Decided: February 18, 1997
CERTIORARI TO THE OKLAHOMA COURT OF APPEALS, DIVISION III
¶ 0 Assessor of Tulsa County filed suit to compel three school districts to pay their share of the costs for the assessor's ad valorem tax revaluation program. The Honorable Ronald L. Shaffer, District Judge of the District Court of Tulsa County, granted a writ of mandamus and commanded the school districts to pay their share of the costs. The school districts appealed and the Court of Appeals, Division III, affirmed. The school districts sought certiorari.
CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT AFFIRMED IN PART AND REVERSED IN PART; CAUSE REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS
David L. Fist, J. Douglas Mann, Jerry A. Richardson, ROSENSTEIN, FIST RINGOLD Tulsa, Oklahoma For Appellants.
David Moss, Tulsa County District Attorney, J. Dennis Semler, Assistant District Attorney Tulsa, Oklahoma For Appellee.
John B. Turner Rebecca M. Fowler DOERNER, STUART, SAUNDERS, DANIEL ANDERSON BIOLCHINI Tulsa, Oklahoma For Amicus Curiae Public Service Company of Oklahoma.
Roger K. Toppins Oklahoma City, Oklahoma For Amicus Curiae Southwestern Bell Telephone Company.
Deborah B. Barnes Tulsa, Oklahoma For Amicus Curiae Transok, Inc.
¶ 1 A recently enacted statute requires the County Assessor to visually inspect and revalue real property for ad valorem taxation purposes. It provides for apportionment of the Assessor's revaluation costs among the local recipients of the tax revenues. The defendants are three Tulsa County school districts who have not paid their share of the Assessor's revaluation expense. The plaintiff is the Tulsa County Assessor, who wants them to do so. Must the school districts pay the Assessor, and if so what are the procedures the Assessor must use to get paid? We conclude that (1) the Assessor may use mandamus during the fiscal year to obtain payment from that year's school budget, and (2) if the Assessor's claims come after the end of the fiscal year the Assessor may get a judgment payable from the school's sinking fund when the revaluation expense was included in the school district's budget, and when the judgment complies with the Oklahoma Constitution and statutes for judgments against school districts. For reasons to be explained our holding is prospective in part.
¶ 2 The case was tried in the District Court of Tulsa County. The result was that the trial court by way of mandamus ordered the school districts to pay their share. They appealed and the Court of Appeals affirmed. We have granted certiorari to resolve this matter of broad public concern.
¶ 3 The statutes requiring the Assessor to conduct a program for the visual inspection of taxable real property in the county for the purpose of ad valorem taxes are 68 O.S. 1991 §§ 2820[ 68-2820], 2821 [ 68-2821]. The annual budget of the Assessor's office is submitted to the County Excise Board (or County Budget Board), and that board must make adequate provision for the costs of the inspection program. 68 O.S.Supp. 1992 § 2822[ 68-2822]. The Assessor's cost of this inspection program is apportioned among the various recipients of revenues from the mill rates levied, including the county, all cities and towns, all school districts, and all sinking funds of such recipients. 68 O.S.Supp. 1992 § 2823[ 68-2823] (B). The Assessor renders a statement to each of the jurisdictions, including school districts, that are required to pay their proportionate cost. That statement must include "The current fiscal year in which the charge has been incorporated in the jurisdiction's budget." 68 O.S.Supp. 1992 § 2823[ 68-2823] (D)(1).
¶ 4 The school districts seek to have the payments of the revaluation expense come from the sinking fund. The definition of a sinking fund is provided by 62 O.S. 1991 § 331[ 62-331]:
Fourth. All funds required to be provided by ad valorem tax levy to pay outstanding indebtedness created under authority of Section 26 and/or Section 27, Article 10, Constitution, are hereby declared to constitute the "Sinking Fund" of such county or other municipal subdivision, to be used for the payment of coupons, bonds, and judgments as provided by law.
Additionally, the sinking fund of a district "shall consist of all money derived from ad valorem taxes or otherwise as provided by law for the payment of bonds and judgments and interest thereon." 70 O.S. 1991 § 1-119[ 70-1-119].
¶ 5 For a school district to budget the revaluation cost to a sinking fund that cost must qualify as an outstanding indebtedness created under authority of Sections 26 and/or 27 of Article 10 of the Constitution, or to pay judgments, bonds, or interest thereon. Clearly, § 26 does not include the Assessor's revaluation costs, since indebtedness created by § 26 requires a vote of the people for that purpose, and payment of the revaluation costs is not made by such an election. The same may be said for § 27 indebtedness created by a vote of the people at an election held for that purpose.
Section 26 begins with the following: "Except as herein otherwise provided, no county, city, town, township, school district, or other political corporation or subdivision of the state, shall be allowed to become indebted, in any manner, or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year without the assent of three-fifths of the voters thereof, voting at an election, to be held for that purpose,. . . ." The two versions of § 26 in effect during the fiscal year at issue contain this language.
Section 27 begins with the following: "Any incorporated city or town in this State may, by a majority of the qualified property tax paying voters of such city or town, voting at an election held for that purpose, be allowed to become indebted. . . ."
¶ 6 Sinking funds are used to pay coupons, bonds, and judgments. 62 O.S. 1991 § 331[ 62-331]; 70 O.S. 1991 § 1-119[ 70-1-119]. The revaluation payment is not a coupon or bond. Neither is the revaluation payment a judgment, since a judgment is the final determination of the rights of the parties in an action. 12 O.S. 1991 § 681[ 12-681]. In sum, a school district's payment to the assessor for that district's share of the revaluation expense is not of one of the statutorily allowed charges against a sinking fund, and cannot be included in the district's budget as a charge against a sinking fund.
See City of Lawton v. West, 33 Okla. 395, 126 P. 574, 575 (1912), (defining bond); 62 O.S. 1991 § 591[ 62-591] (defining coupon bond); 62 O.S. 1991 § 399[ 62-399] (coupon represents interest due on a bond); and 2 L. Jones, Bonds and Bond Securities, §§ 602, 715 (discussing coupon as evidence to demand payment of interest on a bond).
¶ 7 The school districts argue that the revaluation payments need not be budgeted and paid from the general funds of the districts as annual expenses. They contend that the unbudgeted payments may be paid from sinking funds if the districts allow judgments to be taken against the districts in the amounts of the payments. We disagree.
¶ 8 The statutory scheme indicates that school districts pay the revaluation expenses for a current fiscal year during that fiscal year. The revaluation expense for a particular year is incorporated into the budget of the school district for that year. 68 O.S.Supp. 1992 § 2823[ 68-2823] (D)(1). When a jurisdiction's budget and mill rate is not approved by a county Excise Board the billing statement does not conform to § [ 68-2823] 2823(D)(1), but must instead expressly state that the payments are "due and payable by December 31 of the current fiscal year." Additionally, the statute states that the Assessor's current year charges for the revaluation payments should equal the total visual inspection program's budget for the current fiscal year. Id. at § 2823 (D)(3).
¶ 9 We have explained that our State Constitution requires school districts "to carry on their operations upon a cash, or pay as you go plan." School Dist. No. 2 v. Gossett, 140 Okla. 243, 283 P. 249, 252 (1929); Gentis v. Hunt, 121 Okla. 71, 247 P. 358 (1925). The school districts argue for a scheme where the school districts' payments for a current fiscal year are shifted to payments on judgments in subsequent years. This would have the effect of shifting the Assessor's funds to operate a current and annual revaluation program to a funding mechanism of more than one year in duration. Such a result contravenes both statute and the Oklahoma Constitution as to the operation of both the school districts and the Assessor's office.
A money judgment may be paid in one fiscal year if surplus funds are available. 62 O.S. 1991 § 365.6[ 62-365.6]. However the levy and tax to pay a judgment begins with payment of one-third of the judgment. A money judgment against a school district "shall be paid in the following manner, and may be paid in no other manner" in accordance with 62 O.S. 1991 § 365.5[ 62-365.5]. The judgment is spread on a budget for levy as to the first third of the judgment. Id. The levy to pay the judgment is equal to one-third of the amount of the original judgment when one-third of that amount remains due and unpaid. 62 O.S. 1991 §§ 431[ 62-431], 435 [ 62-431]. See Excise Board of Grady County v. Griggs, 192 Okla. 636, 138 P.2d 829, 831 (1943), (judgment creditor entitled to have a tax levied for one-third of the judgment each year until it is paid in full); Board of Education of City of Drumright v. Board of Commissioners of Creek County, 171 Okla. 464, 43 P.2d 139 (1935), (court explained right of judgment creditor to payment of one-third each year based upon O.S. 1931 §§ 5913, 5919, now codified at 62 O.S. 1991 §§ 431[ 62-431], 435 [ 62-435]).
¶ 10 Our Constitution states that political subdivisions of the State must operate on a cash basis to prevent indebtedness extending beyond one year, unless the public has authorized the debt by an election held for that purpose. City of Del City v. Fraternal Order of Police, Lodge No. 114, 869 P.2d 309, 311 (Okla. 1994). This provision applies to both school districts and a county assessor.
The constitutional provision begins with the language: "Except as otherwise herein provided, no county, . . . school district . . . shall be allowed to become indebted. . . ." Okla. Const Art. 10 § 26.
¶ 11 In determining whether a particular obligation is a "debt" within the scope of § 26 this Court has looked to the nature of the obligation and the remedy to enforce the obligation. A statutory obligation allocating financial obligations between government entities is one that has historically been treated as one in assumpsit, or contract. Judicial enforcement of a statutory obligation capable of being reduced to certainty was by an action in assumpsit, i.e., contract, and the obligation was referred to as quasi-contractual. Judicial enforcement of the quasi-contractual statutory obligation via an action in assumpsit (contract) between two governmental entities was commonplace in two states as early as 1817, and a legislative intragovernmental allocation of funding has been both judicially and legislatively recognized in other contexts in this State. Our conclusion to treat the statutory revaluation obligation as remedied via quasi-contract is in accord with the rich legal tradition of enforcing fiscal statutory duties by way of quasi-contract.
Our jurisprudence in this area has included opinions discussing whether a particular item was a debt, or a tax, or a special assessment. For example, in Wilson v. City of Hollis, 193 Okla. 241, 142 P.2d 633 (1943), the court overruled a holding in a prior opinion and held that the item at issue was a special assessment and a debt rather than a tax. This allowed a bondholder to convert the debt into a judgment with payment from a sinking fund, provided that the bondholder complied with those statutes on judgments against a sinking fund and Okla. Const. Art. 10 § 28. Id. 142 P.2d at 640. A tax is not converted into a judgment and paid from sinking funds, but is enforced in the manner provided by statute for the tax. See Independent School Dist. v. Exchange Nat. Co., 164 Okla. 176, 23 P.2d 210, 211 (1933), overruled in part, in Wilson v. City of Hollis, supra. For a discussion of taxes versus special assessments see Blythe v. City of Tulsa, 172 Okla. 586, 46 P.2d 310, 312-313 (1935).
Not every breach of a statute gave rise to an action in quasi-contract. For example, a breach of a statute resulting in false imprisonment could result in an action in trespass, while an action of debt would lie when the statute required payment in an amount capable of being reduced to a certainty, as opposed to unliquidated damages. Bullard v. Bell, 1 Mason 243, 4 Fed.Cas. 624, 639-640 (1817). Assumpsit was, of course, an action based upon certain types of contracts. Welborn v. Dixon, 70 S.C. 108, 49 S.E. 232, 235 (1904). The statutory obligation enforced by assumpsit came to be labeled as a quasi-contract. Ames, The History of Assumpsit, 2 Harv.L.Rev. 1, 63-69 (1888). In other words, a quasi-contract was where the obligation was imposed by law, and the obligation was enforced using the action for breach of contract. Shebester v. Triple Crown Insurers, 826 P.2d 603, 610 (Okla. 1992). For example, see Steamship Co. v. Joliffe, 69 U.S. (2 Wall.) 450, 457, 17 L.Ed. 805 (1864) where that Court noted that a statutory obligation to pay pilotage fees created an obligation in quasi-contract.
See Bullard v. Bell, 1 Mason 243, 4 Fed.Cas. 624, 640 (1817), where Justice Story explained that it was common practice in New Hampshire and Massachusetts for towns to use assumpsit in adjudicating statutorily based fiscal responsibility for paupers. In State ex rel. Blankenship v. Atoka County, 456 P.2d 537 (Okla. 1969), we explained that using ad valorem tax revenues to pay a portion of the salary of an assistant district attorney did not violate Okla. Const. Art. 10 § 9, because a benefit to the county was secured thereby. Id. 456 P.2d at 540-541. Another example of legislatively approved cost allocation between government entities is 70 O.S. 1991 § 5-114[ 70-5-114] where the excise board apportions the costs of the services of the county treasurer among those districts using the services of the treasurer.
In addition to cases such as Bullard v. Bell supra, at n. 8, the quasi-contractual remedy is a concept that has historical roots in cases giving a governmental entity a quasi-contract action against those failing to perform their statutory duties, and those cases concluding that a violation of a statutory duty may be the basis of an action in quasi-contract. "The Supreme Court has held that a defendant has a quasi-contractual obligation to reimburse the government when it incurs costs in discharging a duty the defendant would not perform." U.S. v. P/B STCO, 756 F.2d 364, 371 (5th Cir. 1985), citing, Metropolitan Railroad Co. v. District of Columbia, 132 U.S. 1, 10 S.Ct. 19, 33 L.Ed. 231 (1889). That Circuit Court then explained Wyandotte Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967), where a vessel owner failed to fulfill its statutory duty to remove a sunken vessel, the government effectuated its removal, and thereafter brought an action to recover the cost of removal. The Circuit Court explained that Wyandotte had been interpreted as an application of traditional quasi-contractual principles found in the Restatement of Restitution. 756 F.2d at 374. Courts have long recognized that a statutory duty could be the basis of a quasi-contract action. For example, in Augner v. Mayor, et al. of the City of New York, 14 A.D. 461, 26 N.Y.Civ.Pro.Rep. 165 (1897) although the majority and dissent differed on the application of a statute, they agreed that the action was quasi-contractual. 26 N.Y.Civ.Pro.Rep. at 169, 171. The dissent by Barrett, J., explained: "This action is upon what has been aptly termed a quasi contract. It is not upon a genuine contract, that is, an agreement in fact between plaintiff and defendant, either express, or implied; it is simply upon a statutory liability, which is sufficient to sustain an action analogous to what was formerly called assumpsit." at 171. InInhabitants of Milford v. Commonwealth, 144 Mass. 64 (1887) suit was brought by the town against the Commonwealth for the recovery of expenses incurred in the support of a state pauper. The court described the action: ". . . actions under statutes to recover for money expended have usually been actions of contract. . . . The law regards the money as expended at the implied request of the defendant, and a promise to pay the money is said to be implied from the liability created by the statute. . . . a contract is sometimes said to be implied when there is no intention to create a contract, and no agreement of parties, but the law has imposed an obligation which is enforced as if it were an obligation arising ex contractu. In such a case, there is not a contract, and the obligation arises ex lege." Id. at 65. The recovery of statutory fees has also been by an action in quasi-contract. See Steamship Co. v. Joliffe, supra at n. 7 andHarris v. Christian, 10 Pa. 233 (1849), (fees statutorily required to be paid to magistrate did not create a contract, but an implied promise).
¶ 12 The duty to pay the revaluation expense is quasi-contractual. A quasi-contractual obligation is one where the remedy is the same as where the obligation is contractual.Shebester v. Triple Crown Insurers, 826 P.2d 603, 610 (Okla. 1992). The remedies of mandamus and a civil judgment paid from the sinking fund used to enforce the revaluation payment as explained in part III herein are the same as those used to enforce contractual obligations of a school district. By treating the quasi-contractual revaluation obligation as contractual in nature the question arises as to the applicability of 62 O.S. 1991 §§ 361-363[62-361-363].
Generally, an action in quasi-contract is provided with the same remedy as in contract. Shebester v. Triple Crown Insurers, supra. This is shown in T S Investment Company v. Coury, 593 P.2d 503 (Okla. 1979) where we explained in applying a statute of limitations for contracts that when an obligation is in quasi-contract the applicable statutory provisions for a remedy in contract apply. A judgment in an action in contract against a municipality, including a school district, is void if the judgment does not comply with § 362. Valley Vista Development Corp., Inc. v. City of Broken Arrow, 766 P.2d 344, 348 (1988);Dodd, Mead Co. v. Union Graded School Dist. No. 1, 165 Okla. 225, 25 P.2d 797, 799 (1933). When a judgment must comply with § 362, and it does not, the flaw is jurisdictional. Baylis v. City of Tulsa, 780 P.2d 686, 687-688 (Okla. 1989). This court examines jurisdictional flaws occurring on the face of the record. Lincoln Bank and Trust v. Oklahoma Tax Commission, 827 P.2d 1314, 1318 (Okla. 1992); Hall v. Edge, 782 P.2d 122, 124 (Okla. 1989); Cate v. Archon Oil Co., 695 P.2d 1352, 1356 (Okla. 1985).
Before final judgment in any suit based on contract shall be rendered against any municipality by any court of any county in the State of Oklahoma, . . . proof shall be made to the court of the existence, character and amount of outstanding legal indebtedness of said municipality, which proof shall include . . .
3. An itemized statement of the indebtedness proposed to be converted into a judgment, so classified as to show, in separate exhibits, all items of questionable legality, if any, and the reasons of said officer or officers therefor:
(a.) The appropriations against which each warrant was drawn or claim accrued if in judgment, and if within the limits purposes thereof as provided by law; 62 O.S. 1991 § 362[ 62-362]
No judgment shall be rendered against any municipality by any court until the provisions of Section 2 hereof, have been fully complied with. Any judgment rendered in violation of the provisions of this act shall be void and of no effect. 62 O.S. 1991 § 363[ 62-363]
There are, to be sure, some quasi-contractual obligations of a governmental entity not subject to the provisions of 62 O.S. 1991 §§ 361[ 62-361] [ 62-361] -363 [ 62-363] for the purpose of a sinking fund judgment i.e., they are not treated as contractual obligations. However, application of §§ 361-362 to a judgment against a school district for this expense, whether labeled as "mandamus" or "judgment," is consistent with how this court has viewed the efforts of parties in bringing actions in mandamus in attempts to avoid statutory limitations on judgments or process. Additionally, application of §§ 361-362 to a school district's revaluation obligation is consistent with how this Court has viewed statutorily imposed fiscal obligations of school districts.
This is shown by the quasi-contractual obligations for refunding certain taxes. We have explained that an action for a tax refund is for money had and received. See R.R. Tway, Inc. v. Oklahoma Tax Commission, 910 P.2d 972, 979 n. 6 (Okla. 1995). This action in quasi-contract was used by plaintiffs, under authority of O.S. 1931 § 12749, when seeking the recovery of money spent for the purchase of illegal tax sale certificates. We explained that in such suits a plaintiff was not required to show the fact of an appropriation for the refund expense because the refund was not in the nature of a contract. Board of County Commissioners of Creek County v. St. Louis-San Francisco Ry. Co., 170 Okla. 485, 40 P.2d 1112, 1113 (1935). This holding indicates that an action was not considered to be contractual for the purpose of 62 O.S. §§ 361[ 62-361] [ 62-361] -363 [ 62-363]when a tax refund was sought. Thus, this statutory obligation to refund the illegal sales tax certificate funds via a quasi-contractual remedy was not treated as contractual for the purpose of §§ 361-363.
For example, in Carter v. Collins, 174 Okla. 4, 50 P.2d 203 (1935) the taxpayer brought an action in mandamus seeking a tax refund, and he claimed that the three-year statute of limitations on actions to enforce statutory liability did not apply. The court said: "We observe that although the action is designated as one in mandamus, and is in form mandamus, yet it is nothing more nor less than an action by Vernon Collins, the designated plaintiff, to enforce collection of his claim for a refund of the money involved." Id. 50 P.2d at 206. In concluding that the action was untimely the court said: "As we construe it, we are dealing here with a civil action for the recovery of money as a refund thereof, or to enforce payment of a claim for money, and regardless of its form, we hold it to be such a civil action as was intended to be barred by the provisions of section 101, O.S. 1931 [12 O.S. § 95[ 12-95]]." Id. 50 P.2d at 210, explanatory cite added. See also the discussion in Carter explaining that "In the modern practice where a claimant resorts to the writ of mandamus to collect money due, as in the case at bar, we think the rule is and should be that in such case the action, though it be in form in mandamus, is barred after the time when an ordinary civil action to enforce the same or a similar right is barred by the statute." Id. at 207. The court then explained its earlier cases holding that mandamus used in place of an execution was limited to the same period of time that an execution would be limited to had the plaintiff used that form of process. Id.
¶ 13 Many obligations are imposed by law which require school districts to expend money on them. The fact that these obligations are imposed by law does not excuse a district from budgeting these items in the district's fiscal budget, and a judgment against a school district is not authorized against an unbudgeted expense of this nature.
¶ 14 For example, in 1928 school officials requested an appropriation for their budget to buy new buses. Protest of Carter, 148 Okla. 1, 296 P. 485 (1931). Their request was denied and they decided to acquire the buses without an appropriation. When the bus company filed a judicial action to compel payment the school district asked for a judgment to be rendered against it so that the buses could be paid from sinking funds. The school officials argued that the district bought the buses to fulfill a statutory duty of pupil transportation, and in the words of one of the officials "were asking for a judgment to pay for these trucks." Id. 296 P. at 489.
¶ 15 This Court explained that legislatively required expenditures for pupil transportation had to be pursuant to a "valid appropriation for that purpose." Id. In other words, fiscal year expenses of a subdivision of the State are to be paid from funds collected to pay fiscal year expenses, and not from other funds. Similarly, the legislatively required fiscal year revaluation expense paid by a school district must be pursuant to a valid appropriation for that purpose.
¶ 16 The view of the school districts is that an item required to be paid from an annual fiscal budget may remain unbudgeted and then paid from sinking funds in the form of a judgment. When an expense is to be paid from the ordinary tax revenues and those revenues are expended without payment of the expense, the resulting payment of the judgment from the sinking fund could result in an additional property tax levy on the citizens to pay the judgment. 62 O.S.Supp. 1994 § 365.5[ 62-365.5]; 62 O.S. 1991 § 431[ 62-431], 435 [ 62-435]; 68 O.S. 1991 § 3017[ 68-3017]. The view of the school districts could result in a school funding practice whereby annual expense items are funded by an increase in taxes not voted upon by the people. This procedure was condemned in Protest of Carter, supra, and characterized in Graves v. Board of County Commissioners of Cimarron County, 170 Okla. 282, 39 P.2d 532, 533, 534 (1934) as a method penalizing taxpayers for the acts of public officials failing to perform their duties.
¶ 17 We conclude that an Assessor attempting to obtain a money judgment against a school district to be paid by sinking funds must comply with 62 O.S. 1991 §§ 361[ 62-361] -363 [ 62-363]. An Assessor must show in the District Court that an appropriation was made to the school district for the revaluation expense. 62 O.S. 1991 § 362[ 62-362]. Because of the confusion in the District Court as to the proper remedy for this type of case we make our holding on this issue prospective beginning July 1, 1997, as we will explain in our Conclusion.
This conclusion is consistent with 62 O.S. 1991 § 479[ 62-479] and its prohibition upon school district officials allowing the district to become indebted in excess of the estimate made and approved by the excise board for the fiscal year. In Graves v. Board of Commissioners of Cimarron County, 170 Okla. 282, 39 P.2d 532 (1934), the Court relied upon O.S. 1931 § 5955 where an action in contract was brought against a county to compel payment of printing expenses for the publication of tax lists. The publication was requested by the county treasurer and required by law. We explained that contractual obligations to pay money from public funds are void when they are in excess or in the absence of an appropriation therefor. Id. 39 P.2d at 534. See also 1996 Okla.Sess. Laws Ch. 178 § 9 (eff. July 1, 1996), (to be codified at 70 O.S. § 5-157[ 70-5-157]) and its prohibition of authorizing any expenditure that exceeds the appropriation therefor.
¶ 18 The District Court issued a writ of mandamus to compel the immediate payment of the revaluation expenses by the defendants. On appeal the parties discuss whether the District Court was correct in issuing the writ, and whether the District Court properly exercised review over the Excise Board.
¶ 19 The District Court attempted to exercise jurisdiction (1) as an appellate tribunal reviewing the Excise Board, and (2) on an application for a writ of mandamus by the Assessor. The former was improper but the latter was authorized. Neither Oklahoma's Administrative Procedures Act (75 O.S. 1991 § 250.1[ 75-250.1] et seq.) nor 12 O.S. 1991 § 951[ 12-951] provide a mechanism for District Court appellate review of the Excise Board in this case.
¶ 20 The schools challenged the payments to be made to the Assessor by invoking their statutory right to appear before the Excise Board to provide "comments, information and documentation" concerning the budget submitted by the Assessor. 68 O.S.Supp. 1992 § 2822[ 68-2822] (B). This statutory opportunity of a governmental entity to appear is not a tax protest, but merely an opportunity for one governmental entity to provide information to another acting in a legislative capacity in creating a budget. See City of Ardmore v. Excise Bd. of Carter County, 200 Okla. 516, 197 P.2d 961, 964 (1948) where this Court explained that the Excise Board acts "in the capacity of a legislature" in apportioning taxes for purposes.
¶ 21 Section 951 provides for review of certain acts involving the exercise of a judicial function. The legislative and discretionary determination as to the amount of the assessor's budget is not judicially reviewable pursuant to 12 O.S. 1991 § 951[ 12-951]. The O.A.P.A., 75 O.S. 1991 §§ 250.1[ 75-250.1] et seq., does not apply to counties or entities performing essentially local functions. 75 O.S. 1991 § 250.5[ 75-250.5]. The District Court could not exercise appellate jurisdiction over the Excise Board's decision on the Assessor's budget. That part of the District Court's order exercising appellate jurisdiction and affirming the Excise Board is reversed, as the District Court has no such jurisdiction.
12 O.S. 1991 § 951[ 12-951] states:
A judgment rendered, or final order made, by any tribunal, board or officer exercising judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated or modified by the district court except where an appeal to some other court is provided by law.
¶ 22 The proper remedy for an Assessor seeking payment during the fiscal year is by an application for mandamus in the District Court against the school districts, and when proper, against the Excise Board as well. When an Excise Board fixes appropriations for a school district at a lesser amount than it was its legal duty to do, the board may, during the fiscal year, correct the district's appropriations. Lowden v. Caddo County Excise Bd., 176 Okla. 213, 55 P.2d 472, 474 (1936); Greer County Excise Board v. Lowden, 177 Okla. 7, 57 P.2d 612, 616 (1936). The Excise Board may make temporary appropriations for school boards, 68 O.S. 1991 § 3020[ 68-3020], as well as supplemental and additional appropriations, 68 O.S. 1991 § 3021[ 68-3021]; Protest of Cities Service Gas Co., 162 Okla. 131, 19 P.2d 546 (1933). We recently explained this Excise Board procedure in Morton v. Adair County Excise Board, 780 P.2d 707, 710 (Okla. 1989).
¶ 23 During the fiscal year the Assessor may file an original action in the District Court for a writ of mandamus, and thereby compel the school board to include in its budget, and the Excise Board to approve, an appropriation for the revaluation expense. When a budget does not include a mandatory item the Excise Board may be compelled to add the item to a budget. See First American Bank Trust Co. v. Board of County Commissioners of Blain County, 530 P.2d 121, 124 (Okla. 1974) where we observed that a board must make a proper levy for sinking fund purposes when other officials have failed to act. A writ will issue to compel a board to make appropriations required by constitutional or statutory provisions. When the writ is sought for immediate payment during the fiscal year the plaintiff may join as defendants those officials necessary to levy, appropriate, and issue the proper warrant for payment during that fiscal year.
See Board of County Commissioners of Osage County v. Prentice, 183 Okla. 542, 83 P.2d 557 (1938) where this Court affirmed a trial court writ that compelled county commissioners to request a supplemental appropriation from the excise board.See also St. Louis-San Francisco Ry. Co. v. Craig County Excise Board, 204 Okla. 419, 230 P.2d 896, 899 (1951) (when the excise board is required to take certain ministerial acts it is subject to mandamus when it has failed to perform them); Graves v. Board of Commissioners of Cimarron County, 170 Okla. 282, 39 P.2d 532, 534 (1934), (Court explained that county authorities who fail or refuse to make necessary appropriations might be compelled to do so by timely action for mandamus); Webster v. Morris, 129 Okla. 145, 264 P. 190, 193 (1928), (counties had an obligation by law to pay costs of publishing certain notices, and mandamus would be used to compel excise board to approve estimate or appropriation of costs). The amount of the revaluation expense included in the assessor's budget is subject to the discretion of the excise board. Humphrey v. Denney, 757 P.2d 833 (Okla. 1988).
Board of Commissioners of McIntosh County v. Kirby, 174 Okla. 20, 49 P.2d 746, 747 (1935), (statutory position of deputy court clerk could not be abolished by failure to provide salary for the position); Little v. County Excise Bd. of Marshal County, 161 Okla. 40, 16 P.2d 1080, 1081-1082 (1932), (writ issued to compel excise board to appropriate funds estimated by board of county commissioners for jurors, witnesses, and jury commissioners for current fiscal year when excise board made no appropriations for these expenses used to fulfill the constitutional obligations of open courts and jury trials pursuant to Okla. Const. Art. II §§ 6, 19).
See e.g., Fortinberry v. Blundell, 206 Okla. 261, 242 P.2d 427 (1952), (writ issued to compel State Treasurer to reinstate fund, Tax Commission to make deposits to that fund, Budget Director to approve certain claim against that fund, State Auditor to issue a warrant thereon, and State Treasurer to pay the warrant out of the fund or if the funds were insufficient to properly register and endorse the warrant).
¶ 24 In a mandamus proceeding to compel payment of the revaluation expense the Assessor must show both that the amount sought was included in the Assessor's budget and in the school district's budget. If the money was appropriated for the school district's expense then mandamus is the preferred remedy to compel payment during the fiscal year. If an expense is not within an appropriation or levy an application for mandamus requesting payment fails. The authority cited by the dissent does not support a rule to the contrary. If the money was appropriated to the school board but those funds have been spent then mandamus for immediate payment during that fiscal year will be denied unless surplus funds could be transferred to the general fund and used for payment. Mandamus for immediate payment will be denied if the fiscal year has lapsed. Instead of allowing a sinking fund judgment for unbudgeted annual fiscal expenses and thereby penalize the taxpayers, we adopt the view that officials should use the appropriate remedies to insure that such items are properly budgeted and paid.
We explained in Board of County Commissioners of Creek County v. St. Louis-San Francisco Ry. Co., 170 Okla. 485, 40 P.2d 1112, 1113 (1935) that a plaintiff may not ignore a fund that includes appropriated money to pay a certain expense and, by bringing suit and obtaining judgment, throw the additional burden of costs of the action and interest upon the judgment upon the county. If the money was appropriated for the expense and money for payment exists in a fund the remedy is by mandamus to require the official to pay from the fund. Id.
See e.g State ex rel. Chaffin v. Excise Bd. of Okmulgee County, 172 Okla. 425, 45 P.2d 480, 482 (1935), (record failed to show that appropriation to pay the salary of county agent was within the limits of the levy and denial of mandamus was affirmed on appeal); Deal v. Excise Bd. of Pontotoc County, 179 Okla. 73, 64 P.2d 859 (1937), (county had no obligation to pay a justice of the peace in excess of the amount appropriated, and trial court's denial of mandamus affirmed); Shannon v. State ex rel. Davidson, 33 Okla. 293, 125 P. 1106 (1912), (court directed to dismiss mandamus proceeding because board of county commissioners did not have authority to allow claims against fund in fiscal year in excess of the estimate made and approved for that fund that year). In Chaffin the county excise board reduced a levy and reduced an appropriation to the office of the county agricultural agent. The agent sought a writ of mandamus compelling an appropriation to pay salary and expenses. The court said that if the plaintiff had shown the trial court how the excise board could have made the requested appropriation to provide the funds while staying within its levy the writ would have been granted.Id. 45 P.2d at 481, 482. The agent's request for funds was denied because the funds were not within the approved levy. In Deal plaintiff obtained a judgment in the justice of the peace court for payment of services and sought mandamus compelling the excise board to appropriate funds to pay the judgment. The court concluded that mandamus could not be granted because the claim underlying the judgment was not within an appropriation, and "[t]o hold otherwise would be to permit municipalities to indirectly accomplish that which is expressly prohibited by section 26, art. 10 of the Constitution, to wit: `. . . become indebted, in any manner, or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year, without the assent of three-fifths of the voters thereof."Id. 64 P.2d at 861. In Shannon the plaintiffs sought mandamus to compel the board of county commissioners to approve claims and order the warrants in payment therefor. Mandamus was issued by the trial court, but on appeal that judgment was reversed with directions to dismiss the mandamus proceeding. The court explained that the county commissioners were not authorized to allow a claim against a fund in fiscal year 1911 in excess of the estimate made and approved for the fund for that fiscal year.
State funds have received a similar analysis. In Lingo-Leeper Lbr. Co. v. Carter, 161 Okla. 5, 17 P.2d 365, 368 (1932) the court denied an application for a writ of mandamus noting that Okla. Const. Art. 5 § 55 prohibited payment of money from the State treasury except pursuant to a valid appropriation. Later inState ex rel. State Bd. of Public Affairs v. Principal Funding Corporation, 519 P.2d 503 (Okla. 1974) the court referred toLingo-Leeper stating that "We denied the writ on the grounds that liability depended entirely upon whether there had been a valid appropriation for the construction of the building and there had not been a valid appropriation." Id. 519 P.2d at 504.
The dissent's argument to the contrary relies upon Braine v. City of Stroud, 385 P.2d 428 (Okla. 1963); State ex rel. Nesbitt v. District Court of Mayes County, 440 P.2d 700 (Okla. 1968); and Smiley v. City of Tulsa, 159 Okla. 195, 14 P.2d 942 (1912). In Braine the plaintiff sought a writ of mandamus and damages resulting from discontinuance of electric, water, and sewer service that caused an injury to plaintiff's property, (damage to a large supply of refrigerated and frozen food). A precedent appropriation is not required in an action seeking recovery for injury to plaintiff's property, City of Stillwater v. Cundiff, 184 Okla. 375, 87 P.2d 947, 950 (1939). State ex rel. Nesbitt does not apply. The trial judge in that case did issue a writ commanding certain salary payments, but this Court did not decide the propriety of this action with regard to the issue before the Court today. Additionally, the trial judge's action has no relevance here since this Court said: "The trial court's judgment is reversed with directions to deny the petition for writ of mandamus." Id. 440 P.2d at 708. Smiley does not support the dissent's argument. Smiley does not discuss appropriations. There is a good reason for this omission. The writ issued to compel the County Treasurer to pay funds in his control to the city. These funds were from penalties collected on delinquent sewer assessments. The city claimed ownership and the county claimed that the Treasurer held the funds in trust for the property owners from whom they were collected. Id. 14 P.2d at 942. This issue is discussed in City of Shawnee v. Epple, 188 Okla. 643, 110 P.2d 608 (1941) where the court explained that pursuant to Seymour v. Oklahoma City, 38 Okla. 547, 134 P. 45 (1913) "the 10 per cent interest added after delinquency constituted a penalty, and on redemption by the property owner the city, and not the warrant holder, was entitled to said 10 per cent." 110 P.2d at 610. Unlike the money in the hands of the school districts in our case today, the money in the hands of the Treasurer in Smiley was not appropriated to the County Treasurer, as he was merely holding, as custodian, the funds belonging to the city. In other words, no showing of an appropriated expense by the Treasurer to the city was needed in Smiley, as no expense by the Treasurer was made.
Bell v. Board of County Commissioners, 335 P.2d 633, 635 (Okla. 1959), (court stated that trial court did not err in refusing an assessor's claim when the evidence showed that there would not be sufficient tax money available to pay the claim). Pursuant to 62 O.S. 1991 § 445[ 62-445] a current expense could be paid from surplus funds originating in a sinking fund and then transferred to a general fund. See St. Louis-San Francisco Ry. Co. v. Ottawa County Excise Bd., 201 Okla. 478, 207 P.2d 275 (1949).
State ex rel. Wall v. Holder, 279 P.2d 1098, 1100 (Okla. 1955), (county excise board statutorily mandated to appropriate certain funds for court and also for crippled children, but denial of writ affirmed due to lapse of fiscal year); Morton v. Adair County Excise Board, 780 P.2d 707, 709 (Okla. 1989), (although county commissioners had mandatory duty to provide funding for election board's chief clerk, the denial of the writ was affirmed due to mootness); Clarence L. Boyd Co. v. Blachly, 171 Okla. 626, 43 P.2d 462 (1935), (trial court's denial of writ affirmed because plaintiff failed to submit required purchase order, and the application sought payment for road tools and machinery and all funds appropriated for that purpose for the fiscal year had been expended); Webster v. Morris, 129 Okla. 145, 264 P. 190, 193 (1928), (court declined to issue writ in 1928 since it would "greatly disturb" the tax rolls of the county for the year 1926); State ex rel. Decker v. Stansfield, 34 Okla. 524, 126 P. 239 (1912), (court issued writ to require trial court to hear nonjury matters, but declined to compel the court to perform duties such as jury trials when they would incur charges against a depleted fund). Consistent with this principle is the rule that a fiscal expense will not be carried over to successive fiscal years, and taxing officials cannot include such items in their budgets. C.D. Coggeshall Co. v. Smiley, 142 Okla. 8, 285 P. 48, 51 (1929); In re Protest of Chicago, R.I. P. Ry. Co., 151 Okla. 43, 2 P.2d 279 (1931).
¶ 25 The school districts say they now have no money to pay, and the fiscal year lapsed prior to the appeal being filed in this Court. We have explained that payment of an annual or current expense is not to be paid from the revenues of a subsequent fiscal year. Tulsa County Excise Bd. v. Texas-Empire Pipe Line Co., 180 Okla. 287, 68 P.2d 861 (1937), (general fund warrants were to be paid from general funds of that year). We agree that it is now too late to mandamus the school districts to pay the 1992 fiscal year revaluation expense from current fiscal budgets.
¶ 26 But the fact that mandamus should be denied does not excuse a school district from paying an assessor when the revaluation expense was appropriated for the budget of the school district. When a lawful appropriation was made for an expense, that expense was incurred and went unpaid, and the fiscal year has lapsed, then the creditor, Assessor or otherwise, obtains a judgment against the school district. For example, in Tulsa County Excise Bd. v. Texas-Empire Pipe Line Co., 180 Okla. 287, 68 P.2d 861 (1937) we explained that unpaid general fund warrants issued against appropriations during a fiscal year would be paid by moneys collected during the year. However, after the warrants were reduced to judgment those judgments became sinking fund obligations paid by sinking fund levies. Tulsa County Excise Bd., 68 P.2d at 863-864. If necessary, mandamus is used to compel officials to levy a tax to pay a judgment when an obligation becomes a judgment against a sinking fund. State ex rel. Crane v. Goerke, 191 Okla. 1, 126 P.2d 1005 (1942).
¶ 27 In sum, the proper procedure is for the Assessor to bill a school district for payment as required by statute. If the bill is unpaid the Assessor files mandamus during the fiscal year to require the amount to be paid, and if necessary for the amount to be included in the school district's budget. Once the item is in the budget the Assessor may still recover the amount even if the fiscal year has lapsed during the proceeding.
This imposes no greater burden upon the Assessor than that presented by the dissent. The dissent also requires the Assessor to file an application for mandamus to compel payment. The real crux of the dissent is that it champions a writ compelling payment when no funds have been appropriated for that purpose, while we hold today that an appropriation must be the basis for a writ or judgment compelling payment. The dissent states that the Legislature may trump our constitutional provision requiring school districts to operate on a cash basis, i.e., that legislative authority is sufficient to create governmental fiscal obligations beyond the reach of Art. 10 § 26 when it creates a revaluation payment that need not be budgeted by the payor. This issue was settled in Del City v. F.O.P. Lodge No. 114, 869 P.2d 309, 315 (Okla. 1993), where we explained that a statutory duty to pay funds does not thereby exempt that payment from Art. 10 § 26. We do require the Assessor to make the appropriations process a part of the mandamus case, that is, to compel the appropriation if not previously performed. The dissent exempts the Assessor from this requirement, but at the cost of disregarding Art. 10 § 26 and increasing taxes upon the taxpayers. The dissent invokes the applicability of 68 O.S. 1991 § 2943[ 68-2943]. However, it also notes that this argument was later abandoned, and is therefore, not addressed herein. The dissent argues that this Court should allow judgments against the sinking fund for unbudgeted expenses because the Legislature has approved this approach. The dissent further relies upon 68 O.S.Supp. 1994 § 2823[ 68-2823] (C). That provision is not before us, and we have not addressed its validity as a remedy either in addition to, or as an alternative to, the remedies discussed herein.
¶ 28 The Assessor sought mandamus in the District Court to compel payment. The record shows that the amounts sought were included in the Assessor's budget. However, the record is silent as to whether the amounts were appropriated for the fiscal budgets of the school districts. The school districts rely upon Board of County Commissioners, etc. v. City of Muskogee, 820 P.2d 797 (Okla. 1991) and claim that a judgment against sinking funds should be allowed for the payments to the Assessor. In City of Muskogee, supra, we explained that the Assessor may obtain a judgment against a school district when the district wrongfully refuses to pay the Assessor the revaluation payment. Id. 820 P.2d at 809. We reaffirm that holding.
¶ 29 In City of Muskogee, supra, we did say in a footnote that the failure of an excise board to allocate funds or provide an additional levy would not operate to defeat a valid statutory obligation. Id. 820 P.2d at 809 n. 63. However, that observation was in response to a claim that a school district or city must first receive an increase in its millage allocated by the excise board in order to meet the expense of the payments to the assessor. Our observation referenced language stating the following:
The statutory language evinces legislative intent that once the revaluation cost is included in a recipient's budget, it is a legal and valid expenditure. Nowhere do we find either in § 2481.4 or in the statutory revaluation scheme that the legislature had intended for the excise board to increase a recipient's millage for that entity's reimbursement to the county of its assessed share.
Id. 820 P.2d at 806.
The "recipient's budget", i.e., the school district's budget, must include the revaluation cost to make that cost a valid and legal expenditure. Id. We reaffirm that holding.
¶ 30 We also said in Muskogee that excluding a legitimate government expense item from a city's budget could not immunize the city from liability for a validly incurred obligation. Id. 820 P.2d at 809-810. We conclude that this language is too expansive. As we also noted above in Muskogee an expenditure becomes a legal and valid expenditure once it is included in a budget. A school district's revaluation expense does not become a legal and valid expenditure until it is included in that district's budget as authorized by the appropriate county board.
¶ 31 School districts challenged the act of the Assessor in moving twenty-two employees from the regular budget to the revaluation budget. The Excise Board has discretion in determining the budget of the Assessor. This determination may be reviewed in a mandamus proceeding in the trial court with subsequent appeal to this Court. Humphrey v. Denney, 757 P.2d 833 (Okla. 1988). The trial court has the authority to determine whether the Excise Board acted arbitrarily by approving an unauthorized funding request. Id. 757 P.2d at 836. The school districts had the burden of presenting evidence to that court showing an abuse of discretion on the part of the county board.Summey v. Tisdale, 658 P.2d 464, 469-470 (Okla. 1982); Rogers v. Excise Bd. of Greer County, 701 P.2d 754, 760 (Okla. 1984). They must then show on appeal that the trial court abused its discretion in declining to award relief. Beatrice Foods Company v. City of Okmulgee, 381 P.2d 863, 868 (Okla. 1963). They have not done so. The District Court's order denying the school districts' challenge to the amount of the revaluation budget is affirmed.
¶ 32 In our case today the Assessor's remedy was to use mandamus during the fiscal year to compel the school boards and Excise Board to (1) include the revaluation expenses in the budgets of the schools, and (2) compel the districts to make immediate payments to the Assessor. Mandamus is inappropriate once the fiscal year has lapsed, and the fiscal year beginning July 1, 1992 was completed before the appeal was filed in this Court. Once the budgets of the school districts were made during the fiscal year to include the payments due that year, the lapse of the fiscal year would be no bar to obtaining a civil judgment against the school districts for the budgeted amounts left unpaid. The fiscal year has lapsed and no showing has been made that the budgets of the school districts included the payments they were required by law to make to the assessor. However, we decline to remand this case for the Assessor to make this showing.
¶ 33 The suit against the school districts was filed approximately three months after the mandate issued in Board of County Commissioners, etc. v. City of Muskogee, supra. The school districts relied upon this opinion in the trial court, and requested that the judgment against the school districts be paid from three annual sinking fund levies. We agree that City of Muskogee could have been relied upon by the school officials for this proposition.
¶ 34 We recognize that judgments may have been obtained and payments made to Assessors in compliance with City of Muskogee. We decline to cast any shadow of legal impropriety upon such judgments, and we thus make our ruling herein prospective, beginning July 1, 1997. Harry R. Carlile Trust v. Cotton Petroleum, 732 P.2d 438, 445-449 (Okla. 1986), cert. denied, 438 U.S. 1007, 107 S.Ct. 3232, 97 L.Ed.2d 738 (1987); Oklahoma County v. Queen City Lodge No. 197, I.O.O.F., 195 Okla. 131, 156 P.2d 340, 358 (1945)
¶ 35 We emphasize that the revaluation expense must be included in a school district's budget before an Assessor may obtain a judgment against a school district for that expense. The revaluation expense must be included in a school district's budget before an Assessor may obtain a mandamus order compelling immediate payment. If the revaluation expense is not included in the school district's budget the Assessor must compel by mandamus the appropriate officials to include the expense in the school district's budget, and this may be done in a prior mandamus proceeding or in a mandamus proceeding that both orders those officials to include the item in the budget and the school officials to make immediate payment. In sum, a judgment to compel payment of the revaluation expense, whether by mandamus during the fiscal year or sinking fund judgment after the fiscal year, must be based upon that expense being included in the budget of the school district.
¶ 36 The amounts sought from the school districts are for current fiscal expenses incurred during the July 1, 1992 — June 30, 1993 fiscal year. The lapse of the fiscal year would ordinarily moot this mandamus proceeding. However, in light of Board of County Commissioners v. City of Muskogee, supra, we affirm the judgment against the school districts based upon the following conditions to be satisfied upon remand to the District Court.
¶ 37 The Assessor shall show that the amounts sought from the school districts were actually expended by the Assessor. She must show that the funds now sought by a judgment against the school districts are necessary to repay or replenish a public fund that was used to cover those expenses actually made by the Assessor in fiscal year July 1, 1992 — June 30, 1993, and that should have been funded by the payments from the school districts. The Assessor is not entitled to a judgment against the school districts and thereby obtain funds to be used for purposes other than the expenses for the fiscal year 1992-1993.
¶ 38 If the Assessor makes this post-judgment showing the judgment of the District Court shall stand affirmed as to the liability of the school districts. Payment of this judgment shall conform to Board of County Commissioners, etc. v. City of Muskogee, supra, where we explained that such an order "represents a sinking fund obligation which may be paid either out of surplus revenues in the sinking fund or from three annual sinking fund levies." Id, 820 P.2d at 810. If the Assessor cannot make this showing the District Court shall vacate its judgment and dismiss the proceeding.
¶ 39 The opinion of the Court of Appeals is vacated. The judgment of the District Court is affirmed in part and reversed in part, subject to the requirements imposed herein, and the case is thus remanded for disposition.
¶ 40 KAUGER, C.J., SUMMERS, V.C.J., HODGES, LAVENDER, SIMMS, WILSON,
¶ 41 WATT, JJ. — Concur
¶ 42 HARGRAVE, OPALA, JJ. — Dissent