Application of Oklahoma Turnpike Authority ( 1963 )

IRWIN, Justice

(concurring in part, dissenting in part).

The case of Application of Oklahoma Turnpike Authority, Old., 359 P.2d 68, involved a proceeding in the nature of an original action for approval of the issuance of revenue bonds by the Turnpike Authority to finance the construction of the Southwestern and Eastern Turnpikes. In my opinion that case is dispositive of all the issues in the instant action, except the issue relating to interest upon overdue payments of interest, and the principles of law enunciated in that case are controlling in the instant action. However, in my opinion, the Enabling Act does not empower the Turnpike Authority to agree to pay interest upon overdue payments of interest, and I respectfully dissent to that part of the opinion promulgated by a majority of my associates.

This is the first case involving the issuance of Oklahoma Turnpike Authority revenue bonds wherein the trust agreement contains a provision that in the event interest is not paid on any bonds when it is due and payable, interest upon overdue payments of interest shall be payable under the provisions of the trust agreement. In my opinion, the Enabling Act does not empower the Turnpike Authority to enter into a trust agreement which contains such provision.

The Oklahoma Turnpike Authority is a species of State instrumentality. Certain powers are granted to the Turnpike Authority but its powers are limited to those powers granted. See Application of Oklahoma Turnpike Authority, 203 Okl. 335, 221 P.2d 795. Therefore, if our Enabling Act does not authorize the Turnpike Authority to enter into a trust agreement which provides for payment of interest upon overdue payments of interest, then the Turnpike Authority does not have the power or the authority to enter into such agreement. Its authority to enter into such an agreement can not be implied.

Title 69 O.S.1961 § 659, inter alia, specifically provides:

“ * * * The principal of and the interest on said bonds shall be payable solely from the funds herein provided for such payment. The bonds of each ' issue shall be dated, shall bear interest at such rate or rates not exceeding five per centum (5%) per annum, * * *. The Authority shall determine the form of the bonds, including any interest coupons to be attached thereto, and shall fix the denomination or denominations of the bonds and the place or places of payment of principal and interest, which may be at any bank or trust company within or without the State. * * * The Authority may sell such bonds in sttch amounts and in such manner, either at public or private sale, and for such price as it may determine to be for the best interest of the State, but no such sale shall be made at a price so low as to require the payment of interest on the money received therefor at more than five (5%) per centum per annum computed with relation to the absolute maturity of the bonds in accordance with the standard tables of bond values, excluding, however, from such computation the amount of any premium to be paid on the redemption of any bonds prior to maturity.”

Title 69 O.S.1961 § 669, provides for the issuance of turnpike revenue refunding bonds for the purpose of refunding any bonds then outstanding, “including the payment of any redemption premium thereon and any interest accrued or to accrue to the date of redemption of such bonds”.

An examination of the Enabling Act discloses there is no language whatsoever, which has reference to interest upon overdue payments of ínteres* or interest on any accrued interest in toe event refunding bonds are issued. As stated in the majority opinion, “The Enabling Act is silent upon the matter”. Since the powers of the Turnpike Authority are limited to those powers granted, and the Enabling Act does not grant the Turnpike Authority the power or the authority to enter into an agreement wherein interest upon overdue payments of interest shall be payable, in my opinion, this Court should not approve this provision of the Trust Agreement. I therefore respectfully dissent to that portion of the opinion promulgated by a majority of my associates.

I am authorized to state that Mr. Justice WILLIAMS concurs in the views herein expressed.