Oklahoma Natural Gas Co. v. State ex rel. Vassar
| Decision Date | 19 March 1940 |
| Docket Number | 28447. |
| Citation | 101 P.2d 793,187 Okla. 164,1940 OK 137 |
| Parties | OKLAHOMA NATURAL GAS CO. v. STATE ex rel. VASSAR, County Attorney. |
| Court | Oklahoma Supreme Court |
Rehearing Denied April 30, 1940.
Syllabus by the Court.
1. Section 2 of Article 22, Oklahoma Constitution, Okl.St.Ann relating to corporate ownership of real estate and providing certain exceptions, but prohibiting public service corporations from holding any land or the title thereof in any way whatever in this state except as the same shall be necessary for the transaction and operation of their businesses as such public service corporations, was intended to prohibit public service corporations from holding land not necessary for the transaction and operation of such businesses, regardless of whether said land is located within or without an incorporated city or town.
2. Where a statute has been declared unconstitutional because of the presence therein of some invalidating provision, it may be amended by the adoption of a new section in its place without said invalidating provision, and supplying a validating provision to make it conform to constitutional requirements.
3. An escheat proceeding which was begun under Section 1636 O.S.1931, but not tried until after the effective date of the repeal of that section by House Bill No. 77, S.L.1937, c. 46 art. 1, § 14, p. 314, 317, 18 Okl.St.Ann. § 86 note, was nevertheless governed by said Section 1636, O.S.1931, House Bill No. 77 specifically providing that nothing therein should affect any actions pending at that time.
4. Where trial court without setting any minimum sale price escheated vacant city lot and ordered payment of $750 attorney's fee and $100 informer's fee from proceeds of sale, and there is no indication in the record as to value of services or value of lot, which on forced sale might not even produce amount of fees, leaving nothing for the state, that portion of judgment relating to amount of fees should be reversed and the cause remanded for further proceedings in connection therewith. Said amounts should not be set arbitrarily, but should bear some reasonable relationship to the value of the services and the amount realized at the sale, so that the state may also participate in the proceeds.
Appeal from District Court, Lincoln County; Leroy G. Cooper, Judge.
Escheat action by the State of Oklahoma, on the relation of Bill Vassar, County Attorney of Lincoln County, Oklahoma, against the Oklahoma Natural Gas Company. From a judgment in favor of the plaintiff, the defendant appeals.
Judgment affirmed in part, and reversed in part, and cause remanded.
Underwood, Canterbury, Pinson & Lupardus, of Tulsa, for plaintiff in error.
M. D. Green and John E. M. Taylor, both of Oklahoma City, amici curiae.
Bill Vassar, Co. Atty., and Joe Young, Asst. Co. Atty., both of Chandler, for defendant in error.
The defendant is a public service corporation. It had owned a vacant lot within the incorporated city of Chandler since the year 1924 Said lot was not necessary for the transaction and operation of defendant's business as such public service corporation.
In 1937 the county attorney instituted this action, in the name of the state, to cause the title to be escheated. The trial court overruled the defendant's demurrer to the petition alleging the foregoing facts. The defendant excepted and elected to stand upon the demurrer, whereupon the court entered judgment escheating the lot, ordering same to be sold and distributing the proceeds of sale to the payment of costs, payment of $750 attorney's fee and $100 as an informer's fee, and the remainder to the state for the use and benefit of the common school fund. The defendant appeals.
It is first contended that section 2 of article 22 of the Oklahoma Constitution, Okl.St.Ann., and the sections of our statutes in aid thereof were not designed to affect lands other than farm lands, and that therefore the lot in question, being within a city, was not subject to escheat. Said section 2, article 22, contains various prohibitions, exceptions and provisos, and for convenience and clarity in discussing the section we insert our own designations of those parts, in parentheses: "(1st Prohibition) No corporation shall be created or licensed in this State for the purpose of buying, acquiring, trading, or dealing in real estate (Exception) other than real estate located in incorporated cities and towns and as additions thereto; (2d Prohibition) nor shall any corporation doing business in this State buy, acquire, trade, or deal in real estate for any purpose (1st Exception) except such as may be located in such towns and cities and as additions to such towns and cities, (2d Exception) and further except such as shall be necessary and proper for carrying on the business for which it was chartered or licensed; (3d Prohibition) nor shall any corporation be created or licensed to do business in this State for the purpose of acting as agent in buying and selling land: (1st Proviso) Provided, However, That corporations shall not be precluded from taking mortgages on real estate to secure loans or debts, or from acquiring title thereto upon foreclosure of such mortgages or in the collection of debts, conditioned that such *** corporations shall not hold such real estate for a longer period than seven years after acquiring such title: (2d Proviso) And Provided, Further, That this section shall not apply to trust companies taking only the naked title to real estate in this State as a trustee, to be held solely as security for indebtedness pursuant to such trust: (3d Proviso) And Provided, Further, That no public service corporation shall hold any land, or the title thereof, in any way whatever in this State, (Exception) except as the same shall be necessary for the transaction and operation of its business as such public service corporation."
Section 1636, O.S.1931 (), under which the present action was brought, provided in part: "The taking, holding or transferring of land in contravention of Section 2, Article 22, of the Constitution of the State of Oklahoma, is hereby declared to be illegal and unlawful, all such real estate in all such cases shall be subject to escheat to the State of Oklahoma, and the proceeds arising from the sale thereof by the State shall go to the permanent school fund of the State. ***"
It is observed that the defendant's first proposition, as set forth above, is somewhat broader than the particular question before us. We are here dealing with a public service corporation, to which a separate proviso (the third) is specifically devoted.
There is no attempt herein to lay down any rules as to corporations other than public service corporations, and their ownership or holding of real estate within cities. That question is not decided. However, the defendant, a public service corporation, bases its argument that it is not forbidden to hold unnecessary city property, on the predicate that corporations in general are not so forbidden. Therefore, in order to deal fairly with defendant's argument, we must either (a) rule upon the soundness of said predicate or (b) assume its soundness, for the purpose of reasoning only, and then determine whether defendant's conclusion is logically correct, as applied to a public service corporation. We prefer the latter, since corporations other than public service corporations are not involved in the particular case.
Assuming, for the sake of reasoning, that corporations in general are not prohibited from buying, acquiring, trading, dealing in, and consequently not prohibited from holding, city real estate not necessary and proper for corporate business, the same result would not follow as to public service corporations, to which a special proviso is devoted. It is set forth in the 3d proviso that no public service corporation shall hold any land, or the title thereof, in any way whatever in this state, except as the same shall be necessary for the transaction and operation of its business as such public service corporation. The exception is worded virtually the same as the 2d exception under the 2d prohibition, above, yet the 1st exception under that prohibition (concerning city property) is noticeably absent.
Under defendant's application of the section to a public service corporation (that is, that such corporations are not prohibited from owning unnecessary city property), the 3d proviso is rendered wholly surplusage, for the same result would have been achieved under the 2d prohibition, according to defendant's construction thereof--a public service corporation being, nevertheless, a "corporation". It is argued by defendant that the total effect of the 3d proviso, relating to public service corporations, is merely to restrict such corporations from holding more country property than is necessary to their businesses, and that they may hold city property regardless of whether same is necessary. Then why have the 3d proviso? If the same result would have been achieved under the 2d prohibition (which we neither affirm nor deny), the 3d proviso is rendered redundant unless we can reasonably find some other use for it or explanation for its presence. Such an explanation, avoiding redundancy, has been suggested but we do not find it acceptable.
It is a familiar rule of constitutional and statutory construction that sections are to be construed so as to give effect to every part thereof, that each provision of a section should be construed so as to harmonize with all the others, yet with a view to giving effect to each and every provision insofar as it shall be consistent with a construction of the section...
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