ATTORNEY GENERAL HENRY HAS RECEIVED YOUR LETTER OF MARCH 20TH, 1990, REQUESTING AN OFFICIAL ATTORNEY GENERAL OPINION ASKING, IN EFFECT:
"IS THE OKLAHOMA TURNPIKE AUTHORITY REQUIRED TO PAY RECORDING FEES, FILING FEES OR POUNDAGE ON PLEADINGS, INSTRUMENTS OR DEEDS FILED FOR RECORD IN THE OFFICES OF THE COUNTY CLERKS OF THE STATE OF OKLAHOMA?"
BECAUSE YOUR QUESTION MAY BE ANSWERED BY REFERENCE TO CLEARLY CONTROLLING STATUTES AND CASE LAW AUTHORITY, THE ISSUANCE OF AN OFFICIAL OPINION OF THE ATTORNEY GENERAL IS NEITHER DESIRABLE NOR NECESSARY. THE DISCUSSION WHICH FOLLOWS IS, THEREFORE, NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL; IT REPRESENTS, RATHER, THE ANALYSIS AND CONCLUSIONS OF THE UNDERSIGNED ASSISTANT ATTORNEY GENERAL.
YOUR LETTER MAKES FURTHER INQUIRY AS TO WHETHER THE OKLAHOMA TURNPIKE AUTHORITY IS STATUTORILY REQUIRED TO PAY FILING FEES FOR VARIOUS DOCUMENTS FILED ON BEHALF OF THE AUTHORITY IN CONNECTION WITH CONDEMNATIONS OF PROPERTY BY THE AUTHORITY, AS WELL AS POUNDAGE WITH RESPECT TO CONDEMNATION AWARDS PAID INTO COURT IN CONNECTION THEREWITH AND FEES IN CONNECTION WITH RECORDING VARIOUS DOCUMENTS AND INSTRUMENTS BY THE AUTHORITY.
THERE ARE SEVERAL OKLAHOMA STATUTES THAT ADDRESS THE TYPES OF FEES LISTED ABOVE. THESE STATUTES CAN BE FOUND IN TITLE 28 OF THE OKLAHOMA STATUTES AND INCLUDE 28 O.S. 31, (FEES OF COURT CLERKS), SECTION 32 (COUNTY CLERK-FEES), 28 O.S. 152, (FEES CHARGED IN FILING CIVIL CASES IN DISTRICT COURT) AND 28 O.S. 152.3, (POUNDAGE FEE AND COURT COSTS IN CONDEMNATION ACTIONS). WITH RESPECT TO THE QUESTIONS SET OUT ABOVE, SECTION 31 PROVIDES THAT THE COURT CLERK OF THE DISTRICT COURT SHALL CHARGE AS A FEE FOR RECEIVING AND PAYING OUT MONEY IN PURSUANCE OF LAW OR ORDER OF THE COURT. SECTION 32 AUTHORIZES COUNTY CLERKS TO CHARGE AND COLLECT FLAT FEES FOR RECORDING DEEDS, MORTGAGES AND OTHER INSTRUMENTS. 28 O.S. 152 AUTHORIZES THE COURT CLERK TO CHARGE CERTAIN FEES FOR ALL CIVIL CASES FILED IN THE DISTRICT COURT, INCLUDING CONDEMNATION ACTIONS. 28 O.S. 152.3 SPECIFICALLY PROVIDES THAT THE POUNDAGE FEE AND COURT COSTS IN CONDEMNATION PROCEEDINGS TO BE PAID BY THE CONDEMNOR IN ALL CONDEMNATION PROCEEDINGS.
YOUR QUESTIONS ASK WHETHER THE OKLAHOMA TURNPIKE AUTHORITY IS REQUIRED TO PAY THE FEES AUTHORIZED BY STATUTE TO BE CHARGED BY THE COURT CLERKS AND THE COUNTY CLERKS UNDER THE STATUTES LISTED ABOVE. BEFORE ANSWERING YOUR SPECIFIC QUESTION, A GENERAL QUESTION MUST BE ASKED AND ANSWERED, THAT IS WHETHER THE OKLAHOMA TURNPIKE AUTHORITY IS AN AGENCY OR INSTRUMENTALITY OF THE STATE OF OKLAHOMA. THIS QUESTION WAS ANSWERED BY THE OKLAHOMA SUPREME COURT IN THE CASE OF THE APPLICATION OF THE OKLAHOMA TURNPIKE AUTHORITY, 386 P.2D 165 (OKLA. 1963). THE COURT AT PAGE 168 STATED:
"THE OKLAHOMA TURNPIKE AUTHORITY IS AN AGENCY OF THE STATE OF OKLAHOMA CREATED AND OPERATING UNDER SECTIONS 651 TO 687, INCLUSIVE, OF TITLE 69 O.S. 11-1401 TO 69 O.S. 11-1405 (1961), INCLUSIVE, OF TITLE 47 O.S. 1961."
THEREFORE THE QUESTION BECOMES: IS THE AUTHORITY, AS AN AGENCY OF THE STATE, EXEMPT FROM PAYMENT OF FEES TO THE COURT CLERKS AND COUNTY CLERKS.
THE OKLAHOMA SUPREME COURT IN MORRIS V. STATE, 212 P. 58 (OKLA. 1923) STATED AT PAGE 588:
". . . THE GENERAL RULE IS THAT THE STATE IS NOT BOUND BY THE PROVISIONS OF A GENERAL STATUTE, WHERE THE EFFECT OF SUCH STATUTE WOULD BE TO RESTRICT THE RIGHTS OF THE STATE TO AFFECT ITS INTERESTS OR TO IMPOSE LIABILITY UPON IT, UNLESS IT IS NAMED EXPRESSLY OR BY NECESSARY IMPLICATION."