Board of Com'rs of Muskogee County v. Eastern Oklahoma Pub. Co.
| Decision Date | 04 May 1926 |
| Docket Number | 16828. |
| Citation | 250 P. 496,120 Okla. 122,1926 OK 424 |
| Parties | BOARD OF COM'RS OF MUSKOGEE COUNTY (BEARD et al. Interveners) v. EASTERN OKLAHOMA PUB. CO. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Sept. 7, 1926.
Application to File Second Petition Denied Nov. 23, 1926.
Syllabus by the Court.
The board of county commissioners is not a judicial tribunal with powers to interpret statutes of the state whose decisions have a conclusive effect; and if the board of county commissioners of Muskogee county decided that the Muskogee Daily News was a legal publication, when, in fact, it was not such a paper as would constitute a legal publication, as provided by section 3569, C. S. 1921, their decision was void, and any contract that they may have entered into with the owners and publishers of the Muskogee Daily News to publish the proceedings of the county commissioners was likewise void; and a claim filed by the Muskogee Daily News for services rendered under such contract, for publishing the proceedings of said board of county commissioners was not a valid claim against the county.
A transfer or conveyance by a bill of sale, executed by the owner and editor of the Porum Journal, which, at the time was a legal publication, wherein was included the files of said Porum Journal, consisting of copies of the weekly issues of said paper for more than 12 months, together with the subscription list of said Porum Journal and the name of said paper, is not such a conveyance as will convey title to a newspaper, when, as in this case, the Porum Journal continued to operate under the name of the Porum Leader, and continued to mail the Porum Leader, successor of the Porum Journal to all of the subscribers of the Porum Journal, and carried out and completed all advertising contracts with its customers. Held, that the Porum Leader was the legal successor of the Porum Journal and that the Muskogee Daily News, edited and published by the Eastern Oklahoma Publishing Company, who purchased the name, subscription list, and files of the Porum Journal, and edited said Muskogee Daily News in Muskogee Okl., same being a daily newspaper, was not the legal successor of the Porum Journal, and did not constitute such a newspaper as is entitled to publish legal notices, as provided by section 3569, C. S. 1921.
Commissioners' Opinion, Division No. 3.
Appeal from District Court, Muskogee County; E. A. Summers, Judge.
Action by the Eastern Oklahoma Publishing Company against the Board of County Commissioners of Muskogee County, in which R. B Beard and another, taxpayers, intervened. From a judgment for plaintiff, defendant and the interveners appeal. Reversed and remanded, with directions.
S. H. Lattimore, Chas. A. Moon, and Francis Stewart, all of Muskogee, for plaintiffs in error.
Neff & Neff, of Tulsa, and Harry G. Davis, of Muskogee, for defendant in error.
This suit was instituted in the district court of Muskogee county by the defendant in error, as plaintiff, against the plaintiffs in error, as defendants, to recover certain sums of money as evidenced by claims attached to and made a part of plaintiff's petition.
The appellee, plaintiff in the trial court, is a corporation engaged in the newspaper or publishing business, and, as such, entered into a contract whereby it agreed to publish the proceedings of defendants, the board of county commissioners of Muskogee county, and allege that on the 27th day of June, 1924, said board of county commissioners by resolution designated the Muskogee Daily News (which is a paper published by the plaintiff, Eastern Oklahoma Publishing Company) as the paper in which to publish all proceedings of said board and legal notices for the year commencing July 7, 1924, and, pursuant to said resolution, a contract was entered into by the parties to this controversy, awarding to the Eastern Oklahoma Publishing Company, as publishers of the Muskogee Daily News, the right to publish all reports or proceedings of the board of county commissioners and all legal notices and legal publications made during the year by any county official, and agreeing to pay for said services at the rates provided by law. Pursuant to the resolution and contract entered into, the plaintiff alleged that it performed certain services by publishing the proceedings and such other matters as were presented to it by the county clerk, acting as the clerk of the board of county commissioners, and filed its claim as required by law, and that said claims were disallowed and payment refused. Said claims are attached to and made a part of plaintiff's petition.
Defendants file their answer and deny all of the allegations contained in plaintiff's petition, except such as are admitted, and admit the passage of the resolution as alleged in plaintiff's petition, but aver that same was duly rescinded and set aside on the same day that it was passed; they also admit the filing and disallowance of the claims in controversy, but aver that the resolution and contract were rescinded and repudiated with the Eastern Oklahoma Publishing Company, the plaintiff, because the Muskogee Daily News, a paper belonging to and published by said company and in which said publications were made, for which the claims were filed, was not a legal newspaper; that it had not been continuously and uninterruptedly published for 52 weeks, prior to the making of said contract or the publication of any notice or proceeding pursuant thereto; that, as a matter of fact, the first issue of said paper was published less than one week before the making of said contract; that said publications were void and of no force or effect. To this answer, the plaintiff filed a reply in the nature of a general denial.
The interveners, who appear here as plaintiffs in error, R. B. Beard and S. P. Mann, filed their plea of intervention, as taxpayers of Muskogee county, and attack the resolution and contract relied upon by the plaintiff and allege that on the 27th day of June, 1924, the board of county commissioners, pursuant to a resolution, ordered that notice for bids for the county printing be advertised; that, pursuant thereto, advertisements for said bids were duly published, setting forth that said bids would be received on or before the 14th day of July, 1924, that same would be awarded to the lowest and best bidder; and that said board of county commissioners was without authority to enter into a contract for printing until after the said 14th day of July, 1924. Interveners further allege that there was an appeal duly taken by the county attorney from the action of the county commissioners in entering into the contract here sued upon by the Eastern Oklahoma Publishing Company; that said appeal was duly filed in the office of the court clerk of Muskogee county; that same superseded and suspended any action taken by the board of county commissioners; and that said appeal constitutes a bar to the action in the present case. Interveners also set up the defense that the Muskogee Daily News had not been published for such length of time as is provided by law to make it a legal publication. They also allege that there is another cause of action pending, involving a portion of the claims set forth in plaintiff's petition. Upon the trial of the case, plaintiff's cause seems to have been dismissed as to the items involved in the case formerly brought, and a stipulation was entered into by the county attorney and counsel for plaintiff to the effect that all defenses available in the cause, wherein an appeal was taken from the action of the board of county commissioners, should be available to the defendant in this action, thus disposing of these questions.
Upon the trial of the cause to the court, without the intervention of a jury, judgment was rendered for the plaintiff and against the defendants for the sum of $1,325.25. Appellant, board of county commissioners of Muskogee county, prosecutes this appeal and sets forth various assignments of error, and, likewise the interveners, Mann and Beard, appeal and file a separate petition in error, wherein they adopt and reassign all of the assignments of error set forth by the appellant, board of county commissioners, and urge that various other actions of the court were error. The appellants join in the brief filed and the first proposition urged is that:
"The court was in error in refusing to pass upon the question of the legal status of the Muskogee Daily News, and in holding that such questions had been judicially determined by the board of county commissioners of Muskogee county, and that such determination was res adjudicata in this action."
We cannot concur in this holding of the trial court. In the first place, the resolution does not disclose that...
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