Cheek v. Eye

• Decision Date: 09 October 1923
• Docket Number: 14122.
• Citation: 219 P. 883,96 Okla. 44,1923 OK 750
• Parties: CHEEK v. EYE ET AL. MITSLER ET AL. v. EYE ET AL.
• Court: Oklahoma Supreme Court

219 P. 883

96 Okla. 44, 1923 OK 750

CHEEK v. EYE ET AL.

MITSLER ET AL. v. EYE ET AL.

No. 14122.

Supreme Court of Oklahoma

October 9, 1923

Rehearing Denied Nov. 6, 1923.

Syllabus by the Court.

After a municipal corporation, such as a consolidated school district, has been organized, quo warranto is the proper remedy to determine the question of its legal existence or the validity of its organization. The courts are without power so to do by injunction, or to restrain existing officers from exercising their proper functions.

Private individuals, who have no interest other than as citizens residents, and taxpayers of a municipal corporation, cannot maintain an action of quo warranto against such corporation.

If the injury is one that particularly affects a person, he has a right to the action; if it affects the whole community alike their remedy is by proceedings by the state, through its appointed agencies.

The indebtedness of a consolidated school district under the constitutional limitations is 5 per centum of the value of the taxable property, and where certain school districts have disorganized, and one of them had a bonded indebtedness of approximately nine-tenths of 1 per centum of the taxable property within said district, and the consolidated district attempted to vote bonds in excess of 4 2/10 per cent. of the total valuation of the property in the consolidated district held, under and by virtue of section 10469, Comp St. 1921, the indebtedness of the old district remains intact, and it is the duty of the excise board to levy a tax upon the property in that district to pay such indebtedness of the old district; the bond issue makes the property in the old district subject to a school tax in excess of 5 per cent., and therefore is in violation of the Constitution and illegal.

Appeal from District Court, Craig County; A. C. Brewster, Judge.

Actions by Floyd Cheek against Ulrey C. Eye and others, and by Martin Mitsler and others against Ulrey C. Eye and others, consolidated for purposes of appeal. From a judgment dismissing the petitions, plaintiffs in each case appeal. Reversed and remanded.

Kornegay & Probasco, of Vinita, for plaintiffs in error.

Warren K. Snyder, of Oklahoma City, for defendants in error.

McNEILL J.

This action was commenced by Floyd C. Cheek against Ulrey C. Eye, Ed. Hicks, Preston Proctor, and Hildred Womack. The plaintiff alleges that he is the duly elected, qualified school district clerk of school district 45, Craig county, and the defendants are claiming to be school district clerk and member of said school board respectively; and that Hildred Womack is county superintendent; and that said defendants nor any of them are residents of said school district, but are usurping the office and entering into the offices of said school district 45, and are unlawfully usurping the rights of said school district offices. Plaintiff prayed defendants show under what right and authority they are assuming to be holding the office of members of the school board of district 45, and if they fail, they be prohibited from interfering with plaintiff.

To this petition, the defendant answered and denied that school district 45 was in existence. Defendants admitted they were members of the school board of consolidated district No. 2, which was organized out of districts Nos. 45, 27, and 72 and 58, at an election held for that purpose. It is admitted Hildred Womack is county superintendent. To this answer the plaintiff replied that said school districts were not adjacent and under the law could not be consolidated, and no election was held for the purpose of consolidating said district; that under the law the election for consolidation should be in an open school meeting, and no such election was ever had; that the only attempt for an election for such purpose was on the 6th day of April, which was held away from the school meeting at a place guarded by partisans, and the votes were not taken and recorded in the open school meeting; and that the majority of the legal voters did not vote at the election for consolidation.

Thereafter an action was commenced by Mitsler, Holmes, Bryant, and Pennington against said three school officers alleging that plaintiffs were each taxpayers of the school districts consolidated in school district No. 2; that in the month of April, 1922, a meeting was called for the purpose of deciding upon consolidating the districts into one district; that the vote was not taken in the school meeting, but was held in a building away from the school meeting behind closed doors, and guarded by a partisan of the question for consolidation, with a hatchet, who kept out of the room all persons except the election officers and the person voting, and no means were afforded to opponents to ascertain the correctness of the vote; that said school districts are not adjacent, there is no authority to consolidate districts not adjacent. It is alleged if the districts are rightfully consolidated the defendants are the officers. It is further alleged the defendants contend on the 12th day of May there was an election held for voting bonds in the sum of $25,000 for the purpose of purchasing school site, erecting building, and buying furniture; that the election resulted in favor of the bonds. It is further alleged the defendants contend there was an election for selecting a school site, and the site was selected in Centralia; that said site is 1 1/2 miles from the geographical center of the district; that, by reason of the location of the school site, many of the patrons in districts 45, 27, 72, and 58 will be so far from school they will be unable to attend; that no petition by the qualified electors was presented to the board asking for the election; that there were not five notices of the proposed election put up in five of the most public places in the district stating the amount of bonds proposed and the purposes thereof. It is further alleged that the present indebtedness of district No. 27, coupled with the bonded indebtedness of $25,000, claimed to be authorized, will render the indebtedness more than 5 per cent. of the assessed valuation of the property.

Plaintiffs ask that defendants be required to show by what authority they propose to issue the bonds, and whether they locate the school building over 1 1/2 miles from the geographical center, how much they expect to spend for site, for building, and how much for furniture, and that the defendant be further enjoined from issuing any bonds and from erecting a school building less than one-half mile from the geographical center of the district and appropriate any money for that purpose. To this petition, the defendants filed an answer setting out the proceedings of the consolidation of the school district, admitting that the election was held for voting bonds and resulted in favor thereof, and at the same time the election was held an election was held for selection of a school site, which site was selected in Centralia, and denies the other facts. These two cases were consolidated and tried together.

Upon the trial of the case, the court denied the plaintiffs any relief and dismissed their petition. From said judgment the plaintiffs have appealed.

This court, in a long line of decisions, has announced as follows:

"After a municipal corporation, such as a consolidated school district, has been organized, quo warranto is the proper remedy to determine the question of its legal existence or the validity of its organization. The courts are without power so to do by injunction, or to restrain existing officers from exercising their proper functions."

See Fowler v. Park, 79 Okl. 1, 190 P. 668.

The action, in so far as they attempt to test the legal existence of consolidated district No. 2, fails to state a cause...