CITY OF SHAWNEE v. TAYLOR

CITY OF SHAWNEE v. TAYLOR
1943 OK 11
132 P.2d 950
191 Okla. 687
Case Number: 30245
Decided: 01/12/1943
Supreme Court of Oklahoma

CITY OF SHAWNEE et al.
v.
TAYLOR

Syllabus

¶0 1. CONSTITUTIONAL LAW--Litigant's right to question constitutionality of statute dependent on denial or threatened denial of his legal right or privilegeRule applicable to mandamus proceedings against public officers.
The Supreme Court will not pass upon the constitutionality of an act of the Legislature, nor of any of its provisions, until there is presented a proper case in which it is made to appear that the person complaining by reason thereof has been or is about to be denied some right or privilege to which he was lawfully entitled or who is about to be subjected to some of its burdens or penalties, and this rule applies to mandamus proceedings against public officers.
2. SAME--Class action in mandamus by special assessment bondholder to compel city and clerk to issue refunding bonds under 1939 statute--Defendants without interest entitling them to urge unconstitutionality of statute.
Where a class action is instituted by a special assessment bondholder, representing himself and all other owners of delinquent bonds similarly situated, to compel, by mandamus, the city and its clerk to issue refunding bonds, as required by 11 O. S. 1941 §§ 242-242 o, and the defendants plead and urge as a defense to the action that the refunding statute is unconstitutional as impairing the obligation of the contract with the bondholders, this court will not entertain such defense and pass upon the constitutionality of the statute, since the city and its clerk have no such interest as will entitle them to make the defense.

Appeal from District Court, Pottawatomie County; J. Knox Byrum, Judge.

Mandamus by Leroy T. Taylor against the City of Shawnee et al. Judgment for plaintiff and defendants appeal. Affirmed.

Randall Pitman, of Shawnee, for plaintiff in error.
G. C. Abernathy and Kenneth Abernathy, both of Shawnee, for defendant in error.
Kenneth Reed, City Atty., of Perry, J. W. Marshall, City Atty., of Duncan, Solon W. Smith and Norman J. Futor, both of Oklahoma City, W. E. Foster, City Atty., of Henryetta, W. C. Alley, City Atty., of Okmulgee, H. I. Aston, City Atty., of McAlester, C. B. McCrory, of Okmulgee, W. F. Rampendahl, L. W. Randolph, and Chal Wheeler, all of Muskogee, and C. J. Davenport, Sam T. Allen, R. L. Wilkinson, and T. L. Blakemore, all of Sapulpa, amici curiae.

HURST, J.

¶1 The plaintiff Taylor sued to compel, by mandamus, the city of Shawnee and its clerk to issue bonds to refund street improvement bonds, issued against street improvement district No. 13 in said city, as required by the 1939 refunding statute, 11 O. S. 1941 §§ 242-242 o. The defendants in their return to the alternative writ of mandamus admitted that they refused to refund the bonds, and alleged as their sole defense that the refunding statute is unconstitutional in that it impairs the obligation of the contracts with the bondholders. The bonds were issued in 1922 and became delinquent in 1932. The case was tried on an agreed statement of facts, in which it was agreed that plaintiff owned the bonds (23 of the 70 issued against said district), that they were unpaid, and that the plaintiff, on November 29, 1940, filed an agreement to accept refunding bonds in compliance with said statute. This proceeding was filed December 11, 1940. From a judgment issuing a peremptory writ of mandamus requiring the defendants to issue the refunding bonds and to otherwise comply with all the provisions of said refunding statute, the defendants appeal.

¶2 The defendants' sole contention is that the refunding statute is unconstitutional because of the provisions of section 1 (11 O. S. 1941 § 242), which imposes a statute of limitations when none formerly existed, and which also extinguishes the special assessment lien after the statute of limitations has run, and that therefore it impairs the obligations of the contract of the bondholders in violation of section 15, art. 2, of the State Constitution.

¶3 While the plaintiff does not raise the question of the right of the defendants to urge as a defense that the statute is unconstitutional, it necessarily inheres in the case. Plaintiff prosecuted this as a class action for himself and for all other bondholders similarly situated. No other bondholder intervened or is questioning the right of Taylor to represent all members of the class he purports to represent. The question then is, Do the defendants have a right to protect the bondholders against the effects of the statute when the bondholders are insisting on the rights given them by the statute? The defendants do not claim that any rights of the city will be prejudicially affected by the issuance of the refunding bonds, nor do they purport to act for the interests of the city or the property owners affected by the refunding. We have held that the right of the city to receive for itself any part of the fund created to pay the bonds, after the bonds with interest are fully paid, is contingent, is not contractual, and is not protected by either the contract clause or the due process clause of the State or Federal Constitution. Oklahoma City v. Vahlberg, 185 Okla. 28, 89 P.2d 962. The two classes having a certain and direct financial interest in the enforcement of the statute are the bondholders and the owners of property against which the assessments for payment of the refunding bonds are levied. Neither class is here asserting the invalidity of the act. The case of Davis v. McCasland, 182 Okla. 49, 75 P.2d 1118, is not in point, since there the bondholders were not in court.

¶4 It is well settled that this court "will not pass upon the constitutionality of an act of the Legislature or any of its provisions until there is presented a proper case in which it is made to appear that the person complaining, has been or is about to be denied some right or privilege to which he was lawfully entitled, or is about' to be subjected to some of its burdens or penalties." Shinn v. Oklahoma City, 184 Okla. 236, 87 P.2d 136, and cases cited. This is the general rule. 11 Am. Jur. 748, § 111, 12 C. J. 760, § 177. In other words, as a general rule the courts decide questions only when those urging them have an interest to protect and will be injured by the enforcement, or refusal to enforce, the rule or statute involved. This court does not give advisory opinions, answer hypothetical questions, or enter declaratory judgments. And this rule applies in mandamus proceedings where municipal officers seeking to raise the question of the constitutionality of a statute act ministerially, where the duty sought to be enforced is mandatory, and where the property rights of the municipality or its officers will not be prejudicially affected by the enforcement of the statute. Threadgill v. Cross, 26 Okla. 403, 109 P. 558; State ex rel. Cruce v. Cease, 28 Okla. 271, 114 P. 251; 12 C. J. 765; 16 C. J. S. 172, § 82; 34 Am. Jur. 872; 30 A. L. R. 378; 129 A. L. R. 941.

¶5 For the foregoing reasons, we decline, in this proceeding, to pass upon the constitutionality of said refunding statute, the only question presented by the parties. And, of course, this decision does not preclude the property owners or others affected by the refunding from questioning the constitutionality of the statute or otherwise asserting their rights, at the proper time and in the proper proceeding under the foregoing rule.

¶6 Judgment affirmed.

¶7 CORN, C. J., and RILEY, OSBORN, BAYLESS,. WELCH, and DAVISON, JJ., concur. GIBSON, V. C. J., and ARNOLD, J., concur in result.