Boswell v. State

HOLT, Special Justice

(dissenting). T dissent from the majority opinion and concur in the dissenting opinion of Justices Riley and Welch. That the “notes” in question would be “debts,” is beyond question: but I cannot bring myself to believe they are “debts” such as are limited by constitutional provisions. On July 16, 1907, the date of adjournment of the Constitutional Convention, there wasn’t a parking lot full of automobiles in Oklahoma; and the most visionary member of this convention never dreamed of building a widespread system of paved roads over the state by an excise tax on gasoline. When they wrote the debt-limit clause of the Constitution, they could have meant but one thing — a debt payable by a general property tax. This court recently held in City of Ardmore v. State ex rel. Oklahoma Tax Commission, 168 Okla. 316 , 32 P. (2d) 728 , that the excise tax on gasoline is not a property tax.

I think this court, in the recent case of Baker v. Carter, 165 Okla. 116 , 25 P. (2d) 747 , has committed itself to an approval of the “special fund doctrine” by approving the act of the Legislature providing for the issuance of $450,000 of dormitory bonds for the A. & M. College. The majority opinion, in the case at bar, quotes with approval the

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famous 85-year-old-eanal-bond case of Newell v. People,. 7 N. Y. 9 , wherein was involved the validity of a large amount of canal bonds that were payable from revenues such as tolls, charges, etc., to be derived from the canals. The Court of Appeals of the State of New York held that such bonds were obligations of the state and as such exceeded the debt limit of the Constitution, and therefore void; yet this Newell Case is not followed in the case of Baker v. Carter, supra, for in the latter case, this court upheld,' — and correctly so, in my opinion, the validity of these dormitory bonds that are payable out of rents, fees, and charges paid by students for the use of said dormitories. In this ease this court held:

“The bonds are not debts of the state because the Legislature did not obligate the state to levy direct taxes each year to pay the principal and interest of the bonds.”

I think that is the correct statement of the law, and one that should be announced in the present road note case.

While not an issue in this case, this court must take judicial notice that, in 1935, the Legislature passed, within a few days of each other, various acts providing for the issuance of dormitory bonds for various state schools, aggregating $1,850,000, all the bonds payable out of a special fund created from rents, fees, and charges paid by students of the several colleges, for the use of the dormitories. None of these bonds were submitted to a vote of the people. Following, no doubt, the decision in the Baker v. Carter Case, supra, these bonds have never been questioned. These dormitories are state property. The highways of the state are state property. The question naturally arises, which is the most important, the dormitories to house the students, or the highways over which they must travel to reach them?

That the Legislature has a right to set aside the rents, fees, and charges derived from the state-owned dormitories, into a separate and distinct fund, with which to pay the dormitory bonds, is not even debatable. That it likewise has authority to set aside into a “special fund” a portion of the gasoline excise tax, which was basically levied for the purpose of building roads (see section 8, ch'ap. 239, S. L. 1923), for the purpose of paying the principal and interest of the proposed road notes, as they mature, likewise should not be questioned. This it has done in the act under consideration; and the act, having otherwise the attributes of a valid and binding statute, I think it should be upheld.

While there is a respectable array of authorities, as cited by the majority opinion, that support the conclusions reached therein, yet there is an equal line of sound authorities, exclusive of the Baker v. Carter Case, in support 'of the “special fund doctrine” and the validity of the act under consideration. Most of these cases are cited in the dissenting opinion by Justices Riley and Welch. In fact, I think the weight of sound reasoning is in support of the act: and the Legislature having expressed the apparent will of the people by passing the act, I think this court should uphold it, following the well-established rule:

“Where there is sufficient uncertainty concerning the meaning of a legislative enactment to render two different constructions possible, one conforming to the requirements of the Constitution, the other rendering the act unconstitutional or creating grave doubts concerning its validity, the construction rendering the act valid will be adopted by the courts.” Union Indemnity Co. v. Saling et al., 166 Okla. 133 , 26 P. (2d) 217 .

One could infer from the oral argument of counsel for plaintiffs and from their written brief that the Legislature is a body ■ antagonistic to the people. But, on the contrary, the Legislature is the chosen representative of the people. It speaks for the people. It, and it alone, passes laws and repeals laws for the people. This is all summed up admirably in the famous Reeder Case, 171 Pa. 513 , 33 L. R. A. 141, where the Supreme Court of Pennsylvania says:

“* * * Whatever the people have not. by their Constitution, restrained themselves from doing, they, through their representatives in the Legislature, may do. This latter body represents their will just as completely as a constitutional convention in all matters left open by the written Constitution. Certain grants of power, very specifically set forth, were made by the states to the United States, and these cannot be revoked or disregarded by state legislation; then come the specific restraints imposed by our own Constitution upon our own Legislature. These must be respected. But in that wide domain not included in either of these boundaries, the right of the people, through the Legislature, to enact such laws as they choose, is absolute. Of the use the people may make of this unrestrained power, it is not the business of the courts to inquire. We peruse the expressions of their will in the statute, then examine the Constitution and ascertain if this instrument says, ‘Thou shalt not,’ and if we find no inhibition, then the statute is the law, simply because It is the will of the people, and not because it is wise or unwise.”

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For the reasons set out herein and in the dissenting opinion of Justices Riley and Welch, the writ should he denied.