dissenting and joined by KAUGER, J. and BOUDREAU, J.
T1 The "annexing ordinance" never became effective because it was never published as required by statute. The statute upon which the Court relies to "cure" the defective publication is 11 0.S8.1991 § 21-112, which reads:
When any territory is annexed to or detached from a municipality, whether by ordinance or court order, the mayor shall file and record a duly certified. copy of the ordinance or court order, together with an accurate map or plat of the territory, in the office of the county clerk of the county in which the territory, or the greater portion of it, is located. The record in the office of the county clerk shall be conclusive evidence of such annexation or detachment. (Emphasis added).
T2 The problem is that at the time this attempted annexation was filed in the Clerk's office there was no annexing ordinance in effect. The Oklahoma Municipal Code at 11 0.8.1991 § 14-106 states in pertinent part:
No ordinance having any subject other than the appropriation of monies shall be in force umless published or posted within fifteen (15) days after its passage. (Emphasis added).
T3 The courts regularly construe the word "shall" as imposing a mandatory requirement. Oklahoma Electric Cooperative, Inc. v. Oklahoma Gas and Electric Co., 1999 OK 35, ¶ 9, 982 P.2d 512, 514; Stonecipher v. District Court of Pittsburg County, 1998 OK 122, ¶ 14, 970 P.2d 182, 186.
[4 The "annexing ordinance" itself conditions its effectiveness on its publication:
Section 8. From and after the effective date of this Ordinance, said property so annexed shall be and become an integral part of the Town of Chelsea, Oklahoma, and shall be subject to the Ordinances thereof.
Section 4. Emergency Clause: It being necessary for the preservation of the peace, health, safety and public welfare of the citizens of the Town of Chelsea, Oklahoma, an emergency is hereby declared to exist by reason whereof this ordinance shall become effective immediately upon its passage and publication.
(See Transcript of Proceedings (10-19-01) PlLEx. 1) (emphasis added).
Thus it should be clear that when some person took the City Councils' work to the courthouse for filing there was no annexing ordinance in effect for the "curative statute" to cure.
15 The point was made by this court in East Central Oklahoma Electric Co-op., Inc. v. O.G. & E. Co., 1978 OK 3, 505 P.2d 1324, 1329:
An ordinance adopted in compliance with the statute [11 0.8.1971 § 579.2, now codified as 11 0.8.1991 § 14-106] with the emergency clause attached is not effective and in force until it has been published.
This statement exactly supports the law as set out in § 14-106 of the Oklahoma Municipal Code, and, in my opinion, is in no way changed by the later addition of the "conclusive evidence" language of § 21-112. This is so because § 21-112 only applies to "ordinances." Here there was no ordinance in effect-only an ineffective attempt to annex.
T6 Clearly the newspaper account of the council meeting, carrying no legal description of the land sought to be annexed, cannot qualify as the publication in full required by § 14-106, nor as the publication by title only required (when the emergency clause is attached) by § 14-107(c). With no statutorily-required publication the attempted annexation never took effect as an ordinance so as to invoke the provisions § 21-112.
17 Today's opinion effectively repeals the legislatively-required publication of an ordinance, and allows that publication to be replaced by filing the thing of record in the Clerk's office. I do not believe the Legislature wrote it to work that way. Therefore I respectfully dissent.