Gilbert Cent. Corp. v. State
| Decision Date | 25 March 1986 |
| Docket Number | No. 61521,61521 |
| Citation | 716 P.2d 654,1986 OK 6 |
| Parties | GILBERT CENTRAL CORP., a Corporation, Plaintiff, v. STATE of Oklahoma, the Oklahoma Department of Transportation and R.A. Ward, as its Director and Chief Operating Officer, Defendants. |
| Court | Oklahoma Supreme Court |
James C. Chandler, Donald K. Funnell, Legal Intern, Lytle, Soule, Curlee, Harrington, Chandler & Van Dyke, Oklahoma City, for plaintiff.
Norman N. Hill, Gen. Counsel, Oklahoma Dept. of Transp., Oklahoma City, for defendant, Oklahoma Dept. of Transp.
Michael C. Turpen, Atty. Gen., James B. Franks, Deputy Chief, Civil Div., John D. Rothman, Asst. Atty. Gen., Oklahoma City, for defendant State of Okl.
Pursuant to Uniform Certification of Questions of Law, 20 O.S. 1981, § 1601 et seq. the following questions have been certified by the United States District Court for the Western District of Oklahoma:
1. Do the provisions of 51 O.S. 1981, § 24.3 apply to a person, firm or corporation who is convicted of or pleaded guilty or nolo contendere to a felony involving fraud, bribery or corruption where such felony does not involve sales to the State of Oklahoma or any of its political subdivisions?
2. Do the provisions of 51 O.S. 1981, § 24.3 apply to a person, firm or corporation who has been convicted of or pleaded guilty or nolo contendere to any of the types of felonies designated therein prior to September 8, 1981, the date upon which 51 O.S. 1981, § 24.3 became effective?
3. May the provisions of 51 O.S. 1981, § 24.3 apply to an individual, firm or corporation which has not itself been convicted of any felony, where the statute is applied solely on account of past or present association with individuals, firms or corporations who have been convicted of or pleaded guilty or nolo contendere to a felony designated in that statute?
4. Is an individual, firm or corporation to whom the provisions of 51 O.S. 1981, § 24.3 apply, prohibited by said statute from thereafter entering into or performing a highway construction contract with the State of Oklahoma or any of its political subdivisions to furnish all tools, equipment, materials and labor necessary to build and complete a highway project?
5. May disqualification of a person, firm or corporation from making sales to any State or any of its political subdivisions under 51 O.S. 1981, § 24.3 be based upon convictions of or pleas of nolo contendere to the felonies designated therein entered in courts outside of Oklahoma?
6. May disqualification of a person, firm or corporation from making sales to the State or any of its political subdivisions under 51 O.S. 1981, § 24.3 be based upon a conviction of or a plea of guilty or nolo contendere to a felony which does not involve fraud, bribery, corruption or sales to the State of Oklahoma or its political subdivisions, where such felony does involve or arise from sales of real or personal property to some other State or its political subdivisions?
7. Does 51 O.S. 1981, § 24.3 as enacted by an extraordinary session of the legislature, violate Article VI, § 7 of the Constitution of the State of Oklahoma, by impermissibly expanding the subject fixed in Executive Order 81-3 which called for such session?
QUESTIONS ANSWERED.
Pursuant to the Certification Order and as a part thereof, the following statement of facts describing the nature of this controversy is provided for consideration to the Oklahoma Supreme Court:
"The defendant Oklahoma Department of Transportation in reliance on 51 O.S. 1981, § 24.3 and Oklahoma Attorney General's Opinion No. 83-144, in August, 1933 advised that plaintiff could not continue work under an existing construction contract, could not be awarded a highway construction contract as to which plaintiff was low bidder, and that plaintiff would no longer be allowed to bid on future Oklahoma highway construction projects. By an agreed Order in this action, thereafter plaintiff was allowed to resume doing business with defendants until further Order of the court.
Plaintiff is a Delaware corporation, duly domesticated in Oklahoma. Plaintiff has no felony convictions, or pleas to felonies, in Oklahoma or elsewhere. Likewise none of plaintiff's directors, officers or management employees have any such felony convictions or pleas.
All shares of plaintiff's stock are owned by Gilbert Constructors, Inc., a corporation which has no felony convictions or felony pleas anywhere. All shares of Gilbert Constructors, Inc., stock are owned by Kiewit U.S. Co., a corporation which has no felony convictions or felony pleas anywhere. Kiewit U.S. Co. also owns all shares of stock in Peter Kiewit Sons' Co., a corporation, which has had such a plea, but outside the State of Oklahoma. All shares of Kiewit U.S. Co. stock are owned by Peter Kiewit Sons', Inc., a corporation, which has no felony convictions or felony pleas anywhere. Peter Kiewit Sons', Inc. also owned all shares of the stock of Prairie States Construction Co. at the time it had such a conviction, which was outside the State of Oklahoma, and also owns all shares of the stock of the following corporations who have had such a conviction or plea, but outside the State of Oklahoma Missouri Valley Construction Co., and Big Horn Construction Company, d/b/a Highway Construction Company.
The contracts in question here cover Oklahoma highway construction projects, under which the contractor is obligated to furnish all tools, equipment, materials and labor, and to build and complete the project.
The statute in question, 51 O.S. 1981, § 24.3 was enacted during the First Extraordinary Session of the Thirty-Eighth Legislature of Oklahoma, which convened August 31, 1981 and adjourned September 4, 1981, in response to Executive Order 81-3 dated September 4, 1981, made by the Honorable George Nigh, Governor of the State of Oklahoma."
The determination of all of the certified questions revolve around established rules of statutory construction.
The paramount inquiry is legislative intent, to be ascertained, if possible, from the act itself.
In State ex. rel. Cartwright v. Georgia-Pacific, 1 we said (722):
"The ascertainment of legislative intent is the cardinal rule of statutory construction; and in the absence of a contrary definition of the common words used in a legislative act, we must assume that the law-making authority intended for them to have the same meaning as that attributed to them in ordinary and usual parlance." (Citation omitted).
There is no room for construction or provision for further inquiry when the Legislature plainly expresses its intent. 2
In determining the meaning of an unabiguous statute, the ordinary rules of grammar must be applied unless they lead to an absurd result. 3
Where there are two possible interpretations in the construction of a statute, one of which would render the statute unconstitutional, the Court should adopt the construction which upholds the statute, unless the repugnacy to the constitution is shown beyond a reasonable doubt. 4 This court is bound to accept an interpretation that avoids constitutional doubt as to the validity of the provision. 5
The statute which we are called upon to construe is 51 O.S. 1981, § 24.3 which provides:
We answer in the affirmative.
The question as formulated simply calls for the application of ordinary rules of grammatical construction. Reduced to its essence for the purpose of this inquiry, the statute prohibits sales to the state or any political subdivision thereof by a felon whose crime is one involving fraud, bribery, corruption or sales to the state or any of its political subdivisions ..." The word "involving" is a verb transative followed by a series of nouns, "fraud, bribery, corruption or sales." The word "or" is a conjunctive used as the equivalent of or substitute for the nouns which precede it, thus placing "sales" in the same class or category as "fraud," "bribery," and "corruption," so that one standing convicted of a felony involving "sales" is debared in the same manner and to the same extent as if his crime involved fraud, bribery or corruption. To treat the word "or" as indicating an alternative (such as in sink or swim), the nouns preceding the word "sales" would require that "or" be preceded by a comma to separate the series of nouns from the noun "sales."
We answer in the affirmative.
The question as propounded suggests a determination of whether the statute is a bill of attainder or ex post facto law in violation of Art. 2, § 15 of the Oklahoma Constitution. 6 In addressing this issue, an analysis of the nature and purpose of the statute is useful.
The purpose of the statute is manifest by its own provisions. The Legislature established qualifications for those doing business with the state or any of its political subdivisions by debarring certain felons from making sales of real or personal property to the state or to any of its political subdivisions. It is not, nor does it purport to be, penal, nor does it seek...
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