Davis v. McCasland
| Citation | 75 P.2d 1118,182 Okla. 49,1938 OK 28 |
| Decision Date | 18 January 1938 |
| Docket Number | 27273. |
| Parties | DAVIS et al. v. McCASLAND. |
| Court | Supreme Court of Oklahoma |
Syllabus by the Court.
1. A city in its capacity as trustee for all interested bondholders of a paving district may question the constitutionality of an act affecting the rights of such bondholders, and neither it nor its officers acting for it in such capacity can be compelled by an unconstitutional law to act prejudicially to such bondholders.
2. The remedy subsisting in the state when and where a contract is made and to be performed is part of the obligation of the contract which cannot be impaired by subsequent legislation. Section 15, article 2, Oklahoma Constitution; section 10 article 1, U.S.Constitution.
3. Chapter 58, Session Laws 1933, 62 Okl.St.Ann. §§ 341-346 providing for payment of paving and other special assessments by delivery of bonds of the district, is unconstitutional and void, so far as bonds issued prior to said act are concerned in that it provides a method of payment substantially different from that in the bond contract, affects the security of some of the bonds issued, and prejudices the city's rights as trustee.
Appeal from District Court, Stephens County; Eugene Rice, Judge.
Action in mandamus by J. C. McCasland against John L. Davis, clerk of the city of Duncan, and the city of Duncan to compel acceptance of paving bonds in payment of paving assessments. From a judgment issuing a peremptory writ of mandamus defendants appeal.
Reversed and remanded, with directions to dismiss.
J. G. Clift, of Duncan, for plaintiffs in error.
Brown & Cund, of Duncan, for defendant in error.
Norman E. Raynolds, W. Otis Ridings, G. A. Paul, and Harris L. Danner, all of Oklahoma City, John L. Goode, of Shawnee, James S. Twyford, Solon W. Smith, and William J. Crowe, all of Oklahoma City, and Thomas E. Elcock, James G. Martin, and Allen A. Schaefer, all of Wichita, Kan., amici curiæ.
J. C. McCasland, owner of property in a paving district in the city of Duncan, purchased some paving bonds and tendered them to the city clerk in payment of his paving assessments as permitted by chapter 58, Session Laws 1933, 62 Okl.St.Ann. §§ 341-346. Upon refusal of the clerk to accept the bonds, McCasland brought suit in mandamus against the clerk and the city, and the district court awarded him full relief. The city clerk and the city appeal, alleging the unconstitutionality of the 1933 law.
The validity and constitutionality of article 9, chapter 33, Session Laws 1935, 11 Okl.St.Ann. §§ 153-158, is not involved herein and consequently is neither considered nor determined.
McCasland contends that neither the city nor the clerk can raise the constitutional questions involved. This contention, if sound, disposes of this case and leaves the constitutional questions for a proper case. This issue is simplified by a concession made in the brief that the city clerk may not raise the constitutional questions, leaving for determination the question of whether the city can raise the objection which is, chiefly, that the law impairs the obligation of the contract made when the bonds were issued.
Various amici curiæ briefs have been filed touching both sides of the constitutional questions involved, and raising other questions not tried below.
As interesting and instructive as the discussions by the amici curiæ are, we can consider only those questions properly raised by the parties to the case and the issues by them presented. Amici curiæ must accept the issues as made and cannot raise constitutional questions not presented by authorized persons. State ex rel. v. City of Albuquerque, 31 N.M. 576, 249 P. 242.
The general rule, of course, is that a party without a personal interest in a matter cannot question the constitutionality of an act involving such matter, nor can one who is not a party to a contract assert that an act of the Legislature impairs the validity of such contract. Has the city such an interest?
It is contended that the city has an interest in the contract in that it was a party to the original contract, that under the law it undertakes to make the collections and pay them out, and that the city has a contingent 1 per cent. interest in the collections as well as in the amounts in excess of the payment of the bonds and interest.
The city in its capacity and duties under a paving bond contract has been termed "trustee for all the interested bondholders," Service Feed Co. v. City of Ardmore, 171 Okl. 155, 42 P.2d 853, 857; and the trustee of an express trust, Straughn v. Berry, 179 Okl. 364, 65 P.2d 1203. It is apparent, therefore, that the city had a duty to perform that was not purely ministerial as well as an interest in the results of the collections. If bonds were used to pay off the assessments, the city would lose its percentage and possible compensation. It has been held that the trustee of an express trust is not estopped from setting up in his character as trustee any defense which the cestui que trustent, were they in person defending the action, might properly urge in their own behalf. Wagnon v. Pease, 104 Ga. 417, 30 S.E. 895. See Producers' State Bank of Wilson v. Clark, 102 Okl. 181, 228 P. 986. We conclude, therefore, that the city has such interest, both in its own right and as trustee, to enable it to raise the constitutional questions involved, that is, whether or not the act of 1933, supra, violates section 15, article 2, of the Oklahoma Constitution, and section 10, article 1, of the Constitution of the United States.
The bonds in question were issued under the provisions of chapter 93, S.L.1927, Laws 1933, c. 53, 11 Okl.St.Ann § 221 et seq., which...
To continue reading
Request your trial