In Re State to Issue Bonds to Fund Indebtedness

I regret exceedingly the necessity that compels me to dissent from the conclusion reached by the other members of this court in this case. But, owing to the importance of the question involved, I feel that I would be remiss in my duty should I fail to express my views. This being a dissenting opinion, I shall be as brief as possible, and will give only a skeleton outline of the reasons which impel me to dissent.

The general rule set out and relied upon in the majority opinion that a decision of an appellate court upon all questions of law involved in any case decided by it is binding, not only upon the lower court thereafter, but upon the appellate court as well, is conceded, and its correctness is not in any wise questioned, but the rule has well-defined exceptions, among which is that, if by following the former decision gross or manifest injustice or wrong should follow, the decision will be ignored and not looked upon or considered as an authority. It is the application of this rule to the present case without regard to the exception noted that causes me to differ with the majority in reference to the conclusion reached by them. Whether by following the opinion in the former case gross injustice, or wrong, would ensue can only be determined by considering the result reached in the *Page 157 former case, and comparing it with what I conceive should have been the result.

Section 2, art. 10, of the Constitution, reads as follows:

"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."

This section of the Constitution has been duly vitalized by proper legislative enactment. Section 7621, Comp. Laws 1909; section 7449, Rev. Laws 1910. The duty of meeting the necessary expenses of maintaining the state government is a solemn and binding one, and the various Legislatures of this state have not evinced any disposition to neglect the same, or to shift that responsibility to other shoulders; indeed the converse seems to be true, as shown by the amounts included in the various appropriation bills which have been enacted since statehood, and of which we take judicial notice. Nor does the necessary expense of maintaining the state government come within the constitutional debt-limiting provision of the Constitution. The framers of our organic law clearly had in mind occasions such as the present, when the regular revenue, on account of failure to collect, or for other reasons, would be insufficient to meet the current obligations of the state, and to obviate any such difficulty they provided by section 3 of article 10 of the Constitution that:

"Whenever the expenses of any fiscal year shall exceed the income, the Legislature may provide for levying a tax for the ensuing fiscal year, which, with other resources, shall be sufficient to pay the deficiency, as well as the estimated ordinary expenses of the state for the ensuing year."

As may be clearly seen, this section confers authority on the legislative branch of government to provide, in addition to the regular levy provided in section 2 of article 10,supra, for a sufficient levy to meet such outstanding obligations as may have been brought forward from the preceding year. Section 7621, Comp. Laws 1909 (section 7374, Rev. Laws 1910), shows clearly that the Legislature has fully met the requirements of the Constitution in this respect, and in addition said section provides and makes it the specific duty of certain state officials to, ascertain the amount of unpaid expenses for the preceding year, as well *Page 158 as for the current year, in order that a proper estimate and levy may be made to meet them. The Constitution, however, makes provision for caring for these deficiencies in another way yet;i e., in case the Legislature or the state officials fail or refuse to provide the additional levy mentioned in section 3, art. 10, supra. Thus section 23, art. 10, of the Constitution, provides:

"The state may, to meet casual deficits or failure in revenues, 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, and the moneys arising from the loans creating such debts shall be applied to the purpose for which they were obtained or to repay the debts so contracted, and to no other purpose whatever."

The debts thus provided for are to meet "casual deficits or failure in revenue or for debts not otherwise provided for," and may be contracted for in such manner as the Legislature may provide by statute. Article 1, chapter 8, Comp. Laws 1909, provides an ample and adequate remedy. The statute last referred to is now in full force and effect. The foregoing section of the Constitution is, without doubt, a limitation of the power of the state to contract debts; "argument cannot take away the forceful meaning of the plain, unequivocal language therein used. If this was the only section of the organic law dealing with the limitation of the power of the state to contract debts, I should, without hesitation, say thus far shall we go and no further." And, as has been well said:

"However great the need for revenues or grave the condition confronting the state, the power to raise revenues is vested in the Legislature and not in the courts; and, if there is no provision of law by which relief may be had from the present situation, then the legislative branch of our state government is confronted with a duty which should be discharged without delay, and without interference from or supervision by the courts."

However, as I view the situation, there are other provisions of the Constitution, though not wholly satisfactory, being fraught with more or less delay and uncertainty, by which it is intended that such contingencies as the present situation may be met. For, as I view the law, while section 23 fixes a definite line of limitation upon the state as to the amount of debt it may contract, such *Page 159 limitation is intended to apply only to that particular means of incurring the debt; that is, only as a limitation of the amount of debt which may be contracted in this manner, and not as a limitation upon the amount which may be contracted by other means. For in case the necessity arises for the creating of a debt in excess of $400,000, the Constitution provides for the passage of a law creating the debt, and providing the means of payment, by the Legislature.

Section 25, art. 10, of the Constitution, provides:

"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 such debt shall be authorized by law for some work or object, to be distinctly specified therein; and such law shall impose and provide for the collection of a direct annual tax to pay, and sufficient to pay, the interest on such debt as it falls due and also to pay and discharge the principal of such debt within twenty-five years from the time of the contracting thereof. No such law shall take effect until it shall, at a general election, have been submitted to the people and have received a majority of all the votes cast for and against it at such election. On the final passage of such bill in either House of the Legislature, the question shall be taken by yeas and nays, to be duly entered on the journals thereof, and shall be: 'Shall this bill pass, and ought the same to receive the sanction of the people?' "

Thus is seen by the foregoing section that provisions are made for every kind of debt except those mentioned in sections 23 and 24. Section 23 gives authority for the state to contract debts to the amount of $400,000, to meet casual deficits, or failure of revenues, or expenses not otherwise provided for, and section 24 authorizes the state to contract debts without limit for the purpose of defraying expenses incident to war, repel invasion, and suppress insurrection. With exception of the debts mentioned in these two sections, section 25 reserves to the people alone the power to create debts. Is it for the courts to say that this is a just and proper provision? Shall the courts prevent the exercise of this power by the usurpation of legislative functions? Shall the judicial arm of government, on the ground of expediency alone, usurp the prerogatives of the Legislature, *Page 160 or take from the people the rights they have specifically reserved to themselves in their organic law? If so, the majority opinion of the court is correct. But, to my mind, the language of the Constitution is so plain and so simple as will admit of no construction, and if it needs must be construed, then it should be done under and by the well-recognized rules of construction for organic instruments; no strained or far-fetched meaning should be given it.

As was said by Mr. Justice Lamar of the Supreme Court of the United States in Lake County v. Rollins, 130 U.S. 662, 9 Sup. Ct. 651, 32 L. Ed. 1060:

"Why not assume that the framers of the Constitution, and the people who voted it into existence, meant exactly what it says? At the first glance, its reading produces no impression of doubt as to the meaning. It seems all sufficiently plain; and in such case there is a well-settled rule which we must observe. The object of construction, applied to a constitution, is to give effect to the intent of its framers, and of the people in adopting it. This intent is to be found in the instrument itself; and, when the text of a constitutional provision is not ambiguous, the courts, in giving construction thereto, are not at liberty to search for its meaning beyond the instrument. To get at the thought or meaning expressed in a statute, a contract, or a constitution, the first resort, in all cases, is to the natural signification of the words, in the order of grammatical arrangement in which the framers of the instrument have placed them. If the words convey a definite meaning which involves no absurdity, nor any contradiction of other parts of the instrument, then that meaning, apparent on the face of the instrument, must be accepted, and neither the courts nor the Legislature have the right to add to it or take from it. * * * There is even stronger reason for adhering to this rule in the case of a constitution than in that of a statute, since the latter is passed by a deliberative body of small numbers, a large proportion of whose members are more or less conversant with the niceties of construction and discrimination, and fuller opportunity exists for attention and revision of such a character, while constitutions, although framed by conventions, are yet created by the votes of the entire body of electors in a state, the most of whom are little disposed, even if they were able to, to engage in such refinements. The simplest and most obvious interpretation of a constitution, if in itself sensible, *Page 161 is the most likely to be that meant by the people in its adoption."

In People v. Purdy, 2 Hill (N.Y.) 35, Mr. Justice Bronson, commenting on the dangers of departing from the import and meaning of the language used to express the intent, and hunting after probable meanings not clearly embraced in that language, says:

"In this way * * * the Constitution * * * is made to mean one thing by one man and something else by another, until in the end it is in danger of being rendered a mere dead letter; and that, too, where the language is so plain and explicit that it is impossible to make it mean more than one thing, unless we first lose sight of the instrument itself and * * * roam at large in the boundless field of speculation."

I think the above is the rule of construction we are bound to follow, if any construction at all is needed; and hence, in the light of the foregoing sections, we may properly ask ourselves the question, Is the issuance of approximately $3,000,000 of bonds, to take up an equal amount of the outstanding state warrants, the creation of a debt within the meaning of the sections hereinabove quoted? If so, then the state cannot exceed the $400,000-limit fixed by section 23 by this refunding method. If it is a debt, then the only relief is by the Legislature through the medium of section 25, supra. If it is not a debt, then can the state, in this manner, go beyond such limit even to meet a casual deficit on account of the failure of revenues for any cause? Or would it be reasonable to say that by sections 23 and 25, construed together, casual deficits may be made up to the amount of $400,000 by the methods sought in this proceeding, but when that amount is reached, further evidence of indebtedness shall not be issued without the assent of the electors of the state, as provided by section 25 of the Constitution, supra? This to my mind is the only reasonable construction to be placed upon the constitutional provisions under consideration. As has been suggested by Hon. John B. Harrison, himself a member of the constitutional convention, in a paper on this subject, and whose views are in complete harmony with my own: *Page 162

"This conclusion is further borne out by the provisions of section 26 of the Constitution, which provides that no county, township, school district, or other political corporation or subdivision of the state shall be allowed to become indebted in any manner in any year in excess of the revenue provided for such year, without the assent of three-fifths of the electors voting on such question. Casual deficits in the affairs of municipal subdivisions shall not exceed the revenue provided for that year; while in the affairs of the state, they shall not exceed $400,000 in excess of the revenues. In other words, a municipal subdivision of the state is expressly limited in the amount of indebtedness it may incur for any year to the revenue provided for such year. But the expenses of the state being far greater and more complicated and more difficult of accurate ascertainment, the state is wisely given a margin of $400,000 in excess of the revenues provided. But in neither case shall those fixed limitations be exceeded without a vote of the people on the question. In subdivisions of the state, the right is given to the voters of the municipality; in the state at large, such right is reserved to the electorate of the state, to be submitted by the Legislature. This thought runs through every revenue-raising and debt-limiting section of the Constitution. It is the one unbroken chain by which the entire revenue system is linked together as a comprehensible whole. To give it this meaning is to give it an effectual working force, which, though cumbersome in its operation, is nevertheless complete in itself. But to eliminate this thought is to strip it of its potency and render it a mere powerless, meaningless, incoherent rattle of words. This, in my judgment, should not be done. The inadequacy of the law to afford as speedy relief as is necessary under the present conditions is no fault of the courts. The functions of the court are to interpret and construe the law as it is found, and not to distort it to suit economical conditions or meet political expediencies. I have studied the authorities which attempt to distinguish between debts and questions like the one confronting us. Some of them, it must be conceded, are models of ingenious argument, and elusive, nifty, drapery of thought, but, in my judgment, their proper abode is in the realms of theory rather than of reason. If there is a real logical distinction, then I must confess that my mind is too dull of perception, too finite in scope, to trace those infinite lines. I am unable to see the legal difference between a debt and an obligation which ought to be paid and no money with which to pay it. I cannot comprehend the legal distinction between a debt and an unpaid warrant drawn on a depleted treasury. I cannot *Page 163 differentiate between the significance of a debt and deficit which must be met. And I am not unmindful of the argument that the people of the state assumed the solemn, legal, and moral obligation to maintain the state government and pay the expenses thereof. Nor have I overlooked the contention that the necessary running expenses of the state is not a debt within the debt-limiting provisions of most state constitutions. Nor the argument that the issuance of bonds with which to meet unpaid outstanding warrants is not creating a debt, but merely changing the form thereof. But a concession of the full force of these arguments is a confession that the original unpaid warrants are a debt. Besides, it must be observed that the provisions of our Constitution are peculiarly and cautiously worded. It provides in section 23, art. 10, that to meet casual deficits the state may contract debts to the amount of $400,000. This, of course, is to be done according to the procedure provided by statute. But, whenever such deficit exceeds $400,000, or whenever a debt for any purpose is sought to be contracted, the Legislature must pass a law creating such debt, and such law must be submitted to the voters of the state for sanction or rejection. This, in my judgment, is the procedure contemplated by the Constitution, and as herein stated, while it is cumbersome and tardy in granting relief, it is nevertheless the only procedure we have."

In view of the foregoing, how can we say that following the rule announced in Re Application of State to Issue Bonds toFund Indebtedness, 33 Okla. 797, 127 P. 1065, would not result in working a gross or manifest injustice to all the people of the state, and would not do violence to the plain provisions of our organic law? To me such a result is inevitable, and, this being true, this court ought not to be bound by that, or any other decision, which would work such an irreparable hardship and wrong. The application to fund should be denied. *Page 164