City of Oklahoma City v. State , 1990 Okla. LEXIS 28 ( 1990 )

OPALA, Vice Chief Justice,

dissenting.

The court reverses today the nisi prius dismissal of Oklahoma City’s [City’s] lawsuit for failure to state a breach-of-contract claim and vacates the Court of Appeals’ opinion which

(a) holds the City was entitled to interest accrued to the State on sales tax revenue which the Oklahoma Tax Commission [Commission] collected for it and deposited with the State Treasurer [Treasurer] in a revolving fund account kept pursuant to the statutory regime then in force¹ and

(b) attributes “vendor” status to the Commission.

Today’s pronouncement rests on a legal theory different from that applied by the Court of Appeals, but reaches the same result. Its ultimate conclusion is that no recovery of interest earned on the City’s share of the invested revolving account revenue is possible because all funds from which payment could have been made have now been exhausted.

8. Funds for which the state agency acts as custodian ...”

I cannot join the court’s pronouncement for the reasons expressed in my dissent from the opinion in a related appeal, The City of Oklahoma City v. The Oklahoma Tax Commission, Okl., 789 P.2d 1287 [1990], decided this date. I would grant certiorari to dismiss this appeal as mooted by after-enacted amendatory legislation, 68 O.S.Supp.1989 §§ 1373 and 2702,² based on (a) the City’s unqualified confession (on certiorari) that the legal issues pressed below in its declaratory judgment suit against the Treasurer and the Commission are no longer lively and (b) the Treasurer’s report to this court that there are no funds in any account from which a recovered interest could be paid. I would direct the district court to order its record memorialized on remand to show that this controversy became moot while on certiorari to the Court of Appeals as a result of after-enacted legislation and unavailability of funds from which the liability in contest could be paid.

1 . 68 O.S.Supp.1986 § 2702.

2 . Okl.Sess.L.1989, Ch. 168, approved May 8, 1989, eff. Oct. 1, 1989 (68 O.S.Supp.1989 § 1373) and Nov. 1, 1989 (68 O.S.Supp.1989 § 2702).