OSBORN,
V.
C. J.
This action was instituted in the district court of Oklahoma county by the board of education of the city of Oklahoma City, hereinafter referred to as plaintiff, against the excise board of Oklahoma county, hereinafter referred to as defendant, as an action in mandamus, wherein it is sought to compel the excise board to
approve a request for supplemental appropriations out of the funds of the said school district for the .fiscal year 1935-36. From a judgment granting the writ, defendant has appealed.
On June 1, 1936, plaintiff, board of education, passed a resolution requesting the defendant, excise board, and the members thereof, to approve certain appropriations itemized as follows; .
“New Site for Future North West High School-------$ 73,710.00
“Addition to Site for Franklin School 820 West California __________________ 31,000.00
“Interest on Warrants------ 15,000.00
“Total_____________________$119,710.00”
The board honored the request for an appropriation to pay the interest on warrants, but refused the request for appropriations for building sites, whereupon this action was instituted. At the conclusion of the hearing-in the district court, the court found that the financial statement presented by the board of education to the excise board clearly show» a surplus computed in the manner provided by the statute, and further found that a determination of the amount of money to be spent in acquiring- the building sites was a responsibility resting solely with the board of education.
In the case of State ex rel. Board of Education of the City of Tulsa v. Morley, 168 Okla. 259, 34 P. (2d) 258, it was held that the excise board is not vested with discretionary power to determine the necessity for supplemental appropriations for a school district, and that the proper function of that board is to determine the correctness of the statement made by the school district and the existence or nonexistence of a surplus of revenue or unnecessary appropriations from which such supplemental appropriations could be made. See, also, Board of Education of Oklahoma County v. Excise Board of Oklahoma County, 175 Okla. 363, 53 P. (2d) 565. No criticism is made of the rule announced in the Morley Case, supra, but the excise board contends that on account of certain elements involved in this ease the rule is not applicable.
Defendants’ first proposition is as follows;
“That the purchase of a site for a future Northwest Highschool and of an addition to the site of Franklin School is not a current expense purpose of the 1935-36 fiscal year within the meaning and intention of section 12680, and subdivision (d) of section 12677, O. S. 1931.”
Section 12680, O. S. 1931, which deals with the authority to make supplemental appropriations, provides, in part, as follows:
“Whenever the public welfare or the needs of any county, township, city, town or school district shall require, the excise board may, on call of the chairman, convene at any time for the purpose of making supplemental or additional appropriations for current expense purposes; provided, that all such appropriations authorizing the creation of an indebtedness, shall come within the limitations of section 26, article 10, of the Constitution. No supplemental or additional appropriation shall be made for any county, township, city, town, or school district in excess of the income and revenue provided or accumulated for the year. * * *”
Section 12677, O. S. 1931, as amended by article 13, chapter 66, Session Laws 1935, outlines in detail the various items of appropriation which may be made 'by the excise board. Subdivision (d) of said section provides as follows:
“The appropriations for boards of education of independent school districts shall be itemized so as to show in separate items the amount of funds appropriated; for salaries and compensation of officers and clerical employees ; for salaries and compensation of teachers; for office supplies, blank books, stationery and printing; for light, fuel, and water, for library and school apparatus, for furniture and fixtures; for the purchase of building sites and other real estate with the appropriation of each thereof, separately stated; for construction of new buildings, with the appropriation for each new building separately stated; for maintenance of buildings, and ground, including salaries of janitors and care-takers; for such other expenditures as may be necessary and authorized by law. but not herein enumerated.”
It is noted that appropriations for the purchase of building sites are authorized by the express terms of the statute. It has been the consistent holding of this court that current expense includes any expenditure for which a tax is authorized to be levied by the Legislature for any current fiscal year, other than the taxes authorized by sections 10 and 27 of article 10 of the Constitution. Oklahoma News Co. v. Ryan, 101 Okla. 151, 224 P. 969; M., K. & T. Ry. Co. v. Bennett, 122 Okla. 102, 250 P.
1021; Protest of Murray, 140
Okla. 240, 285 P. 80.
Defendants’ second proposition is as follows :
“That the evidence discloses, as a matter of law, that no surplus of revenue accumulated for that fiscal year existed in the treasury of plaintiff on May 31, 1936, within the meaning and intention of section 12680, O. S. 1931.”
Evidence was offered by plaintiff to the effect that on May 31, 1936, its financial statement reflected a general fund surplus of $137,771.85, which was the amount of excess of general fund assets over and above all general fund liabilities as of the date of the preparation of the statement. The assets referred to consisted of cash on hand and 1935 net taxes in process of collection. It was further shown that it was impossible to determine what portion of the surplus was cash on hand and what portion consisted of taxes in process of collection. We are referred to the second subdivision of section 12680, supra, which requires, as a condition precedent to making a supplemental appropriation, that the financial statement shall correctly reflect a “surplus in revenue” in funds available for current expenses. Defendant contends that the term “surplus in revenue” means cash on hand. In considering the statute as a whole, it appears that the term “surplus of revenue” means “income and revenue provided or accumulated for the year.” Such was the holding of the court in the case of Coggeshall v. Smiley, 142 Okla. 8, 285 P. 48. It is asserted that the taxes in process of collection set up in the financial statement included the reserve set up for delinquent taxes, but the record discloses that only net taxes in process of collection were considered.
The evidence discloses that the items for which supplemental appropriations were requested by plaintiff were not inc’uded in the estimate made and approved at the 'beginning of the fiscal year.
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OSBORN,
V.
C. J.
This action was instituted in the district court of Oklahoma county by the board of education of the city of Oklahoma City, hereinafter referred to as plaintiff, against the excise board of Oklahoma county, hereinafter referred to as defendant, as an action in mandamus, wherein it is sought to compel the excise board to
approve a request for supplemental appropriations out of the funds of the said school district for the .fiscal year 1935-36. From a judgment granting the writ, defendant has appealed.
On June 1, 1936, plaintiff, board of education, passed a resolution requesting the defendant, excise board, and the members thereof, to approve certain appropriations itemized as follows; .
“New Site for Future North West High School-------$ 73,710.00
“Addition to Site for Franklin School 820 West California __________________ 31,000.00
“Interest on Warrants------ 15,000.00
“Total_____________________$119,710.00”
The board honored the request for an appropriation to pay the interest on warrants, but refused the request for appropriations for building sites, whereupon this action was instituted. At the conclusion of the hearing-in the district court, the court found that the financial statement presented by the board of education to the excise board clearly show» a surplus computed in the manner provided by the statute, and further found that a determination of the amount of money to be spent in acquiring- the building sites was a responsibility resting solely with the board of education.
In the case of State ex rel. Board of Education of the City of Tulsa v. Morley, 168 Okla. 259, 34 P. (2d) 258, it was held that the excise board is not vested with discretionary power to determine the necessity for supplemental appropriations for a school district, and that the proper function of that board is to determine the correctness of the statement made by the school district and the existence or nonexistence of a surplus of revenue or unnecessary appropriations from which such supplemental appropriations could be made. See, also, Board of Education of Oklahoma County v. Excise Board of Oklahoma County, 175 Okla. 363, 53 P. (2d) 565. No criticism is made of the rule announced in the Morley Case, supra, but the excise board contends that on account of certain elements involved in this ease the rule is not applicable.
Defendants’ first proposition is as follows;
“That the purchase of a site for a future Northwest Highschool and of an addition to the site of Franklin School is not a current expense purpose of the 1935-36 fiscal year within the meaning and intention of section 12680, and subdivision (d) of section 12677, O. S. 1931.”
Section 12680, O. S. 1931, which deals with the authority to make supplemental appropriations, provides, in part, as follows:
“Whenever the public welfare or the needs of any county, township, city, town or school district shall require, the excise board may, on call of the chairman, convene at any time for the purpose of making supplemental or additional appropriations for current expense purposes; provided, that all such appropriations authorizing the creation of an indebtedness, shall come within the limitations of section 26, article 10, of the Constitution. No supplemental or additional appropriation shall be made for any county, township, city, town, or school district in excess of the income and revenue provided or accumulated for the year. * * *”
Section 12677, O. S. 1931, as amended by article 13, chapter 66, Session Laws 1935, outlines in detail the various items of appropriation which may be made 'by the excise board. Subdivision (d) of said section provides as follows:
“The appropriations for boards of education of independent school districts shall be itemized so as to show in separate items the amount of funds appropriated; for salaries and compensation of officers and clerical employees ; for salaries and compensation of teachers; for office supplies, blank books, stationery and printing; for light, fuel, and water, for library and school apparatus, for furniture and fixtures; for the purchase of building sites and other real estate with the appropriation of each thereof, separately stated; for construction of new buildings, with the appropriation for each new building separately stated; for maintenance of buildings, and ground, including salaries of janitors and care-takers; for such other expenditures as may be necessary and authorized by law. but not herein enumerated.”
It is noted that appropriations for the purchase of building sites are authorized by the express terms of the statute. It has been the consistent holding of this court that current expense includes any expenditure for which a tax is authorized to be levied by the Legislature for any current fiscal year, other than the taxes authorized by sections 10 and 27 of article 10 of the Constitution. Oklahoma News Co. v. Ryan, 101 Okla. 151, 224 P. 969; M., K. & T. Ry. Co. v. Bennett, 122 Okla. 102, 250 P.
1021; Protest of Murray, 140
Okla. 240, 285 P. 80.
Defendants’ second proposition is as follows :
“That the evidence discloses, as a matter of law, that no surplus of revenue accumulated for that fiscal year existed in the treasury of plaintiff on May 31, 1936, within the meaning and intention of section 12680, O. S. 1931.”
Evidence was offered by plaintiff to the effect that on May 31, 1936, its financial statement reflected a general fund surplus of $137,771.85, which was the amount of excess of general fund assets over and above all general fund liabilities as of the date of the preparation of the statement. The assets referred to consisted of cash on hand and 1935 net taxes in process of collection. It was further shown that it was impossible to determine what portion of the surplus was cash on hand and what portion consisted of taxes in process of collection. We are referred to the second subdivision of section 12680, supra, which requires, as a condition precedent to making a supplemental appropriation, that the financial statement shall correctly reflect a “surplus in revenue” in funds available for current expenses. Defendant contends that the term “surplus in revenue” means cash on hand. In considering the statute as a whole, it appears that the term “surplus of revenue” means “income and revenue provided or accumulated for the year.” Such was the holding of the court in the case of Coggeshall v. Smiley, 142 Okla. 8, 285 P. 48. It is asserted that the taxes in process of collection set up in the financial statement included the reserve set up for delinquent taxes, but the record discloses that only net taxes in process of collection were considered.
The evidence discloses that the items for which supplemental appropriations were requested by plaintiff were not inc’uded in the estimate made and approved at the 'beginning of the fiscal year. For this reason defendant contends that the taxes levied and collected for specific purposes would be diverted to other purposes by the supplemental appropriation, thereby violating the provisions of section 19, article 10, of the Constitution, which provides that no tax levied and collected for one purpose shall ever be devoted to another purpose. By the provisions-of section 12678, O. S. 1931, as amended by chapter 85, Session Laws 1933, there are three specific funds provided for municipalities, general funds, sinking funds, and special funds. The general fund is the current expense fund. As hereinabove pointed out, expenditures for the purchase of building sites are for current expense purposes within the purview of the law. A supplemental appropriation for current expense purposes out of the general fund of the district does not contravene the constitutional provisions to which we have just referred.
.T. K. Wells was permitted to intervene on behalf of himself and others similarly situated, and a pleading was filed resisting issuance of a writ. The questions raised by said intervener, however, have been hereinabove determined.
Other propositions are presented and argued in the briefs, but what we have said disposes of the determinative and controlling issues. In view of the conclusions which we have reached, this case is controlled by the former opinion in the case of State ex reí. v. Morley, supra.
The judgment of the trial court is affirmed.
McNEILL, O. J., and BAYLESS, BUSBY, WELCH, and CORN, JJ., concur. RILEY, PHELPS, and GIBSON, JJ., dissent.