Allen v. Board of Com'rs of Logan County
| Decision Date | 29 May 1928 |
| Docket Number | 17742. |
| Citation | 267 P. 860,131 Okla. 41,1928 OK 345 |
| Parties | ALLEN et al. v. BOARD OF COM'RS OF LOGAN COUNTY et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
When funds are raised by the issuing of bonds or by taxation for a designated purpose, they cannot be diverted to some other purpose.
Where the resolution and proclamation of the board of county commissioners, calling an election for the purpose of voting bonds for the construction of permanent roads, designate the roads to be constructed, the board has no authority to expend all the proceeds of such bonds on a portion of said roads to the exclusion of others so designated, as the order calling the election and the ratification of that order by the electors in adopting the bonds at a subsequent election, in effect, constituted a contract between the county and the individuals whose property was affected, and it could not be materially altered by one of the parties alone.
Where a county votes bonds for the purpose of constructing permanent or hard-surface roads without any further designation as to the material to be used, the county commissioners are not limited to any one material, but may exercise their discretion in the choice of various materials which, in their judgment, may be best suited for each particular road or portion of road, so long as such improvement comes within the provisions of section 16, chapter 48, Session Laws 1923-24 which defines the term "hard surface" to mean a road surfaced with concrete, brick, water bound, or bituminous macadam or the equivalent of properly bound gravel or other material to be approved by the state highway commission and meeting the federal requirements.
A resident taxpayer, although he shows no special private interest, may invoke the interposition of a court of equity to prevent an illegal disposition of the money of a municipality.
Although ordinarily, mandamus will not lie to compel the performance of the duty of an officer not purely ministerial, but in which he exercises judgment and discretion, yet the writ may be issued to correct an abuse of discretion, or to compel action where the officer is vested with judgment and discretion; but his action or refusal to act is arbitrary.
Appeal from District Court, Logan County; Charles C. Smith, Judge.
Action by John F. Allen and others, resident voters and taxpayers of Logan County, for a writ of mandamus to be directed to the Board of County Commissioners of Logan County and others. From a judgment of dismissal, plaintiffs appeal. Reversed and remanded.
Erwin & Erwin, of Chandler, for plaintiffs in error.
Geo. W Partridge, Co. Atty., and James Adams, both of Guthrie, for defendants in error.
The plaintiffs in error, who are resident voters and taxpayers of Logan county and owners of land in the vicinity of the town of Meridian commenced this action against the board of county commissioners and the individual members thereof, and the clerk and treasurer of said county, asking that a writ of mandamus be issued requiring the defendants to construct a permanent or hard-surface road east from Guthrie through the town of Meridian, and further praying that the defendants be enjoined from ordering, issuing, or paying any warrant for the construction of any road other than the one involved herein against the balance of a fund created by the sale of certain road bonds of said county.
Upon the filing of the petition, an alternative writ of mandamus and a temporary restraining order were issued. Thereafter upon trial of the case, the trial court sustained the demurrer of the defendants to the plaintiffs' evidence and dismissed the case, from which the plaintiffs have appealed. The controlling facts, which are not in dispute, may be summarized as follows:
The defendant board of county commissioners, on June 30, 1924, passed a resolution providing for the calling of a special election in said county for the purpose of voting upon the issuance of bonds in the sum of $750,000 for the construction of permanent county roads, and authorizing the publication of a proclamation for such election; said resolution and the proclamation, which was duly published, designated and described approximately 95 miles of roads which were to be so improved, including the road "from the east line of the city of Guthrie through Meridian." The election was held on August 5, 1924, and the bonds carried. Afterwards, the bonds were executed and sold, thereby becoming a fixed and binding obligation upon the county and upon the property of the plaintiffs.
The petition of the plaintiffs charged that the defendants were not administering this special fund equally and fairly, but were willfully, arbitrarily, and in disregard of the plaintiffs' rights, spending large and disproportionate parts of the proceeds of the bond issue upon other roads than the one involved herein. It is also alleged that the defendants had paid out and contracted to expend, upon one of the other designated roads running north and south across said county, the sum of $350,000; that they had turned over to the state highway commission the sum of $100,000 to be expended upon another of said roads; that they had contracted to spend the sum of $56,401 upon another of said roads; that there remained at that time from the proceeds of said bond issue not to exceed the sum of $243,599; and that the defendants intended to use this balance upon the other roads without expending any portion thereof upon the road involved herein, commencing at the east boundary of the city of Guthrie and extending eastward through the town of Meridian.
The defendants answered admitting the resolution and proclamation of election and the contracts for the other roads, as alleged by the plaintiffs, but alleged that the bond issue was insufficient to build all the roads designated, and further answered admitting, in effect, that it was not the intention of the defendants to spend any of said bond money upon the Meridian road, but alleged that money to be subsequently derived from other sources would be used to eventually construct said road.
The plaintiffs also alleged that they had endeavored to get the board of county commissioners to take some action toward the building of said road and setting aside the pro rata share of the bond issue to be used for that purpose. The evidence of the plaintiffs bore out the allegations of their petition.
The plaintiffs contend that the provisions in the bond election designating the roads for improvement, are mandatory and enforceable, while the defendants seem to contend that the board of county commissioners have discretionary power to spend the proceeds of said bond issue on any part or portion of the roads so designated as, to them, seems proper. We do not think the contention of the defendants is sound.
The board of county commissioners was without power to proceed until first granted the authority to issue said bonds by an election of the qualified voters. The board is limited in its powers to those specially granted by statute. Allen v. Board of Commissioners of Pittsburg County, 28 Okl. 773, 116 P. 175; Garvin County v. Lindsay Bridge Co., 32 Okl. 784, 124 P. 324.
The board, in passing its resolution and in publishing the proclamation for the bond election, evidently deemed it not only expedient, but necessary, to designate the roads which were to be improved in order to secure sufficient votes to authorize the issuance of said bonds. The qualified electors no doubt, relied upon said designation in casting their votes. The commissioners could have omitted any reference to any particular roads upon which...
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