Wiseman v. Boren

SUPPLEMENTAL OPINION ON REHEARING

IRWIN, Justice:

Intervenor, James E. Hamilton, individually and as a member of the Oklahoma State Senate, was authorized to intervene after our original opinion was promulgated. On Rehearing, he challenges our conclusion that all or any part of the $80,265,824.66 in surplus funds, which had accrued to the General Revenue Fund as of June 30, 1975, is available for immediate appropriation by the 1976 Legislature. In-tervenor contends that no part of such surplus funds ($80,265,824.66) are presently available for appropriation by the 1976 Legislature and will not become so until revenues collected and the surplus are sufficient to satisfy all of the appropriation obligations of the 1975 Legislature for the current fiscal year ending June 30, 1976.

The issue before this Court is not whether all or any part of the surplus funds should be appropriated, but whether the Constitution prohibits the immediate appropriation of such funds by the 1976 Legislature. We may not consider the advisability of appropriating surplus funds because this Court will not usurp the prerogative exercised by the Legislature in making appropriations for state purposes. Whether all or any part of the surplus funds should be appropriated is within the discretion of the Legislature and not this Court, as the Constitution fixes upon the Legislature the responsibility of making appropriations. State ex rel. Phillips v. Carter, 186 Okl. 571, 99 P.2d 1025 (1940); and Tate v. Logan, Okl., 362 P.2d 670 (1961).

Even if our Constitution does not specifically authorize the immediate appropriation of the surplus funds by the 1976 Legislature, such funds are presently available unless our Constitution prohibits it. The Legislature exercises the sovereign will unless restrained by the Constitution Draper v. State Board of Equalization, Okl., 414 P.2d 276 (1966), and we look to *761the Constitution to determine whether the Legislature is prohibited from doing an act rather than to see if it is authorized. If there is any doubt as to the Legislature’s power to act in a given situation, the doubt should be resolved in favor of the validity of the action taken by the Legislature. Restrictions and limitations upon Legislative power are to be construed strictly, and are not to be extended to include matters not covered or implied by the language used. Tate v. Logan, supra. Any Legislative enactment (in this case the proposed appropriation of part or all of the 1975 surplus funds by the 1976 Legislature) will be presumed constitutional unless its unconstitutionality is shown beyond a reasonable doubt. Schmitt v. Hunt, Okl., 359 P. 2d 198 (1961).

In the “budget balancing” amendment to our Constitution, Article 10, § 23, adopted March 11, 1941, the State Board of Equalization (Board) was required:

“ * * * [to make] an itemized estimate of the revenues to be received by the State under the laws in effect at the time such estimate is made for each year of the next biennium showing separately the revenues to accrue to the credit of the General Revenue Fund and each special fund of the State, and the total amount of such estimate for each fiscal year shall not exceed the average total revenue which accrued to each such fund for the three (3) last preceding fiscal years, to which amount shall he added the cash surplus, if any, from the preceding fiscal year in the hands of the State Treasurer to the credit of any such fund and not previously appropriated by the Legislative at the time such estimate is made. * * *(emphasis ours).

In Draper, supra, cited with approval in our original opinion, we said this estimate was not really an estimate but was a formula by which the revenues to be received during the next biennium could be reduced to a mathematical certainty. Draper construed the above Constitutional proviso and also considered Article 10, § 23a of our Constitution. Intervenor argues that Draper limited the period of time in which the Legislature may make an appropriation of “surplus funds”, and that surplus funds can only be appropriated during the Legislative session in which the surplus accrues: and, if not appropriated during such Legislative session, it is subject to appropriation only after there is on hand the full amount of cash required to satisfy the current fiscal year’s appropriations. Under Interve-nor’s theory the 1975 Legislature would have been authorized to appropriate the $80,265,824.66 in surplus prior to June 30, 1975; but since the 1975 Legislature did not do so, no part of the surplus is available for appropriation until the surplus and revenues collected are sufficient to satisfy all of the appropriation obligations of the 1975 Legislature for the current fiscal year ending June 30, 1976. Then, according to Intervenor, the Legislature would be authorized to appropriate the surplus as it accrues.

The issues in Draper (although not finally promulgated until 1966), concerned the computation of the estimate for the biennium beginning July 1, 1965, and what funds were available for appropriation by the 1965 Legislature. No contention was made that the surplus funds from the preceding fiscal year [fiscal year ending June 30, 1964] were not available for appropriation by the 1965 Legislature. The primary issue was whether anticipated surplus revenues could be included in the estimate. We held they could not, but relying on § 23a, and in particular the last sentence which provides that “any surplus monies * * * to the credit of the State General Revenue Fund shall be subject to appropriation by the Legislature”, we held that if any surplus revenue funds actually accrued during the fiscal year prior to the Legislature’s adjournment the Legislature could ascertain the amount and make appropriations against it. This language had reference only to the surplus funds that would accrue during the fiscal year ending June 30, 1965, and not to the surplus funds of *762the preceding fiscal year (ending June 30, 1964) because the language in Draper could not have possibly addressed the Legislature’s authority to appropriate the preceding year’s surplus (fiscal year ending June 30, 1964) since the provisions of § 23 in effect at the time required such surplus to be included in the Board’s estimate of funds available for appropriation by the 1965 Legislature.

Sec. 23 has been amended twice (in 1968 and in 1975) since our 1966 decision in Draper. The 1968 amendment changed the formula by which Board would make its estimate, but the surplus funds as in the 1941 amendment continued to be a part of the estimate. The 1968 amendment in no way affected the availability of surplus funds for appropriation.

The 1975 amendment changed the formula by which Board would make its estimate, but Board’s estimate no longer included surplus funds. Under the 1975 amendment, Board would have made the same estimate prior to the convening of the 1976 Legislature whether or not there were any surplus funds; whereas, prior to the 1975 amendment, the amount of Board’s estimate depended upon the amount of surplus because the surplus was included in the estimate. Intervenor points out that under the 1941 and 1968 amendments to § 23, the Legislature was authorized to transfer “the existing revenues or surpluses from one fund to another”; and by the 1975 amendment this language was changed and the Legislature was authorized to transfer “the existing revenues or unappropriated cash on hand from one fund to another.” (emphasis added). In-tervenor argues that the substitution of the phrase “unappropriated cash on hand” for the word “surpluses” was uniquely designed for no other purpose than to re-enforce this Court’s language in Draper, “that a Legislature appropriates only surplus revenues actually accrued prior to the Legislature’s adjournment.”

There is no language in Draper establishing the rule of law Intervenor contends is “re-enforced” by the substitution of the phrase “unappropriated cash on hand” for the word “surplus”. Assuming, arguendo, that such phrase has some restrictive meaning, the context in which it is used must be considered. The phrase is found in a provision authorizing the transfer of monies “from one fund to another”. It may not be construed as prohibiting the Legislature from appropriating the surplus funds in question.

Intervenor contends that the Legislature in presenting the proposed 1975 amendment to the people intentionally struck all reference to “surplus” and its inclusion in Board’s estimate to prohibit the expenditure of surplus funds until there was on hand sufficient cash to satisfy the current fiscal year’s appropriations. Intervenor states that the Legislature has never appropriated immediately in the ensuing session the surplus funds which had accrued on June 30th of the previous fiscal year since the adoption of the 1941 “budget balancing” amendment; and there has always been a one year lag in the expenditure of surplus.

Sec. 23, as amended in 1975, does not authorize Board to include surplus funds in its estimate. It neither authorizes nor prohibits the appropriation of surplus funds. It simply contains no directions or restrictions concerning surplus funds. Under no theory of Constitutional construction may we hold that § 23, prohibits the Legislature from immediately appropriating all or any part of the surplus funds in question. However, § 23a does address itself to surplus funds and provides that “any surplus monies * * * shall be subject to appropriation by the Legislature.” We find no reason to modify our holding in our original opinion that the Legislature may immediately appropriate all or any part of the surplus funds in question.

Petition for Rehearing Granted; and Supplemental Opinion on Rehearing adopted.

All the Justices concur.