case, and the refusal of the trial court to admit same constituted reversible error. While we strongly disapprove of the methods pursued by the officers involved herein in spending all the money appropriated for a certain purpose and then without any authority whatever acquiring property of additional value in an amount almost equal to the original amount appropriated and thus, as is contended, fasten a moral obligation on the state, yet we concede the right of the Legislature, representing the sovereign, to recognize such so-called moral obligation and appropriate sufficient money to discharge same out of any money in the state treasury not otherwise appropriated. We feel, though, that under such circumstances the strictest interpretation should be placed on the constitutional and statutory provisions applicable, and unless same are strictly complied with, such appropriations should not be upheld.
It is not the question, as counsel for defendants contend, that the levy for the fiscal year ending June 30, 1925, was not the maximum levy of 3 1/2 mills as provided by section 9, article 10, of the Constitution, and that the $650,000 appropriation added to other appropriations for that year would not, exceed the tax limitation levy of 3 1/2 mills. The question, as we see it, is whether the $650,000 appropriation act is valid, if on the day it became effective there were no moneys in the state treasury not otherwise appropriated, considering as being in the treasury on that day all moneys that would accrue to the treasury for the fiscal year ending June 30, 1925. The income for that fiscal year from ad valorem taxes had already been determined, the levy for state purposes being made long prior to the passage of the act complained of. The Legislature itself did not intend to override the safeguards of the Constitution, for in chapter 16, Session Laws 1925, it used the words "not otherwise appropriated."
Defendants contend that the appropriation of $650,000 is legal and that sections 2 and 3 of article 10 of the Constitution would, in the absence of a levy and other income to the state treasury for state purposes for *Page 44 the year ending June 30, 1925, apply, and the deficiency could be paid by a levy for the succeeding year. These two sections of article 10 of our Constitution, requiring that any legal deficiency of a previous fiscal year be raised by levy for the succeeding fiscal year, relate only to a legal deficiency after an appropriation by the Legislature at a proper time and for a proper purpose and after due levy has been made and there is a failure in collection of taxes and thus a failure in revenue and the expenses exceed the income and a deficiency is created. In construing section 3, article 10, of the Constitution, in Re application of State to Issue Bonds, 33 Okla. 797,127 P. 1065, this court, speaking through Special Justice Brewer, said:
"Section 3, art. 10, subject to no other limitation, provides: 'Whenever the expenses of any fiscal year shall exceed the income, the Legislature may provide for laying tax for the ensuing fiscal year, which, with other resources, shall be sufficient to pay the deficiency, as well as the estimated ordinary expenses for the state for the ensuing year.' This section by its terms shows that it was not intended that, because the expenses of a year might exceed the income for that year, such excess should be invalidated. And we may add that we find no purpose in the Constitution to attach any penalty or forfeiture to obligations for current expenses, honestly incurred in the reasonable anticipation that the revenues provided therefor would be sufficient to meet them. It is believed that these limitations were intended to prevent the contracting of that class of pecuniary obligations not to be satisfied out of the current yearly funds, or other funds in hand lawfully applicable thereto, and which would, therefore, at the date of the contract, be an unprovided for liability and properly included in the general meaning of the word 'debt.'
"There is no contention here that the debts which were incurred, and are evidenced by the warrants sought to be funded, exceeded at the time the debts were incurred the revenue provided in good faith for that year. We therefore have the right to assume that such is not the case, and that, if the revenue provided had been collected and properly applied, they would have been paid".
We agree with counsel that no debt against the state was created in the acquisition of the books here in question, and hence there was no obligation legal or moral to pay for same. Neither does this item come within the term "expenses of any fiscal year," as used in section 3, article 10, supra, or such expenses as Special Justice Brewer refers to in the portion of the opinion above quoted.
We are of the opinion that before section 3, article 10, supra, would apply to the case at bar, there must of necessity have been funds in the state treasury or that would accrue to the treasury from all sources conceding that all taxes would be collected as levied for state purposes, and if in that event still there were uncollected taxes and thus a deficiency caused, section 3, article 10, supra, would apply and the succeeding Legislature should levy a tax to pay the same. Defendants further contend that if the instant $650,000 appropriation, with all other appropriations for fiscal year ending June 30, 1925, did not exceed 3 1/2 mills, as provided by section 9, article 10, of the Constitution, the appropriation act would be valid and the succeeding Legislature, pursuant to section 3, article 10, could make a levy to pay the deficiency. This section of the Constitution (section 9, article 10) limits the state levy to 3 1/2 mills. A lesser amount may be levied, but not more. Where levy has been made for state purposes for a fiscal year, whether it be 3 1/2 mills or less, the Legislature and all officials of the state are prohibited from incurring any liability in any manner for any purpose beyond the revenue provided for that year.
Defendants contend that there was only sufficient money to supply 60 per cent. of the children in grades covered by the act with the books selected, and that it was impossible and impracticable to attempt to furnish only 60 per cent. and exclude 40 per cent. In answer to this, we have only this observation to make, that the act provided only for basic text-books, and did not require the furnishing of all the books selected, and while it, of course, was left to the officers authorized by the act to designate the basic text-books, yet we are of the opinion that it was their plain duty under the terms of the act itself to designate only such text-books as basic as could be supplied to all school children of the state in said grades and still keep within the amount appropriated for that purpose. In other words, it was not within the province of the officers charged with the duty of carrying out the terms of the Act of 1923 to substitute their judgment for that of the Legislature and enlarge and extend the act and increase the obligation of the state either morally or legally far in excess of the amount the state, speaking through its Legislature, had authorized for this purpose. It was clearly the intent of the Legislature to furnish only such basic text-books to the children in the grades designated as could be purchased for $950,000. It is argued, *Page 45 and we concede, the Legislature of 1923 had the power, subject only to the constitutional limitations, to make the appropriation in this case for $1,600,000 instead of $950,000, and it is further argued that a subsequent Legislature would therefore have the right to make a supplemental appropriation of $650,000, as was done in this case. This we also concede, if there are funds available, not otherwise appropriated; hence our holding that the testimony which was offered and excluded was essential to a proper determination of this case. Such evidence may disclose sufficient of such funds on hand, in which event we would feel impelled to sustain this appropriation. Even then we could not do so without expressing our disapproval of the method pursued in the purchase of the books herein and calling to the attention of public officers generally that the precedent set by the officials involved herein was not to be followed in the future.
It was argued here at length that the state had received these books and was therefore morally bound to pay for same, hence such procedure places an unfair burden on the Legislature and puts it in an attitude either of approving such procedure or repudiating a so-called moral obligation. What right or authority did these officers have to fasten a moral obligation of $650,000 on the state any more than they did a legal obligation? If they did not have a right to legally bind the state, which even they concede, they do not have any greater right to morally bind the state. It is the province of the Legislature to enact such legislation as in its wisdom it deems to the best interest of the state after a full, free, and fair discussion of same on its merits, unhampered by the acts of officers anticipating such legislation, and for the various state officials to act in accordance therewith in so far as it affects them, and not to act on their own initiative contrary to the express terms of a legislative enactment, and then seek Legislative approval afterwards of official acts that require legislative authority in the first instance. The Legislature, of course, might, as in this case, approve where they might not have in the first instance authorized, with the result that its exclusive functions and prerogatives are invaded.
This case presents a very unusual situation and is without a parallel in the books so far as we have been able to ascertain; at least, none is cited either by plaintiff or defendants. Counsel of defendants in error devote some 23 pages of their very exhaustive brief to the proposition that this is a moral obligation and that "the Constitution does not prohibit the Legislature from appropriating public money in payment of its moral obligations, and it follows that the act herein complained of is constitutional".
With all due deference to eminent counsel, we must confess, in view of the facts as disclosed by the record in this case, this argument does not impress us, for the very simple reason no dire necessity or emergency is shown to exist justifying in the slightest degree the incurring of a moral obligation, but, on the other hand, the record clearly discloses that this situation could easily have been avoided by the officers designated in chapter 175, Session Laws 1923, simply following the plain and unambiguous terms of the act itself and designating only as basic those subjects which could have been purchased and furnished to all the children in the state between grades one to eight for $950,000. It would probably have been necessary to designate only five or six subjects instead of the 12 or 14 selected, but the legislature had spoken on the subject, and it remained only for the officials designated to carry into effect its expressed will as contained in the act.
We are firmly of the opinion that the procedure adopted by the officers involved herein is fundamentally wrong, absolutely contrary to a safe, sane, and sound fiscal policy and against every principle of good government, and that if same were permitted the expenses of state government would run wild. Chief Justice Marshall looked well into the future of government when he laid down the doctrine "that the power to tax is the power to destroy."
Justice Williams of this court, in Campbell v. State ex rel. Brett, 23 Okla. 109, 99 P. 778, used this language:
"No one idea stands out more clearly than that barriers should be erected against the creation of municipal indebtedness."
Article 10 of our Constitution is a safeguard to the taxpayers of this state against destruction of this commonwealth by the burden of taxes and public expenditures, and it should be construed as a whole, considering the spirit as well as the strict letter of its provisions.
After a careful and thorough examination of the authorities cited by counsel for defendants, we conclude that none of the authorities cited sustain their contention and hold valid an appropriation such as this when there are no moneys "not otherwise *Page 46 appropriated" in the state treasury or that would accrue to the treasury from all sources during the fiscal year. We are therefore of the opinion that the case should be reversed and remanded, with directions to grant a new trial, and to proceed in accordance with the views herein expressed.
I am authorized by Mr. Justice PHELPS to state that he concurs with the views herein expressed.