Johnson v. Ward

• Decision Date: 23 September 1975
• Docket Number: No. 48514,48514
• Citation: 541 P.2d 182,1975 OK 129
• Parties: Eddie L. JOHNSON et al., Appellants, v. Richard WARD et al., Appellees.
• Court: Oklahoma Supreme Court

Page 182

541 P.2d 182

Eddie L. JOHNSON et al., Appellants, v. Richard WARD et al., Appellees.

No. 48514.

Supreme Court of Oklahoma.

Sept. 23, 1975.

Frank R. Hickman, Tulsa, for appellants.

Floyd W. Taylor, Gen. Counsel, Oklahoma Dept. of Highways, Oklahoma City, for Dept. of Highways.

Waldo F. Bales, City Atty., Alan L. Jackere, Asst. City Atty., Tulsa, for City of Tulsa, appellees.

BERRY, Justice:

Plaintiffs filed action seeking temporary injunction restraining defendants from vacating or closing a segment of Virgin Street in City of Tulsa. The trial court granted temporary restraining order. After hearing, the court vacated the restraining order and denied injunction. Plaintiffs appeal pursuant to 12 O.S.1971 § 993(a)(2).

Plaintiffs reside near intersection of Virgin Street and Lewis Avenue in City of Tulsa. The Department of Public Highways, State of Oklahoma, and officials thereof are named defendants. The City of Tulsa and others intervened on behalf of defendants.

The record indicates Virgin Street has been open as a public street for more than 50 years. Highway Department is constructing the Cherokee Expressway and as part of this project Virgin Street will be closed at the point where it intersects the expressway. In their petition plaintiffs alleged they unsuccessfully attempted to persuade Highway Department to raise the expressway, or to lower Virgin Street, so as to allow Virgin Street to pass under the expressway.

Plaintiffs alleged closing of the street would adversely affect them by creating (1) more difficulty in going to and from Franklin Park and Lewis Avenue, (2) increase in traffic in residential areas, (3) delay in fire runs, (4) possible flood and drainage problems, (5) modification of former major street plan, (6) loss of income from businesses in area.

They did not seek to enjoin construction of the expressway, but sought to enjoin closing of Virgin Street. They alleged defendants failed to comply with 11 O.S.Supp.1974 §§ 659.1--659.3, or any other statutes authorizing closing of streets.

The trial court held 69 O.S.1971 § 1302, was controlling statute, and that § 1302, supra, authorized Highway Department to close Virgin Street. It further held failure of § 1302, supra, to require notice to plaintiffs did not deprive them of due process because their property was not being taken, and they could maintain damage action to recover any consequential damages they might suffer.

Plaintiffs first and fourth contentions are that 69 O.S. § 1302, supra, does not authorize defendants to close Virgin Street, and that 11 O.S. §§ 659.1--659.3, supra, provide exclusive method by which city street may be closed.

There is no dispute the expressway will be a limited access facility or highway as defined by §§ 224--225 of the Oklahoma Highway Code of 1968 (69 O.S.1971 §§ 101--1909).

Section 1302, supra, provides in part.

'Each governing body shall have authority to designate and establish limited access facilities as new and additional highways, or may designate any existing street or highway as a limited access facility. The governing body shall have authority to provide for the elimination of intersections at grade of limited access facilities with any * * * street * * * now or hereafter existing, either by grade separation, or by closing off such other * * * street * * * or by otherwise protecting such limited access facility.'

Plaintiffs first argue § 1302, supra, does not grant authority to close or vacate streets but means 'that in construction of highways, service roads must be erected to facilitate entryway thereon.'

The express language of § 1302, supra, authorizes the governing body to limit access 'by closing off such other * * * street * * *.' When the intent of the legislature is plainly expressed there is no room for construction. Special Indemnity Fund v. Harold, Okl., 398 P.2d 827.

Plaintiffs next argue Highway Department has no authority to act under § 1302, supra, until the city or county has complied with provisions of §§ 1301--1331 which provide methods whereby city or county may construct limited access facilities. Those provisions are not applicable here because the Highway Department is constructing the expressway.

Plaintiffs also cite 69 O.S.1971 § 3009, which provides no existing street or highway shall be closed by reason of construction or operation of a toll expressway, without consent of the governing body having jurisdiction over the street or highway. Assuming § 3009, supra, would be applicable to situations where street is closed off incident to construction of toll expressway, it is not applicable here because the Cherokee Expressway is not a 'toll expressway.'

Plaintiffs further allege § 1302, supra, does not grant Highway Department authority to close a city street.

69 O.S.1971 § 219, defines governing body to include the legislative authority of any city or town for streets and highways within the city or town, the Board of County Commissioners as to county highways, and the State Highway Commission as to state highways. Section 1302, supra, authorizes the governing body constructing a limited access facility to close off streets for purpose of eliminating intersection. This section does not expressly authorize the governing body constructing the facility to close off streets or highways under the jurisdiction of another governing body.

However, 69 O.S. § 1303 authorizes a governing body to enter agreements with another governing body, the federal government, or the State or Oklahoma, respecting financing, planning, establishment, improvement, maintenance or vacation of limited access facilities.

69 O.S.1971 § 1331, provides in part as follows:

'Within their respective jurisdictions, the State of Oklahoma through the Commission, and the governing body of every city * * * and the Board of County Commissioners of each county, acting alone, or in cooperation with any Federal, State, county or city agency having authority to participate in the construction or maintenance of highways, shall have authority to plan * * * establish * * * maintain and provide limited access facilities * * *'

The present dispute is not one between the city and state concerning whether the state may close city's street incident to construction by state of limited access facility. The city has intervened on behalf of Highway Department. In light of §§ 1303 and 1331, supra, we conclude that § 1302 authorizes the governing body constructing a limited access facility to close off a street under jurisdiction of another governing body, at least in absence of objection by the governing body with jurisdiction over the street being closed off.

Plaintiffs further allege 11 O.S.Supp. §§ 659.1--659.3, supra, specify procedures whereby a city may close or vacate a street within the city. They allege procedure specified therein is exclusive and argue city has not complied with such procedure.

Section 659.1, supra, defines 'close' to mean legislative act of governing body of a city discontinuing public use of public way or easement, and defines 'vacate' as judicial act of district court terminating private and/or public rights in public way or easement and vesting title in real estate in private ownership. Section 659.2 provides procedure whereby street may be closed retaining right to reopen it. Section 659.3 provides method whereby owners of abutting property may foreclose city's right to reopen a closed street.

Plaintiffs cite State of Oklahoma ex rel. Gil Burk v. Oklahoma City, Okl., 522 P.2d 612, for proposition procedure set out in § 659, supra, is exclusive. We note § 659 has been substantially amended since this Court's decision in that case. Further, in that case the city sought to vacate the street so as to permit it to revert to abutting owners. Here, the portion of Virgin Street being closed off will remain in use as a part of the limited access expressway.

We have held that different legislative enactments dealing with the same subject must be construed together as a harmonious whole so as to give effect to each. Wade v. Brown, Okl., 516 P.2d 526, Letteer v. Conservancy Dist., Okl., 385 P.2d 796. We conclude the provisions of §§ 659.1--659.3 are not applicable where a street is closed off by Highway Department pursuant to 69 O.S. § 1302, supra, for purposes of eliminating its intersection with limited access facility being constructed by Highway Department.

Plaintiffs next allege that if § 1302, supra, authorizes closing of Virgin Street, it violates Art. V § 57, Okl.Const., and is unconstitutional.

Art. V § 57, supra, provides in part:

'Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, except * * * bills adopting a code * * *'

Plaintiffs allege there is nothing in the title of the Act indicating it authorized the State to close or vacate streets within a municipality.

In National Mutual Cas. Co. v. Briscoe, 188 Okl. 440, 109 P.2d 1088, this Court considered Art. V § 57, supra, and stated:

'The provision is satisfied if an act has a general subject fairly indicated by the title, and the fact that the act involves many details does not offend the section if all of those details relate to the same general subject which is expressed in the title * * *'

See also Coe v. State Election Board, 203 Okl. 356, 221 P.2d 774; Bond v. Phelps, 200 Okl. 70, 191 P.2d 938.

Section 1302, supra,...