In rе Application of H. L. GOODWIN, Sr., Charles Hathaway and Pat Ballew, as Trustees of the Cherokee County Home Finance Authority and Board of County Commissioners of Cherokee County, Oklahoma, as Governing Board of the Beneficiary of the Cherokee County Home Finance Authority, Petitioners
No. 53417
Supreme Court of Oklahoma
July 12, 1979
Construction [qua owner of the equipment in suit] took no appеal from that part of the judgment which grants the Ft. Smith Bank a security interest in some of its equipment here in litigation. Because Denwalt is without standing to assert error in that adjudication [since she has been adjudged to have no lien and hence no litigable interest in the equipment], the trial court‘s determination in favor of the Ft. Smith Bank must be regarded as unchallengеd. It may not be disturbed on this appeal brought by Denwalt only.18
Trial court‘s judgment, found free from error, is affirmed.
LAVENDER, C. J., IRWIN, V. C. J., and WILLIAMS, HODGES, SIMMS and HARGRAVE, JJ., concur.
Nathan H. Young, III, Asst. Dist. Atty., Tahlequah, Okl., for Bd. of County Com‘rs of Cherokee County, appellee.
Robert L. Bailey, Norman, Okl., for Cleveland County Home Loan Authority.
Robert S. Gee of Wallace & Owens, Miami, Okl., for Ottawa County Home Finance Authority.
Richard W. Lоck, Jay, Okl., for Delaware County Home Finance Authority.
Gary E. Payne, Atoka, Okl., for Coal County Home Finance Authority and Atoka County Home Finance Authority.
Michael P. Sullivan, Leach, Sullivan, Sullivan & Green, Duncan, Okl., for Stephens County Home Finance Authority.
Georgina B. Landman, Williams, Landman & Savage, Tulsa, Okl., for Builders Ass‘n of Metropolitan Tulsa.
Darven L. Brown, Smith, Brown, Martin & Adkisson, Tulsa, Okl., Thomas G. Hilborne, Jr. of Jones, Givens, Brett, Gotcher, Doyle & Bogan, Inc., Tulsa, Okl., for Tulsa County Home Finance Authority.
Farrell M. Hatch, Spears, Hatch, Mickle & Wilhite, Durant, Okl., for Bryan County Home Finance Authority.
Michael T. Norman, Norman & Watkins, Muskogee, Okl., for Muskogee County Housing Authority.
John R. Carle, Carle & Tanner, Claremore, Okl., for Rogers County Home Finance Authority.
James W. Rodgers, Jr., Rodgers & Allen, Holdenville, Okl., for Hughes County Housing Finance Authority.
John T. Spradling, Stephen P. Friot, Spradling, Stagner, Alpern, Friot & Jones, Oklahoma City, Okl., C. D. Northcutt, Northcutt, Northcutt, Raley, Clark, Gardner, Hron & Northcutt, Ponca City, Okl., Edward L. Jacoby, Houston & Klein, Tulsa, Okl., for Continental Federal Sav. and Loan Ass‘n, Frontier Federal Sav. and Loan Ass‘n and Sooner Federal Sav. and Loan Ass‘n.
OPALA, Justice:
This is an appeal from judgment rendered in a proceeding instituted under
If the matter sought to be presented by this appeal could be decided by answering the narrow questiоn posed in total isolation from the very bedrock of the judgment,3 there would be little, if any, opposition from amici curiae [Continental, Frontier and Sooner Federal Savings and Loan Associations] who contend that the appeal does not come in a sufficiently adversary posture because there was but a friendly suit below and nо briefs in opposition were filed by appellee here. We are urged either to dismiss the appeal or confine our review to the narrow issue by the resolution of which Authority claims to be aggrieved. Amici rely, inter alia, on our opinion in Application of Fun Country Development Authority4 for their attempt to secure dismissal of this appeal or, in the alternative, to strictly circumsсribe the litigable issues to the narrow question presented. Amici‘s efforts stand on fragile underpinnings. Since they were not parties below, they lack standing to alter the posture of appellate litigation5 by injecting nonjurisdictional issues of their own.6 Whenever widespread interest may demand an immediate resolution of some vital public law issue, no impediment arising from infirmity in the procedural posture of the case—however well recognized in purely private litigation—will bar our exercise of reviewing powers.7
Were we to accede to amici‘s argument and refuse to pass expressly on any aspect of the loan-delivery plan before us, our affirmance of the judgment under consideration, though in effect an implicit approval of that plan, would more than likely leave the marketplace in uncertainty and with lingering doubts. The unanswered questions inevitably would be pressed on us for
The appeal was timely brought here. Want of answer brief from the appellee or the existence of other reasons which cause the adversary process on appeal to fail cannot afford a basis for dismissal unless it be shown that the action was collusive or fictitious. Neither fictitiousness nor collusion may be inferred from the mere fact that the suit was a friendly one and was pursued without rancor. The power of the court to dismiss a case as fictitious should not be exercised unless the fictitious character appears either from the pleadings or from satisfactory evidence. This is especially true where as here, persons who intimate that the suit is fictitious failed to appear, make their objection and avail themselves of the point in the trial court.8 Neither by affidavit nor by other proof did amici show us facts sufficient to establish the fiсtitious or collusive character of the instant action.
This case is clearly distinguishable from Fun Country. It is an appeal in which review is affordable by right, whereas Fun Country was an original proceeding in which this court may exercise broad discretion in deciding whether to assume, or decline to accept, jurisdiction. Although the issues before us are not sharply drawn and there is an absence of that high level of adverseness which would provide an ideal forensic climate for adjudication, the appeal is properly here and our review cannot be avoided.9
We hold that this appeal is properly before us and that our task here is to review the record to determine if appellant is entitled to a сomplete and meaningful relief under its petition in error.10 Amici‘s motion to dismiss is accordingly denied.
This litigation was no doubt precipitated by our decision in Shotts v. Hugh11 where we reaffirmed our commitment to the view that providing safe, decent and adequate housing for the people in this state constitutes a proper public function. We found in Shotts a fatal [vitiating] defect in the virtually unrestricted loan-to-lenders delivery system. The trust indenture was devoid of any limitation on who could borrow funds from proceeds of mortgage revenue bond sale. Shortly after our decision in Shotts the legislature amended the Public Trust Act12 by expressly authorizing trusts to be created for the purpose of providing financing of public housing projects. The vices which led to our invalidation of the loan-to-lenders vehicle seem to have been conspicuously excised from the Authority‘s program under consideration. The new features included are: [a] an ascertainment of the low-to-moderate income class within the county based upon an analysis of a demographic study and on other available data13 [b] establishment of guidelines for
Amici contend that the restrictions are still so inadequate that we should again find, as we did in Shotts, that the present system is as impermissible as that found in “Loans-to-Lenders Bond 1976 Series“. Among the vices called to our attention are the following “unanswerable questiоns“: [1] What proportion of the residential housing market would be eligible for loans under the maximum income criterion ($21,500 for a family of four)? [2] To what extent is the eligible market already being served by existing home financing sources? [3] What is the maximum value of property which may be financed? [4] Can duplexes or other income property qualify? [5] Can bond proceeds be borrowed to refinance existing loans? [6] Can any one borrower make more than one loan from the proceeds of a bond issue?
These “unanswerable questions“, although well reasoned, are not all left to conjecture. The loan-delivery system provides detailed restrictions on the maximum-income level for bоrrowers. The demographic study made by the Authority has adequately identified the need to be met. The trust indenture clearly sets out the requirement that dwellings financed under this program must be owner-occupied. A duplex in which one side was either rented or vacant would not qualify as owner-occupied. Other questions, which may seem unanswered, do not аppear to be of sufficient gravity and magnitude to authorize a judicial destruction of the legislative intent by declaring the loan-delivery system here under consideration lacking in public purpose. Courts do not concern themselves with the merits, wisdom or advisability of legislative enactments but only with their meaning and validity.14 No matter what our individual prefеrence may dictate, as a service of government that is constitutionally relegated to a position of detachment and neutrality, we must resist personal temptation and remain true to our mission when forces competing in the marketplace call on us either to advance and promote or to hinder and retard implеmentation of legally unassailable legislative experiments in economic policy making.
Amici advance a far more convincing argument for monitoring the lending operations of housing trusts than they do against the public purpose nexus of the Authority‘s program. Their appealing plea might be more appropriately presented to a legislative committee.
The scheme we considered in Shotts may be characterized broadly as one providing lenders with unrestricted publicly-generated funds. In this sense the scheme lacked the necessary public purpose nexus. It was therefore struck down. The safeguards mandated in Shotts [the financing of programs to upgrade sub-standard
We reject the Authority‘s contention that it may operate beyond the geographical boundaries of the county. This contention is based on the premise that a public housing program may draw its powers from general trust law unrelated to the provisions of the Oklahoma Housing Authorities Act of 1965. We cannot accede to this view. Housing authorities are a creature of the entity which gives them birth. Under the provisions of
The demographic conditions in each county are different. While we permitted all other housing authorities to file briefs amici curiae, we dеnied their plea in intervention, mindful as we were that with differences in demographic data and financing characteristics, each loan-delivery system should be considered on its own. We therefore reaffirm our previous order denying intervention.15
We reaffirm our total commitment to Shotts and Fun Country. This trust meets the necessary restrictions to pass the “public purpose” muster. Its loan-delivery system is adequately designed to promote financing of housing for low-to-moderate income groups—an authorized public purpose. The questions which remain unanswered are not sufficient in magnitude and gravity to vitiate, under the Shotts criteria, the rational relationship between this financing program and the public purpose of providing a loan-delivery system for the low-to-moderate income groups within the county.
Deciding as we do today that the Authority‘s loan-delivery system appears legally sufficient to meet its public purpose—an issue thrust on us only obliquely and by adroit implication—we do not give approval to district court litigation of housing trust issues in a forensic framework so transpаrently friendly as to leave the judge virtually without a choice between viable and available competing alternatives. Whenever an exercise of choice may appear hampered or limited, the trial court should call upon the Attorney General to make an appearance in the case. Our public trusts are to be treated as descendants of charitable uses.16 In this arena of public law the Attorney General has both a time-honored place and the necessary power to discharge the responsibility which resides in that office.17 Had amici urged here that we call upon that official for a brief or that we remand the casе for rehearing with his participation, we might have been inclined to grant their motion.
We find no errors in the trial court‘s judgment. The public purpose has been met and the restriction to the geographical
Affirmed.
LAVENDER, C. J., IRWIN, V. C. J., and WILLIAMS and SIMMS, JJ., concur.
HODGES and HARGRAVE, JJ., concur in part and dissent in part.
HODGES, Justice, concurring in part, dissenting in part.
The petitioners present only one appealable issue which is the trial court‘s ruling that restricted the activities of the Authority to the geographical boundaries of Cherokee County, Oklahoma. I concur with the majority opinion of the Court which affirms the trial court‘s judgment on this issue.
I dissent to that part of the opinion which reviews and affirms the judgment as to the validity of the trust creating the Cherokee County Home Finance Authority. That issuе has not been presented in an adversary posture.
I would adhere to the principles announced by our Court in Application of Fun Country Development Authority, 566 P.2d 1167 (Okl.1977) that we will issue no advisory opinions where no controversy is presented and no contest or challenge is made.
I am authorized to state that HARGRAVE, J., concurs in this concurring in part, dissenting in part opinion.