St. Louis-S. F. R. v. Choctaw County Excise Board

GliB'SON, J.

(dissenting in part). Because of prior decisions of this court (Sinclair-Prairie Pipe Line Co. v. Excise Board of Seminole County, 171 Okla. 382 , 42 P. (2d) 501 , and Gallion v. Excise Board of Oklahoma County, 171 Okla. 76 , 42 P. (2d) 508 , I concur with the majority opinion in holding that net, uncollected and unencumbered ad valorem taxes levied and assessed for the year immediately preceding the current fiscal year should not be considered by the excise board in determining the amount of the surplus balance on hand at the beginning of such current fiscal year.

I cannot agree with the statement contained in the majority opinion which reads:

“ * * * It (net, uncollected and unencumbered taxes in prooess of collection) is anticipated income from sources other than ad valorem taxation, as the term is employed in section 12678, supra (O. S. 1931), because it is not anticipated to be received from ad valorem taxes levied for the year in which the appropriations are being

made.”

It matters not in what year ad valorem taxes are collected, they retain their, character and are distinguished from “miscellaneous income from sources other than ad val-orem taxes,” and to destroy that distinction can. only result in confusion.

Nor can I agree with the majority opinion in its conclusion as to the amount of the .reserve for interest on warrants. For the year 1932-1933 there had been appropriated. $1,700 for interest on general fund warrants, of which amount $250 had been canceled, leaving a net amount of appropriation for that purpose in the sum of $1,450. Out of said net sum there had- been expended up to June 30, 1933, for Interest on said warrants, outstanding for said year $544.37. The difference between the .not appropriation and. the amount expended for interest on warrants for the fiscal year 1932-1933, or the sum of $905.63, was all that could be Reserved for interest on warrants for that year. Certainly the amount of .“reserve” could not exceed the unexpended balance of the appropriation for that purpose, there being no surplus balance in- the general fund. To hold otherwise is to say that after the expiration of the fiscal year the excise board may convene and increase an. appropriation made and approved for some prior fiscal year, for, in the instant case, that is the only way in which the unex-pended balance of the appropriation could be increased to the extent that it will equal and not be exceeded by the reserve for warrant interest. The word “reserve,” as employed in the budget and estimate of needs of a county or municipal subdivision, has no different meaning than when employed in ordinary usage. It is something kept back or withheld, which, of course, imports a present possession of a fund or supply which, or a part of which, is kept back.

I agree with the majority opinion in its adding that income taxes received by the county in the fiscal year 1932-1933 should be credited to the funds of that year and not the preceding fiscal year, although such taxes accrued during the preceding fiscal year. Its receipt was not anticipated in the preceding year. At the time the budget for the current year was made and the appropriations for such year were approved, the amount of the income tax to be received that year was known. It was on hand and was appropriated for the needs of the current year. The question of the application of the sales tax is not involved in this appeal, but the majority opinion holds that it is credited to the funds of the current year in which it is received by the county as is the income tax, without reference to the year in which the tax accrued. I cannot agree with that holding. At the beginning of the fiscal year an estimate is made by the excise board of the amount of sales tax that will be received by the school district, etc., during the twelve months that comprise the current fiscal year. Such estimate is not limited by nor does it bear any relation to the amount of the sales tax received during the preceding fiscal year. It depends upon and varies with the scholastic enumeration of the school district, and the amount per capita varies from year to year !in keeping with such changes as there may be from the receipts from sales taxes from year to year. When the estimate to be received from sales tax has been made, the amount to be raised for the benefit of the general fund of the school district by ad valorem taxes is decreased by the amount estimated to be received from the sales tax. It is to that extent a tax in lieu of ad va-lorem taxes. Warrants are issued against the estimated Sales tax receipts in the same manner and to the same extent as warrants are issued against the estimated ad valorem

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tax receipts. I can see no reason for applying a different rule to the disposition of receipts from sales tax from that which governs receipts from ad valorem taxes. At the time the sales tax is paid over by the state to tlie county, such payments are earmarked as to the year and the month in which they accrued and are as easily distinguishable as to time of accrual as are ad valorem taxes.

For that reason, I am of the opinion that sales taxes which accrue in a fiscal year, although not received by the school district until the ensuing fiscal year, must be credited to the funds of the fiscal year in which such taxes accrued until the warrants against the estimated sales tax for such year have been paid. Over-collections of such taxes only should be credited to the funds of the fiscal year in which1 they are received by the school district.

I cannot agree with the majority opinion in its interpretation of chapter 13, S. L. 1933. In State ex rel. Board of Education of the City of Tulsa v. Morley et al., 168 Okla. 259 , 34 P. (2d) 258 , this court said:

“A statute should be given construction which renders every word operative rather than one which renders some words idle and nugatory. * * *

"The presumption is that the Legislature expressed its intent in a statute and that it intended what it expressed.”

Section 2 of the cited statute is as follows :

“Every child entitled to the provisions of this act shall be authorized to attend school free of tuition in the district where he resides; provided that when no instruction is furnished in said district in the grade which he is entitled to pursue, the pro rata part,based upon scholastic enumeration, of public funds of said district as provided in section 1 of this act, shall be credited to the district where he attends school, according to the provisions of this act.”

The majority opinion reads out of the quoted section of the act the proviso or condition that a irapil may be transferred to another district "when no instruction is furnished in said district in the grade which he is entitled to pursue,” and makes it possible for a pupil to leave the district of his residence and attend school in any other district of the state at the wish or whim of the pupil, without restriction. I believe that the maxim “inclusio unlus est exclusio alterius” applies here. The Legislature, by including a condition under which a pupil can transfer from one district to another, in my opinion, intended to exclude the right of that pupil to transfer for other reasons..

Section 3 of the act was evidently passed for the benefit of scholastics residing in the border counties of the state, and makes it possible for such scholastics under certain conditions to transfer to a school of a neighboring state, but, in my opinion, such scho-lastics can transfer only under the proviso contained in section 2 of the act, that is to say, when no instruction in the grade he is entitled to pursue is furnished in the district of which he 'is a resident.

Section 4 of the act contains a provision for hearing the application of a pupil for transfer. It is true that this section of the act contains the language: “No transfer shall be discretionary with the county superintendent or county commissioners” when the district from which the transfer is to be made fails to provide instruction of the proper grade, as hereinbefore set out, but, in my opinion, this merely means that at the hearing the only question to be inquired into is whether the grade which the pupil is entitled to pursue is taught in his district and in the district to which he seeks a transfer, and whether or not the district to which he seeks a transfer is willing to receive the pupil, and when such facts exist, it is mandatory upon, and not discretionary with the authorities to order the transfer.

In my opinion the construction placed upon this act by the majority opinion may lead to a disruption of the public schools in certain localities and defeat the guaranty cf a free common school education to those children -who do not wish to attend school in a district other than the one in which they reside.