Application of SEWER IMPROVEMENT DIST. No. 1, TULSA COUNTY
No. 34464
Supreme Court of Oklahoma
March 14, 1950
216 P. 2d 303
WELCH, J.
While that case involved an action to dissolve an express trust, we think the statement above quoted applicаble to the situation here involved. The cases of Hurst v. Champion, 116 Okla. 228, 244 P. 419, and Memorial Park v. Vaughan, 191 Okla. 50, 126 P. 2d 711, cited by plaintiffs, involved situations so dissimilar to the instant case that they are of little value. In Hurst v. Champion, supra, the streetcar line which was the sole consideration for the execution of the contract by the plaintiffs had been entirely abandoned, and in Memorial Park v. Vaughan, supra, the trust had been converted from a private profit sharing trust into a public nonprofit organization, and upon such conversion a contract had been made whereby the new nonprofit association was to pay the owners of shares not assenting to such change for their shares. The suit brought by plaintiffs in that case declared uрon that contract as well as upon the certificates.
In each of the above cases it is clear that the entire purpose of each trust had been abandoned, or wholly changed, without thе assent of the certificate owners bringing the actions.
In the instant case the purposes of the trust remained the same, and from the evidence it appears that the trustees were actively pursuing the policy of leasing mineral interests wherever possible in the hope of obtaining production therefrom. The trustee who testified stated that at the time of the trial they had approximately two or three thousand acres of mineral interests under lease, and that he was endeavoring to sell additional leases which he hoped would enable the trust to pay dividends. The record wholly fails to show a failure of cоnsideration, or that the purposes of the trust had been abandoned by the trustees.
Affirmed.
John R. Woodard, H. L. Smith, and Remington Rogers, all of Tulsa, for protestants.
Le Moyne Stroud, of Tulsa, for other protestants.
OPINION
WELCH, J. The Board of Directors of Sewer Improvement District No. 1 of Tulsa county, in connection with the issuance of bonds in the sum of $746,500, filed application in this court for approval of the bond issue and for a judicial determination of the incontestable validity of the bonds and the revenues pledged to their payment.
Several resident landowners of the sewer district filed рrotest and motion to dismiss the application.
Any such bonds issued are payable by assessments against individual parcels of land situated in the original district and in a large area of additional territory purportedly annexed to the original district. Session Laws 1947, pages 224, 225 and 226.
The Board of Directors seek action of this court pursuant to provisions of
Protestants urge their desire in good faith to present legal attacks on the bond issue, and also to attack the purported extension of the sewer district, or purported annexation of large areas of territory thereto. And protestants urge their right to present these issues, which they say are complicated and important, in an orderly trial in the local trial court, where all parties may have their proper day in court and with all due process.
Protestants point out that the ten days’ notice as published one time, is not sufficient to constitute due process of law and if a decisiоn in this court would adjudge incontestable validity to the bonds and the revenues pledged to their payment, that said determination here would constitute a taking of property without due process. And protestants urgе that if this court takes and exercises exclusive jurisdiction, protesting landowners would be deprived of their proper day in court in a local forum of general jurisdiction. (Protesting resident landowners have instituted such an action in the district court of Tulsa county, Oklahoma, and if this court has and exercises original
The Board of Directors by resolution have issued and sold the bonds in question or authorized the issuance and sale of the bonds to a named purchaser. And it is pointed out that a large majority of the resident voters of the district voted for such bonds, and action in this court is urged in the interest of speedy closing of the sale of the bonds.
The statute,
This court should nоt seek occasion to draw original trial jurisdiction here, away from the proper trial court. The opposite should be the fixed policy. The application of such a policy, in cases likе this, where it appears so right and proper, will better preserve the constitutional functions of both courts. And what is more important, will better preserve to all citizens their constitutional rights in responding to process and in judicially testing their rights and contentions in matters of importance.
If the bonds are valid, and applicable to all the territory involved, speedy determination thereof may be had in the litigation pending in the district court of Tulsa county, and thereafter, if occasion therefor arises, the assessments made against the property of resident landowners may be tested, all without any incontestable validity in advance in this court, and in that manner any such landowner may have his full day in court and suffer no detriment without due process of law.
Those appearing in behalf of the Board’s application refer to casеs in which this court has approved certain bond issues. University of Oklahoma Bond case, 195 Okla. 641, 161 P. 2d 447; Oklahoma A. & M. Bond case, 196 Okla. 622, 167 P. 2d 883; University of Oklahoma Bond case, 200 Okla. 442, 195 P. 2d 936, and Bonds of Planning and Resources Board, 201 Okla. 178, 203 P. 2d 415. But those applications involved statе revenue bonds, not local bond issues, and the court could and did approve such bonds, and the revenues pledged for their retirement, without creating any lien or liability of lien upon the property of any person, and there was not involved in either of those cases any question of interfering with individual or private property or property rights without due process of law, and no such question was there determined оr presented in any manner.
Those interested in the approval of these bonds also call attention to the action of this court in approving bonds of Oklahoma County Sewer Improvement District No. 3, 202 Okla. 64, 210 P. 2d 368. We have considered that opinion and do not find therein any authority against the action which we conclude we should take in this case, that is, dismissal of the application. In that case there was no prоtest or objection in any manner to the approval of the bonds. There is nothing in that decision to indicate that it could or might have deprived any interested per-
We note the contention that section 896, supra, has some unconstitutional features, and we observe the arguments for and against the contention, but we deem it unnecessary to discuss that in further detail. We rest our dеcision to dismiss this proceeding on the reasons and conclusions above set forth.
For the reasons stated, and upon the protest and motion above referred to, we deem it our duty to dismiss this application in the interest of the protection of the constitutional rights of the protestants who appeared and presented their rights to have a proper day in court in their local forum of general jurisdiction and to have complete adjudication there of their contentions without any question of lack of due process of law.
Dismissed.
DAVISON, C.J., ARNOLD, V.C.J., and GIBSON, LUTTRELL, HALLEY, JOHNSON, and O’NEAL, JJ., concur. CORN, J., dissents.
GIBSON, J. (concurring). I am of the opinion that jurisdiction was not conferred upon this court by the Act because the situation is not one in which the Legislature has the power to grant the jurisdiction. El Reno Wholesale Grocery Co. v. Taylor, Co. Treas., 87 Okla. 140, 209 P. 749.
Furthermore, even if the Legislature could grant such jurisdiction it could not do so to thе exclusion of the jurisdiction existing in the district court under constitutional grant, 15 C. J. 1130, §576 et seq.; State v. Jones, 15 Ariz. 215, 137 P. 544, and therefore the jurisdiction would be concurrent only.
Also, the approval of the bonds necessarily involves a determination of issues concerning the formation of the district, etc., whiсh involve the matter of due process (Myles Salt Co. Ltd., v. Board of Commissioners of the Iberia & St. Mary Drainage District et al., 239 U. S. 478, 485, 60 L. Ed. 392, 396, L. R. A. 1918E, 190, 36 S. Ct. 204). I do not think there was due process.
That there are issues herein involving the integrity of the district as enlarged, as well as other matters, which must be disposed of before the bond issue can be approved, appears upon the face of the proceedings herein. There can be no sufficient reason why this court, even if we have jurisdiction, should entertain jurisdiction to the exclusion of the district court where the trial of such issues properly belongs under the policy of the law.