In Re the Purchase of the Suntide Inn Motel , 1977 Okla. LEXIS 529 ( 1977 )

BARNES, Justice:

The Oklahoma Department of Corrections was authorized by House Bill No. 2006,¹ Second Session, Thirty-fifth Oklahoma Legislature, to acquire and build two or more community treatment center facilities within the State. In addition, the same session of the Legislature enacted House Bill No. 1737² appropriating certain monies to the State Board of Public Affairs and authorizing the acquisition of the necessary land to construct the facilities authorized in House Bill No. 2006. Pursuant to that legislative authority, the Department of Corrections began an extensive site selection process.

On December 17,1976, the State Board of Public Affairs entered into a contract with Suntide Inn Operating Corporation (seller) for acquisition by the Board of Corrections of the Suntide Inn Motel property, located at Northwest 39th Street Expressway and Interstate 240 in Oklahoma City, as the site of one of the facilities.

Thereafter, the City of Oklahoma City informed the State and its agencies that should the State attempt to use the property as a community treatment facility, without submitting the proposed site to the Oklahoma City Planning Commission for approval pursuant to 11 O.S.1971, § 1420, the City would institute proceedings to enjoin such use. For this reason the Board of Corrections and the Board of Affairs (Petitioners), as agencies of the State, brought this original proceeding by and through Larry Derryberry, Attorney General of Oklahoma, asking this Court to assume original jurisdiction pursuant to Article VII, § 4, Oklahoma Constitution, and seeking a judicial determination of the legal question presented.

In view of the public importance of this matter and the need for an early decision, we have decided to assume original jurisdiction. Morrison v. Ardmore Industrial Development Corp., 444 P.2d 816 (Okl.1968); Application of County Courthouse Building Commission, 403 P.2d 501 (Okl.1965).

As a general rule a State governmental body is not subject to local zoning regulations or restrictions. Rutgers, State University v. Piluso, 60 N.J. 142, 286 A.2d 697 (1971); Nowack v. Department of Audit and Control,% 72 Misc.2d 518, 388 N.Y.S.2d 52 (1973).

Nowack, supra, involved an action for a declaratory judgment and injunctive relief, in which plaintiffs sought an order restraining the Division of Youth, Executive Department of the State of New York, from purchasing premises within the city known as 50 Browncroft Boulevard for a youth center to house, under adult supervision, some three to seven youths, who needed help for corrective or rehabilitative purposes. The property was situated in an R-l residential district under the city zoning ordinance in which the proposed use was not permitted. The State had not made, nor did it intend to make, any application to the city zoning authorities for approval of the use. The Court said therein:

“The crux of the complaint is that the contemplated use violates the building and zoning ordinances of the city and that without proper zoning approval the acquisition of the property by the state for the contemplated use is illegal and void. In creating the Division for Youth the legislature directed that, as one of its functions, youth centers be established, operated and maintained in order to prevent youth delinquency and youth crime. (Executive Law, § 501). It appears that this property is being acquired to carry out such purpose. The Rochester Zoning Ordinance would have the effect of ‘thwarting the state’s policy’ as expressed in the Executive Law of providing for youth centers to prevent delinquency and crime and ‘insofar as it conflicts and hinders an overriding State Law and policy * * * (it) is void * * *.’ (cases cited). The Division for Youth is entitled to an exemption from the zoning ordinances of the City of Rochester to operate a youth center and is not required to obtain zoning approval or other consents.”

In Rutgers, supra, it was held that Rut-K. gers University was an instrumentality of the State and, as such, immune from local zoning ordinances in its choice of site for housing facilities for students. The Court therein stated in Rutgers, supra:

“With regard to a state university (passing for the moment the matter of any peculiar status of Rutgers), there can be little doubt that, as an instrumentality of the state performing an essential governmental function for the benefit of all the people of the state, the Legislature would not intend that its growth and development should be subject to restriction or control by local land use regulation. Indeed, such will generally be true in the case of all state functions and agencies.”

See also Bloomfield v. New Jersey Highway Authority, 18 N.J. 237, 113 A.2d 658 (1955), in which the New Jersey Supreme Court concluded that an instrumentality of the State, such as the Highway Authority, should be immune from local zoning ordinances if the following criteria are met:

1. The project is a State project for a public use;

2. The public purpose is an essential governmental function;

3. The public need for such a project is urgent;

4. The public goal could be completely thwarted by the intervention of local communities; and

5. The history or statute is devoid of any indication of legislative intent or purpose that such an important State wide facility should be so restricted.

In the instant case the final rehabilitation of prisoners at a community treatment center prior to release to society is a public concern and is an essential governmental function necessary for the welfare of the State and its people. We think it is obvious that the legislative goal as provided in House Bill No. 1737 and House Bill No. 2006 would be thwarted if the City Planning Commission was permitted to negate the planned location of the center.

Here, Oklahoma City does not question the general rule of State immunity, but contends that 11 O.S.1971, § 1420 ³ specifically requires the State to submit its proposed site within their city limits to the City’s Planning Commission for its approval or rejection. We do not agree. Such an intention is not plainly expressed or clearly implied in reading § 1420, supra. See Davidson County v. Harmon, 200 Tenn. 575, 292 S.W.2d 777 (1956), where the Tennessee Supreme Court stated:

“The sovereign (State of Tennessee) is not bound by a statute unless it be expressly stated in the statute that the sovereign is to be bound. . . . This rule is recognized as far back in this state, as State v. Crutcher’s Adm’r., 32 Tenn. 504, at page 509, where the Court there quoted from Mr. Justice Story to this effect:

“ ‘Where the government is not expressly, or by necessary implication, included, it ought to be clear, from the nature of the mischief to be redressed, or the language used, that the government itself was in contemplation of the legislature, before a court of law would be authorized to put an interpretation upon the statute.’ ”

The Tennessee Court went on to quote from a Pennsylvania case, Jones v. Tatham, 20 Pa. 398, in part as follows:

“ ‘The general business of the legislative power is to establish laws for individuals, not for the sovereign; and, when the rights of the commonwealth are to be transferred or affected, the intention must be plainly expressed or necessarily implied.’ ”

The language of § 1420, supra, does not specifically refer to “state”, public building, structure, or other governmental enterprise; neither does the language providing for overriding the Planning Commission’s disapproval specifically or impliedly refer to the “state”.

Furthermore, even if § 1420, supra, was found expressly or by implication to restrict the sovereign State by subjecting it to municipal control, the Petitioners would still not be bound in this case because House Bill No. 1737 and House Bill No. 2006 were passed in 1976, subsequent to the City Planning Acts of 11 O.S.1971, §§ 1411-1436. Being last in point of time, the latter Act repeals the former to the extent of its inconsistency, the same being the last expression of legislative intent. Ramsey v. Leeper, 168 Okl. 43, 31 P.2d 852 (1933); Brown v. Marker, 410 P.2d 61 (Okl.1965).

Moreover, these bills are specific, and the rule is that specific legislation prevails over general legislation in case of conflict. Beidleman v. Belford, 525 P.2d 649 (Okl.1974); Parks v. Stith, 204 Okl. 625, 232 P.2d 614 (1951). Section 11 of House Bill No. 1737 specifically directed the State Board of Affairs, subject to the approval of the State Board of Corrections, to acquire for the State Board of Corrections the necessary lands for the facilities authorized in House Bill No. 2006. It is to be noted that there was no mention subjecting the choice to the approval of the City Planning Commission.

For the aforesaid reasons, this Court assumes original jurisdiction in this matter and concludes that 11 O.S.1971, § 1420, does not require the State of Oklahoma to submit its selection of a site for a community treatment center for approval of the Oklahoma City Planning Commission.

ORIGINAL JURISDICTION ASSUMED.

WILLIAMS and IRWIN, JJ., concur. DAVISON and DOOLIN, JJ., concur specially. HODGES, C. J., LAVENDER, V. C. J., and BERRY and SIMMS, JJ., dissent.

1 . The pertinent portions of House Bill No. 2006 provide as follows:

“SECTION 1. Appropriation

“There is hereby appropriated to the Department of Corrections, from any monies in the General Revenue Fund of the State Treasury, for the fiscal year ending June 30, 1975, not otherwise appropriated, the following amount, or so much thereof as may be required for the purposes specified:

“DEPARTMENT OF CORRECTIONS

“Purchase or construction of two or more community treatment center facilities 600,000.00

2 . House Bill No. 1737, appropriating certain monies to the State Board of Public Affairs, provides in Section 11:

“SECTION 11. Land acquisition

“The State Board of Public Affairs, subject to the approval of the State Board of Corrections, shall acquire for the Department of Corrections the necessary lands for the facilities authorized in House Bill No. 2006, Thirty-fifth Oklahoma Legislature, Second Regular Session.”

3 . 11 O.S.1971, § 1420, provides:

“Whenever the commission shall have adopted the master plan of the municipality or of one or more major sections or districts thereof, no street, square, park, or other public way, ground, or open space, or public building- or structure, or other government enterprise, shall be constructed or authorized in the municipality or in such planned section and district until the location, character and extent thereof shall have been submitted to and approved by the commission: Provided; That in case of disapproval the commission shall communicate its reasons to council, which shall have the power to overrule such disapproval by a recorded vote of not less than two-thirds (¾⅛) of its entire membership: Provided, however, That if the public way, ground, space, building, structure, or other governmental enterprise, be one the authorization or financing of which does not, under the law or charter provisions governing same, fall within the province of the municipal council, the submission to the planning commission shall be by the board, commission, or body having such jurisdiction, and the planning commission’s disapproval may be overruled by said board, commission, or body by a vote of not less than two-thirds (⅜) of its membership. And provided further, that if the sponsoring agency is appointive and not elected, the disapproval of the commission cannot be overridden except by a vote of not less than two-thirds (⅞) of the City Council. The failure of the commission to act within sixty (60) days from and after the date of official submission to the commission shall be deemed approval.”