# Kurn v. Helm > Supreme Court of Oklahoma · March 15, 1938 · 182 Okla. 260 URL: https://www.frixlaw.com/law-library/cases/3826016 ## Case - **Full name:** KURN Et Al. v. HELM, County Treas., Et Al. - **Court:** Supreme Court of Oklahoma - **Decided:** March 15, 1938 - **Citations:** 182 Okla. 260; 77 P.2d 552; 1938 OK 179; 1938 Okla. LEXIS 127 - **Precedential status:** Published - **Opinion:** Dissent by Welch - **Judges:** Hurst, Osborn, Phelps, Bayless, Davison, Syllabus, Riley, Welch, Corn, Gibson - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3826016 ## Opinion text WELCH, J. (dissenting). I cannot concur in the majority opinion and deem it proper to express my views on the following points. The majority opinion holds in paragraph 2 of the syllabus that the county treasurer has no authority to sue on warrants held ns investment in the county emergency investment fund. The reason given therefor in the body of the opinion is that no express statutory authority is granted to so sue, and also that the majority believes that authority to sue cannot be implied because the statute provided that when taxes were collected for the payment of warrants held in such fund the warrants should be taken up and canceled and the money returned to or paid into that fund. The majority opinion reasons that because the statute mentioned one way that the warrants held in that fund could be liquidated, it necessarily follows that no other method could be pursued. No authority is cited sustaining either reason for denying the right to sue, and it seems to me neither reason is sound. The statutory provision in effect that, when the treasurer collects back taxes with which to pay outstanding warrants, he shall pay them with such money, even though the warrants he held in this investment, is but a restatement of that which would have been the treasurer’s duty anyway. That is, when the county treasurer collects back taxes to pay outstanding county warrants, it is his duty to use that money only for the purpose of paying those warrants. That is true whether such outstanding warrants are held by the original payees of the warrants, or by an investor, or in any investment. Surely that is true regardless of the character of the investment. Could anyone cite a circumstance where this would be changed by reason of the character of the investment? I think not. And I regard it as certain, and readily apparent, that this duty of the treasurer does not in any manner affect or restrict the right of any owner of a valid warrant to sue thereon. The general right of any warrant holder to sue thereon is recognized by all the courts, and by the Legislature in prescribing the applicable limitation period in which to sue on a warrant. Article 7, chapter 32, S. L. 1935, page 127. The Legislature, in restating this duty of the county treasurer to pay these warrants with back tax money collected to pay same, merely made it plain that these outstanding warrants held in this investment were to be treated as any other outstanding warrants, however held and owned. How, then, could this provision affect the right- to sue on these warrants? I submit it could not. If outstanding warrants are held as investment in any sinking fund, and back tax money is collected to pay such warrants, is it not the duty of the county treasurer to use such money to pay such warrants? I think so. It is true the statute authorizing the investment of sinking fund money in warrants does not expressly so state, but. I insist that such would be the duty of the treasurer, with or without any such express statement. Nor does this in any manner affect the right to sue on any such warrants. This court by the majority opinion upholds the right to sue on warrants held in the sinking fund, as this court has repeatedly held before. Wilburton v. King, 162 Okla. 32 , 18 P.2d 1075 . Why hold the opposite as to warrants held in the county emergency investment fund? Why are not the same rules applicable whether warrants are held in this fund or in the sinking fund? In either irw-stance the. warrants are outstanding; the character of the holding is the same, that is, the warrants are held as “an investment ;” in either instance, when back tax money is collected to pay the warrant, it is the duty of the treasurer to pay the warrant with that money by paying the money into the fund holding the warrant and taking up and canceling the warrant. In neither instance is the warrant paid by being taken and held as an investment. In either instance the right to take the warrant as an investment is the same. Does it not logically follow that the right to sue on the warrant is the same in either instance? I think so. *269 But the majority opinion reasons that the statute authorizing this investment gives no express authority to sue. That is so, but what difference does that make? See Wilburton Case, supra. There are many instances where statutes authorize particular investments without therein granting express authority to sue on the investment, for instance: Sinking fund investment in United States bonds, or state bonds, or bonds of any county, city, town, township or school district, or state warrants or warrants of any county, city, town, township or school district (sections 5914 and 5915, O. S. 1931). Sinking fund investment in federal farm loan bonds (section 5926, O. S. 1931). Guardian’s investment of ward’s funds in real estate mortgages, or United States bonds, or state bonds or bonds of municipal corporations or building and loan stock (section 1459, O. S. 1931). Prior to this time it seems never to have been contended or urged that the right to sue in reference to any such investment would be lost xuiless preserved by express provision in the same statute authorizing the investment. I see no merit in the contention now. A somewhat similar contention was made, but denied by this court, in Wilburton v. King, supra. The statute authorizing the taking and holding of warrants as investment in the sinking fund is wholly silent as to any right to sue on those warrants, nevertheless the right to sue exists, and is upheld in this same opinion, and in the Wilburton Case, supra. Then surely it is not logical to say that warrants held in this investment fund may not be sued upon for lack of express provision for suit in the statute authorizing the investment. As I read our statutes, the right to sue on any valid county warrant accrues one year after the close of the fiscal year in which it is issued. Article 7, chapter 32, S. L. 1935. And suit thereon may be brought at any time thereafter within the limitation period prescribed. Article 7. chapter 32, S. L. 1935. This right goes with the warrant when transferred, no matter to whom, nor to what investment the transfer is made. Thus it is that the right to sue on a warrant exists whether the warrant is held bv the original payee, his banker, an individual investor, the county treasurer as an investor, or by any other investor. The majority opinion suggests that to apply that rule here would permit an increased burden on the taxpayers. I would go as far as anyone to prevent that, but I cannot see that any increased burden is created by the holding that the right to sue on these warrants still exists. It is always a burden on taxpayers to pay warrants, or to pay judgments rendered on warrants, but the burden is the same whether payment is made to or for the original payee of the warrant, or his banker, or some one else who holds the warrant. The burden on the taxpayers to pay these warrants came into existence by operation of law when the warrants were issued. The right to sue came into existence by operation of law in one year after the close of the fiscal year of issuance without payment thereof. Those burdens on taxpayers existed before this investment was made. They were neither increased nor diminished by the fact that the warrants were transferred and taken for investment. Nor would those burdens be increased or diminished by a logical application of the right to sue on valid warrants. The taxpayers’ burdens as to payments of warrants are fixed by the legislative enactments and are not discharged except by payment of the warrants or perhaps by lapse of the time in which suit thereon may be brought. While the courts will always be concerned as to burdens to taxpayers, that concern cannot be extended to a denial of the right to sue on a valid warrant by the owner and holder thereof, when suit is timely brought. I also see error in the rules announced in the 3rd and 4th paragraphs of the syllabus. As to those points, we are considering warrants issued to pay for repairs to equipment, and to purchase machinery, tools, equipment, gasoline, oil or grease, and labor for use in maintenance of roads and bridges. As shown by the form copied in the majority opinion, there was a space provided for the itemization of the highway appropriation, and a special space provided for the appropriation for each of the items mentioned above, that is, for repairs or maintenance of machinery, purchase of tools, equipment, gasoline, oil and grease, and for labor. I-Iowever, there was no specific appropriation or itemization of any sum for either of these named purposes. There was a general appropriation under item No. 15 for “maintenance of roads and bridges.” Tt is decided or conceded in the majority opinion that all these expenditures were for materials, equipment, and labor for maintenance of roads and bridges. Now, however, the majority opinion holds invalid the warrants issued for tools, *270 equipment, and machinery for lack of specific appropriation or itemization; while holding valid the warrants issued for labor, gasoline, oil or grease, and repairs or maintenance of machinery, though as to each of those items there was the same lack of specific appropriation or itemization in the blank space provided therefor. I think that is inconsistent, and I, therefore, cannot bon-eur therein. I think, of course, the laborers should be paid, likewise the parties who furnished gasoline, oil and grease, and repairs or replacements for the machinery. But the same wholesome rules as to appropriation or itemization apply to those expenditures as to the others here involved. It is not questioned but that all these warrants were issued within the appropriation specifically made for “maintenance of roads and bridges,” and for that purpose. It is my view that that appropriation, though somewhat general in its terms, became legal and valid by reason of the stat-. ute (section 12306, O. S. 1931), and the rule as referred to in paragraph 8 of the syllabus of the majority opinion; and that all warrants issued in payment of valid claims for such purpose, within the amount there appropriated, must stand in the same position as regards further itemization or more specific appropriation, and that none of them need be held void merely for lack of such further itemization or more specific appropriation. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3826016. Public record. Not legal advice.