Adams v. City of Hobart
|Supreme Court of Oklahoma
|27 P.2d 595,166 Okla. 267,1933 OK 646
|ADAMS v. CITY OF HOBART et al.
|05 December 1933
Syllabus by the Court.
1. In order to effectively alter or amend two separate and distinct provisions of the Constitution of the state relating to separate and distinct subjects, two separate amendments are required under section 1, art. 24, of the Constitution. Such amendments must be submitted in such manner that the voters may vote for or against them separately.
2. The general rule is that a clause in a constitutional amendment will prevail over the provisions of the original instrument inconsistent with the amendment. But repeal of constitutional provisions by implication is not favored, and an amendment should not be construed as a repeal or modification of another provision of the Constitution unless there be a clear conflict between the amendment and some existing provision of the Constitution.
3. Section 27, art. 10, of the Constitution is a self-executing grant of power to the qualified property taxpaying voters of an incorporated city or town, voting at an election held for that purpose, by a majority vote, to become indebted in a larger amount than that specified in sections 9 and 26, of art. 10, of the Constitution for the purpose of purchasing or constructing public utilities, or for repairing same, to be owned exclusively by such city or town, and is likewise a self-executing grant of power to provide, at or before the time of incurring such indebtedness, for a tax, in addition to other taxes provided for by the Constitution, sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof, within twenty-five years from the time of contracting the indebtedness.
4. The power granted by section 27, art. 10, of the Constitution, to the property taxpaying voters of incorporated cities and towns to incur indebtedness for the purposes therein stated and to provide for the collection of an annual tax, in addition to other taxes provided for by the Constitution to pay the interest on and principal of such indebtedness is a separate and distinct grant of power, independent of and not affected by the provisions of section 9, art. 10, of the Constitution, either before or after the adoption of the amendment to section 9, art. 10, of the Constitution, on August 15, 1933.
Appeal from District Court, Kiowa County; E. L. Mitchell, Judge.
Action by J. L. Adams against the City of Hobart, Okl., and others. From an adverse judgment, plaintiff appeals.
Carder & Carder, of Hobart, for plaintiff in error.
Clarence W. Hunter, City Atty., of Hobart, Paul Y. Cunningham, County Atty., of Hobart, for defendants in error.
On September 28, 1931, at an election held in accordance with the law, the qualified taxpaying voters of the city of Hobart authorized said city to issue its negotiable bonds in the sum of $250,000, to provide funds for the purpose of extending and improving its waterworks system owned and to be owned exclusively by said city, and authorized the levy and collection of an annual tax, in addition to all other taxes, upon all property subject to taxation in said city to provide money with which to pay the interest and principal of said bonds. Thereafter the proceedings and bonds were approved by the Attorney General; after which the bonds were advertised and sold by said city to the Reconstruction Finance Corporation, to be delivered in three parts. On August 15, 1933, the first two parts of said bonds aggregating $200,000, had been delivered to the Reconstruction Finance Corporation, and had been paid for leaving bonds in the amount of $50,000, to be delivered. On November 3, 1933, this action was commenced by plaintiff, J. L. Adams, a resident and property owning taxpayer of said city against the city, its mayor, and councilmen, the city clerk and city treasurer of said city, the county treasurer and the county excise board of Kiowa county, to enjoin the city, its said officers and agents, from making delivery of the $50,000, in bonds then remaining undelivered, and to enjoin the county excise board and its members from levying and certifying any tax to be assessed or levied against the property situated in said city for the purpose of providing for the interest and principal of that part of said bond issue, and to enjoin the county treasurer from collecting any such tax.
The petition set out all the proceedings had in connection with the authorization and issuance of said bonds with great particularity and showed that said proceedings had been had in accordance with the law down to the delivery of the $200,000, in bonds to the Reconstruction Finance Corporation. The petition as grounds for the relief sought alleged:
The district judge being absent from said county, application was made to the county judge for a temporary injunction, which was granted. Thereafter on November 4th, the county treasurer and county excise board, represented by the county attorney, and the city of Hobart and its officers and agents represented by the city attorney of said city, filed separate motions to dissolve said temporary injunction setting up as grounds: That the petition of plaintiff was insufficient to entitle the relief sought; that said petition shows no grounds for the interposition of equity; that it did not state facts sufficient to constitute a cause of action against defendants or either of them; that said petition showed upon its face that all the proceedings had for the issuance and sale of said bonds were had strictly in accordance with law, and the further grounds were pleaded:
"6. Because section 27, of article 10, of the Constitution of the State of Oklahoma, is a grant of power to the people of a city or town to issue bonds for a public utility, in excess of and independent of Section 9, of said article, originally as well as amended, relied upon by said plaintiff.
7. Because section 27, article 10, of the Constitution is a special grant of power to incorporated cities and towns to incur debts for public utilities to be owned exclusively by such cities and towns.
8. Because section 27, of article 10, of the Constitution is a self-executing grant of power to the qualified property taxpaying voters of a city or town voting at an election held for that purpose, by a majority vote, to become indebted in a larger amount than that specified in section 9, of said article, both originally and as amended, for the purpose of purchasing or constructing public utilities, or for repairing the same, to be owned exclusively by such city.
9. Because section 9, of article 10, of the Constitution of the State of Oklahoma, as amended, relied upon by plaintiff, does not in any manner, operate to repeal, vacate, modify or nullify Section 27, of Article 10, of the Constitution of the State of Oklahoma, or any provision thereof."
Upon proper notice the motions were presented to the district court and were sustained and the action ordered dismissed. From this judgment and order, plaintiff prosecutes this appeal. Because of the important public question involved, the cause has been advanced by this court.
The sole question presented is whether by the adoption at the election held throughout the state on August 15, 1933, of the amendment to section 9, art. 10, Constitution, the provisions of section 27, art. 10, of the Constitution were repealed, or so modified, as to thereafter prevent the creation of indebtedness therein authorized by cities and towns and prevent the levy and collection of the taxes therein authorized and required, sufficient to pay such indebtedness in addition to other taxes provided for in the Constitution.
Section 9, art. 10, before the amendment thereof, provided:
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