Territory of Oklahoma Ex Rel. Jones v. Hopkins

1899 OK 124, 59 P. 970, 9 Okla. 133, 1899 Okla. LEXIS 13

• Court: Supreme Court of Oklahoma
• Decided: November 7, 1899
• Status: Published

Opinion

Opinion of the court by

Bainer, J.:

It appears from the answer of the respondent herein, that no objection is made to the regularity of the issuance of the bonds involved in this proceeding. But, the refusal of the auditor to register and to certify to the regularity of the issuance of the bonds, as appears from 'his answer, is based upon the following grounds: (1) That under article 2, chapter 25, of the Session Laws of 1897, the county had no authority to issue the bonds because the act applies to municipalities only, and that Logan county was not then and is not now a municipality, as was contemplated in said act. (2) That the purpose and effect of the issuance of said bonds would be the refunding of the outstanding bonds of said county not yet due, but merely subject to the option of redemption on the part of the county. (31 That section 8, chapter 7, of the Session Laws of 1895, under which said bonds have been issued, in the title of the act provides for the funding of outstanding warrant indebtedness, and does not provide for the refunding of outstanding bonded indebtedness.

These reasons assigned by the respondent for refusing to register and certify to the regularity of the issuance of the bonds are wholly insufficient. '

Section 5 of chapter 7 of the Session Laws- of 1895, which authorizes and requires the auditor to register and certify to the regularity of the issuance of bonds, reads as follows:

“A record shall be kept by the auditor for all territorial bonds issued under this act, and by the different county clerks for the other bonds, showing -the date, number and amount thereof, to whom and on what account issued, and when the .same become due, and all bonds issued under the provisions of this act shall be •submitted to the auditor of the Territory and he shall register the same in his office and shall certify to the regularity of the issue of the same on the back of each bond. Upon 'the registration of such bonds as aforesaid, the auditor shall certify the.fact to the clerk of the municipality or district issuing the bonds, whose duty it shall be to enter the same upon the proper records of said municipality, and the bonds themselves shall be returned to the treasurer of said municipality.”

The duties imposed upon the auditor Dy the provisions of the statute involve the performance of a purely ministerial duty and not a judicial function, The auditor of this Territory does not possess and1 cannot possess any judicial power. Neither could the legislature confer any judicial power upon the auditor or any other executive or ministerial officer in this Territory. Section 9 of the Organic Act, expressly provides that all judicial power in this Territory shall be vested in a supreme court, district courts, probate courts, and justices of the peace. And, hence, the auditor has no power or auth- oi'ity to pass upon or even question the validity of the bonds involved in this action. His duties are simply to pass' upon the regularity or irregularity of the issuance of the bonds. And, it being admitted by the auditor that the bonds in question were regularly issued, it was and is his duty to register them and certify to the regularity of their issuance.

It is first asserted by the respondent that the issuance of $¡18,000 of bonds mentioned in the writ of the relator is illegal, for the reason that under article 2, of chapter-5, of the Session Laws of 1897, is- applicable only to municipalities, and that 'Logan county is not a municipality as contemplated in said act.

Judge Dillon defines a municipal corporation to be in its strict and proper sense a body politic and corporate, established by law to assist in the civil government of the country, but, chiefly, to regulate and administer the local or internal affairs of aJ city, town or district which is incorporated. (1 Dillon on Municipal Corporation, sec. 19.)

Abbott, in his Law Dictionary, defines a municipal corporation as embracing that class of corporations which are created to administer local government subordinate to the general sovereignty of the state or kingdom, which includes cities, towns, incorporated villages, boroughs, and other forms of public corporations.

In Mayor of Nashville v. Ray, 19 Wallace 475, the supreme court of the United States has declared that -a municipal corporation is a subordinate branch of the domestic government of a state.

In Board of County Commissioners of Greer County v. Watson, 7 Okla. 174, Obief Justice Burford defines a county to be, “an involuntary, political and civil division of the Territory, created by the statute to aid in the administration of governmental affairs, and-possessed of a portion of the sovereignty.”

A county is defined, in section 1, of article 1, of chapter 21, of the Statutes of 1893, as follows: “That each organized county within this Territory shall be a body corporate and politic.”

From these definitions we are clearly of the opinion that Logan county is a municipality within the meaning of said act.

The second contention of the respondent is that the purpose and effect of the issuance of said bonds would be the refunding of the outstanding bonds of said county not yet due, but merely subject to the option of redemption on the part of the county. The bonds involved in this action were issued under section 8, of chapter 7, of the Session Laws of 1895, which provides as follows:

“Whenever any bonds shall become due, and there is not sufficient money in the treasury to pay the same, the proper officers may proceed to issue bonds under the provisions of this act, and apply'the proceeds- of the sale thereof in payment of said matured bonds. The procedure in such cases shall be the -same as that prescribed in the case of refunding warrant indebtedness.”

Section 3, of said act, provides the mode and manner of the issuance of the bonds. And said section, among other things, provides that the municipality shall proceed before the district court of the county and make a showing and ask the court to hear and determine the amount of the outstanding indebtedness of said municipality, and to sign the bond® to be issued in payment thereof.

It is admitted by the pleadings in this case that the proceedings of the district court were regular in all respects.

The court having determined the validity of the bonds involved in this proceeding, and having decreed that they are valid obligations and issued in strict conformity with the laws of this Territory, and no objections or exceptions: having been made to the issuance thereof, and no appeal having been taken therefrom, the decree and judgment of the court is, therefore, final and conclusive upon all matters put directly in issue, tried and determined in that proceeding. This doctrine has been clearly enunciated and uniformly upheld by the decisions of the supreme court of the United States.

In Southern Pacific Railway Company v. United States, 168 U. S. 24, Mr. Justice Harlan, in a very exhaustive and learned opinion, announces the following rule:

“The general principle announced in numerous cases is that a right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of action, the right, question or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified. This very rule is demanded by the very object for which civil suits have been established, which is to secure the peace and repose of society by the settlement of matters capable of judicial determination. Its enforcement is essesntial to the maintenance of social order; for the aid of judicial tribunals would not be invoked for the vindication of rights of person and property, if, as between parties and their privies, conclusiveness did not attend the judgments of such tribunals in respect of all matters property put in issue and actually determined by them.”

Among the cases in this court that illustrate the general rule are: Hopkins v. Lee, 19 U. S. 6 Wheat. 109; Smith v. Kernochen, 48 U. S. 7 Howard 198; Thompson v. Roberts, 65 U. S. 24 Howard 233; Washington, A. & G. S. P. Ry. Co. v. Sickles, 24 Howard 333; Russell v. Place, 94 U. S. 606; Cromwell v. Sac County, 94 U. S. 351; Campbell v. Rankin, 99 U. S. 261; Mason Lbr. Co. v. Buchel, 101 U. S. 636; Bissell v. Spring Valley Township, 124 U. S. 225; Johnson Co. v. Wharton 152 U. S. 253.

- In Cromwell v. Sac County, it was held that a judgment upon the merits constitutes an absolute bar to a subsequent suit upon the same cause >of action in respect to every matter offered and received in evidence, or which might have been o<ffered -to sustain or defeat the claim in controversy.

In Russell v. Place, the court said that: “A judgment of a court of competent jurisdiction, upon a question directly involved in one suit, is conclusive as to that question in another suit between the .same parties.”

In Bissell v. Spring Valley Township, it was held that an adjudication, in an action on coupons of municipal bonds, sustaining the defense that the munioipality never issued the bonds, and that the bonds were not its legal obligations^ was conclusive in a subsequent action brought by the same party on different coupons of the same bonds.

It appears from the petition of the relator that $65,-000 of the bonds which were refunded were issued under the provision® of article 2, of chapter 10, of the Statutes of 1890, of this Territory, in- two installments as follows: $20,000 being issued on September 8, 1891, bearing interest at the rate of 6 per cent, per annum, payable annually, and being absolutely due, and payable ten years' from their date, but subject to the right of the county to mature and redeem the same at any time -after three years from date; and $45,000 dated January 2, 1893, bearing interest at the rate of 6 per cent, per annum, ' payable annually, and being absolutely due and payable ten years from their date, .subject to the right of the county to mature and redeem the same -at any time after three years from date.

Section 8 of the-Act of 1890 reads as follows:

‘‘Such bonds shall be redeemable at the pleasure of the county at any time after the -expiration of three years from the date of their issue, and most be redeemed on or before the expiration of ten years from the date of their issuance.”

It will thus be seen that the right and power of siaid county to mature .and.redeem $65,000 of these bonds, after the expiration of three years from the date of their issue, is expressly conferred by said act. It is a right that the county can exercise at its pleasure, and, no subsequent legislation could deprive the county of this right which entered into the contract and became a pairt thereof, at the date of the issuance of the bonds. To bold that the county has no power to exercise this right would be, in effect, to impair the obligation of the contract, which is forbidden by the federal constitution, and therefore, would be void.

It is also asserted by the respondent that the bonds sought to be refunded are not “due” and “matured” until the expiration of the time for which, they were issued, within the meaning of section 8 of the act of 1895.

Section' 8 of the act of 1895, among other things, provides: “That whenever any bond shall become due, and there is not sufficient money in the treasury to pay the same, the proper officers may proceed to issue bonds under the provisions of this act, and apply the proceeds of the sale thereof, in the payment of said matured bonds.”

The. language of the statute expressly provides that the bonds shall be redeemable at the pleasure of me county at any time after the expiration of three years from the date of their issue, and hence, the obligation would be “due and matured” whenever the county by virtue of said statute had a right to redeem them. The county was compelled to redeem them on or before the expiration of ten years from the date of their issue. ’ The statute conferred this right and privilege solely for the benefit of the county.

A bond or other obligation is due or matured whenever the creditor has the right to enforce its payment, or where the debtor has the option to declare' the obligation due and has exercised that privilege. The words “due” and “matured” are manifestly used as synonymous words.

It further appears that $18,000 of the bonds were issued on May 2, 1898, bearing interest at the rate of 6 per cent, per annum, becoming' absolutely due and payable ten years after their date, subject to the right of the county to mature and redeem the same at any time after their issuance.

These bonds were issued under- the provisions of article 2 of chapter 5, of the Session Laws of 1897, which, among other things, contains the following provisions:

“Such bonds shall be payable in lawful money of the United States * * and shall run for such a time, not exceeding twenty years, as may be agreed upon between the judgment creditors of the municipality, and shall be subject to call by the municipality for payment ■at any time.”

It further appears from the petition of the relator that it has made a call for the payment of these bonds on July 1, 1899.

We can perceive no legal distinction between the intent and purpose of the term®, “subject to call by the municipality at any time,” and “redeemable at the pleasure of the county.” An obligation payable “on call” is equivalent to the expression “on demand” or “when demanded.”

In volume 5 of the American and English Encyclo-paedia of Law, second edition, page 107, it is stated:

“There is no l,ega.l distinction between an obligation payable on demand, or when demanded, and one payable on call, or when called for. In each case the debt is payable immediately and the obligors are bound to pay interest from the date of the obligation.”

We are, therefore, clearly of the opinion that all these bonds were “due and matured” within the meaning of section 8 of the act of 1895.

The only remaining contention to be considered is, that the title of the act of 1895, does not refer to the refunding of outstanding bonded indebtedness, but only to “outstanding warrant indebtedness.” There is no merit in this contention. Therte is nothing in our Organic Act or statute which requires that the title of the act should be expressive of its contents. In the absence of any such provision either in the Organic Law or other statutory provision, it is not essential for the purpose of upholding the validity of the law. And hence thle title is only to be referred to in case of ambiguity arising out of the body, of the law.

In Choctaw, Oklahoma and Gulf Ry. v. Alexander, 7 Okla. 579, this court held that:

“The title of an act of the legislature will be looked to a.s one of the mean® of discovering the purport of a doubtful act, but this will only be in cases of ambiguity and uncertainty in the provisions of the act, and, if need be,-to aid in its construction, but it will never be held to control the plain and unambiguous meaning of a statute, nor to explain or restrain its- positive provisions.”

In Hadden v. Barney, 5 Wallace 107, Mr. Justice Field, in delivering the opinion of the supreme court of the United States, said:

“The title of an act furnishes little aid in the construction of its provisions. Originally in the English courts the title wais held to be no part of the act. 'No more,’ says Lord Holt, 'than a title of a book is part of the book.’ — (Mills v. Wilkins, 6 Mod. 62.) It was gene/rally framed by the clerk of thje house of parliament, where the act originated, and was intended only ■as a means of convenient reference. At the present day the title constitutes a part of the act, but it is still considered only as a formal part; it cannot be used to extend or to restrain any positive provisions contained in the body of the act. It is only when the meaning of these is doubtful that resort may be had to the title, and evien then it ha.s little weight. It is seldom the subject of special consideration by the legislatures.”

In this case there is no doubt that the legislature intended to provide for and regulate the issuance of refunding bonds in certain cases, hence there is no occasion to refer to the title of the act for aid in its explanation.

This disposes of all the questions raised by the pleadings as well a® the matters urged and presented for our consideration by the briefs of the counsel for the relator.

It is, therefore, ordered, considered and adjudged that th.e peremptory writ of mandamus be, and the same is, hereby granted as prayed for in the petition of the relator, at the cost of the respondent.

All of the Justices concurring.