Board of Com'rs of Canadian County v. State Highway Commission

• Decision Date: 03 March 1936
• Docket Number: 24080.
• Citation: 55 P.2d 106,176 Okla. 207,1936 OK 195
• Parties: BOARD OF COM'RS OF CANADIAN COUNTY et al. v. STATE HIGHWAY COMMISSION et al.
• Court: Oklahoma Supreme Court

55 P.2d 106

176 Okla. 207, 1936 OK 195

BOARD OF COM'RS OF CANADIAN COUNTY et al. v. STATE HIGHWAY COMMISSION et al.

No. 24080.

Supreme Court of Oklahoma

March 3, 1936

Syllabus by the Court.

1. The law in force at the time a contract is made, and applicable thereto, becomes a part of the contract as fully as if its provisions had been incorporated in said contract, and that portion of the contract, to wit, "said party of the first part agreeing to complete the hard surfacing of the said highway at the earliest time possible," must be construed with the Statutes to read as follows: "Said party of the first part agreeing to complete hard surfacing of the said highway at the earliest time possible, in such a manner as shall be to the best interest and advantage of the people of this State"-hence the discretionary powers of the defendants, becomes a continuing function in favor of the people of the state.

2. It is an elementary rule of law that governmental duties or power cannot be contracted away, and it is the paramount duty of highway officers in determining the location or routes of a state highway to consider the primary interest of the state at large, and not that of any particular locality.

3. The state highway commission will not be required by mandamus to construct a highway which it may justifiably refuse to construct.

Appeal from District Court, Oklahoma County; Earl Welch, Trial Judge.

Action by the Board of Commissioners of Canadian County and others against the State Highway Commission and others for a writ of mandamus. From a judgment for defendants, plaintiffs appeal.

Affirmed.

S. T Roberson, Co. Atty., and J. A. Rinehart, both of El Reno, and Gus Rinehart, of Oklahoma City, for plaintiffs in error.

J Berry King, Atty. Gen., and W. C. Lewis, of Oklahoma City for defendants in error.

PER CURIAM.

This action was commenced in the district court of Oklahoma county by the board of county commissioners of Canadian county hereinafter referred to as plaintiffs, against the state highway commission of Oklahoma, hereinafter referred to as defendants, by the filing of a petition for a writ of mandamus, ordering and directing the defendants to forthwith construct a hard pavement on the state highways in Canadian county, beginning at a point approximately 3 1/2 miles south of Calumet and running north to Calumet, thence in a westerly direction to the Blaine county line, near the town of Geary, Okl.

On the 19th day of May, 1927, plaintiffs entered into a contract with the defendants; the important paragraphs material to the issues involved herein are as follows:

"It is therefore agreed by and between the parties hereto that the party of the first part vacate and abandon all of that portion of State Highways Nos. 2 and 3 running through Canadian county, Oklahoma, and otherwise known as the Meridian and Postal Highways respectively and that the party of the second part take over and designate the said highways as a part of the Canadian county Highways; that party of the second part will, after the approval and sale of the bond issue, deposit with the party of the first part the sum of $500,000.00 of the proceeds of said sale, with which party of the first part agrees to perform all necessary work, let the contracts for and supervise the construction, draining, grading and hard surfacing the said highways herein referred to; that after the said sum of $500,000.00 has been expended by said party of the first part in said construction work, or at any time agreeable to party of the first part, the party of the second part agrees to vacate said highways herein referred to and party of the first part agrees to accept said highways and redesignate same as State Highways and party of the first part agrees to fully complete the hard surfacing of the two said highways throughout Canadian county without additional cost to party of the second part, said party of the first part agreeing to complete the hard surfacing of the said highways at the earliest time possible.

Said party of the first part further agrees with said second party, for and in consideration of the above performances and promises of the party of the second part, that party of the first part will adhere to and will not change the designation of the routes of said highways as is now agreed upon and as same have been designated by party of the first part as to routing, in the motion adopted on March 23rd, 1927, by party of the first part, and heretofore referred to."

There is no dispute as to the making of the contract. Plaintiffs executed their part of the contract by paying over to the defendants the sum of $500,000.

Defendants have expended approximately $1,554,876.93 in performing their part of the contract, and have performed their part of the contract except the hard-surface pavement of the highway routed through Calumet and on to the Blaine county line.

At the time the contract was entered into, United States highway 66 and 270, and Oklahoma state highway 3 were routed west from El Reno to a point approximately 3 1/2 miles south of Calumet; thence north to Calumet; thence west to Geary in Blaine county; and at Geary United States highway 66 routed in a southwesterly direction to Bridgeport.

The defendants now propose and have taken steps to construct what is termed a cut-off starting at a point about five miles south of Calumet and extending west to Bridgeport. Over this cut-off will be routed United States highway 66, thus shortening the distance approximately 15 miles. It is this rerouting of United States highway 66 and the construction of the cutoff that brings on the issues between plaintiffs and defendants.

Plaintiffs contend that defendants should complete the hard-surface pavement through Calumet and on to the Blaine county line before constructing the cut-off and that defendants have no right to change the routing of United States highway 66 from its established course as designated in the contract.

A stipulation of facts was prepared and filed by the parties at the inception of the trial, after which testimony was heard by the court. The writ of mandamus was refused, and, unless the court abused its discretion, the decree should be affirmed.

Plaintiffs set out the following assignments of error:

(1) That the court erred in overruling motion of plaintiffs in error for new trial.

(2) That said court erred in not rendering judgment for the plaintiffs in error on the pleadings.

(3) That the decision of the court is not sustained by the record and is contrary to law.

In support of its assignments of error, plaintiffs brief two propositions:

(1) After discretion has been exercised by a board of commissioners in the performance of a contract, it then becomes the ministerial duty of the board, under the law, to complete the contract.

(2) When the time came that the state highway department had sufficient funds to construct the highway as designated, and,...