Arthur v. City of Stillwater
| Decision Date | 18 April 1980 |
| Docket Number | No. 54164,54164 |
| Citation | 611 P.2d 637,1980 OK 64 |
| Parties | Anna ARTHUR, Dan Badger, Allan Banks, Don W. Brown, Gene Brown, Larry T. Brown, Myral Bruner, Willma Bruner, George Carney, Irene Cummins, Richard L. Cummins, Clarence M. Cunningham, Janet K. Cunningham, Otis C. Dermer, Troy Dorris, Thora duBois, Sam B. Durham, Jr., M. J. Engh, Benny Evans, Robert M. Ewing, Bracie Fawcett, Justin J. Ferguson, George Gorin, Rebecca Ann Harris, Stephen M. Harris, E. E. Kohnke, Robert L. Kuhlman, Jr., Nelda Latham, Richard H. Leftwich, Carmen D. Lehnert, Katherine Macneil, James Maxwell, Nani Pybus, Ruth Florence Pybus, Elnor S. Ragan, William W. Rambo, John F. Stone, Stephen Tweedie, Margaret Vitek, Billy C. Wallace, Carol A. Wolfe, and John Wolfe, Appellants, v. The CITY OF STILLWATER and The Stillwater Utilities Authority, Appellees, Dan McMahan, Amicus Curiae. |
| Court | Oklahoma Supreme Court |
Appeal from the District Court, Payne County; Ray Lee Wall, Judge.
Appellants appeal from the sustaining of appellees' motions for summary judgment and entry of judgment for the appellees in an action for declaratory and injunctive relief to invalidate a municipal election providing for sale of general obligation bonds, an additional sales tax, a tax in addition to all other taxes on all taxable property within the municipality, and the leasing of the municipality's utilities to a public trust.
AFFIRMED IN PART, REVERSED IN PART.
Pierce, Couch, Hendrickson, Johnston & Baysinger by John R. Couch, Jr., Oklahoma City, for appellants.
Daniel D. Draper, Jr., Stillwater, and Fagin, Brown, Bush & Tinney by Wm. Don Kiser, Oklahoma City, for appellees.
Chapel, Wilkinson, Riggs, Abney & Keefer by Louis W. Bullock, Tulsa, for amicus curiae.
This action was brought by a group of interested taxpayers (before the attorney general in his capacity as ex-officio Bond Commissioner 1 has approved or disapproved the general obligation bonds) to challenge the validity of an election authorizing the issuance of the bonds.
On April 16, 1979, the Board of Commissioners of the City of Stillwater, Oklahoma, adopted Ordinances No. 1834 and No. 1835. These ordinances provided for the leasing of the City's water, sewer, electric and solid waste disposal systems to the Stillwater Utilities Authority (Trust), a public trust created for the use and benefit of the City pursuant to 60 O.S.Supp.1976 §§ 176-180.3; and for the levy and assessment of an additional one cent sales tax on all taxable sales within the city. Four Propositions were submitted to the voters. Proposition 1 is not pertinent to this appeal. Proposition 2 proposed that the City of Stillwater be authorized to incur an indebtedness in an amount not to exceed $12 million dollars by issuance of general obligation bonds to provide a portion of the funds needed to construct additions and improvements to the City's water system; and to levy and collect an annual tax, in addition to all other taxes, upon all the taxable property in the City sufficient to pay the interest on the bonds to constitute a sinking fund for the payment of the principal. In Proposition 3 the voters were asked to empower the City to lease its water, sewer, solid waste and electric utility system to the Trust for a term of fifty years. It also proposed that the Trust be authorized to incur an indebtedness by issuance of revenue bonds in an amount sufficient, when combined with the $12 million dollars of general obligation bonds, to provide the funds to construct additions and improvements to the City's water system. Nothing on the ballot reflected that the total cost of the water project was from $25 to $30 million dollars, so that no definite upper limit on the amount of revenue bonds which might be issued by the Trust was endorsed by the electorate. Proposition 4 submitted the question of whether to authorize the City to levy and assess an additional one cent sales tax and to deposit the revenues in a special trust account to be used by the trustees. 2
All of the propositions were approved by a simple majority of the voters, 3 and the City began collecting the additional sales tax.
The taxpayers sought declaratory and injunctive relief which was denied by the trial court. They asserted that the sales tax ordinance, No. 1835, was null and void because it violated the Okla.Const. art. 10, § 26 4 as enumerated: 1) it was not approved by a 3/5 majority of the voters; 2) a legal obligation was incurred by the City to pay a debt which exceeded the income and revenue of the City for the fiscal year which is prohibited; and 3) sales tax revenues were pledged to the Trust for an indefinite period of time in excess of the permitted twenty-five year period. The taxpayers are also concerned that the direct payment of the tax revenues to the Trust and the prohibition of the payment of the tax revenues into the general fund constitute an effort to circumvent the statutory procedure of annual appropriation of tax revenues by municipalities. In addition, the taxpayers allege that the ballot language of Proposition 3 varied disastrously from that of Ordinance No. 1834 because it did not state that the Trust had an option to renew the lease for an additional fifty years, and that neither the ordinances nor the propositions disclosed the total amount of the project.
The parties agree that the invalidity of either ordinance will make it impossible to finance the total project, and that the proposed utilities will be owned exclusively by the municipality. The validity of the lease and the trust agreement are unchallenged by the taxpayers and are not a part of the record on appeal.
The argument of the taxpayers is premised on the assumption that art. 10, § 26 is applicable. The taxpayers' complaint, when boiled down to basics, is that if the election is validated an undetermined amount of money will be spent over an undisclosed period of time based on a simple majority of the voters who could not know what they were voting for. Their argument is premised on the assumption that art. 10, § 26 is applicable. This portion of the constitution prohibits any city from becoming indebted in any manner, or for any purpose, to an amount exceeding in any year, the income and revenue provided for such year without the assent of three-fifths of the electorate voting at the election.
We find art. 10, § 26 does not apply to Propositions 3 and 4. Proposition 3, which authorizes the City to lease its utility property to the Stillwater Utilities Authority, a public trust, does not create an indebtedness against the City. The indebtedness by the issuance of revenue bonds under the Trust is the indebtedness of the Trust, not the City. In Harrison v. Barton, 358 P.2d 211, 220 (Okl.1960) this Court held that where bonds are issued and sold by trustees of a public trust pursuant to a bond indenture, the bonds or proceeds therefrom did not create or constitute a public debt, and that the bonds when issued were legal, valid and binding obligations of the Trust.
The city charter, Art. IV § 4.2(1)(2), required that the sale or lease of any city property valued at more than $50,000, or the lease of an entire public utility owned by the City, be made only by the authority of an ordinance approved at an election by an affirmative vote of a majority of the qualified electors of the City. The reason for placing Proposition No. 3 on the ballot was to gain the approval of the voters to lease the City's utilities to the Trust. There is no constitutional or statutory authority which requires that the electorate authorize the issuance of revenue bonds by the Trust. This language was surplusage on the ballot, and neither art. 10, §§ 26 or 27 were applicable. Therefore, the amount of the revenue bonds to be issued by the Trust did not need to be stated and a simple majority of the electorate was the only requirement for passage.
The taxpayers argue that the adoption of Ordinance No. 1835 and the passage of the sales tax in Proposition 4 legally obligated the City to pay revenues to the trust for a period beyond the current year's revenue and constituted a proscribed indebtedness by the City. We disagree. There is no financial obligation imposed on the City other than to pay the sales tax revenues to the Authority for the fiscal year in which it is collected. There is no pledge or contingent encumbrance on the funds of the City beyond the fiscal year in which the sales tax funds are received, and pursuant to Ordinance No. 1835 § 3 the sales tax may be repealed at any time by a majority of the voters. 5
The allegation is made by the taxpayers that the transfer of funds as delineated by Ordinance No. 1835, which provides for the direct payment of tax revenues to the Trust and prohibits payment of the additional sales tax into the general fund, is an effort to circumvent the statutory procedures of annual appropriation of revenues by municipalities. 6 Title 11 O.S.Supp.1978 § 17-101 prohibits the transfer of funds unless there has been an appropriation in the manner provided by law. The taxpayers charge that 68 O.S.1971 § 2489, which requires all revenues from sources (other than ad valorem taxation except the proceeds from the sale of bonds and those revenues specifically required by law to be deposited into the sinking fund) be deposited in the general revenue fund of the city and that an annual levy be made to meet the city's obligations.
Except for ad valorem taxes, the City is authorized by 68 O.S.1971 § 2701 to assess taxes for general and specific purposes of the municipal government as the legislature may levy and collect for purposes of state government. This statute, together with 68 O.S.1971 §§ 1323 and 1324, permits the passage of the sales tax for the specific purpose of improving public utilities. However, compliance with 68 O.S.1971 § 2489 requires that all revenues be deposited in the general...
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