# Dolezal v. Bostick

> Supreme Court of Oklahoma · February 28, 1914 · 41 Okla. 743

URL: https://www.frixlaw.com/law-library/cases/9817480

## Case

- **Full name:** DOLEZAL, County Clerk, Et Al. v. BOSTICK, Co. Atty.
- **Court:** Supreme Court of Oklahoma
- **Decided:** February 28, 1914
- **Citations:** 41 Okla. 743; 139 P. 964; 1914 OK 82; 1914 Okla. LEXIS 223
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Thacker
- **Cited by:** 23 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/9817480

## How later opinions describe it (automated extraction)

- noting that a court must disregard any "error or defect in the pleadings [or proceedings] which does not affect the substantial rights of the adverse party'

## Opinion text

On Rehearing.
It is urged in the petition for rehearing that the record does not justify our statement in the original opinion that “in deference to the judgment of the trial court, we must assume that no emergency existed,” and that payment for the three bridges built under the agreement of September 14, 1906, was authorized by section 1, art. 4, c. 32, Sess. Laws 1909, which reads as follows:
“The board of county commissioners of any county in this state is hereby authorized to pay for the reconstruction or repairing of such county bridges as have been heretofore damaged or destroyed by floods, and including bridges where the same by reason of an emergency have been repaired or reconstructed by any person or persons without first having contracted to repair or reconstruct the same with said county commissioners; provided, the authority granted by this section shall apply only to claims for repairing or reconstructing bridges previously owned by the county on the same site.” .
Section 52, art. 5 (section 142, Williams’ Ann. Ed.), Constitution of this state, reads:
“The Legislature shall have no power to revive any right or remedy which may have become barred by lapse of time, or by any statute of this state. After suit has been commenced on any cause of action, the Legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit.”
In our opinion, this provision of the Constitution clearly preserves to plaintiff its right to maintain its suit to enjoin the payment of the unpaid balance of $2,948.75, notwithstanding the subsequent enactment of section 1, supra. Even if it be conceded that said section does not require action of the board of county commissioners, expressly finding all the essential facts, and also allowing claim for payment since the enactment thereof, and that it authorizes payment for such bridges as were recon *758 structed or repaired before its enactment, under an agreement with the board of county commissioners made in violation of the provisions of section 4, art. 1, c. 29, Sess. Laws 1903 (section 7861, Comp. Laws 1909), which we do not decide, and even if it be further conceded that an emergency existed when said agreement was made, this section of the Constitution saves to plaintiff the right adjudged below. But, adverting to the said statement in the original opinion of which defendants complain, it seems that this section 1 of the act of 1909 should be construed with and as in the nature of an exception to the general rule established by the provisions of said section 4, which makes- advertisement and opportunity for competitive bids essential to a contract under which a county may pay for a bridge; and we think in the present case the burden was upon defendants to plead, as they did, and to prove, which they did not, such an emergency as made it necessary to dispense with advertisement and opportunity for bids, so we may at least say that there was no evidence of any emergency which would, if suit had not been commenced, bring these three bridges within the. purview of the provisions of section 1, supra, and that the trial court so found. There was apparently no order of the board of the county commissioners declaring an emergency, and no evidence as to the necessities of public travel in respect to the roads upon which the bridges were built, except that they were mail routes, nor in respect to whether the streams were fordable at any convenient place, nor that one of these bridges replaced a bridge owned by the county, nor can we say with due deference to the judgment that the county commissioners had not sufficient time after the old bridges were destroyed in which to have complied with the requirements of said section 4 before September 14, 1906, in view of the fact 'that there was no more definite evidence in this regard than proof of the fact that the old bridges had “recently” been destroyed.
We deem it unnecessary to discuss any other proposition urged in the ¡petition for rehearing.
The petition should be denied, and there should be adherence to the original opinion.
By the Court: It is so ordered.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9817480. Public record. Not legal advice.