Cherokee Cnty. Pub. Co. v. Cherokee Cnty.

Citation1915 OK 298,48 Okla. 722,151 P. 187
Decision Date11 May 1915
Docket NumberCase Number: 4085
PartiesCHEROKEE COUNTY PUB. CO. v. CHEROKEE COUNTY.
CourtSupreme Court of Oklahoma
Syllabus

¶0 1. STATUTES--Construction--Legislative Intent. Under the usual rule, statutes are to be construed according to the plain import of the language used, but it must always be borne in mind that the primary object to be obtained is the intention of the law-makers, and, when any rule of construction defeats that intention, it must be abandoned. Rules of construction are but aids to the accomplishment of the primary object.

2. COUNTIES--Review--Appeal Bond-- Necessity. Section 1640, Rev. Laws 1910, provides for two ways in which appeals may be taken to the district court from actions of the board of county commissioners by the county or taxpayers thereof. In order to perfect an appeal under this statute taken by the county attorney upon his own motion or upon the petition of taxpayers, it is not necessary, nor is the county or county attorney required under either provision for appeal, to give an appeal bond.

3. NEWSPAPERS--Selection--Delinquent Tax List--Publication--County Treasurer. Section 7397, Rev. Laws 1910, provides that the county treasurer shall give notice of the sale of real property for delinquent taxes by publication thereof once a week for three consecutive weeks, commencing after the 1st day of October preceding the sale, in some newspaper in the county, to be designated by the board of county commissioners, and, if the board of county commissioners shall fail to designate such paper, then in a paper to be selected by the county treasurer. Under this section it is the duty of the board of county commissioners to designate the news paper in which the delinquent tax list for the current year''s shall be published, provided said board designates said paper prior to the 1st day of October of that year; but, in case the board of county commissioners fail to designate such newspaper prior to that date, to wit, the 1st day of October of the current year, or if the newspaper so designated by the board shall refuse to publish the tax list under the designation or contract made by the board of county commissioners prior to the 1st day of October, it then becomes not only the privilege, but the duty, of the county treasurer to select some newspaper in which the delinquent tax list shall be published for that year.

4. CONSTITUTIONAL LAW--Counties--Claim Against County--Allowance--Notice of Appeal. To effect an appeal from the action of a board of county commissioners in allowing a claim filed against the county, it is necessary to serve notice of appeal upon the claimant, for the reason that the judgment of the district court in reversing the action of the board in allowing his claim, without a chance to be heard, would be a deprivation of property without due process of law; but, if the claimant appears and takes part in the trial in the district court, or otherwise seeks to call into action the powers of the court, by motion, demurrer, or answer, without in some way objecting to the jurisdiction of the court for failure to serve notice of appeal on him, he will be held to have waived such, notice, and the court would have jurisdiction and power to render proper judgment therein.

Error from District Court, Cherokee County;

John H. Pitchford, Judge.

A claim filed by the Cherokee County Publishing Company was allowed by the Board of Commissioners of Cherokee County, and, a motion to dismiss an appeal by the county to the district court being overruled, the action of the Board being reversed, and the claim being disallowed, the Publishing Company brings error. Affirmed.

Bruce L. Keenan, for plaintiff in error.

George M. Hughes, for defendant in error.

ROBBERTS, C.

¶1 This case comes to this court on appeal from the district court of Cherokee county. The action arose upon the filing of a claim by the plaintiff in error with the board of county commissioners of Cherokee county for publishing the delinquent tax list for that county for the year 1911. The claim was allowed by the board, and upon the petition of seven taxpayers of the county the case was appealed to the district court of that county. Section 1640, Rev. Laws 1910. No appeal bond was filed by the county. A motion to dismiss the appeal was filed, and overruled by the court, and exceptions saved. Several grounds were set out in the motion to dismiss, but we will only consider one, viz., the county attorney failed to file an appeal bond for the county.

¶2 There is no statement in the body of the case-made itself that it contains all the evidence introduced at the trial, and for that reason this court cannot consider any question that would require an investigation of the evidence, and therefore nothing remains for us to consider as a part of the record brought up except: (1) The motion to dismiss the appeal from action of the board of county commissioners to the district court for failure on the part of the county to give an appeal bond; (2) the findings of the trial court and judgment record thereon; (3) the agreements of counsel upon the facts as shown in their respective briefs.

¶3 The motion to dismiss the appeal from the board of county commissioners to the district court for failure of the county to give an appeal bond is not well taken, and the court did not err in overruling that motion. The section on which counsel bases his motion is as follows:

"From all decisions of the board of commissioners upon matters properly before them, there shall be allowed an appeal to the district court by any persons aggrieved, including the county by its county attorney, upon filing a bond with sufficient penalty, and one or more sureties to be approved by the county clerk, conditioned that the appellant will prosecute his or her appeal without delay, and pay all costs that he or she may be adjudged to pay in the said district court; said bond shall be executed to the county and may be sued in the name of the county upon breach of any condition therein: Provided, that the county attorney, upon the written demand of at least seven taxpayers of the county, shall take an appeal from any action of the board of county commissioners when said action relates to the interests or affairs of the county at large or any portion thereof, in the name of the county, when he deems it to the interest of the county so to do; and in such case no bond shall be required or given and upon serving the notice provided for in the next section the county clerk shall proceed the same as if a bond had been filed." (Section 1640, Rev. Laws 1910.)

¶4 Counsel contend that this appeal does not relate to the interests or affairs of the whole county at large or any portion thereof, and for that reason does not come within the latter part of the section, which provides that no bond shall be given, but, being only a personal matter, an appeal bond is required. While we do not agree with counsel that the case should be determined under the latter part of the section, we are also of the opinion that no bond would be required in the remedy provided in the former part of the section, and will consider the case on the theory that the petition of the seven taxpayers is simply surplusage, and the appeal taken solely on the motion of the county attorney.

¶5 Under the usual rule that statutes are to be construed according to the plain import of the language, the construction claimed by counsel might be upheld, but we must not forget that there is a higher and more potent rule that:

"The primary object shall be the intention of the lawmakers, and, when any rule of construction defeats that intention, it must be abandoned. Rules of construction are but aids to the accomplishment of this primary object." ( Maben v. Rosser, 24 Okla. 588, 103 P. 674.)
"Where the meaning intended by the use of a certain word or phrases of certain words in a statute is uncertain, the intention will be ascertained by consideration of the entire statute and other statutes concerning the subject-matter and the history and surrounding conditions at the time of its enactment." ( Beaty v. State ex rel. Lee, 35 Okla. 677, 130 P. 956, citing Rakowski v. Wagoner, 24 Okla. 282, 103 P. 632; Trapp v. Wells Fargo Exp. Co., 22 Okla. 377, 97 P. 1003; Winslow v. France, 20 Okla. 303, 94 P. 689; Territory of Oklahoma ex rel. Sampson v. Clark, 2 Okla. 82, 35 P. 882.)

¶6 It will be noticed the section provides that bond shall be filed with one or more sureties, that it shall be executed to the county, and may be sued on in the name of the county. It will hardly be contended that it was intended that the county should be required to give security in such insignificant matters as appeal bonds or cost bonds, or that the county would be required to do the ridiculous act of executing a bond to itself, or, what would be more ridiculous, bring a suit "in the name of itself, against itself," all of which is provided for in the statute, under the construction contended for by counsel for plaintiff in error. Such never was the intention of the Legislature, and therefore it is not necessary for a county to enter into an appeal bond in order to appeal a case from the action of a board of county commissioners.

¶7 The next question to be considered is as to the findings of the trial court on the questions of fact. The evidence taken at the trial not having been brought up, all parties are bound in this court by the findings of the lower court.

¶8 Without intending any criticism upon the court, we will here state that the findings of fact are so intermingled with conclusions of both law and facts that it is with considerable difficulty that we are able to obtain an entirely satisfactory understanding of just what the findings of the court are, but, by taking the entire record, with the aid of the arguments of counsel and their admissions as shown in their respective briefs, we determine that the...

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