In Re the Oklahoma Capitol Improvement Authority

ALMA WILSON, J.,

with whom LAVENDER, OPALA, and WATT, JJ., join, dissenting:

¶ 1 Today’s judicial confiscation of art. 10, § § 23 and 25 annuls the right of the people to approve or disapprove multi-year deficit financing of an essential governmental function. For the first time, this Court gives its imprimatur to deficit spending by our legislative and executive officers. I cannot participate in the demise of our conservative fiscal management that is the hallmark of the Oklahoma Constitution. Since statehood, we have strictly adhered to the constitutional dictate that the people’s resources be managed on a pay-as-you-go basis, leaving to the people their constitutionally preserved right to control the costs of borrowing and deficit spending. The Legislature and the Executive Branch should reconsider the evils of today’s course of state expenditure.

¶2 The Oklahoma Capitol Improvement Authority (OCIA), a state agency comprised of the Governor, Lieutenant Governor, State Treasurer, and five appointed executive department heads, filed its application for approval of a proposal to borrow approximately $325 million dollars through a ten-year bond issue. The net proceeds, in the amount of $300 million dollars, are to be utilized to partially fund the statewide highway system improvement projects listed in the Legislature’s five-year plan.1 The paperwork submitted by the OCIA to this Court would create an obligation on the part of OCIA to repay the borrowed money. In the proposed bond form, the OCIA promises to repay the borrowed money to the bondholders at maturity, in ten years, and to pay interest on the principal on a semiannual basis on the first *783day of May and November of each year commencing May 1, 1998. The funds pledged to the payment of the principal and interest on the bonds, in the bond form, are payments to be made to OCIA by the Oklahoma Department of Transportation (ODOT). The payments from ODOT to OCIA are subject to annual appropriation to ODOT. Incorporated as part of the OCIA resolution to issue the bonds is the agreement between OCIA and ODOT whereby ODOT agrees to lease highway improvement projects from OCIA for monthly payments as may be appropriated by the Legislature for that purpose.2

¶ 3 OCIA urges that its obligation to repay the borrowed money is not a constitutional debt because: 1) ODOT’s payments under the agreement are contingent upon annual appropriations; 2) future legislative bodies are not legally obligated to make the appropriations, even though they may be morally obligated; and 8) ODOT’s payments are the only funds pledged to retire the bonds. In approving these so-called “appropriation-risk” bonds as not a debt, in the constitutional sense, the majority opinion, first, excludes the state highway system from the people’s reserved legislative powers, and then, implicitly adopts the “expanded special fund” exception which this Court expressly rejected more than sixty years ago.

¶4 First, the majority opinion seriously confines the legislative powers reserved to the people to legislative subject areas not specifically mentioned in the Constitution. Citing the art. 5, § 36, art. • 16, § 1, and art. 21, § 1,- the majority opinion concludes that the Legislature, and not the people, have the power to determine policy for the state highway system. Never before has this Court read the constitutional provisions imposing specific duties on the Legislature to provide for public schools, public welfare, public roads, and the myriad of other subjects, as limitations on the people’s constitutionally reserved legislative powers.

¶ 5 As early as 1924, this Court recognized the importance of the state’s highway system to the people: “Aside from the building of institutions for education and religious training, probably no civic improvement is of greater necessity to our people than the construction of an adequate system of public highways.”3 And in 1937, this Court recognized the people’s reserved power to determine whether a debt should be incurred through the, issuance of bonds for highway improvement.4 Today, however, the majority opinion removes the public highway system from the power of the people.

¶ 6 Second, the majority opinion again departs from established law and adopts the “expanded special fund” exception to our constitutional debt limitation provisions. The state debt limitations are set out in art. 10, §§ 23,5 *78424,6 and 25.7 Section 23 prohibits the state from creating or authorizing the creation of a debt or paying a deficit, regardless of the form or source of the payment, except as provided in the annual budget balancing provisions of § 23 and the provisions of §§ 24 and 25. Section 25 prohibits state officials from contracting multi-year debts, unless the debt is authorized by law. It also prohibits a law authorizing the contracting of multi-year debts from becoming effective8 until it has been approved by a majority vote of the electorate.9

7 The Legislature has observed the prohibitions in art. 10, § 25, whether authorizing state officials to contract debts for ordinary governmental expenses10 or for economic development through creative financing.11 Legislative intent in not referring *78573 O.S.Supp.1997, § 168.6 to a vote of the people can only be speculated. However, it is noted that § 1 68.6 was considered and enacted in the press of the final days of the legislative session12 and the failure to refer § 168.6 to a vote of the people could have been an inadvertent omission in drafting. The people have not approved § 168.6.13

¶ 8 This Court has held that the constitutional debt limitations are expressed in plain and ordinary terms preserving to the people the right to know how much is available for appropriation14 and the right to control the creation of debts in excess of the cash on hand.15 In ordinary terms, a debt is a thing owed to another. Notwithstanding the clear expressions, this Court has defined “debt” within the constitutional debt limitations as an obligation for the payment of which resort may be had to state revenues.16

¶ 9 A public obligation is a constitutional debt where the obligation will be paid in a subsequent fiscal year and the payment will be derived, in whole or in part, directly or indirectly, from revenues raised through the taxing powers or from state owned property. Pursuant to this legal standard, we have recognized two exceptions to the constitutional debt limitations: 1) the restricted special fund or self-liquidating exception; and, 2) the future installments for future services exception.

¶ 10 The special fund exception was adopted in Baker v. Carter, 1933 OK -, 165 Okla. 116, 25 P.2d 747, wherein application was made for approval to issue and sell bonds to build dormitories at the Oklahoma Agricultural and Mechanical College at Still-water. The Court found that the dormitory bonds would be retired out of a special fund consisting of rentals of dormitory rooms; there would be no fixed liability of the state, nor direct obligation on behalf of the state; and, there was no showing of a strong reason for believing any contingency, immediate or remote, would ever arise whereby the debt would fall on the state. The Court concluded there is no constitutional or statutory inhibition against the issuance of dormitory bonds payable out of a special fund inasmuch as the rentals would belong to the college without an appropriation by the legislature and only the rentals were placed in the sinking fund pledged to payment of bonds and no state property would be pledged to pay the rentals. Baker v. Carter adopted the special fund exception: the constitutional debt limitation is not violated by an obligation which is payable out of a special fund, if the state is not liable to pay the same out of its general revenues should the special fund prove to be *786insufficient and the transaction by which the indebtedness is incurred cannot in any event deplete the resources of the state.

¶ 11 The Baker v. Carter special fund doctrine was “restricted” in Boswell v. State, 1937 OK -, 181 Okla. 435, 74 P.2d 940. In Boswell, the State Highway Commission sought approval of a bond issue authorized by statute. Motor fuel taxes were pledged to pay the obligation, but as herein, the bond provided that it was not a debt of the state. Boswell observed that whether the bond would be a state debt is a judicial question and not legislative or executive question; that the people reserved to themselves control over creation of debt; that the money raised by issuance of the bonds would be used for maintenance and construction of highways, ownership which is in the state by virtue of the sovereignty and no other legal entity can claim ownership; that whether one or another part of the state revenue is drawn upon is immaterial, so long as the revenue could be available for any public purpose which the Legislature may designate; and, that the special fund created by imposition of motor fuel taxes is not a “special fund” within the meaning of the special fund doctrine. Boswell explained that the special fund doctrine is a test to determine if any part of the special fund is raised under the state’s taxing power — if so, then the “restricted special fund doctrine” does not come into play, and, if not, then the obligations are self-liquidat-mg and the “restricted special fund doctrine” applies.

¶ 12 Boswell further explained that the “expanded special fund doctrine” applies to obligations that provide for the extension or improvement of .state property, which obligations are payable out of the future net income of the property as improved. Boswell expressly rejected the “expanded special fund doctrine.” Boswell disapproved the proposed bonds because the highway improvement project was in no sense self-liquidating. That is, the special fund was created from specific taxes which constitute a part of the state’s general revenue and could otherwise be devoted by the Legislature to any legitimate public use, and the existing roads would be used by those purchasing gasoline the same as any new construction. Boswell cautioned that confusion between the “special fund doctrine” and special funds, such as the highway maintenance and construction fund in the State Treasury, could lead to unwarranted extension of the “restricted special fund” exception to the constitutional debt limitation provisions.

¶ 13 The “restricted special fund doctrine” established in Boswell has remained the law, until today. If a multi-year obligation for a construction project is to be paid from a special fund, the moneys of which are generated solely from the project and not from any state revenues that could be distributed to another public function, then the bond issue and the project are self-liquidating.17 The “restricted special fund” doctrine, *787however, was further restricted in Application of Oklahoma Educational Television Authority, 1954 OK -, 272. P.2d 1027, holding that the language in the 1941 amendment to art. 10, § 28 — without regard to source of money to be paid — means all public revenue whether derived from the taxing power or from other sources, such as land rentals. The bonds in that ease were to be paid from the revenues accruing to Public Building Fund from lands granted to state by federal government, hence, the “restricted special fund” or self-liquidating doctrine was not applicable.

¶ 14 Because the proposed bonds, as contemplated by 73 O.S.Supp.1997, § 168.6, would be repaid by legislative appropriation, the restricted special fund or self-liquidating exception does not apply. However, finding that the improved highways will generate additional motor fuel taxes, the majority opinion implicitly adopts the “expanded special fund doctrine.” The confusion of special funds of self-liquidating transactions and special funds for deposit of dedicated taxes by the majority is now insignificant, inasmuch as the debt limitation provisions are also of little or no significance with today’s pronouncements.18

¶ 15 Under the guise of stare decisis, the majority opinion strikes down our constitutional debt limitations. It is obvious from the established legal principles set forth above, the majority opinion does not rest on stare decisis. Rather, stare decisis requires this Court to hold that 73 O.S.Supp.1997, § 168.6 falls squarely within the plain language of art. 10, § 25 that a “debt shall be authorized by law” and “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.” .Until 73 O.S.Supp.1997, § 168.6 shall take effect and have the force of law, there is no effective authorization for the Oklahoma Capitol Improvement Authority to borrow money for improvement, of the highway infrastructure through a bond issue as proposed herein.

¶ 16 True to my oath to uphold the Constitution of the State of Oklahoma, I will not participate in the demise of our clear constitutional requirement that the state maintain a balanced annual budget unless the people have given, at the ballot box, their prior approval of deficit spending. Today, this Court rules that a proposed ten-year highway bond issue would not create a state debt and therefore Oklahomans have no constitutional right to approve or disapprove of the bond indebtedness. The ruling is unmistakable — our state constitution no longer protects unsuspecting Oklahomans from the fiscal irresponsibility of state officials.

. 69 O.S.Supp.1997, § 2002 lists more than 100 improvement projects and 6 construction projects to be carried out in the eight highway districts throughout the state over the next five years.

.The agreement between OCIA and ODOT is for the lease of the highway projects listed in 69 O.S.Supp.1997, § 2002, which authorizes ODOT "to construct, improve, maintain, and repair all or any of the following highway and bridge projects to the greatest extent possible with the allocation of funds provided.” Projects, as defined by the Legislature are undertakings. 69 O.S.1991, § 231: "Project — An undertaking by the State Highway Commission, governing body or other governmental instrumentality for highway construction ... or other work or activity to carry out the provisions of the federal law for the administration of federal aid for highways.” The agreement, apparently, is a promise by ODOT to perform the undertakings authorized in § 2002, and to make monthly payments to OCIA for the use of the bond proceeds. The majority opinion implies that this is a “profit-producing” agreement and concludes that it is a lease of tangible property. At best, the lease is a subterfuge to bring the transaction within the established exceptions to the constitutional debt limitation provisions.

. Edwards v. Childers, 1924 OK -, 102 Okla. 158, 228 P. 472, 477.

. Boswell v. State, 1937 OK -, 181 Okla. 435, 74 P.2d 940, 945.

. Art. 10, § 23, reads in pertinent part:

The state shall never create or authorize the creation of any debt or obligation, or fund or pay any deficit, against the state, or any department, institution or agency thereof, regardless of its form or the source of money from which it is to be paid, except as may be provided in this section and in Sections 24 and 25 of Article X of the Constitution of the State of Oklahoma ...
5.... Any department, institution or agency of the state operating on revenues of derived from any law or laws which allocate the revenue thereof to such department, institution or agency shall not incur obligations in excess of the unencumbered balance of cash on hand. The application herein does not assert that the

$325 million dollars which OCIA proposes to *784borrow by issuing bonds is within the current fiscal year appropriations, as required by the budget balancing provisions in this section.

. Okla. Const., art. 10, § 24 allows debts to be incurred in case of invasion, insurrection, or war, and is not applicable herein.

. Art. 10, § 25 reads:

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?”
(Emphasis added.)

. The words "take effect" "become effective” are utilized in several constitutional provisions to delineate when a legislative measure has the force of law. Okla. Const., art. 5, § 58, providing that an act of the Legislature shall not “take effect until ninety days after adjournment of the session at which it was passed,” with exceptions for initiative and referendum enactments, emergency measures, and general appropriations; art. 5, § 3, providing that any measure referred to the people by initiative or referendum "shall take effect and be in force when it shall have been approved by a majority of the votes cast thereon and not otherwise"; and, art. 10, § 33 providing that a "revenue bill originating in the House of Representatives shall not become effective until it has been referred to the people of the state at the'next general election held throughout the state and shall become effective and be in force when it has been approved by a majority of the votes cast....”

The words "No such law shall take effect" in art. 10, § 25 is a limitation on the Legislature clearly expressed in the state constitution. Jackson v. Freeman, 1995 OK -, 905 P.2d 217.

. OCIA contends the borrowing is not within the prohibition of art. 10, § 25, therefore, it need not be submitted to the electorate.

. 1992 Okla. Sess. Laws, H.J.R. No. 1076, authorizing a $350 million indebtedness for capital improvement, was referred to the electorate pursuant to art. 10, § 25, as a proposed constitutional amendment. Okla. Cons., art. 10, § 43, State Question No. 649, Legislative Referendum No. 293, adopted at the election held on November 3, 1992; together with a proposed statutory enactment, the Oklahoma Charity Games Act, 3A O.S.Supp.1997, enacted by 1992 Okla. Sess. Laws, ch. 328 and approved at the election on November 3, 1992.

. 1987 Okla. Sess. Laws, H.J.R. No. 1028, authorizing $100 million general obligation bonds for economic development credit enhancement reserve fund to be issued by the Oklahoma Development Finance Authority and providing that the Legislature would make sufficient appropriations to retire the bonds. Okla. Const., art. 10, § 42, State Question No. 610, Legislative Referendum No. 267, adopted at election held on September 20, 1988.

In the Oklahoma Futures measure, 1987 Okla. Sess. Laws, ch. 222, §§ 72 through 90, include legislative authorization for and terms and conditions of the $100 million indebtedness in art. 10, § 42, the proceeds of which are directed to the credit enhancement reserve fund, an integral part of the legislative policy to promote a public/private partnership and the state’s strategic economic development efforts. In the following §§91 through 101, the Legislature declared that bonds were essential to the economic well-being of the state and established a bond oversight system to protect the public welfare. Nothing in the Oklahoma Futures economic development measure indicates that bond oversight is necessitated by extant decisional law. Notwithstanding, the majority opinion determines that bond oversight was established because this Court approved multi-year financing in U C. Leasing, Inc. v. State Board of Public Affairs, 1987 OK 43, 737 P.2d 1191, affirming a money-judgment for breach of a multi-year lease of law enforcement *785switching equipment for which the Legislature had made annual appropriations.

. 73 O.S.Supp.1997, § 168.6, 1997 Okla. Sess. Laws, ch. 329, § 7, is the last of seven substantive sections of House Bill No. 1629. On May 29, 1997, the first Conference Committee Substitute for H.B. 1629, which contained two substantive sections providing for an appropriation from the Constitutional Reserve Fund, was rejected and returned to conference. House Journal, p. 1318. Subsequently on May 29, 1997, the second Conference Committee Substitute (the version of the measure enacted as ch. 329 of the 1997 session laws) was adopted by the House. House Journal, p. 1343. On May 30, 1997, the second Conference Committee Substitute was read and adopted by the Senate, Senate Journal, p. 1047, and approved by the Governor, House Journal, p. 1366.

. 73 O.S.Supp.1997, § 168.6 authorizes the OCIA to issue “bonds or other negotiable instruments or evidences of indebtedness” to fund construction and improvement of the highway system and sets forth the terms and conditions of the bonds. Specifically, subsections (A) and (P) authorize the OCIA to borrow and expend money on specified highway improvement projects; subsections (D) through (H) provide for payment of the borrowed money out of public revenues appropriated for that purpose; and, subsection (L) provides that the borrowed money shall be repaid no later than ten years from the first maturity date (some ten or more years in the future).

. Appropriation requirements permit the people to control the sovereign in disbursements and serve as a legislative limit on powers of executive department and discretion of executive officers. Edwards v. Childers, 1924 OK -, 102 Okla. 158, 228 P. 472, 476; and Smith v. State Board of Equalization, 1981 OK -, 630 P.2d 1264.

. Boswell v. State, 1937 OK -, 181 Okla. 435, 74 P.2d 940.

. Graham v. Childers, 1925 OK -, 114 Okla. 38, 241 P. 178; State ex rel. Kerr v. Grand River Dam Authority, 1945 OK -, 195 Okla. 8, 154 P.2d 946.

. Sheldon v. Grand River Dam Authority, 1938 OK -, 182 Okla. 24, 76 P.2d 355, concluding that the special fund doctrine adopted in Baker v. Carter and restricted in Boswell v. State may be invoked in a restricted sense as an exception to the debt limitation provisions where the project is purely self-liquidating and there is no pledge, direct, indirect or contingent, of the taxing revenue of state. State ex rel. Kerr v. Grand River Dam Authority, 1945 OK -, 195 Okla. 8, 154 P.2d 946, recognizing that the inhibition in 1941 amendment to art. 10, § 23 applies solely to debt of which resort might properly be had to the taxing power of the state and not to a self-liquidating governmental agency such as the Grand River Dam Authority, inasmuch as the evil corrected by the 1941 amendment was the progressively mounting public indebtedness and undeniable and notorious fact that same was due to practice of incurring indebtedness through appropriations that exceeded probable revenues. Application of Board of Regents of University of Oklahoma, 1945 OK -, 195 Okla. 641, 161 P.2d 447, approving dormitory bonds per authority of State ex rel. Kerr v. Grand River Dam Authority, concluded that the budget balancing amendment applies solely to such debt of which resort might properly be had to the taxing power of the state. Application of Oklahoma Planning and Resources Board, 1949 OK -, 201 Okla. 178, 203 P.2d 415, upholding bond issue for lodge and other improvements at Lake Murray State Park to be retired solely from lease payments and admission fees dedicated to payment of the bonds, which indebtedness is not, and cannot, become a debt of the state payable out of taxes levied by the state. Application of Oklahoma Turnpike Authority, 1950 OK -, 203 Okla. 335, 221 P.2d 795, recognizing that art. 10, §§ 23 and 25 apply only to debts or obligations or deficits for which resort might be properly had to the taxing power of the state and upholding Turnpike Authority bonds payable solely from *787the revenues to be derived from the operation of the toll road.

. Likewise the future installments for future services exception is now insignificant under the majority opinion. That exception has been applied to debts created for the construction of office buildings where the space is to be rented by state departments and the rental payments are pledged to retire the debt. We reasoned that the transaction did not obligate the state to pay except as the services were received. Application of Oklahoma Capitol Improvement Authority, 1960 OK -, 355 P.2d 1028; Application of Oklahoma Capitol Improvement Authority, 1966 OK -, 410 P.2d 46; and Halstead v. McHenry, 1977 OK 131, 566 P.2d 134. As to multiear equipment leases, see U.C. Leasing, Inc. v. State Board of Public Affairs, 1987 OK 43, 737 P.2d 1191.