Board of Ed. of Oklahoma City v. Thurman

We cannot agree with the majority opinion. As we view the case, the sole question necessary for the determination of the appeal is whether or not the contract involved in the action is ultra vires and void. The consideration of this question necessarily involves a discussion of powers expressed and implied of municipal corporations and the method by which and extent to which they may expend public funds by contract. This question was presented to the lower court by demurrer to plaintiff's petition and by specific allegations in the defendant's answer, and here by plaintiff in error's first assignment of error.

It will not be denied but that under section 10406, Compiled Oklahoma Statutes, 1921, the defendant, board of education, possessed the usual powers of corporations for public purposes, and as such may sue or be sued, and to contract. Such specific grants of power imply the further power to employ an attorney on behalf of such board in the proper cases, by contract. Ex parte Jones, 4 Okla. Crim. 74, 109 P. 570.

In Board of Education of Guthrie v. Excise Board,86 Okla. 24, 206 P. 517, this court held that a board of education may mandamus the excise board to make a levy for separate school purposes. It is there implied that such is a proper case for the employment of an attorney. The action was in the name of the school district, and the statutes make no specific provisions for an attorney to represent the school district in such cases.

The defendant school board herein was not a party to the tax suits, mentioned in the contract sued on in this action. School districts of this state have no duty to perform in the enforcement of tax collections for any purpose, and in suits for taxes paid under protest school districts are not necessary parties; in fact, the school district was not made a party to the actions mentioned in the contract, but contracted only for assistance to the regularly constituted authority, the county attorney, and the eminent counsel representing the school board in this capacity will not be heard to say that said board was an interested and consequently a necessary party to the said tax suits, nor that it was not the duty of the county attorney to defend such suits.

Section 9971, Compiled Statutes, 1921, provides that a suit by a taxpayer to resist the payment of a tax shall be brought against the county treasurer. Section 5741, Compiled Oklahoma Statutes, 1921, provides it shall be the duty of the county attorney to defend, on behalf of the state and county, all actions or proceedings, civil or criminal, in which the state or county is interested or is a party. Expressio unius est exclusio alterius.

The court, in Thatcher and Stephens v. Commissioners of Jefferson County, 13 Kan. 182, uses the following language:

"In many cases the county is by law constituted the general agent or guardian for the protection of the rights and interests of townships and of other subdivisions of the county, and may prosecute or defend therefor."

The Legislature having provided that the county attorney shall defend tax suits brought against the county treasurer, and the Legislature having failed to provide for an attorney to represent school boards, we are of the opinion that no necessity existed for the employment of the defendant in error herein, it being a well-established rule in the interpretation of a law, contract, or will, when certain persons or things are specified, an intention to exclude all others from its operation may be inferred.

The Supreme Court of Kansas in Clough v. Hart, 8 Kan. 487, in discussing a similar case, said:

"A board has no power to employ counsel where there is no necessity, because attorneys employed by the municipality are available."

And in the body of the opinion these words are used:

"The county and city of Leavenworth attempt by these contracts, to employ the plaintiffs to perform precisely what is the duty, under the law, of the county and city attorneys, respectively, to perform. They completely ignore the law."

In Smith v. City of Scranton, 2 Penn. C. C. Rep. 331, it is said:

"Public officers, in the performance of public duties, must avail themselves of such means as the law has provided; and, while such means exist, there can be no necessity to imply others."

The court, in the case of The People of New York ex rel. French v. Byron J. Town, Receiver of Taxes, 1 A.D. 127, 37 N Y S. 64, held:

"Even if the right to employ counsel would ordinarily be inferred as a power incident to the duty of bringing suit to protect public funds, yet when it appears that other provisions are made by the charter for the employment of such counsel, such inference vanishes. The necessity being removed the incidental power would cease." *Page 114

Beach on Municipal Corporations, vol. 1, page 58 says:

"And where the law has provided an officer whose duty it is to attend to all the legal business of a county, it has been held that the county cannot employ counsel."

In Field v. City of Shawnee, 7 Okla. 73, 54 P. 318, this court held that a contract which was not in furtherance of any purpose for which the defendant corporation was created, nor within the general scope of its powers, was ultra vires and void, and that no recovery could be had thereon.

This court held in Board of Com'rs of Comanche Co. v. Fain,66 Okla. 13, 166 P. 836, that a district court appointing an attorney to represent the state in a criminal case appealed to the Criminal Court of Appeals was void to that extent, for the reason that such duty was imposed upon the Attorney General by law.

This court in City of Purcell v. Wadlington, 43 Okla. 728,144 P. 380, involving a case similar to the one under consideration, announced the following syllabus:

"Where the defendant municipal corporation entered into a contract with the plaintiff to appear as an attorney before the Corporation Commission and resist an application of a telephone company to raise its rates, held, in a suit against the municipality to recover thereon a reasonable attorney's fee, that said contract was not authorized by Wilson's Rev. Ann. St. 1903, sec. 347 (Rev. Laws 1910, sec. 541), as necessary to the good government of the city and as an exercise of its corporate powers; and, not being in furtherance of any purpose for which the municipality was created, nor within the general scope of its powers, the Same was ultra vires and void."

And said:

"When a corporation is created by a public statute for definite and limited objects to which its funds are to be applied, a contract, which is entirely unconnected with those purposes, or which on its face will cause an illegal or wrongful application of the funds, or an application to other objects, is ultra vires and void."

From the foregoing, we must conclude that the contract sued on herein was ultra vires and void, for the reason that the statutes gave no power to the school board to make the contract sued on. To be sure, the statutes gave the board of education power to make all contracts and do all other acts in relation and pertaining to the ordinary affairs of the school district necessary to the management of its affairs and statutory purposes and the exercise of its corporate and administrative powers, but this contract is not such as is within the contemplation of the statute. This for the reason that the subject-matter of the contract was not one in which the board of education had any official or statutory concern.

The county attorney is counsel for the county, and the statute expressly requires him to defend tax suits. The employment of a general attorney for the defense of tax suits for the territory embraced within a county and the municipal subdivisions thereof is not by the law put in the hands of a school board or the officers of other municipal subdivisions, but is put in the hands of the people themselves. The county attorney derives his authority from as high a source as does the school board, and it is about as reasonable to say that the county attorney could employ another board of education to transact or supplement the ordinary business of the school district, as performed by said board, as it is to say that said board can employ another attorney to transact or supplement the legal duties placed upon the county attorney by statute. Both would be absurd.

In our judgment the Legislature wrought well when in their wisdom they enacted specific statutes imposing exact duties upon particular officers in representing such municipal corporations in the defense of such actions, and thus preventing the deflection of great sums of money raised by the public tax from a purpose such as the payment of useless salaries and attorney's fees, other than for which such public money was levied and raised.

Where a school board has no direct interest in the question involved in a case, it seems clear that it cannot assume the defense of the suit or appropriate its money for the payment of the expenses incurred, "It would be a dangerous power," as stated in Halstead v. Mayor of N.Y., 3 N.Y. 430, "to be vested in municipal corporations, which would give them the right to employ counsel and defend every suit which might present a question in the decision of which the agents of such corporations might fancy themselves interested."

It is urged that, because the school district would eventually receive a portion of the moneys collected if successful in said tax suits, the school district would have such an interest as would authorize the board to employ counsel. We see no merit in this contention. If this were true, the school board could virtually take over the duties of the county assessor and of a tax ferret by employing persons to perform the duties required *Page 115 of such officers by statute under the guise of being interested, if additional property were placed on the tax rolls.

We are, therefore, of the opinion that the act of the school board in contracting with the defendant in error, for the purpose of rendering a service wherein the statute has already provided an official whose duty it is to perform such a service, is ultra vires and void, and that the trial court erred in overruling the defendant's demurrer to the petition and in failing to dismiss plaintiff's case.

MASON, LESTER, and CLARK, JJ., concur.