Harris v. State ex rel. Oklahoma Planning & Resources Bd.

• Decision Date: 23 December 1952
• Docket Number: No. 35200,35200
• Citation: 207 Okla. 589,251 P.2d 799
• Parties: HARRIS v. STATE ex rel. OKLAHOMA PLANNING AND RESOURCES BOARD.
• Court: Oklahoma Supreme Court

Page 799

251 P.2d 799

207 Okla. 589

HARRIS v. STATE ex rel. OKLAHOMA PLANNING AND RESOURCES BOARD.

No. 35200.

Supreme Court of Oklahoma.

Dec. 23, 1952.

Syllabus by the Court.

1. The principle of estoppel will not apply to the unauthorized act of a state employee whether the state acts in a proprietary or governmental capacity.

2. The Legislature cannot delegate legislative power, but it may delegate authority to be exercised under and in pursuance of the law. It may delegate power to determine some fact or state of things upon which the law makes its own operation depend.

3. A regulation adopted by the Oklahoma Planning and Resources Board providing 'no permit shall be issued permitting the use of any barge, raft or houseboat on Lake Murray' is not unreasonable and arbitrary and does not violate any of the constitutional rights of defendant.

George, George & Springer, Ardmore, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and J. Walker Field, Ass't Atty. Gen., for defendant in error.

WELCH, Justice.

This is an action brought by the State of Oklahoma ex rel. Oklahoma Planning and Resources Board against Bruce Harris to enjoin him from operating a houseboat on Lake Murray. It is alleged in the petition that the boat is being operated by defendant Harris without a permit and in violation of the rules and regulations adopted by the Board.

Defendant relies as a defense on the doctrine of estoppel and makes the further defense that the Planning and Resources Board was not authorized by statute to adopt the rules and regulations relied on by plaintiff; that they were adopted contrary to the provisions of the statute and that the rules and regulations adopted are unreasonable and arbitrary and therefore invalid. It is alleged in the answer that defendant Harris constructed the boat at a cost to him of about $2500; that it was constructed with the knowledge and consent of the lake patrolman then in charge and that he agreed that the boat might be operated upon the lake; that the boat will be valueless to him unless he be permitted to use it on the lake and will result in great damage to him and deprive him of his property without due process of law. It appears from the evidence that the boat in question was constructed by defendant Harris in the summer of 1948, and that it was constructed with the knowledge and consent of the lake patrolman then in charge; that he stated he knew of no rule then in existence which would prohibit the use of such boat on the lake, and he saw no reason why it could not be used on the lake. A permit to operate the boat on the lake was then issued to defendant by a park employee under the direction of the lake patrolman who was authorized to issue permits. The permit issued expired on December 31, 1948. After the expiration of such permit defendant made frequent attempts before the Board to obtain a renewal permit for the years 1949 and 1950, but the Board refused to grant renewal permits. Thereafter the lake superintendent notified defendant Harris that if the boat was not removed from the lake within five days after the date of the receipt of the notice it would be removed by the lake superintendent. Mr. Harris, defendant herein, then filed suit in the district court of Carter County against the lake superintendent to enjoin the removal of said boat from the lake and to obtain a permit therefor. This case, however, for some reason was never brought to trial. Thereafter the Board filed this action in the same court to enjoin the operation of said boat on the lake and to compel its removal therefrom.

The Planning and Resources Board was created by the Legislature in 1935, S.L.1935, page 87. The Act was several times amended and as amended now appears in 74 O.S.1951, sections 344.9 to 360.2 inclusive. The Act by various sections divided state planning into different divisions which divisions are placed under the management and control of the Planning and Resources Board, among which is the division of State Parks.

In performing its duty under this provision the Board by section 356.1 is declared to be a governmental agency and instrumentality of the State of Oklahoma with authority to exercise in addition to those it now has the rights, privileges and functions thereafter specified. The Board is prohibited from creating any indebtedness payable out of taxes or assessments, and is prohibited from pledging the credit of the state for the payment of any indebtedness created by it. The additional powers granted the Board under said section are set forth in section 356.2, subdivisions 1 and 2 and are as follows:

'1. To have the exclusive possession and control of, and to control, operate and maintain for the benefit of the people of the State of Oklahoma all state parks and all lands and other properties now or hereafter owned by the State for park or recreational purposes.

'2. To acquire by purchase, lease, gift, condemnation or in any other manner and to maintain, use and operate any and all property, real, personal or mixed, necessary or convenient to the exercise of the powers, rights, privileges and functions conferred upon it by this Act. Title to all such property shall be vested in the State of Oklahoma, although such property is sometimes herein referred to as property 'of the Board'. The power of condemnation herein granted shall be exercised in the manner provided by the general laws of the state for the condemnation of property by the state.'

Subdivision 3 authorizes the board to lease from time to time any property which it shall determine advisable to more fully carry into effect the duties and powers of said board. Under subdivision 5 it may sue and be sued. Under subdivision 8 it is authorized to appoint officers, agents, and employees and prescribe their duties and fix their compensation. Under subdivision 10 it is given authority to adopt rules and regulations in order to carry into effect the provisions of the Act. This subdivision as far as here material provides:

'10. To prescribe and enforce rules and regulations for the use of all recreational and other facilities and properties of the Board, including the restriction or prohibition of the use of firearms, the inspection of boats, the issuance of permits for the operation of water craft of all kinds, the charging and collection of fees for the inspection and for the operation of such craft, prescribing the type, style, location and equipment of all wharves, docks, anchorages, pavilions, restaurants and other structures or buildings which may be constructed along shores or upon the waters of any body of water or upon other property controlled by the Board, and providing for the licensing, inspection and supervision of the same, and granting and imposing charges for permits for all commercial uses or purposes to which any of the properties of the Board or any structures or buildings located on property of the Board, may be used. * * *'

The Board in 1938 adopted rules and regulations regulating the character and kinds of boats or water craft that should be permitted to be used and operated on State lakes. On the 30th day of August, 1949, it adopted an additional regulation which provides that no permit shall be issued permitting the use of any barge, raft or houseboat on Lake Murray. We shall later discuss these rules and regulations.

At the conclusion of the evidence the trial court found that the Board was acting in a governmental capacity and in the performance of governmental functions in its supervision and operation of Lake Murray and the various installations in said park; that the Board was given authority under Oklahoma Statutes to promulgate rules and regulations prohibiting the use and operation of the Harris boat on Lake Murray and the operation of said boat on the lake constituted an unlawful and illegal act and upon these findings entered an order and judgment enjoining defendant Harris from operating the boat on the lake and compelling its removal therefrom.

Defendant appeals and asserts that the judgment is not sustained by the evidence and is contrary to law.

Defendant asserts the evidence clearly shows that the boat in question was built on the lake with the approval and consent of the authorities in charge of the lake at that time, and with full knowledge on their part that Mr. Harris expected to operate the boat on the lake during the life of said boat, and that said Board is now estopped from asserting that the boat should be removed from the lake.

It is the contention of plaintiff, Planning and Resources Board, that the State in the exercise of the control and management of said property for the use and benefit of the people of the State, and in the maintenance of its state parks and recreational facilities, including lakes in said parks, was acting in a governmental...