explaining that a recital within a legislative enactment "is in no respect conclusive" on constitutionality, as the question of whether an action is "contrary to the constitutional provisions is a judicial and not a legislative question"
How later courts described this case
- explaining that a recital within a legislative enactment "is in no respect conclusive" on constitutionality, as the question of whether an action is "contrary to the constitutional provisions is a judicial and not a legislative question"
- discussing different uses for the phrase "special fund" and noting the difference between (1) a special fund created by a levy of a specific tax for a specific purpose and distinguished from a general revenue fund as used in Edwards v. Childers, 1924 OK 652, 228 P. 472, and (2) in Baker v. Carter, 1933 OK 484, 25 P.2d 747 where the phrase refers to a special fund generated by income to pay for a self-liquidating project
Written by the judges who cited it.
The opinion
WELCH, J.
(dissenting). I dissent from the majority opinion. I concur in the dissenting opinion of Mr. Justice Riley, and in addition thereto, desire to make this statement.
I think the matters in controversy here more exactly relate to the state policy or the “public policy” of the state, as that expression is customarily used. That is, I think the method to be followed in selecting and prosecuting a chosen highway construction program is a question of “public policy” of the state.
Our Constitution, in section 1, article 16, in effect, directs the Legislature to establish a department of highways and to provide for building and maintaining roads and highways throughout the state. In compliance therewith our Legislature has directed the various methods and plans followed since statehood. We have had a varying policy as to the personnel and organization of our State Highway Commission, and have tried various methods and plans of highway construction, all by appropriate legislative acts. Various legislative enactments have specifically created' a highway construction fund or highway construction and maintenance fund, as illustrated by sections 8 and 18, chapter 48, S. L. 1923-24, section 1, article 3, chapter 50, S. L. 1935, and
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article 3, chapter 50, S. L. 1937. It has always been the public policy of the state to comply with that constitutional provision, but various changes in the policy have been made from time to time by the Legislature as to the method of compliance.
It is apparent to me that the last Legislature had before it these two propositions, that is, whether the state should continue to build highways and bridges only as moneys accrued in this fund, or whether it would be a progressive step and the better plan to start a more comprehensive program by anticipating accruals to the fund, and obtaining moneys for present construction work by issuing these notes to be paid in future years from a portion of such accruals.
Several other states had chosen the latter method for construction work and for other governmental programs, and the respective courts of those states had upheld such action, as shown by citations in the majority opinion and in the dissenting opinion of Hr. Justice Riley. Our Legislature then chose this method as the best method for our state, and all portions of our state. While this may be called a sharp change in policy, m my judgment it is not for this court to say that the program may not go forward on this changed plan and policy.
It is universally held that the “public policy” of the state is fixed by the Legislature of the state upon subjects concerning which the Legislature has spoken by its enactments; as is well illustrated by expressions in Mahaffay v. Smith (Mont.) 254 P. 875 , and Kruse v. Fischl (Mont.) 175 P. 878 .
Practically every state Constitution contains provisions similar to our own as to the objections here raised to this legislative enactment. As shown by the majority opinion, several of those states preceded Oklahoma in this broadened public policy of progressive construction work with funds obtained by the advanced anticipation of accruals, known with reasonable certainty to be collectible into the special construction fund in the future. Nor is this the first time that our state has proceeded by act of the Legislature, without a public election or vote of the people on the subject, to anticipate specific revenues, and thereby obtain funds for present construction work. Several times our state has prosecuted its building program for educational- purposes by this method. One such project was tested and approved by this court in Baker v. Carter, 165 Okla. 116 , 25 P. (2d) 747 .
I think it is a matter for legislative consideration and determination whether this more broadened policy should be extended to include a comprehensive road building program. It may be questionable whether this policy is better; so as to the educational construction work, the policy may have been questionable; but any such questions are for the legislative branch of state government, in my judgment. The exact plan as applied to a road building program is not novel and untried, for it has been tried and judicially approved in other states, and the general plan of present construction work with money from anticipation of future accruals has been tried and judicially approved in our own state.
This court, in my judgment, might well follow our own former decision, and the studied opinions of other states, and now refuse to interfere with this legislative policy and plan by which, without any tax increase, these present funds are obtained by anticipation in a manner deemed reasonable and proper by the Legislature, for statewide use in present highway construction. And it is for these reasons that I dissent to the majority opinion holding the act in question one prohibited by the Constitution.