Oklahoma City v. District Court of Thirteenth Judicial Dist.

• Decision Date: 13 March 1934
• Docket Number: 24548.
• Citation: 32 P.2d 318,168 Okla. 235,93 A.L.R. 489,1934 OK 160
• Parties: OKLAHOMA CITY v. DISTRICT COURT OF THIRTEENTH JUDICIAL DISTRICT et al.
• Court: Oklahoma Supreme Court

32 P.2d 318

168 Okla. 235, 93 A.L.R. 489, 1934 OK 160

OKLAHOMA CITY v. DISTRICT COURT OF THIRTEENTH JUDICIAL DISTRICT et al.

No. 24548.

Supreme Court of Oklahoma

March 13, 1934

Rehearing Denied May 8, 1934.

Syllabus by the Court.

1. The words "a corporation created by the laws of this state" in section 112, O. S. 1931, must be construed in connection with the words "may be brought in the county in which it is situated" therein, and, when so construed, they are applicable to municipal corporations.

2. Under the provisions of section 112, O. S. 1931, an action against a municipal corporation created by the laws of this state may be brought in the county where the cause of action or some part thereof arose, even though that county is a county other than the situs of the municipal corporation.

3. Where an action against a municipal corporation created by the laws of this state is brought in the county where the cause of action or some part thereof arose, summons may be issued to the county of the situs of the corporation under the provisions of section 167, O. S. 1931.

Original prohibition proceeding by Oklahoma City against the District Court of the Thirteenth Judicial District, sitting in and for Canadian County, and Hon. Lucius Babcock, District Judge thereof, and others.

Writ denied.

McNEILL and SWINDALL, JJ., dissenting.

Harlan T. Deupree and A. P. Van Meter, both of Oklahoma City, for plaintiff.

Mark D Libby, of El Reno, for defendants.

R. R Bell, of Oklahoma City, and J. L. Trevathan, of El Reno, amici curiæ.

ANDREWS Justice.

This is an original proceeding in this court instituted by the petitioner, the city of Oklahoma City, seeking a writ of prohibition to be directed to the district court of Canadian county, and Hon. Lucius Babcock, judge of that court, Frank Taylor, court clerk of that court, Thos. J. Horn, Leonard G. Lynn, Orvill Artt, Dudley B. Phillips, and Oscar A. Horn, commanding them to refrain from further proceedings in causes numbered 9291, 9292, and 9293 in that court.

The three actions in the district court of Canadian county were instituted against the petitioner for alleged damages to real estate and crops in Canadian county. Oklahoma City is situated in Oklahoma county. The basis of this action is that the district court of Canadian county does not have jurisdiction of the causes of action or the person of the petitioner, for the reasons, as contended, that Oklahoma City cannot be sued outside of the county of its situs, and cannot be served with summons in Oklahoma county in an action pending against it in Canadian county. No question is presented as to the correctness of the service of the summons upon the defendant, if such service is authorized by law.

By reason of the importance to the public of the question presented, it will be determined on its merits rather than on a procedural question which is also presented in the briefs.

The Legislature of Oklahoma has made no provision for the venue of actions against cities, unless it has provided therefor in sections 109, 110, 111, 112, 117, or 206, O. S. 1931. Section 117, supra, provides for the venue of "every other action," meaning thereby actions the venue of which has been elsewhere provided for, except as therein provided. By its terms it is not applicable to actions the venue of which has been provided for by other sections. If the venue of the actions in question has been provided for by section 112, supra, the provisions of section 117, supra, have no application. Whether or not the venue of the actions in question has been provided for by the provisions of section 112, supra, is dependent upon whether or not the Legislature intended to include cities within the term "corporation" as used in that section. If it did so, that section provides the venue of the actions in question, for they relate to causes of action which arose in Canadian county. That section provides: "An action, other than one of those mentioned in the first three sections of this article, against a corporation created by the laws of this state, may be brought in the county in which it is situated, or has its principal office or place of business, or in which any of the principal officers thereof may reside, or be summoned or in the county where the cause of action or some part thereof arose."

The first three sections of the article referred to therein are sections 109, 110, and 111, supra. The words thereof, "created by the laws of this state," were evidently used to differentiate the venue of actions against the corporations sought to be provided for by the section from the venue of actions against corporations created by the laws of other states, commonly called "foreign corporations," for the venue of which provision was made in sections 115 and 125, O. S. 1931. The section (112) provides that the venue of an action against a corporation created by the laws of this state shall be (a) "the county in which it is situated"; (b) the county in which it has "its principal office"; (c) the county in which it has its principal "place of business"; (d) the county in which "any of the principal officers thereof may reside"; (e) the county in which any of its principal officers may "be summoned"; and (f) the county "where the cause of action or some part thereof arose." As contended by the plaintiff herein, under the provisions of section 24, O. S. 1931, "Words used in any statute are to be understood in their ordinary sense, except when a contrary intention plainly appears, and except also that the words hereinafter explained are to be understood as thus explained." The plaintiff contends that under that rule of construction the word "corporation" in the section shall be held to apply only to private corporations and not to municipal corporations. However, the rule of construction applies equally as well to the word "situated" used in the section. The word "situated" is defined in Webster's New International Dictionary (1920), as "having a site, situation, or location; being in a relative position; permanently fixed; located; as, a town situated on a hill." Certainly a private corporation is not "situated" in a county. While in common speech it is rarely that a city is referred to "merely as a corporation," the section in question does not refer to a corporation "merely as a corporation." It refers to a corporation situated in a county.

That language is more applicable to a city than it is to a private corporation. If it was the legislative intention that a municipal corporation should not be included in the meaning of the word "corporation," there was no reason for including in the section the word "situated," for ample provision was made for the venue of actions against private corporations by the other language used. The plaintiff contends that a city cannot be sued outside of the county of its situs. Evidently the Legislature used the word "situated" in the section with that thought in mind; that is, that cities might not be sued outside of the county of their situs, except where the cause of action or some part thereof arose in the county in which the action is commenced. That construction gives full effect to all of the provisions of the section, and that is the construction which must be given to it when it is construed with section 176, O. S. 1931, which is as follows: "A summons against a corporation may be served upon the president, mayor, chairman of the board of directors, or trustees, or other chief officer, or upon an agent duly appointed to receive service of process; or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk or managing agent; or, if none of the aforesaid officers can be found, by a copy left at the office or usual place of business of such corporation, with the person having charge thereof."

The evident meaning of the word "corporation" in that section is to include municipal corporations. The language is susceptible of no other construction.

The contention of the city is based largely upon what it says is a rule of the common law, that a city may not be sued outside of the county of its situs. It contends that that common-law provision is the law of this state by virtue of the provisions of section 2, O. S. 1931. That section does not provide that the common law shall be the law of Oklahoma. It provides that: "The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma; but the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally construed to promote their object."

The common law does not remain in force in Oklahoma. The common law, as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people, remains in force in Oklahoma in aid of the general statutes of Oklahoma, but not in derogation of the general statutes of Oklahoma, and statutes in derogation of the common law are to be liberally construed to promote their object. The common-law meaning of the word "corporation" must yield, not only to the common-law meaning of the word "situated," but to the condition and wants of the people, as explained in the section.

We are not unmindful of the decisions of the courts of many states cited in the brief of the plaintiff, but those decisions are neither controlling nor persuasive as against a constitutional provision that every municipal corporation within this state shall have the right to engage in any business or enterprise which may be engaged in by a person,...