Board of County Com'rs of Tulsa County v. Williamson

• Decision Date: 13 April 1962
• Docket Number: No. 40027,40027
• Citation: 370 P.2d 837
• Parties: BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF TULSA, Oklahoma, Plaintiff, v. Mac Q. WILLIAMSON, Attorney General and Ex Officio Bond Commissioner of the State of Oklahoma, Defendant.
• Court: Oklahoma Supreme Court

Page 837

370 P.2d 837

1962 OK 93

BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF TULSA Oklahoma, Plaintiff, v. Mac Q. WILLIAMSON, Attorney General and Ex Officio Bond Commissioner of the State of Oklahoma, Defendant.

No. 40027.

Supreme Court of Oklahoma.

April 13, 1962.

Syllabus by the Court.

By clear implication 19 O.S.1961 §§ 381 to 387, inclusive, grants to the qualified electors of a county and the governing body thereof, authority to incur a bonded indebtedness for public-library purposes.

Original proceeding for writ of mandamus directing defendant, as Attorney General, to approve a bond issue of Tulsa County, Oklahoma, for public-library purposes. Writ granted.

David Hall, County Atty., Donald D. Cameron, Asst. County Atty., Tulsa, for plaintiff.

Mac Q. Williamson, Atty. Gen., Lynnie Clayton Spahn, Asst. Atty. Gen., Oklahoma City, for defendant.

BERRY, Justice.

On November 14, 1961, there was submitted to the electors of Tulsa County, Oklahoma, the proposition of whether the County should incur a bonded indebtedness of $3,800,000.00 for the purpose of acquiring a site for and building and equipping a public library. More than three-fifths of the qualified electors cast an affirmative vote. It stands admitted that this election was regularly called and conducted.

The plaintiff, Board of County Commissioners of Tulsa County, Oklahoma, hereafter referred to as 'board', subsequently sought defendant's, Mac Q. Williamson, Attorney General, hereafter referred to as 'defendant', approval of the bonds.

On March 14, 1962, defendant declined to approve the bonds solely because it was his opinion that the voting of bonds for a 'county library' was not authorized by the Constitution nor the statutes. Following such action, board instituted this proceeding.

The sole issue presented by this proceeding is whether Tulsa County, through board, has authority, following an affirmative vote of the county's electors, to incur a bonded indebtedness for the purpose of constructing and equipping a public library.

Prior to statehood, legislation, which presently appears as 19 O.S.1961 §§ 381 to 387 inclusive, hereafter referred to as 'old statute', was adopted. It is provided in Sec. 381 that 'any question involving any extraordinary outlay of money by the county or any expenditures greater in amount than can be provided for by the annual tax, or whether the county will construct any courthouse, jail, or other public buildings, or aid or construct any road or bridge, and any enterprise designed for the county, * * *' should be submitted to a vote. Secs. 382 and 383 also treated with submitting to vote a proposed levy of additional taxes for the purposes authorizing by Sec. 381. Sec. 384 reads in part as follows:

'When the question submitted involves the borrowing or expenditure of money the proposition of the question must be accompanied by a proposition to authorize a tax for the payment thereof in addition to the usual taxes provided for by law; * * *'

While the power of a political subdivision of a state to issue bonds must be conferred by organic law or statute, the power need not be expressly granted and may arise when clearly implied. See City of Chickasha v. Foster, 173 Okl. 217, 48 P.2d 289, and 20 C.J.S. 'Counties' § 258, p. 1169. To our way of thinking, where the power to borrow is granted, the power to issue bonds is implied. In Kruesel v. Collin et al., 171 Wash. 200, 17 P.2d 854, 855 this is said:

'* * * The better rule, we think, is that, where the power to borrow is granted, the power to issue bonds is implied if the borrowing is to enable the county to perform a duty or function imposed upon it by the state. Doty v. Ellsbree, 11 Kan. 209; Lund v. Chippewa County et al., 93 Wis. 640, 67 N.W. 927, 34 L.R.A. 131; Heilbron v. Mayor, etc., of Cuthbert, 96 Ga. 312, 23 S.E. 206; Rushville Gas Co. v. City of Rushville et al., 121 Ind. 206, 23 N.E. 72, 6 L.R.A. 315, 16 Am.St.Rep. 388; City of Williamsport v. Commonwealth, 84 Pa. 487, 24 Am.Rep. 208; Commissioners of Town of Hendersonville v. C. A. Webb & Co., 148 N.C. 120, 61 S.E. 670; Bennett v. Board of Commissioners of Rockingham County, 73 N.C. 625, 92 S.E. 603, 605. In the last-cited case, it is said: '* * * When county commissioners have power to contract a debt or to provide for valid debts already contracted, they may, in the exercise of good business prudence, issue county bonds in evidence of the obligation. * * *''

We are, therefore, of the opinion that the old statute impliedly granted to counties the power to create a bonded indebtedness for 'court house, jail or other public building' purposes.

It is not here contended that a public library is not a public building. In Sharp et al. v. Police Jury of Parish of East Baton Rouge, 194 La. 220, 193 So. 594, 596, it is stated that a public library is a public building. Compare Bekins v. City of Tulsa, Okl., 299 P.2d 792, 794.

Upon the adoption of our Constitution at statehood, Art. X, Secs. 10, 26 and 27 became a part of our organic law.

It is provided in Sec. 10, supra, that 'For the purpose of erecting public building in counties, cities, or school districts, the rates of taxation herein limited' may be increased not to exceed five mills by a majority vote of the qualified electors. The plan of financing which is set forth in this section is not exclusive and the section cannot be construed as superseding the statutes first herein cited in so far as same relates to and vests in a county the power to create a bonded indebtedness.

It is provided in Sec. 26, supra, that 'No county, city, town, township, school district * * * shall be allowed to become 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 voters thereof', provided, that an annual tax shall be provided for which shall constitute a sinking fund for the payment of the indebtedness.

As we read the briefs of the parties, they, in effect, assert that the decisive issue is whether the old statutes served to grant counties authority to create a bonded indebtedness for public-building purposes. We add, that it is not disputed that, as hereafter pointed out, Sec. 26, supra, grants authority to counties to create a bonded indebtedness, so the issue is in fact limited to whether the old statutes serve as a grant of authority to create a bonded indebtedness within the purview of said statutes and Sec. 26.

In so far as material, Sec. 27, supra, grants express authority to 'any incorporated city or town' to create a bonded indebtedness for 'purchasing or constructing public utilities,' the creation of which indebtedness must be authorized by 'a majority of the qualified property tax paying voters'. It is not contended that this section applies to counties.

It was stated in Kirk v. School District No. 24 of Greer County et al., 108 Okl. 81, 234 P. 596, 598, that Sections 26 and 27 authorize the incurring of an indebtedness and the voting of bonds in connection with such indebtedness.

As we understand defendant's contentions, he does not urge that adoption of the cited provisions of the Constitution served to...