I dissent for the reason that I do not think that an airport is a public utility within the contemplation of section 27, art. 10, of the Constitution of the state of Oklahoma.
Section 26, art. 10, of the Constitution of the state of Oklahoma provides:
"No county, city, town, township, school district, or other political 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, nor in cases requiring such assent, shall any indebtedness be allowed to be incurred to an amount including existing indebtedness in the aggregate exceeding five per centum of the valuation of the taxable property therein, to be ascertained from the last assessment for state and county purposes previous to the incurring of such indebtedness: Provided, that any county, city, town, township, school district, or other political corporation, or subdivision of the state, incurring any indebtedness, requiring the assent of the voters as aforesaid, shall, before or at the time of doing so, provide for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof within 25 years from the time of contracting the same."
There it is seen that the creation of an indebtedness beyond the income and revenue of a municipal unit for the current year may be authorized where three-fifths of the voters thereof voting at an election may create a debt, but not in excess of five per centum of the valuation thereof based on the last assessment for the previous year.
Section 27 of art. 10 of the Constitution of this state provides:
"Any incorporated city or town in this state may, by a majority of the qualified property tax paying voters of such city or town, voting at an election to be held for that purpose, be allowed to become indebted in a larger amount than that specified in section 26 for the purpose of purchasing or constructing public utilities, or for repairing the same, to be owned exclusively by such city; Provided, That any such city or town incurring any such indebtedness requiring the assent of the voters as aforesaid, shall have the power to provide for, and, before or at the time of incurring such indebtedness, shall provide for the collection of an annual tax in addition to the other taxes provided for by this Constitution, sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof within 25 years from the time of contracting the same."
Hence it is observed that in case of creating indebtedness for the purpose of purchasing or the construction of public utilities there is no debt limit: therefore. I believe that the framers of the Constitution had in mind only that class of public utilities that were absolutely necessary for the general welfare, comfort, convenience, and safety of the people generally of a city or town creating such indebtedness.
If a city or town without such debt limit may authorize the creation of an indebtedness for utilities of a speculative nature through the efforts of an interested and organized minority, it may produce an actual confiscation of the citizens' property and is fraught with great peril to the taxpayers.
In the instant case there were approximately in Oklahoma City, 35,000 qualified tax paying voters. There were cast for the bond issue 2,061; against, 1,609. Therefore, there were not more than one-eighth of the tax paying voters of Oklahoma City who participated in the election and less than one out of fifteen who favored placing the burden of this bond issue upon the tax-payers of Oklahoma City. *Page 212
I view with great concern the injury that may follow from an intense action of an interested and ingenious minority in placing bond issues on the property of the citizens without limit. Under section 27, supra, bond issues for public utilities within thin the meaning of that section may more than equal the value of all the property of a city or town.
In my judgment bonds issued under section 27, supra, can only be authorized for the creation or repair of that class of utilities that are absolutely necessary for the safety, health, comfort, and convenience of the people generally of such city or town, and I do not think that a bond issue for an airport comes within that class or definition.
I cannot be blinded to the real purpose of the bond issue herein. Park purposes have heretofore been held by this court to be a public utility. I think in that case it would have been more reasonable to authorize an indebtedness for their creation under section 26, supra, which limits the amount of municipal indebtedness. However, in this case park purposes are only incidental to the main object, to wit, the erection of suitable buildings, the preparation of the ground for airport purposes; and the only excuse in calling it a bond issue for park purposes is to create a legal peg upon which to hang an unauthorized indebtedness.
In the case of Coleman v. Frame, 26 Okla. 193, 109 P. 928, this court said:
"It is almost the universal practice of the states of the Union in framing their Constitutions to place limitations upon the power of taxation by municipalities. This unlimited power to assess and collect taxation even for public utilities is not conferred upon municipalities by any state, so far as we are aware, except our own. Some states, such as Utah and Washington, permit municipalities to tax beyond the ordinary limit, for public utilities; but in these states public utilities are specifically confined by the Constitution to 'water, artificial light and sewers, when the works for such water, artificial light or sewers shall be owned and controlled by the municipalities.' Section 6, art. 8, Const. Wash. Section 4, art. 14, Const. Utah, is substantially the same as section 6, art. 8, of the Washington Constitution. It was for the purchase, construction, and repair of this class of public utilities the framers of the Constitution provided by section 27, supra, and the court will not by construction so broaden the term as to practically remove all restrictions upon the debt creating powers of the municipalities of the state."
As stated above, we have no debt limit on cities and towns where such debt is created for the purpose of purchasing, erecting, and repairing public utilities owned solely by such city or town.
It is hereinabove noted some of the states specified the character of public utility by which a debt may be created; still, in the absence of a debt limit or a classification of utilities for which a debt may be created, we should apply the rule of reason and refuse to go beyond the classification generally accepted as such.
I believe it was the intention of the framers of our Constitution that bond issues without limit could not be authorized for the erection, purchase, or repair of public utilities unless such utilities were for the safety, comfort, and convenience of the people generally of the city or town proposing their issuance.
As pointed out in the instant case, there were less than one out of fifteen taxpayers voting for the bond issue. Of course, if this constitutes the required majority, there could be no objection to the validity of the bond issue on that account; however, it does show intense danger that might inure to the taxpayer for a too liberal construction to be placed upon what constitute public utilities within the meaning of section 27, art. 10, supra, in which there is no limitation of indebtedness, and therefore an active minority may create an indebtedness upon the taxpayers of the city or town which would more than equal every dollar's worth of property of such taxpayers in a city or town where the purported object of the bond issue is the promotion of a public utility. This policy will bankrupt the taxpayers of the city and town and benefit only the immediate beneficiaries of the bond issue.
If bonds of this character are permissible under our Constitution, the taxpayers of every city or town in the state are immediately threatened with confiscation of their property, because there is no debt limit provided in section 27, supra, and promoters of bonds and their beneficiaries are usually more vigilant than unsuspecting taxpayers.
Air travel will constantly become more safe, popular, and convenient, but why tax the already overburdened taxpayer in order to furnish conveniences for this new mode of travel? Why not just as well burden the taxpayer for accommodations for tourist camps, bus stations, and railroad depots.
It may also be urged that a great majority of tax paying citizens, who failed to vote upon a submitted bond issue under section 27, supra, have no right to complain of its burdens on account of noninterest by them in the election; but an interested minority *Page 213 proposing such a bond issue often fails to inform the tax paying voter of his threatened and additional burdens. However, the unorganized majority have a right to repose in the Constitution of their state as a protection and shield against an unauthorized and illegal indebtedness. The Constitution protects the citizen and his property against the selfishness of the few, as well as the over enthusiasm of the many.
We have suddenly awakened in Oklahoma to the alarming burdens of taxation. However, we find that under the Constitution of the state of Oklahoma not more than 3 1/2 mills can be levied for state taxes on an ad valorem basis, and that approximately 19/20ths of all total taxes are local in their nature, and the local taxes have been greatly increased by bond issues under sections 26 and 27, supra, and that unless a strict construction is placed on section 27, supra, which section is without debt limit, we will invite and encourage further bond issues under this section which will increase our taxes to an unbearable rate.
Judgment should be reversed, with instructions to render judgment in favor of the plaintiff below.