Carter v. Miley

• Decision Date: 25 June 1940
• Docket Number: Case Number: 29342
• Citation: 1940 OK 326,187 Okla. 530,103 P.2d 933
• Parties: CARTER, State Auditor, v. MILEY
• Court: Oklahoma Supreme Court

1940 OK 326

103 P.2d 933

187 Okla. 530

CARTER, State Auditor, v. MILEY

Case Number: 29342

Supreme Court of Oklahoma

Decided: June 25, 1940

Syllabus

¶0 1. STATUTES--"Severability clause incidental to subject matter of act and need not be expressed in title.

A "severability" clause of a legislative act establishes no new law, but expresses a legislative intent in the nature of a resolution. It is incidental and germane to the subject matter of legislation to which it is attached and need not be expressed in title. (Section 57, art. 5, Constitution.)

2. SATUTES--Statute construed to avoid breach of good faith on part of state.

A statute will be construed, if possible, to avoid a breach of good faith on the part of the state.

3. HIGHWAYS--STATES--MANDAMUS--Act of 1937 providing for issue of highway revenue anticipation notes to amount to $35,000,000 held severable and valid as to provision for court costs and attorney fees-- Mandamus to cause State Auditor to issue warrant in payment of claim.

(a) Article 10, ch. 50, S. L. 1937, though held void in Boswell v. State, 181 Okla. 435, 74 P.2d 940, insofar as it authorized issuance of notes in the sum of thirty-five million dollars in anticipation of certain revenues of future years sought to be allocated to a special fund for liquidation, is not void, but severable, and valid insofar as it provides funds and authorized contracts for court cost and attorney fees to secure a judicial determination of validity of the proposed note issue. And,

(b) Such incidental provision does not violate section 19, art. 10, Constitution, restricting devotion of a tax levied and collected for one purpose to another, but, under facts presented, a definite portion of the State Highway Construction and Maintenance Fund under general and special legislative authorization may be paid out for an attorney's claim based on services rendered and intended to be beneficial to the purpose of state highway construction.

(c) Such a claim is payable out of cur rent revenues anticipated and appropriated, and

(d) Mandamus is available as a remedy to cause the State Auditor to issue a warrant where a clear legal right is established.

4. MANDAMUS--State Auditor, having acted in good faith, relieved of costs assessed him.

Having acted in good faith, the State Auditor is relieved of costs assessed against him.

Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.

Mandamus action by John H. Miley against Frank C. Carter, State Auditor. Judgment for plaintiff, and defendant appeals. Modified and affirmed.

Mae Q. Williamson, Atty. Gen., and Randell S. Cobb, First Asst. Atty. Gen., for plaintiff in error.

Robert M. Williams and Miley, Hoffman, Williams, France & Johnson, all of Oklahoma City, for defendant in error.

RILEY, J.

¶1 In this appealed mandamus action John H. Miley seeks to enforce collection of a $2,500 attorney fee, under contract with the State Highway Commission pursuant to authority, if any, granted by article 10, ch. 50, S. L. 1937, whereby a thirty-five million dollar road note indebtedness was sought to be authorized.

¶2 This court, in Boswell v. State, 181 Okla. 435, 74 P.2d 940, held unconstitutional the attempted issuance of the notes, but expressly reserved the question of payment of this attorney fee. The services were fully performed. This court followed the procedure prescribed in the stated act to the point of holding invalid the issue of notes. The learned and distinguished trial judge ruled that it was the intent of the Legislature to pay expenses of proceedings regardless of final action upon the main issue.

¶3 It was the purpose of the act to complete a highway system in co-operation with the federal government and to issue, as a means of financing cost, thirtyfive million dollars in highway revenue anticipation notes to be liquidated by specific revenue allocated to a special fund. There was serious question as to the validity of such an enterprise, and so to safeguard the good faith and credit of the state there was provided, by section 9 of the act, a special procedure to test the legality of the matter before this court.

¶4 Secion 15 of the act set apart out of the Highway Construction and Maintenance Fund, $35,000 to pay these preliminary costs and attorney fees. Employment of a special attorney was authorized, and under this authority plaintiff below, defendant in error, was duly employed to assist the Attorney General in the legal work involved. By resolution it was agreed to pay plaintiff a cash retainer of $2,500 regardless of the ultimate validity of the proposed notes. No issue is made as to the amount of attorney fee now sought nor as to the character of services rendered. The Highway Commission has audited, approved, and forwarded the claim to the State Auditor, who has rejected the same for reasons herein considered.

¶5 It is admitted that the fund sought to be applied is sufficient for payment. Likewise it is urged that publication costs, as a preliminary cost, are shown in the Boswell Case to have been allowed by this court.

¶6 It is urged by the appellant, for reversal, that:

1. The State Auditor has authority to question plaintiff's claim. We shall assume this to be true.

2. That the act, supra, is not severable, and the adjudicated unconstitutionality of the note issuance provisions necessarily renders void the provisions of the act authorizing payment of costs of the special attorney.

3. That payment of the claim out of the Highway Construction and Maintenance Fund would constitute an unlawful diversion of funds contrary to the purpose for which they exist.

4. Failure to show unencumbered cash in said fund at the time of attorney's contract.

5. Absence of a valid appropriation with which to pay the claim.

6. Immunity of the state from this suit (no consent being granted), and

7. Assessment of cost in the instant proceeding.

¶7 The vital issue presented is whether the Legislature in enacting article 10, ch. 50, S. L. 1937, intended that expenses incident to the judicial inquiry as to the validity of anticipation notes should be paid regardless of the outcome of the judicial inquiry.

¶8 In other words, while this court determined that the notes to be issued pursuant to the act would be invalid, did the Legislature, by the act, intend to pay for the labor and cost it set up for the determination of the result?

¶9 Section 17 of the act expressly declared the legislative intent and desire that various provisions of the act be severable so that invalidity of a part of the act would not affect or impair remaining portions. However, this "severability" was not mentioned in the title, and it is upon this fact and the additional provision for reimbursement of the construction and maintenance fund as contained in section 15 of the act that appellant relies. It is urged that the reimbursement provisions made to provide a restoration of the expense provided, from a sale of the notes, so bound up the validity of the notes with the provision for expense, that the invalidity of the one destroyed the other, so that it cannot now be said there exists an unconditional appropriation with which to pay the claim here involved.

¶10 We fail to find contained in words or thought of the act that a compliance with the primary duty to pay is conditioned upon the secondary direction to restore. Had the Legislature intended that expenses herein considered should only be paid out of proceeds of the notes, it could easily have said so, but, to the contrary, it set up a procedure and appropriated money to carry out that procedure, step by step, and to pay therefor as progress was made, and finally to adjust by reimbursement payment made as provided. This, as we view it, was a definite appropriation out of an existing available cash fund with but a proviso for adjustment between funds in event the additional one became available. The provision in no wise clouds intention of the Legislature that payment of cost be made.

¶11 In 25 R. C. L. 1029, the rule is stated that:

"A state statute or act of Congress will be construed, if possible, so as not to convict the state or the United States of a breach of good faith."

¶12 The rule of severability as testing validity of a portion of an act where other parts are void "is primarily one of intention." Parval Inv. Co. v. State, 71 Okla. 121, 175 P. 514; Comanche L. & P. Co. v. Nix, 53 Okla. 220, 156 P. 293. See, also, Oklahoma Natural Gas Co. v. State, 187 Okla. 164, 101 P.2d 793; State ex rel. Hudson v. Carter, 167 Okla. 32, 27 P.2d 617, quoting 59 C. J. sec. 206.

¶13 While considering all rules applicable to the facts involved, it is certain that the Legislature did not know of the invalidity of the note provision, but upon this it progressed to a point of doubt, and through an abundance of precaution sought a test in a forum of last resort, and for the expenses of this, did its utmost to provide payment for just claims with adjustment provisions relating to state funds.

¶14 It seems clear that provisions of the act providing judicial determination of validity of the notes and making appropriation out of the highway construction and maintenance fund to pay the expense, including attorney's fee, must be given effect. We are assured of our correct conclusion by the legislative declaration that provisions of the act are severable. State ex rel. Roth v. Waterfield, 167 Okla. 209, 29 P.2d 24; Sterling Refg. Co. v. Walker, 165 Okla. 45, 25 P.2d 312.

¶15 Is this convincing legislative declaration of intention removed by failure of its mention in the title?

¶16 No case is cited where the matter of severability is required to be mentioned in the title.

¶17 Section 57, art. 5, Constitution, restricts acts, with definite exceptions, to a single subject, which is required to be clearly expressed in title.

¶18 A severability clause of an act produces no legislation, but expresses an intent to aid courts in determining the legislative will. Dorchy v. Kan., 264...