Mid-Continent Pipe Line Co. v. Seminole Cty. Excise , 194 Okla. 40 ( 1944 )

It is my firm and fixed opinion that taxes under consideration, levied in Seminole county to pay bonds funding judgments against school districts, are illegal because the judgments funded are, as disclosed by the judgment roll, void.

To sustain funding bonds, this court has held in other decisions that such bonds are simply evidences of existing indebtedness and they do not constitute a new debt. A corollary of that proposition would seem to be that if the judgments are void, the funding bonds based thereon are likewise void.

The judgment rendered against school district No. 2 of Seminole county is void because no cause of action was pleaded against that school district, and this fact is revealed by the judgment roll. Johnson v. Petty et al., 118 Okla. 178,246 P. 848.

The petition did not allege a certification by the proper officer of the contract or purchase order, as required by law. 62 O. S. 1941 § 311 makes void all purchase orders and contracts not certified by the officer charged with keeping the expenditure and appropriation record of the county; unless the certificate of that officer shows an unencumbered balance in the appropriation made for the specific purpose of liquidating the contract and paying the purchase order, by law the contract or purchase order is void.

Compliance with the law is a prerequisite to a valid judgment in such cases. Section 363, Id.

While the petition in this case alleges that the contract, purchase order, and certificate required by law are attached to the petition, the fact is that no such exhibits are attached to the petition. When a fact is alleged to exist as shown by reference, the reference must be a verity. It is settled law that as to variations between them, an exhibit attached to a pleading governs. Failure to complete a pleading by attachment negatives the fact.

It is true that the judgment funding the purported indebtedness recites in general terms compliance with the requirements of law. But an examination of the judgment roll disputes the recital and thus renders the judgment void upon the face of the court record.

The majority indulge the presumption that the court had before it sufficient evidence to confer jurisdiction and authorize the judgment, but such is not the case, for good and sufficient reasons. To sustain a valid judgment against the sovereign or its municipal subdivision, the judgment roll must show a judgment to be valid. Protest of Kansas City So. Ry. Co., 157 Okla. 246, 11 P.2d 500:

"Unless the judgment roll shows a judgment to be valid, the judgment is void on its face, and if it is void on its face, it may be attacked in any proceeding, either directly or collaterally."

What does this judgment roll reveal? A dispute, between the judgment and the cause of action attempted to be stated. Does the judgment roll show a valid judgment? It does not. It shows a controversy upon the face of the court record. How is the controversy resolved by the majority? a indulging a presumption of the introduction of evidence to supplant jurisdictional requirements not pleaded.

To dispel the deceptive presumption by the majority indulged, the public records are presented to show the financial and appropriation record of the school district. The public record is the sovereign state's record as much so as the judgment roll is the record of the court, one of the departments of government. Therefore, as against the sovereign, in measuring validity of a judgment, resort may be had to the public record. In business transactions every citizen is charged with knowledge of that record. If a merchant sells to a public officer without knowledge of an appropriation with which to be paid, he does so at his peril.

Long ago, in Eaton, County Treas., v. St. Louis-S. F. Ry. Co., 122 Okla. 143, 251 P. 1032, this court held:

"Where a judgment purports to give validity to a refunding bond issue in the face of public records, which show that at the time of such purported judgment and bond issue the outstanding indebtedness already exceeded the constitutional limit, such judgment is void on its face, and such bonds are invalid."

The majority would isolate and distinguish that well-considered case; why is it that resort may be had to the public record in cases where the constitutional debt limit is exceeded, but no such knowledge may be gained when it is charged that the statute has been violated?

Judges should not be blind to that which everyone knows; at least, they should not be blind to that of which everyone is charged with knowledge.

Deception is the mother of presumptions. Indulgence of it is a far cry from the existence of facts not revealed by a judgment roll as required for a valid judgment against the people.

In this case the plaintiff pleaded inconsistently and insufficiently. He pleaded that funds appropriated with which to liquidate his contract had been exhausted, and then he pleaded generally that the contract was valid, and so enforceable. Having pleaded exhaustion of the funds appropriated, it was obligatory for plaintiff to plead further, so as to state a cause of action by alleging a balance on hand of the appropriated funds at the time when both the contract and purchase order came into being. 62 O. S. 1941 § 362. This plaintiff failed to do. The omission amounts to a fraud upon the people. The Supreme Court of the United States once well said that an illegal exaction from the people in the form of taxes is none the less robbery when it is done under the guise of law.

Fraud is an illusive thing. To detect and stamp it out exertions must be made comparable, almost, to a search at midnight in a dark cellar, for a black cat that is not there, because he got the cream and has gone.

The other judgment against the school district is comparable and kindred to the one discussed. It forms no good basis for bonds funded, for which the taxes are levied.

For these reasons, I respectfully dissent.