Boardman Co. v. Bd. of Com'Rs of Ellis Cnty.

• Decision Date: 22 January 1929
• Docket Number: Case Number: 17979
• Citation: 136 Okla. 85,1929 OK 10,276 P. 474
• Parties: BOARDMAN CO. v. BOARD OF COM'RS OF ELLIS COUNTY.
• Court: Oklahoma Supreme Court

1929 OK 10

276 P. 474

136 Okla. 85

BOARDMAN CO. v. BOARD OF COM'RS OF ELLIS COUNTY.

Case Number: 17979

Supreme Court of Oklahoma

Decided: January 22, 1929

Syllabus

¶0 1. Counties--Constitutional and Statutory Inhibitions Against Incurring Indebtedness in Excess of Revenues.

Section 26, art. 10, of the Constitution of Oklahoma, providing that: "No county, city, town, township, school district, or other political corporation, or subdivision of the state, 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 assent of three-fifths of the voters thereof, voting at an election to be held for that purpose, * * *" and section 8638, C. O. S. 1921, providing that it shall be unlawful for the county commissioners to make any contract or incur or approve any liability in excess of the estimate made and approved by the excise board for such purpose for such current year, and providing that a recovery may be had against the officers entering such contract, and section 8639, making officers who violate the preceding section guilty of a criminal offense, were adopted for the protection of the people; and it is the duty of the courts and municipal officers to see that they are strictly enforced, and that the limitations therein provided shall not be exceeded, either directly or indirectly.

2. Same--Bridges -- Illegality of Contract for Construction of Bridges to Be Paid from Revenues of Succeeding Fiscal Year.

Where the plaintiff, by his petition, alleges that county commissioners of E. county, on the day of June, 1923, entered into an oral contract with him for the repair and reconstruction of certain bridges destroyed by high water, and where it appears that such bridges were to be constructed and were constructed and were to be paid for out of moneys to be levied ana collected for the succeeding fiscal year, and where the petition also alleges that an estimate was made by the commissioners for the succeeding fiscal year, including the items for said bridges, but these items were stricken out of said estimate by the excise board, such contract sought to incur a present liability as of the date of making same and was in violation of the plain terms of the Constitution and statutes above set forth, and a demurrer to said petition was properly sustained by the trial court.

3. Same.

Section 10102, C. O. S. 1921, does not and cannot authorize county commissioners to enter into contracts for the reconstruction of county bridges destroyed by flood waters, and to be paid for out of taxes to be assessed, levied, and collected for a succeeding fiscal year, without the assent of three-fifths of the voters of such county, voting at an election, held for that purpose, in the manner provided by section 26, art. 10 of the Constitution of Oklahoma.

Commissioners' Opinion, Division No. 2.

Error from District Court, Ellis County; T. P. Clay, Judge.

Action by the Boardman Company, a corporation, against the County Commissioners of Ellis County. Defendants demurred to plaintiff's petition, and the same was sustained by the trial court. The Boardman Company appeals. Affirmed.

Edward Spiers, for plaintiff in error.

T. R. Blaine, for defendant in error.

BENNETT, C.

¶1 The parties appear here in the same positions in which they appeared in trial court. Plaintiff sued the county commissioners of Ellis county for certain moneys alleged to be due for the construction of two bridges, and the charge for labor and material incident thereto formed the basis of two causes of action set out in the petition. Defendants filed a successful motion to make the petition more definite and certain; thereupon plaintiff amended his petition as will hereinafter appear. Defendants demurred to plaintiff's petition, and same was by trial court sustained, and plaintiff, having elected to stand upon said petition, brings the case to this court for review.

¶2 The petition, in substance, is as follows: That plaintiff is an Oklahoma corporation with principal place of business in Oklahoma City, Okla.; that defendants A. C. Oliver, F. C. Dale and B. W Clark are county commissioners of Ellis county, Okla.; that, during May, 1923, a certain bridge numbered 12 on a much traveled highway over Twenty-Five Mile creek four miles north of Gage, Okla., was destroyed by unusual high water; that said bridge belonged to the county, and its reconstruction became immediately necessary; that this was such an emergency as is provided for under laws of Oklahoma, and that, in consequence thereof, the commissioners passed a resolution of necessity providing that the said bridge should be reconstructed under direction of the county engineer of said county, and that plaintiff furnished the material and performed the labor necessary thereto; that the amount due therefor was $ 3,333.39, as per claim filed by plaintiff in the office of county clerk on February 20, 1924, which was audited and approved by said commissioners upon the 3rd day of March, 1924; that said plaintiff was not paid, as appears from an indorsement upon said claim, for want of funds; that at the time said material was furnished and said work performed, there were sufficient funds unexpended in said county treasury with which to pay same: that said county commissioners made and filed an estimate of the proposed needs of said county for the fiscal year beginning July 1, 1923; that the property of the county for that year was assessed at $ 12,487,322; that the lawful rate of levy for said year was eight mills, which would have produced the gross sum of $ 99,808.27 and a net sum of $ 90,808.05; that the amount necessary to pay for the county government, including the emergency bridges described in the petition, and the amount sued for herein, was $ 76,731.61; that the accounts sued for were within the income and revenues for said fiscal year, in which said accounts were made and a lawful estimate was made, filed and acted upon by the county commissioners, and that the said county excise board refused, neglected, and omitted to levy a sufficient sum of money to pay for the emergency bridges sued for in this action, and that the said county excise board did wrongfully strike from said estimate, as aforesaid, the sum of $ 3,333.39 for the repair of bridge No. 12 aforesaid; that a payment of $ 3,259.48 was made on this claim, leaving unpaid balance of $ 73.91.

¶3 The second cause of action is practically identical with the first, except the bridge constructed was over Wolf creek, which was destroyed by unusual high water in the month of April, 1923, and the amount of claim therefor was $ 15,016.27, which was presented in like manner and with like results, this claim being filed February 20, 1924, and audited and approved by county commissioners March 3, 1924, no part of which was paid. Attached to the petition are exhibits showing itemized bills for the amounts due claimed by plaintiff. There is attached also a copy of the resolution passed by the commissioners, which bears date May 26, 1923. The first petition is amended as follows:

"That in May, 1923, the board of county commissioners of Ellis county, Okla., entered into an oral agreement with the plaintiff for the reconstruction and repairing of a certain bridge over Twenty-five Mile creek, four miles north of Gage, Okla., being bridge No. 12, between sections 34 and 35, twp. 22, range 24, which bridge had been destroyed by flood, and same was for the repairing and reconstruction of same on the same site, and by virtue of an emergency."

¶4 The second cause of action bears a similar amendment except that the bridge is over Wolf creek at Fargo and the date of flood is June, 1923.

¶5 Defendants' demurrer asserted: (1) That plaintiff's cause of action was barred by limitation; (2) that the petition does not state sufficient facts to constitute a cause of action against defendants. A discussion of the demurrer on the latter grounds will dispose of the case.

¶6 A careful examination of the petition discloses: That in May or June, 1923, the county commissioners of Ellis county contracted with plaintiff to reconstruct on original sites certain bridges recently washed out belonging to the county, and which constituted parts of much used public highways; that plaintiff presented his claims, which were allowed by the commissioners in the spring of 1924, but payment was refused for insufficiency of funds; that, in the beginning of the succeeding fiscal year, the county commissioners filed an estimate of the proposed needs of the county, and the valuation of the property in the county is given, and the amount of money to be produced for the fiscal year 1923-24 is set out in the petition. It is further stated that, for said fiscal year, the county excise board made a levy of five mills, and that said board refused, neglected, and omitted to levy a sum sufficient to pay for said bridges, and, further, that the said excise board did strike from said estimate, made for said fiscal year, $ 3,333.39 for the repair of bridge No. 12 aforesaid, and $ 15,027.27 for the repair of bridge No. 11, known as the Fargo bridge, and that the accounts herein sued for would have been within the income and revenue for said fiscal year, but for the action of the excise board in striking out the items aforesaid. The estimates and levy to pay for these bridges were to be made as coming within the fiscal year 1923-24, and no reference to the fiscal year 1922-23 is made in the petition except a sort of detached statement that there were sufficient funds in hand unexpended with which to pay for these bridges at the time the accounts were incurred, but in the other portions of the petition it speaks of such funds as being on hand at the time of furnishing of the labor and material for such improvements.

¶7 While we are required to construe a petition favorably to the pleader, in passing upon a demurrer, we are...