The opinion
LAVENDER, Justice
(dissenting):
As I understand the majority opinion, the effect of it is to hold that an express trust as authorized by 60 O.S.1961 §§ 176 through 180, with a county as the beneficiary thereof, cannot validly be created for the purpose of constructing a toll road within such county because there is no specific statute of this state which authorizes counties to construct toll roads.
In Board of County Commissioners of Oklahoma County et al. v. Warram et al. (1955), Okl., 285 P.2d 1034 , this court construed 60 O.S.1961 § 176, supra, as authority for the creation of express trusts with a county as the beneficiary for “any authorized or proper function of the said beneficiary,” to quote the statute, and said those words mean any purpose which said beneficiary might properly be authorized by law to perform. In other words, the fact that the beneficiary had not been expressly authorized to perform the particular function was held to be immaterial in the cited case.
While it is true, as said in the majority opinion, that the Legislature has expressly given the Oklahoma Turnpike Authority limited power to construct toll roads within *885 the state and has not heretofore expressly-authorized any county to construct such roads, I know of no constitutional reason why the Legislature could not authorize each county in the state — or each county within a valid classification — to construct such toll roads within the limits of the county.
I am of the view that an express trust with a county as the beneficiary thereof may validly be created under the provisions of 60 O.S.1961 §§ 176 through 180 for the purpose of constructing, operating, and maintaining a toll road or roads within the county and providing funds for the furtherance thereof. I therefore respectfully dissent to those portions of the majority opinion which have the effect of holding to the contrary.
The above view leaves unanswered, of course, the issue presented here of whether the trustees of such a trust may validly construct a toll road within the limits of a city or town without the consent of the governing body of such city or town. The majority opinion does not deal with this question and neither do I in this dissenting opinion.