Bekins v. City of Tulsa

• Decision Date: 02 July 1956
• Docket Number: No. 37353,37353
• Citation: 299 P.2d 792
• Parties: Robert Q. BEKINS, Plaintiff in Error, v. The CITY OF TULSA, Oklahoma, a Municipal Corporation, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 792

299 P.2d 792

1956 OK 209

Robert Q. BEKINS, Plaintiff in Error, v. The CITY OF TULSA, Oklahoma, a Municipal Corporation Defendant in Error.

No. 37353.

Supreme Court of Oklahoma.

July 2, 1956.

Syllabus by the Court

A public library owned and operated by an incorporated city for public use is a public utility within the contemplation of Art. X, § 27, of the Oklahoma Constitution, and a portion of the proceeds of a bond issue properly voted for the purpose of 'purchasing, repairing, and improving public libraries * * *' in said city under said section may be used to repair or remodel windows in a building leased for 99 years to house said library when necessary to adapt it to public use.

Appeal from the District Court of Tulsa County; Lewis C. Johnson, Judge.

Action by a taxpayer of Tulsa, Oklahoma, as plaintiff to enjoin and/or restrain said City, as defendant, from expending a portion of the proceeds of a municipal bond issue for repairing and/or remodeling windows in a building leased by said city to house its public library. From a judgment sustaining said defendant's motion for judgment on the pleadings, plaintiff appeals. Affirmed.

Harold C. Harper, Tulsa, for plaintiff in error.

T. A. Landrith, Jr., City Atty. for the City of Tulsa, John W. Hager, R. E. Lavender, K. Bill Walker, E. L. Lashley, and R. K. McGee, Asst. City Attys., Tulsa, for defendant in error.

BLACKBIRD, Justice.

At an election held in Tulsa, Oklahoma, in 1952, said City's voters gave their approval to its issuance of municipal bonds in the amount of $450,000 to be known as Library Improvement Bonds, which, according to the ballot title voted on, was: '* * * to provide funds for the purpose of purchasing, repairing, improving and equipping public libraries * * * (etc.).'

It is conceded that said bonds were voted and subsequently issued under the claimed authority of the Oklahoma Constitution's Art. X, § 27, which provides such method by which incorporated cities or towns may exceed the municipal debt limit specified in section 26 of said Article, '* * * for the purpose of purchasing or constructing public utilities, or for repairing the same, to be owned exclusively * * *' by them.

Having obtained a 99-year lease on the former Tulsa County Court House for the purpose of housing its public library, said City, acting through its governing body, or City Commission, adopted, on April 24th of this year, a resolution authorizing the expenditure of $100 of the proceeds of the sale of the aforesaid Library Improvement Bonds for the repair and/or remodeling of windows in said building.

Thereafter, plaintiff in error, a taxpayer of said City, instituted the present action, as plaintiff, against said City, as defendant, to permanently enjoin and/or restrain it from expending said sum for said purpose on the ground that such expenditure would be illegal because not authorized under the above-cited provisions of the Constitution. After the filing of both an answer and reply, the trial court sustained the defendant's motion for judgment on the pleadings; and plaintiff has lodged the present appeal. Our continued reference to the parties will be by their trial court designations.

Plaintiff's position that the trial court erred in denying him, by its judment, the injunction and/or restraining order he sought, is based solely upon his interpretation of the language of Art. X, § 27, supra. He contends not only that a public library is not included within the meaning of the term 'public utilities' as used in said section, but also that the building on which the fund in question is proposed to be spent, being only leased by the City, is not, and cannot, be 'owned exclusively' by the City within the meaning of that expression as it appears in said section. Among others, he cites the case of Coleman v. Frame, 26 Okl. 193; 109 P. 928, 31 L.R.A.,N.S., 556, in which this Court held that street improvements do not constitute 'public utilities' as used in said section. In the opinion in that case, it was pointed out that municipal control of streets is subject to the paramount authority of the State and that the State's legislative power over them is subject to the special interests of abutting owners, the City's interest or estate therein being in the nature of only an easement, while the fee remains in the abutting owners.

The term 'public library' does not always include the building in which it is housed, but it does always include the books, periodicals, manuscripts and papers contained therein. Here, there is no question but that the contents of the library involved belong to and are owned exclusively by the City of Tulsa. Nor can there be any doubt but that it is maintained by said City for 'public use.' In this connection, see Sharp v. Police Jury, 194 La. 220, 193 So. 594, and City of Tulsa v. Williamson, Okl., 276 P.2d 209, 214. In the...