City Council of City of McAlester v. Milwee

Citation122 P. 173,31 Okla. 620,1912 OK 169
Decision Date12 March 1912
CourtOklahoma Supreme Court

Syllabus by the Court.

A court of equity has no jurisdiction to restrain the holding of an election, since the right involved is a political one.

A taxpayer has not such an interest in a suit to enjoin the holding of an election to recall the mayor of a city of the first class in pursuance to the provisions of its charter as will entitle him to prosecute such suit as a complainant.

Error from District Court, Pittsburg County; Preslie B. Cole Judge.

Bill by Tal Milwee and others against the City Council of the City of McAlester and others. Judgment for plaintiffs, and defendants bring error. Reversed and remanded.

T. D Davis, City Atty., Harley & Miller, and James H. Gordon, for plaintiffs in error.

Andrews & Day, for defendants in error.


This was a suit in equity commenced by the defendants in error plaintiffs below, against the plaintiffs in error, defendants below, for the purpose of enjoining the proper officer or officers of the city of McAlester from calling an election for the purpose of submitting to the electors of said city the question whether the mayor of said city should be recalled. Plaintiffs alleged that they are voters and taxpayers of said city, and that they and each of them are owners of property in said city, and the same has been assessed for taxation for the year 1911; that they are liable for their proportionate share of all public expenses incurred by said city; that the sections of the charter of said city which provides for the recall of city officers are unconstitutional and void, for several reasons, which are fully set out, and for said reasons said defendants are without authority to call said election; that, if same is called, it will be illegal, void, and without any effect whatever; that to hold same would occasion a great expense and outlay of public money of the city of McAlester, their due proportion of which plaintiffs would be compelled to pay. All of which would occasion plaintiffs an irreparable injury for which they are without an adequate remedy at law. Wherefore they pray that the election shall be enjoined. Upon final hearing, the peremptory writ of injunction was issued by the court below upon the ground that the contention of the defendants as to the unconstitutionality of said charter was well taken, to reverse which this proceeding in error was commenced.

Counsel for the respective parties seem to have refrained from presenting to this court the question whether the parties plaintiff below as taxpayers had such an interest in the subject-matter of the suit as to entitle them to prosecute the same, and whether a suit in equity will lie to enjoin the calling of an election. They say that, whilst the first of these contentions may be made upon authority, they are so anxious to have this court pass upon the case upon its merits that they do not wish to urge that question in this court. The court does not take that view of the matter; we think it is time enough to pass upon such important questions when they are reached in due course, with proper parties, in a proper proceeding. Many applications have been made to this court to interfere with the holding of elections of one kind or another by the exercise...

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