Bd. of Excise of Okla. Cnty. v. Bd. of Dirs. of Sch. Dist. No. 27 of Okla. Cnty.

• Decision Date: 12 March 1912
• Docket Number: Case Number: 3383
• Citation: 31 Okla. 553,1912 OK 163,122 P. 520
• Parties: BOARD OF EXCISE OF OKLAHOMA COUNTY v. BOARD OF DIRECTORS OF SCHOOL DIST. No. 27 OF OKLAHOMA COUNTY.
• Court: Oklahoma Supreme Court

1912 OK 163

122 P. 520

31 Okla. 553

BOARD OF EXCISE OF OKLAHOMA COUNTY v. BOARD OF DIRECTORS OF SCHOOL DIST. No. 27 OF OKLAHOMA COUNTY.

Case Number: 3383

Supreme Court of Oklahoma

Decided: March 12, 1912

Syllabus

¶0 1. SCHOOLS AND SCHOOL DISTRICTS--Taxation--Statutory Provisions. That portion of section 5, c. 64, Sess. Laws 1910, fixing the time for the holding a special election in school districts, for the purpose of submitting to the qualified electors thereof the question of making an increased levy, as provided for in the said act, is, as to such time, directory only; and where, for any reason, the excise board fails to give the notice and call the election provided for therein on the said date, it may be required to do so within some reasonable time subsequent thereto.

2. MANDAMUS--Nature of Remedy--Discretion of Court. In awarding or denying writs of mandamus, courts exercise judicial discretion, and are governed by what seems necessary and proper to be done, in the particular instance, for the attainment of justice, and, in the exercise of such discretion, may, in view of the consequences attendant upon the issuance of the writ, refuse the same, though the petitioner has a clear legal right for which mandamus is an appropriate remedy.

Error from District Court, Oklahoma County; George W. Clark, Judge.

Action by the Board of Directors of School District No. 27 of Oklahoma County against the Board of Excise of Oklahoma County. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Sam Hooker, Co. Atty., and Selwyn Douglas, Asst. Co. Atty., for plaintiff in error.

H. Y. Thompson, for defendant in error.

DUNN, J.

¶1 This case presents error from the district court of Oklahoma county. The defendants in error, constituting the board of directors of school district No. 27, Oklahoma county, brought action against plaintiffs in error, constituting the excise board of Oklahoma county, to secure a peremptory writ of mandamus, requiring said board to call an election to vote on the question of levying a tax for school purposes in said school district in excess of the statutory levy of five mills.

¶2 The petition filed set forth the foregoing facts and, further, that at the annual meeting of said school district the legal voters thereof voted and ordered that there should be a nine months term of school held therein, beginning on the first Tuesday in September, 1911, and ascertained the amount of money necessary to maintain the same; that all legal requirements necessary thereto were complied with, and that the excise board met, as provided by law, on July 29, 1911, and, finding that no return had been made by the state board of equalization on the taxable value of the property in Oklahoma county, the board adjourned to meet August 12, 1911, for the purpose of making the said levy and, due to the same reasons, adjourned to meet September 11, 1911. On the said date, it was ascertained from the return made by the state board of equalization that the value of the property in said school district, as assessed, would not, with a five-mill levy, raise sufficient funds to conduct a nine months school, but would require a levy of six and one-half mills, or an additional one and one-half-mill levy, which additional levy could not be made without an election being called by the excise board; that it was the duty of said board to have made a levy on July 29, 1911, but, because of judicial proceedings then pending in the state courts against the board of equalization, it was impossible to make the same until September 16, 1911; that the said board and the members thereof were and are of the opinion that the estimate of said board of directors of said school district was not excessive, and that the levy ought to be six and one-half mills for school purposes for 1911; that the sole reason for not calling an election in said school district to provide for the said additional levy was because, in the opinion of the excise board, it had not authority to call said election after the date fixed by law, to wit, the second Tuesday after the first Monday in August, 1911, which was of the date of August 15, 1911. To the petition filed, the defendant, the excise board, filed a demurrer, which was by the court overruled, and the writ prayed for ordered issued, from which the said board has appealed to this court.

¶3 The statute under which this proceeding is brought is contained in chapter 64 of the Sess. Laws 1910. Section 1 thereof provides that school districts may levy for the support of common schools not more than five mills; section 2 provides for the estimated needs for the current expenses for the ensuing fiscal year to be made by the proper authorities of the different municipalities, including school districts. Under section 3, the county excise board is created, consisting of certain officers named therein, and who are defendants in this suit. In section 4, provision is made for the certification to the said board of the estimates of the expenses for the different municipal subdivisions provided for; and the said board is authorized to make a levy upon the valuation of the property to provide funds sufficient to meet the amount certified, provided the same is deemed just and reasonable. Section 5 then provides as follows:

"If any estimate certified to the excise board for the current expenses of any county, city, incorporated town, township or school district shall exceed the limits prescribed by section 1 of this act, and the excise board shall be of the opinion that such excess is reasonably necessary for the current expenses of the municipality for which the same is prepared, they shall enter such fact upon the record of their proceedings and shall give notice by publication in one issue of some newspaper, printed in the county, that a special election will be held in the county, city, incorporated town, township or school district as the case may be, on the second Tuesday after the first Monday in August next thereafter for the purpose of submitting to the qualified electors of such county, city, incorporated town, township or school district, the question of making such increased levy. * * *"

¶4 The excise board found that, in its opinion, the excess which it was desired to secure by and through an election was reasonably necessary for the current expenses of the school district, and that the levy should be made. Its claim is, however, that it could not call an election at the date fixed by statute, for the reason that the state board of equalization failed to make its return of the equalized valuation on the taxable property, as required by law, until long after the said date had passed, and that it would be unlawful to call an election, under the theory that the date was mandatory, and that its right to issue the call had expired. In coming to this conclusion, in our judgment, the board is in error; for, as we view the question, after an exhaustive review of the authorities, the...