City of Pawhuska v. Pawhuska Oil & Gas Co.

• Decision Date: 04 May 1926
• Docket Number: Case Number: 15316
• Citation: 248 P. 336,118 Okla. 201,1926 OK 427
• Parties: CITY OF PAWHUSKA v. PAWHUSKA OIL & GAS CO.
• Court: Oklahoma Supreme Court

1926 OK 427

248 P. 336

118 Okla. 201

CITY OF PAWHUSKA v. PAWHUSKA OIL & GAS CO.

Case Number: 15316

Supreme Court of Oklahoma

Decided: May 4, 1926

Syllabus

¶0 1. Municipal Corporations--Action on Claim Without Presentation to City Authorities--Costs not Recoverable.

An action to recover on an unliquidated claim against an incorporated city may be maintained without having first presented a verified itemized statement to the municipal authorities for allowance, but, in such case, costs cannot be recovered.

2. Municipal Corporations--Constitutional Debt Limit not Applicable to Operation of City's Public Utilities.

The debt limit provisions of section 26, art. 10 of the state Constitution, do not apply to an incorporated city in the operation of a public utility owned exclusively by such city.

3. Same--Taxation--Unnecessary to Certify to Excise Board Needs of City's Public Utility

The statutes of this state relating to revenue and taxation do not require the mayor and councilmen of an incorporated city, or officers exercising like power in a city having a charter form of government, to make and certify to the excise board any statement of the estimated needs of such municipality in the operation of a public utility owned exclusively by it.

Commissioners' Opinion, Division No. 1.

Error from District Court, Osage County; A. S. Wells, Assigned Judge.

Action by the Pawhuska Oil & Gas Company against the City of Pawhuska. Judgment for plaintiff, and defendant appeals. Affirmed.

Grinstead & Scott and A. N. Murphy, for plaintiff in error.

Leahy, MacDonald & Files, for defendant in error.

RAY, C.

¶1 This is an appeal by the city of Pawhuska from a judgment in favor of Pawhuska Oil & Gas Company, a corporation, for gas furnished and used by the municipality for fuel in operating water and electric light plants owned exclusively by the city. The water and light plants were constructed and being operated as public utilities for the purpose of furnishing water and light to the city and its inhabitants, pursuant to authorization to do so by the voters of the city as expressed at an election held for that purpose. The Pawhuska Oil & Gas Company was at all times a public service corporation engaged in furnishing gas to the city and its inhabitants under a franchise also authorized by the voters of the city at an election called and held for that purpose.

¶2 The city relies upon two points for the reversal of the judgment, as stated in its brief:

"(1) The plaintiff did not file with the city clerk for consideration of the commissioners a statement of its claim against the city with a full account of the items duly verified as to the correctness, reasonableness, and justness of the claim. Therefore, the plaintiff could not maintain its suit.

"(2) There was no sufficient estimate made by the proper city authorities and approved by the excise board of Osage county, providing a fund for the payment of fuel for the public utilities of the city. Therefore, plaintiff could not maintain its suit."

¶3 If the city's contention is correct as to either proposition, the judgment must be reversed, otherwise affirmed, as no other question is presented in its brief.

1. A decision of this question requires an interpretation of section 4578, C. S. 1921, a special statute relating to cities only, and chapter 186, S. L. 1913 (brought forward in the 1921 compilation as sections 8595, 6, 7), which is a general act relating to counties, townships, cities, and incorporated towns.

¶4 The 1913 Act reads:

"Sec. 8595. All claims for money due from any county, township, city or incorporated town shall be itemized in detail, verified, and filed for allowance, with the proper authority not less than five days before the meeting of such body for such purposes. Such verified claims shall show in detail the amount due on each item, the date thereof, the purpose for which each item was expended, and such other facts as are necessary to show the legality.

"Sec. 8596. The proper authority of each county, township, city or incorporated town authorized by law to allow claims, shall examine into each claim so filed for allowance at the meetings authorized by law to make such allowance, and if the same, or any part thereof, is found to be correct, and is in compliance with section 1 of this act, the same shall be allowed for payment and a warrant issued therefor.

"Sec. 8597. Any member of the board of county commissioners, township board, city council, board of trustees, or incorporated town, knowingly, willfully and intentionally allowing any claims or entering into any contract on the part of such county, township, city or incorporated town, not specifically authorized by law, shall be deemed guilty of a felony, and upon conviction shall be punished by imprisonment in the penitentiary for a term not to exceed five years, and the official bond of said officer shall in any event be liable for the amount or amounts of money so unlawfully expended or misappropriated."

¶5 This act contained no repealing clause. Prior to its enactment there were special statutes as to different municipal subdivisions requiring itemized claims to be filed with the municipal authorities before the same could be allowed. These sections are all brought forward in the 1921 compilation.

¶6 Section 10393, applicable to school districts, provides that no warrant shall be issued except on verified claims made under oath, which shall not be allowed unless the same shall be made out in separate items and the nature of each item stated. Section 5285 is applicable to counties. That section provides for filing itemized verified accounts before the same may be allowed by the county commissioners. Section 10946 is applicable to township boards. It provides that in no case shall the township board be authorized to allow any claim or any part thereof until the claimant makes out a statement verified by affidavit as to the amount and nature of his claim. Section 4774 is applicable to towns. It provides that no claim against a town shall be audited or allowed unless it be made out fully and itemized. There is no requirement as to verification. These various sections are cited for the purpose of showing that they are not materially different from the 1913 Act, as to the requirements of claimants. Section 4578 applies to cities only, and is the only one of these special sections under consideration, and is as follows:

"All claims against the city must be presented in writing, with a full account of the items, and verified by the oath of the claimant or his agent, that the same is correct, reasonable and just, and no claim or demand shall be audited or allowed unless presented and verified as provided for in this section: Provided, that no costs shall be recovered against such city in any action brought against it, for any unliquidated claim, which has not been presented to the city council to be audited, nor upon claims allowed in part unless the recovery shall be for a greater sum than the amount allowed with the interest due; and provided, further, that no action shall be maintained against such city in exercising or failure to exercise any corporate power or authority in any case where such action would not lie against a private individual under like circumstances."

¶7 The 1913 Act probably goes a little more into detail as to what the itemized and verified statements shall contain, than do the several special statutes, but the distinguishing feature of that Act is that a violation of the law by municipal officers is made a felony.

¶8 There is no conflict between section 4578, applicable to cities only, and the Act of 1913. The language of section 4578, by clear implication, authorizes suits to be brought against the city for an unliquidated claim without first filing a verified itemized statement of the account with the municipal officers for allowance, but it particularly provides that in such case no costs shall be recovered against the city.

¶9 This brings us to the question as to which of these statutes is controlling in its application to incorporated cities. The 1913 Act is a general statute applying to all municipalities except school districts. We think the correct rule was laid down by this court in Union Savings Ass'n v. Burns, 74 Okla. 1, 176 P. 227:

"Where there are two statutes upon the same subject, the earlier being special and the later general, the presumption is, in the absence of an express repeal, or an absolute incompatibility, that the special is to remain in force as an exception to the general."

¶10 We think the conclusion reached in School District No. 8 v. Home Lumber Co., 97 Okla. 72, 221 P. 433, is correct. In that case the school district board entered into an oral contract with the Home Lumber Company to furnish lumber to build a schoolhouse for which bonds had been voted. The Home Lumber Company recovered judgment, and the school district board appealed. One of the questions argued was that the trial court erred in refusing to instruct the jury, in substance, that it was necessary for the plaintiff to have presented to the school board, prior to the institution of the suit, a verified claim under oath showing the separate items and the nature of each item for which it claimed an indebtedness owing to it. The first paragraph of the syllabus is as follows:

"Where a school district votes bonds to erect a new building, and the district board decides to erect such building on the cost-plus basis plan, in pursuance of which it enters into a written contract with a contractor to pay him 10 per cent. of the cost of the building, up to a certain limited cost, for his services in constructing the building, the district to furnish the lumber and material, and the board orally contracts with another to supply the lumber and material, and after the same is furnished the board denies the existence of the oral contract, the filing by such materialman of a verified claim with such

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