The opinion
RILEY, J.
(dissenting). I dissent to the order of the court denying petition for rehearing herein.
Here is presented the validity of a bond issue of $1,200,000, for the purpose of improving, as stated in the opinion, “certain designate!! highways in Lincoln county.” It is further stated in the opinion;
“As we view it, the sole question for us to determine is, whether the county commissioners were legally authorized, in the issuance and sa’e of the bonds in question, in following the law as it existed prior to the passage and approval of Senate Bill No. 87, or whether they are circumscribed in the issuance and sale of such bonds by the provisions of that act.”
So, then, the single proposition of the applicability of Senate Bill No. 87 was considered by the ccurt. and all other propositions duly submitted were left undecided, and untouched, unless it be considered that they were approached by reference to opinions cited. They cannot be considered decided by reference when the opinion sets out the “sole question for us to decide.” Nowhere in the opinion can it be said that the question duly submitted was decided, to wit, the authority of counties to vote bonds and to issue negotiable coupon bonds for building and constructing permanent county roads, as distinguished from state roads. The county has no inherent authority to issue such bonds. Section 10087, et seq , Compiled Oklahoma Statutes, 1961, refers to s'-ate roads, and chapter 48, Session Laws 1924, section 8, makes a distinction between state and county highways. The case of Mayberry v. Gaddis, 88 Okla. 286 , 213 Pac. 316 , cited, refers to a bond issue to build state roads, but says:
“The bond issue can be voted only for constructing permanent state roads, hut Uiere is no requirement of law that such designation should precede the election.”
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Franklin v. Ryan, 125 Okla. 161 , 256 Pac. 932 , cited, holds legal, under chapter 48, Session. Laws 1924, an additional tax levy for county highway funds, but does not touch such a bond issue.
Reference in the opinion is made to section’ 23, chapter 48, Session Laws 1924, the repealing clause and a proviso that in ah places in the road and bridge statutes of 1921 — compilation of Session Laws 1923— ■where the words “state roads” or “state highways” are used, the same shall be used to mean “county roads” or “county highways.” Can such a radical amendment of the road laws be effected under the guise of a construction, and thus govern the issuance of bonds theretofore without authority of law, and without suggestion or mention in the title to the act? It seems to me this court decided that matter in Ex parte Masters, 126 Okla. 80 , 25S Pac. 861, when this court spoke in an opinion per curiam by Chief Justice Branson. Nowhere in the opinion can it be ascertained that the cause concerned a county highway. The opinion spoke of “certain designated highways.”
The question of issuing bonds to mature in five-year serials and not in one-year serials, as required by Senate Bill No. 87, and as required by section 10087, Compiled Oklahoma Statutes, 1921, was before the court, but tbe opinion does not include the matter in the “sole question” determined, but directs tbe litigants to seek light in the cited authorities.
No oral argument was had prior to the judgment, opinion and decision, though the same was requested in due time and form, and the eminent counsel, Judge Bierer. contends that he has not waived that right either by act, word, or deed.
I consider the numerous matters duly submitted, only a few herein mentioned, and not passed upon by the court, of vital importance to the citizenship of this state, especially those whose property is to answer for this bonded indebtedness, and. therefore, after hearing argument on rehearing, I desire to dissent from the opinion.