Oklahoma City v. District Court , 168 Okla. 235 ( 1934 )

This is an original proceeding in this court instituted by the petitioner, the city of Oklahoma City, seeking a writ of prohibition to be directed to the district court of Canadian county, and Hon. Lucius Babcock, judge of that court, Frank Taylor, court clerk of that court, Thos. J. Horn, Leonard G. Lynn, Orvill Artt, Dudley B. Phillips, and Oscar A. Horn, commanding them to refrain from further proceedings in causes numbered 9291, 9292, and 9293 in that court.

The three actions in the district court of Canadian county were instituted against the petitioner for alleged damages to real estate and crops in Canadian county. Oklahoma City is situated in Oklahoma county. The basis of this action is that the district court of Canadian county does not have jurisdiction of the causes of action or the person of the petitioner for the reasons, as contended, that Oklahoma City cannot be sued outside of the county of its situs and cannot be served with summons in Oklahoma county in an action pending against it in Canadian county. No question is presented as to the correctness of the service of the summons upon the defendant if such service is authorized by law.

By reason of the importance to the public of the question presented, it will be determined on its merits rather than on a procedural question which is also presented in the briefs.

The Legislature of Oklahoma has made no provision for the venue of actions against cities, unless it has provided therefor in sections 109, 110, 111, 112, 117, or 206, O. S. 1931. Section 117, supra, provides for the venue of "every other action", meaning thereby actions the venue of which has been elsewhere provided for, except as therein provided. By its terms it is not applicable to actions the venue of which has been provided for by other sections. If the venue of the actions in question has been provided for by section 112, supra, the provisions of section 117, supra, have no application. Whether or not the venue of the actions in question has been provided for by the provisions of section 112, supra, is dependent upon whether or not the Legislature intended to include cities within the term "corporation" as used in that section. If it did so, that section provides the venue of the actions in question for they relate to causes of actions which arose in Canadian county. That section provides:

"An action, other than one of those mentioned in the first three sections of this article, against a corporation created by the laws of this state, may be brought in the county in which it is situated, or has its principal office or place of business, or in which any of the principal officers thereof may reside, or be summoned, or in the county where the cause of action or some part thereof arose."

The first three sections of the article referred to therein are sections 109, 110, and 111, supra. The words thereof, "created by the laws of this state", were evidently used to differentiate the venue of actions against the corporations sought to be provided for by the section from the venue of actions against corporations created by the laws of other states, commonly called "foreign corporations", for the venue of which provision was made in sections 115 and 125, O. S. 1931. The section (112) provides that the venue of an action against a corporation created by the laws of this state shall be (a) "the county in which it is situated", (b) the county in which it has "its principal office", (c) the county in which it has its principal "place of business", (d) the county in which "any of the principal officers thereof may reside", (e) the county in which any of its principal officers may "be summoned", and (f) the county "where the cause of action or some part thereof arose". As contended by the plaintiff herein, under the provisions of section 24, O. S. 1931, "Words used in any statute are to be understood in their ordinary sense, except when the contrary intention plainly appears, and except also that the words hereinafter explained are to be understood as thus explained". The plaintiff contends that under that rule of construction the word "corporation" in the section shall be held to apply only to private corporations and not to municipal corporations. However, the rule of construction applies equally as well to the word "situated" used in the section. The word "situated" is defined in Webster's New International Dictionary (1920), as "having a site, situation, or location; being in a relative position; permanently fixed; located; as, a townsituated on a hill." Certainly a private corporation is not "situated" In a county. While in common speech it is rarely that a city is referred to "merely as a corporation", the section in question does not refer to a corporation "merely as a corporation." It refers to a corporation situated in a county. That language is more applicable to a city than it is to a private corporation. If it was the legislative, intention that a municipal corporation should not be included in the meaning of the word "corporation", there was no reason for including in the section the word "situated", for ample provision was made for the venue of actions against private corporations by the other language used. The plaintiff contends that a city cannot be sued outside of the county of its situs. Evidently the Legislature used the word "situated" in the section with that thought in mind, that is, that cities might not be sued outside of the county of their situs, except where the cause of action or some part thereof arose in the county in which the action is commenced. That construction gives full effect to all of the provisions of the section, and that is the construction which must be given to it when it is construed with section 176, O. S. 1931, which is as follows:

"A summons against a corporation may be served upon the president, mayor, chairman of the board of directors, or trustees, or other chief officer, or upon an agent duly appointed to receive service of process; or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk or managing agent; or, if none of the aforesaid officers can be found, by a copy left at the office or usual place of business of such corporation, with the person having charge thereof."

The evident meaning of the word "corporation" in that section is to include municipal corporations. The language is susceptible of no other construction.

The contention of the city is based largely upon what it says is a rule of the common law, that a city may not be sued outside of the county of its situs. It contends that that common-law provision is the law of this state by virtue of the provisions of section 2, O. S. 1931. That section does not provide that the common law shall be the law of Oklahoma. It provides that:

"The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma; but the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally construed to promote their object."

The common law does not remain in force in Oklahoma. The common law, as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people, remains in force in Oklahoma in aid of the general statutes of Oklahoma, but not in derogation of the general statutes of Oklahoma, and statutes in derogation of the common law are to be liberally construed to promote their object. The common-law meaning of the word "corporation" must yield not only to the common-law meaning of the word "situated", but to the condition and wants of the people, as explained in the section.

We are not unmindful of the decisions of the courts of many states cited in the brief of the plaintiff, but those decisions are neither controlling nor persuasive as against a constitutional provision that every municipal corporation within this state shall have the right to engage in any business or enterprise which may be engaged in by a person, firm, or corporation by virtue of a franchise from said corporation (section 6, art. 18 of the Constitution), and statutes which authorize a municipality to go beyond the borders of the county in which it is situated and purchase, condemn, or otherwise acquire real estate, construct dams, construct artificial lakes, and otherwise damage real estate in those counties, rights which cities do not possess under the common law.

We have read with a good deal of interest the argument to the effect that this court should give the word "corporation", in the section in question, the same meaning as that given to it in article 9 of the Constitution, for the reason that the first section of article 9 of the Constitution defines the term "corporation" to exclude all municipal corporations. In Pure Oil Pipe Line Co. v. Cornish, 163 Okla. 79, 20 P.2d 1041, we held that the meaning of the word "corporation" in the Constitution is not necessarily the meaning of the word in a legislative enactment pertaining to another subject.

The plaintiff contends that under the statutes and the decisions of this court with reference to liens of laborers and materialmen, the term "corporation" does not include a municipal corporation. Be that as it may, there are many other general statutes where that term includes municipal corporations. As well might it say that the term "person" does not include municipal corporations. By the provisions of section 35, O. S. 1931, the word "person", except when used by way of contrast, includes not only human beings, but bodies politic or corporate. Section 6349, O. S. 1931, provides that all cities governed by the provisions of that chapter "shall be bodies corporate and politic." Under the statutes of Oklahoma, cities are not only political organizations but corporations, and they are given authority by the provisions of that section and power to "do all other acts in relation to the property and affairs of the city, necessary to the good government of the city, and to the exercise of its corporate and administrative powers." By the provisions of section 6350, O. S. 1931, they are given all of the authority given by the Constitution to engage in business, and every city containing a population of more than 2,000 inhabitants is given the right and power to acquire, own, and maintain, within or without the corporate limits of such city, real estate for sites and rights of way for public utility and public park purposes, and for the location thereon of waterworks, electric light and gas plants, aviation airports, hospitals, quarantine stations, garbage reduction plants, pipe lines for the transmission and transportation of gas, water, and sewerage, and for any plant for the manufacture of any material for public improvement purposes, public buildings, and for all such purposes have the power to exercise the right of eminent domain, either within or without the corporate limits of such city, and to establish, lay, and operate any such plant or pipe line upon any land or right of way taken thereunder; and have and exercise the right to manufacture any material for public improvement purposes, and to barter or exchange the same for other material to be used in public improvements in such city, or to sell the same to other cities for like purposes. Under the provisions of section 6403, O. S. 1931, a city council may purchase or condemn and hold for the city, within or without the city limits, all necessary land for hospital purposes and waterworks, and erect, establish and regulate hospitals, workhouses and poorhouses, and provide for the government and support of the same. Additional rights are granted a city under the provisions of article 4, chapter 33, O. S. 1931. These and many other rights granted to the city of Oklahoma City by the provisions of the statutes of this state are in excess of the rights of such a city at common law, and they show the necessity for the legislative provision that has been made.

For many years actions were required to be brought in the county wherein service could be had upon the defendant. That rule has been relaxed. It was relaxed by the provisions of section 117, supra, to provide that they may be brought in the county in which some one of the defendants resides or may be summoned. It was relaxed by the provisions of section 206, supra, as to counterclaims and set-offs. It was relaxed by the provisions of sections 109 and 110, supra, as to actions pertaining to real estate. It was relaxed by the provisions of section 111, supra, as to actions for the recovery of fines, forfeitures, and penalties. It was relaxed as to foreign corporations by the provisions of sections 115 and 125, supra. All of the inconvenience and watchfulness of those charged with their complained of by the plaintiff in this case would exist in any of those cases. It was within the legislative power to provide for the venue of actions against cities. After the Legislature had extended the powers of cities, as hereinbefore set forth, it was evidently of the opinion that the venue of actions against cities, which arose in whole or in part in a county other than that of the situs of the city, which of necessity would be actions for damages caused other than by governmental functions, could be maintained in the counties in which those actions or some part thereof arose. It so provided in section 112, supra.

It is contended that the title to chapter 83, Session Laws 1913, is insufficient. That title is as follows:

"An act amending section four of article one, chapter sixty-eight, Session Laws 190708, providing for the bringing of actions against domestic corporations in any county where the cause of action, or some part thereof, arose."

We find no insufficiency therein. It shows an intent to amend a section to provide for the bringing of actions against domestic corporations in any county where the cause of action or some part thereof arose.

It is contended herein that the language used by this court in Oklahoma Railway Co. v. Boyd, 140 Okla. 45, 282 P. 157, and Board of Com'rs of Kiowa County v. Kiowa Nat. Bank,141 Okla. 271, 284 P. 634, is dictum and not controlling as to the issues presented herein. The law announced therein was stated in the syllabus, as prepared by the court, under the statute which requires a statement of the law involved in the case in a syllabus. It is in no wise dictum. In Board of Com'rs of Kiowa County v. Kiowa Nat. Bank, supra, this court held that, there being no statute fixing the venue of an action against a county in express terms, the county is subject to the general provision of the law fixing the venue of civil actions, and that the action may be maintained in the county in which the cause of action or some part thereof arose. We see no reason for departing from that construction of the law. It is applicable to the

Under the provisions of section 112, supra, an action against a corporation created by the laws of the state may be brought "in the county where the cause of action or some part thereof arose." The causes of action pending in the district court of Canadian county arose in that county. That court has jurisdiction of those causes of action, and since it has jurisdiction of those causes of action, summons was issued to Oklahoma county for the city of Oklahoma City (section 167, O. S. 1931) and service thereof gave the district court of Canadian county jurisdiction of the persons of the city of Oklahoma City.

The alternative writ is discharged and the prayer of the plaintiff for a writ is denied.

RILEY, C. J., CULLISON, V. C. J., and OSBORN, BAYLESS, BUSBY, and WELCH, JJ., concur. SWINDALL and McNEILL, JJ., dissent.

On Rehearing.