State ex rel. Nesbitt v. APCO Oil Corp., 50091
| Decision Date | 19 July 1977 |
| Docket Number | No. 50091,50091 |
| Parties | 1977-2 Trade Cases P 61,546 STATE of Oklahoma ex rel. Charles NESBITT, Attorney General, Appellant, v. APCO OIL CORPORATION, Appellee. |
| Court | Oklahoma Supreme Court |
Appeal from the District Court of Oklahoma County; Carmon C. Harris, Trial Judge.
An appeal from an order of District Court granting Apco Oil Corporation's motion for summary judgment in an action for treble damages brought by the State of Oklahoma under the authority of 79 O.S. 1961 § 25. AFFIRMED.
Larry Derryberry, Atty. Gen., James H. Gray, Jo Angela Ables, Asst. Attys. Gen., Oklahoma City, for appellant.
John W. Hammett, Gen. Counsel, APCO Oil Corp., William G. Paul, Clyde A. Muchmore, John J. Griffin, Jr., Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, for appellee.
This appeal is from an order of the District Court of Oklahoma County which granted a motion for summary judgment in favor of appellee, Apco Oil Corporation, (APCO) defendant below. In October 1965, the Attorney General of Oklahoma filed an action for treble damages on behalf of the State of Oklahoma against APCO and other corporate defendants. The petition alleged APCO, among others, had engaged in a conspiracy to fix asphalt prices from January 1948 through September 1961, in violation of the provisions of 79 O.S. 1961 Chap. 1. The Attorney General also filed a companion case in federal court, asserting violations of the Federal Antitrust Act, based upon an asphalt price fixing conspiracy, during the years 1961 to 1965. We are not concerned with the federal action.
APCO filed a motion for summary judgment. In support of its motion, APCO raised six questions, 1 one of which was:
Whether the applicable statute of limitations runs against the State when it seeks to recover money damages as a "person" under the authority of 79 O.S. 1961 § 25?
The trial court held the State of Oklahoma was "a person" entitled to maintain the action, but as such was bringing the action to protect its business or property interests and not in the capacity of a sovereign. Therefore, the rule that the statute of limitations does not run against the state did not apply. 2
The trial court granted APCO's motion for summary judgment inasmuch as the applicable statute of limitations, 12 O.S. § 95 had expired more than a year prior to the initiation of the suit. The State of Oklahoma appeals from this order, and asks us to review the trial court's ruling which must involve its interpretation of 79 O.S. 1961 § 25.
§ 25 provides: "Any person, firm, corporation or association, who shall be injured in his business or property by any other person, firm, corporation or association, by reason of anything forbidden, or declared to be unlawful by this Article, may sue therefor in the courts of this State, and shall recover threefold the damages by him sustained, and the cost of suit, and a reasonable attorney's fee to be fixed by the court." (Emphasis added).
The State of Oklahoma is not a firm, corporation, or association, thus, in order to maintain a suit for treble damages under the above quoted statute, the State must be considered to be a "person".
In Oklahoma "person" is defined generally in 25 O.S.1971 § 16 as including "bodies politic". The term "bodies politic" ordinarily refers to the state or public associations. 3 In some Oklahoma acts the term "person" has been held to be broad enough to include every legal, commercial and governmental entity. 4 Certainly the State of Oklahoma is a juristic person in the sense it has the capacity to sue upon contracts or in vindication of its property rights. However, Title 79, Chapter 1, creates new rights and remedies which are available only to those on whom they are conferred by the Act. One of the rights conferred by the Act is the right to sue for treble damages under § 25 quoted above. The question before us is whether the Legislature in using the phrase, "any person" intended to confer upon the State of Oklahoma the right, as a person, to maintain such an action. 5 We hold that it did not for the following reasons:
( 1) Section 25 provides that "any person" injured by a violation of the act "by any other person" may maintain an action for treble damages against the latter. If we interpret "person" to include the State of Oklahoma, the act must be construed also to allow a suit against the State of Oklahoma, as it is implausible the Legislature would use the term in two different senses in the same sentence. A reading of the statute as a whole leads us to conclude it was not the intent of the Legislature to subject the State of Oklahoma to a suit for treble damages. The intent must have been to limit its meaning in both instances to individuals or corporations. 6
( 2) An examination of the act before us in its entirety strongly suggests a Legislative intent to establish a dichotomy between the remedies available to the "State of Oklahoma" and a "person". The State may proceed either in an equity action or in a criminal action against a "person, firm, corporation or association" who violates any section of the act. 79 O.S.1961 § 24 empowers the Attorney General to enjoin any combination which is in violation of the act, and also gives the State the power to seize the property of the parties involved pending final determination of the cause. 79 O.S.1961 § 27 allows the State to bring a criminal action against any violator of the act, and if any corporation is required to pay a fine or penalty, § 32 entitles the State to a lien on the property of the corporation. Conversely, individuals, firms and corporations, who are damaged by violations of the act may bring a civil action for treble damages under § 25.
( 3) Provisions of § 25 provide for treble damages, costs and attorney fees. The purpose of such provisions is the same as that of § 7 of the federal act to induce action against violators of the act who might not come within the definition of the governmental officials charged with its enforcement. 7 Such incentives are unnecessary to motivate the State, for the cost of litigation is not of material importance to a sovereign. 8
For these reasons, we hold the State of Oklahoma is not a "person" as the term is used in 79 O.S. 1961 § 25, it has no right to maintain an action for treble damages under the provisions of that statute. Accordingly, we affirm the summary judgment granted to APCO.
AFFIRMED.
1 Other questions raised by APCO were:
(1) Whether the State of Oklahoma split its cause of action...
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