Oklahoma ex rel. Jones v. Hopkins

• Decision Date: 07 November 1899
• Citation: 1899 OK 124,59 P. 976,9 Okla. 133
• Parties: THE TERRITORY OF OKLAHOMA, ex rel. EDGAR JONES, County Attorney of Logan County, v. S. N. HOPKINS, as Territorial Auditor of Oklahoma Territory
• Court: Oklahoma Supreme Court

1899 OK 124

59 P. 976

9 Okla. 133

THE TERRITORY OF OKLAHOMA, ex rel. EDGAR JONES, County Attorney of Logan County, v. S. N. HOPKINS, as Territorial Auditor of Oklahoma Territory

Supreme Court of Oklahoma

Decided: November 7, 1899

SYLLABUS

¶0 1. COUNTY BONDS--Registration of--Duty of Territorial Auditor. Section 5 of chapter 7 of the Session Laws of 1895, which authorizes and requires the auditor of this Territory to register and certify to the regularity of the issuance of bonds, involves the performance of a purely ministerial duty and not a judicial function.

2. ORGANIC LAW--Judicial Power--Ministerial Officer. Section 9 of the Organic Act provides that all judicial power of this Territory shall be vested in a supreme court, district courts, probate courts and justices of the peace. Hence, the auditor does not possess and cannot possess any judicial power. His duties under the law are simply to pass upon the regularity or irregularity of the issuance of the bonds.

3. MUNICIPALITY--Term Defined. A county is a municipality, within the meaning of article 2 of chapter 5 of the Session Laws of 1897.

4. BONDS--Valid Issue--Judicial Determination. Where a court of competent jurisdiction has determined the validity of the bonds involved in a proceeding provided by the statute, and has decreed that the bonds were valid obligations and issued in strict conformity with the laws of the Territory, and no objections or exceptions were made to the issuance thereof, and no appeal having been taken therefrom, the decree and judgment of the court is final and conclusive upon all matters put directly in issue, tried and determined in that proceeding.

5. MUNICIPAL INDEBTEDNESS--Bonds--Maturity. A bond or other obligation is due or matured whenever the creditor has the right to enforce its payment, or where the debtor has the option to declare the obligation due, and has exercised that privilege. And, the words "due" and "matured" as used in section 8 of the act of 1895, are manifestly used as synonymous words.

6. SAME--Maturity of Obligations--Statute Determined. There is no legal distinction between the intent and purpose of the terms "subject to call by the municipality at any time," as provided in article 2, of chapter 5 of the Session Laws of 1897, and "redeemable at the pleasure of the county," as provided in section 8, of chapter 10, of the Statutes of 1890. An obligation payable "on call" is equivalent to the expression "on demand" or "when demanded."

7. SAME--Right of Municipality to Refund. Hence, a county or municipality in this Territory has the undoubted right to refund all bonds and other obligations issued under the provisions of chapter 10 of the Statutes of 1890, and under the provisions of article 2, of chapter 5, of the Session Laws of 1897, within the meaning of the provisions of section 8, of the act of 1895, which among other things, provides: "That whenever any bonds shall become due and there is not sufficient money in the treasury to pay the same the proper officers may proceed to issue bonds under the provisions of this act, and apply the proceeds of the sale thereof, in the payment of said matured bonds."

8. STATUTE--Title of Act--Construction. There is nothing in our Organic Act or Statute which requires that the title of the act should be expressive of its contents. And hence, "the title of an act of the legislature will be looked to as one of the means of discovering the purport of a doubtful act, but this will only be in cases of ambiguity and uncertainty in the provisions of the act, and, if need be, to aid in its construction, but it will never be held to control the plain and unambiguous meaning of a statute, nor to explain or restrain its positive provisions."( Choctaw, Oklahoma & Gulf Ry. v. Alexander, 7 Okla. 579.)

STATEMENT OF THE CASE.

This is an original proceeding in mandamus commenced in this court on May 22, 1899, by the Territory of Oklahoma on the relation of Edgar Jones, county attorney of Logan county, against S. N. Hopkins, as territorial auditor of the Territory of Oklahoma, to compel said auditor to register $ 80,000 of Logan county refunding bonds, issued by the board of county commissioners on May 9, 1899.

The petition or application for the writ of mandamus is as follows:

"Territory of Oklahoma, Logan County, ss.

"In the Supreme Court of the Territory of Oklahoma, June Term, 1899.

"The Territory of Oklahoma on the relation of Edgar Jones, County Attorney of Logan County, O. T., v. S. N. Hopkins, as Territorial Auditor of Oklahoma Territory.

"Motion and Application for Writ of Mandamus.

"Comes the Territory of Oklahoma, on the relation of Edgar Jones, county attorney of Logan county, O. T., complaining of S. N. Hopkins as territorial auditor, represents that Edgar Jones is the duly and legally elected, qualified and acting county attorney in and for Logan County, O. T., and that S. N. Hopkins is the duly qualified and acting territorial auditor of the Territory of Oklahoma, and each reside at Guthrie, in Logan county, O. T.; that heretofore, to-wit: on the 9th day of May, 1899, the board of county commissioners of Logan county, O. T., at a regular session of said board, then and there having before said board of county commissioners for consideration the question of refunding certain outstanding bonds of said Logan county, O. T., to-wit: $ 20,000 of the funding bonds of the said county, issued under date of September 8, 1891, bearing interest at the rate of 6 per cent. per annum, payable annually, and being absolutely due and payable ten years from their date, but subject to the right of the county to mature and redeem the same at any time after three years from date, and $ 45,000 of funding bends of said county, dated January 2, 1893, bearing interest at the rate of 6 per cent. per annum, payable annually, and being absolutely due and payable ten years from their date but subject to the right of the county to mature and redeem the same at any time after three years from date, which aforesaid bonds were issued under the provisions of article 2, chapter 10, of the compiled Statutes of 1890, of this Territory; and also $ 18,000 of the bonds of said county, issued under the date of May 2, 1898, bearing interest at the rate of 6 per cent. per annum and becoming absolutely due and payable ten years after their date, subject to the right of the county to mature and redeem the same at any time after issuance, and issued under the provisions of article 2, chapter 5, of the Session Laws of 1897, of said Territory; that upon consideration by the said board of county commissioners, of the said subject, the said board considered and found each and all of the above described bonds duly and regularly issued under the authority of law, and that the county had regularly paid the interest thereon as the same became due, and that such indebtedness was a valid and legal bonded indebtedness owing by the said county; that in view of the high rate of interest which the said bonds draw, and by refunding such outstanding bonds and indebtedness, a lower rate of interest could be had, that it was for the best interest of the county to avail itself of the option therein contained to mature said bonds and redeem the same, and to that end, to refund them, by issuing refunding bonds under the provision of the existing laws of this Territory, as may be found in chapter 7, of the Session Laws of 1895, of said Territory, and amended by chapter 5, of article 2, of the Laws of Oklahoma of 1897, and other lawful authority; that for the purpose of so refunding and taking up said bonds of the county of Logan, to the amount of $ 80,000, to be issued under said acts and laws aforesaid, which bonds to bear interest at the rate of 4 1/2 per cent. per annum, payable semi- annually, to be of the denomination of $ 1,000 each, principa1 and interest of which to be payable in lawful money of the United States of America, at the fiscal agency of the Territory of Oklahoma, in the city of New York, or in the event of the non-existing or discontinuance of said agency, then at the Chemical National Bank, in the city of New York, and which bonds to be issued in ten equal annual installments or series, the first series of installments of eight bonds each to become due and payable twenty years from their date, and one installment or series of eight bonds to become due and payable each year thereafter until the whole are paid; that of the $ 83,000 of indebtedness so evinced by the bonds aforesaid as heretofore issued by said Logan county, $ 80,000 to be taken up by the issuance and sale of the refunding bonds therein provided for and $ 3,000 of which indebtedness is proposed to be paid in cash by funds now on hand with the treasurer of said county; that the said county commissioner's court further provide for the form of a bond, in due and legal form with coupons attached, proper certificates and all other things, being in form a valid, binding and legal obligation upon said county, which when being properly signed, certified and attested, and when certified by the territorial auditor, certifying thereto, that such bond has been legally issued and has been registered in his office and providing for such certificate thereon on said bond as required by law, then to be a valid and binding negotiable obligation against said county.

"The said commissioner's court then and there further ordered that said board of county commissioners and the county clerk should appear before the district court of Logan county, O. T., at the district court room at Guthrie, in said county, on the 22nd day of May, 1899, at the hour of 10 o'clock, A. M., of said day, then and there to make proof of the aforesaid indebtedness, and to procure said court to hear and determine the amount, validity, and character of said bonded indebtedness, and to procure said court to sign said bonds pursuant to the requirements of law, and ordered that notice should

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