Trapp v. Dykes , 140 Okla. 63 ( 1929 )

This was an action instituted by defendants in error herein, being certain taxpayers in Garvin county, against the board of county commissioners of that county, to restrain the said board from reissuing certain bonds representing a bond issue which had been previously authorized by a vote of the people, and issued and approved pursuant to law, and later canceled and destroyed pursuant to regular proceedings had by the county commissioners. In other words, the county commissioners were seeking a resurrection of the destroyed bonds, and it was at these activities that the petition for injunction was directed. A permanent injunction was granted.

In the year 1925, the board of county commissioners submitted to the qualified electors of Garvin county a proposal to issue its bonds in the sum of $720,000. The purpose of the bond issue was to construct roads and bridges. As a part of the proceedings for the issuance of the bonds, and upon which the electors voted to either issue or not issue the bonds, a condition was as follows:

"The funds derived from the sale of said bonds to be expended for the construction of said permanent state roads and bridges only when an equal amount of money is available from federal, state or other sources for use in constructing said permanent or county roads and bridges. The ballots used at said election shall set out the proposition as above set forth, and shall contain the words: 'Yes __________ NO __________.

The issuance of the bonds was authorized by the electors by more than three-fifths of the votes. The bonds were thereafter regularly issued and deposited with the county treasurer. The bonds were never sold. In the year 1926 the county commissioners commenced proceedings pursuant to sections 8603 and 8604, Comp. Stat. 1921, to cancel and destroy these bonds. The resolutions seeking the destruction of the bonds set out and enumerated generally and specifically the reason for the destruction of the bonds; the general reason being that the necessity for which the bonds were voted and issued had ceased to exist; and the particular reason why this necessity did not exist and could not exist, was the fact that the State Highway Commission had announced its intention not to meet the provisions of the election proclamation as above set forth; that is, they refused to match the funds represented by the bond issue; that the county commissioners had made numerous attempts to induce the State Highway Commission to comply with the conditions upon which the bonds were issued, and that they, the said board, had become convinced that these conditions would never be met by the State Highway Commission.

The resolution was exceedingly lengthy and recited an intention to destroy the bonds pursuant to the statutes so made and provided. The statutory notice was given and published in three issues of a weekly newspaper and posted according to law. Pursnant to the resolution and notice, on the day appointed the bonds were voluntarily destroyed by cremation or by burning same in the furnace of the courthouse basement in the presence of numerous persons.

On a subsequent date, nearly one year thereafter, the personnel of the State Highway Commission was changed upon the induction of a new state administration; and it appears that the county commissioners at that time were able to secure the consent of the State Highway Commission to a compliance with the terms and conditions upon which the bonds were issued. The board, therefore, adopted a resolution for the purpose of re-issuing the bonds which had been regularly canceled and destroyed as aforesaid. Upon the adoption of the resolution to reissue the bonds, one of the plaintiffs in error, M.E. Trapp, submitted his proposal, or bid, for the purchase of the bonds, which bid or proposal was duly accepted. Immediately thereafter, the plaintiffs brought this action to enjoin the board of county commissioners from issuing and selling the bonds. Several grounds for the injunction were alleged in the petition, but the principal or vital ground, as we see it, was based upon the allegations disclosing the history of the controversy as herein enumerated: that is, that the bonds, although regularly issued, were regularly canceled and destroyed, and that the board of county commissioners was without authority to reconstruct or give new life to a proceeding which had terminated and died pursuant to an express provision of the statute. The county commissioners answered, stating that they acted in good faith in the proceedings relating to the cancellation and the destruction of the bonds; but that they had later learned or reached the conclusion that they acted without authority of law; that their acts in destroying the bonds were void, and that they did nothing more than physically destroy the instruments. Plaintiff in error, Trapp, intervened in the case, and asked to be made a party defendant. Permission was granted him to be made a defendant in the action. He pleaded his contract to purchase the potential bonds, and further alleged that the county commissioners acted capriciously, arbitrarily, and without authority of law in destroying the bonds: and that they destroyed the bonds without taking any evidence of the necessity therefor, and that the pretended reason why the bonds were destroyed never existed, and that a greater reason existed for the application of the proceeds of the bond issue to the construction of roads and bridges at the time the bonds were destroyed than at any other time. The answer also contained an allegation that said sections of the statutes, 8603 and 8604, failed to give the county commissioners authority to destroy bonds, and furthermore contended that the said sections are unconstitutional.

Several other parties intervened also, and filed pleadings similar to the answer of the intervening defendant, Trapp.

Upon a hearing, the court sustained general demurrers to the separate answers of the defendants. The defendants stood upon their demurrers, and the court rendered judgment granting a permanent injunction against the issuance of the bonds. The board of county commissioners and the intervening defendant, Trapp, appealed from the judgment. In seeking reversal of the judgment of the trial court, they urge three propositions:

First, it is contended that said sections 8603 and 8604 of the statutes, Id., are void for uncertainty; second, that said sections are in violation of section 26, art. 10, of the Constitution; and, third, that the answers in this case disclosed that the county commissioners acted capriciously, arbitrarily, and without evidence, and in bad faith, in canceling and destroying the bond issue aforesaid.

Regarding the first proposition urged, which relates to the certainty or uncertainty of the statutes, we fail to see any uncertainty in the provisions of the statutes either as to the authority of the county commissioners to cancel and destroy bonds under certain conditions, or in the procedure for such purpose.

Section 8603 is a general provision, and provides that when it is determined that the purpose for which bonds were issued has ceased to exist, the county commissioners are authorized to destroy the same, and absolve the county or municipality from liability; and the procedure for accomplishing this purpose is set forth in the following section, which provides for a resolution and at least 14 days' notice in a newspaper, and the posting of copies of the notice in five public places within the municipality; said statute also prescribes the contents and nature of the notice, and that unless formal objection and protest in writing is made by at least one-third of the voters qualified to vote at the election at which the bonds were issued, the bonds will be destroyed by burning. There is nothing indefinite about the language of the statutes.

Even though the statute might lack some specific statement which a painstaking and cautious writer might have employed in drafting it, and which would have added clearness to the text, yet such omission would not by any means vitiate the statute. The rule in this connection is well stated in Lewis' Sutherland, Statutory Construction, vol. 1, sec. 86, as follows:

"It is inevitable that some statutes should come from the hands of the Legislature with imperfections of various sorts. These imperfections may relate to minor matters, such as grammar, punctuation or rhetoric, or they may relate to substantial matters in the form of omissions, ambiguities and contradictions. It is undoubtedly the duty of a court to so construe a statute as to give it a sensible effect and make it of binding force. A statute cannot be held void for uncertainty, if any reasonable and practical construction can be given to its language."

If possible, statutes will be given a rational construction instead of such a construction as will lead to an absurdity. Therefore, there is no merit in the contention that the statutes have reference to bonds which have been canceled or ordered destroyed by the courts. Bonds or other instruments which have been canceled by a decree of a court need no act, affirmative or otherwise, of the fiscal officers of a municipality, to render these instruments void and of no legal force. Where a court has decreed that bonds are void and orders their cancellation, its mandates are not to be considered so impotent as requiring additional and rather lengthy, complicated proceedings, by a board of county commissioners or the principal officers of some municipality, for the purpose of determining whether or not the coures decree shall be obeyed.

These statutes (sections 8603-8604, Comp, Stat. 1921) are not unconstitutional. Section 26 of art. 10 of the Constitution, is a permissive provision only, and is in its nature a limitation statute, without which provision certain indebtedness cannot be created. This constitutional provision is not absolute mandate to the people and their officers to create an indebtedness. It serves as a mandate only to define the manner and extent that indebtedness may be incurred or created, and it is not a limitation upon the right of the officers designated by law to cancel, under certain circumstances, the evidence of unnecessary indebtedness, to wit, unused bonds.

Regarding the third proposition, there is nothing in the proceedings nor the answer of the defendants, the board of county commissioners, indicating that they acted arbitrarily or capriciously, or that their acts were in such bad faith as to amount to fraud. On the other hand, their resolution expressly stated that it was impossible to secure the consent of the State Highway Commission to construct the roads in accordance with the requirements under which the bonds were issued; and that they, as county commissioners, were unable to dispose of the bonds except in violation of their agreement and the conditions under and upon which said bonds were issued; and, further, their answer states that they were acting in good faith. The proceedings failed to disclose any arbitrary action, and we think the board of county commissioners was within its statutory and constitutional rights in canceling and destroying them. Such action and such proceedings terminated the authority of the board of county commissioners relating to that subject-matter, or rather, that particular bond issue.

The courts can review or interfere with proceedings of administrative bodies, such as the proceedings in the present case, only when their acts are so unfair as to amount to a denial of due process of law, or so arbitrary or oppressive as to amount to fraud. Silberschein v. U.S., 285 Fed. 397; Crawford v. Cassity, 78 Okla. 261, 190 P. 412; Tripp v Board of Education (Kan.) 227 P. 345; Dixon County v. Field,111 U.S. 83, 28 L.Ed. 360.

Defendants in error insist that plaintiff in error, M.E. Trapp, was not a proper party to this proceeding. It is unnecessary to determine that question. It is only necessary to say that the intervening defendant Trapp was not a necessary party to the action. That statement rests upon the simplest principle of elementary law. The Supreme Court of the United States, in the case of Cherokee Nation v. Hitchcock,187 U.S. 294, has passed directly upon this identical question, except the action in that case was to prevent the sale of certain property.

In the first paragraph of the syllabus, the court held that:

"In an action brought by the Cherokee Nation to enjoin the Secretary of the Interior from leasing oil lands held for the benefit of said Nation under section 13 of the Act of Congress approved June 20, 1898, it is not necessary to join as parties defendants the persons or corporations to whom the Secretary proposes to make the leases."

The demurrer to the answer of the board of county commissioners was properly sustained, and judgment was properly rendered against the board enjoining them from ever issuing, or reissuing, the proposed bonds in this action. The plaintiffs were seeking only to restrain the county commissioners from issuing and selling the bonds. They were not concerned as to any action which Mr. Trapp might take in, the premises, as it was not claimed that he had any authority of law to create a charge or indebtedness against the county, but was simply intending to purchase the bonds when they were issued. He does not claim in his answer or brief that he was the owner of the bonds or any part thereof, or that he had any vested rights in the bonds canceled and destroyed. Therefore, as against the plaintiffs in this particular action, whatever rights, if any, plaintiff in error Trapp had, by virtue of his contract to purchase the potential bonds, was not independent of the power of the board of county commissioners to issue the bonds, and such rights with reference to the relief granted plaintiffs necessarily terminated with the situation or condition that prevented the board of county commissioners from issuing the bonds. In other words, even though the language contained in the answer of the intervening defendant Trapp might have stated a defense to the action (if same had been incorporated into the answer of the proper party defendant), he could not become substituted as a party defendant for the board of county commissioners, and interpose a defense for them. With a permanent injunction properly issued against the board of county commissioners enjoining them from issuing the particular bonds, a judgment in favor of the defendant Trapp would have been academic only, and would have served no useful purpose.

For the reason herein set forth, the judgment of the trial court is hereby affirmed.

BENNETT, HERR, JEFFREY, and DIFFENDAFFER, Commissioners, concur.

ANDREWS And SWINDALL, JJ., dissent.

By the Court: It is so ordered.