Cunningham v. Okla. City

• Decision Date: 15 February 1941
• Docket Number: Case Number: 30202
• Citation: 110 P.2d 1102,1941 OK 56,188 Okla. 466
• Parties: CUNNINGHAM v. OKLAHOMA CITY et al.
• Court: Oklahoma Supreme Court

1941 OK 56

110 P.2d 1102

188 Okla. 466

CUNNINGHAM v. OKLAHOMA CITY et al.

Case Number: 30202

Supreme Court of Oklahoma

Decided: February 15, 1941

Syllabus

¶0 JUDGMENT--Matters concluded by final judgment.

A final judgment of a court of competent jurisdiction is conclusive between the parties and their privies in a subsequent action involving the same subject matter, not only as to all matters actually litigated and determined in the former action, but as to all matters germane to issues which could or might have been litigated therein.

Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.

Action in contest of bond election by F. Cunningham against the City of Oklahoma City and others. From judgment dismissing the action on application of the rule of res adjudicata, the plaintiff appeals. Affirmed.

Edward Kirby Brook, of Oklahoma City, for plaintiff in error.

A. L. Jeffrey, Municipal Counselor, and Leon Shipp, Asst. Municipal Counselor, both of Oklahoma City, for defendants in error.

WELCH, C. J.

¶1 February 20, 1940, an election was held in Oklahoma City for the purpose of deciding whether said city should issue $6,911,000 negotiable coupon bonds for the purpose of providing funds for proposed water supply improvements. Admittedly the election was held in pursuance of the authority of art. 10, secs. 26 and 27, Constitution of Oklahoma, Okla. St. Ann., and is wholly governed by said constitutional provisions, as aided and construed by applicable laws of the State Legislature and decisions of this court.

¶2 The ballots cast at this election were counted, certified, canvassed, and the result thereof declared: for the proposition 7,578 votes; against the proposition 7,182 votes. Calculation shows a majority for the proposition of 396.

¶3 On the 23rd day of December, 1940, this action was filed by F. Cunningham, "a resident registered property taxpaying voter of said city," against said city and its officials, whereby it was sought to have said election declared "illegal, void and of no effect." There were allegations of various acts on the part of the city and those officials charged by law with the duty of the holding of the election whereby voters of a number sufficient to change the result of the election, not qualified by law, were permitted to vote, by reason of which the election was alleged to be illegal and void.

¶4 The cause was determined in trial court upon defendant's motion to dismiss, urging application of the rule of res judicata. The judgment of dismissal was in material substance as follows:

"This matter coming on for hearing . . . upon the defendant's demurrer and motion to dismiss . . . and the court after carefully examining plaintiff's petition and defendant's motion to dismiss to which there was attached as exhibits the petition and journal entry of judgment in cause No. 100,722 of this court (being the cause determined in Supreme Court November 26, 1940, No. 30056 Henry v. City of Oklahoma City, 188 Okla. 308, 108 P.2d 148), and after hearing argument of counsel and being fully advised in the premises finds: . . . that all of the issues presented by the petition in the case at bar and sought to be adjudicated herein have heretofore been adjudicated in said cause No. 100,722 of this court, which was thereafter affirmed by an opinion of the Supreme Court . . . and that the issues therein determined are res judicata as to the issues in this matter and is a bar to this action instituted by a taxpayer for the purpose of declaring the election complained of illegal or void. That the defendant's motion to dismiss this action should be sustained," followed by appropriate concluding language dismissing the action. This appeal is prosecuted from that judgment, and order.

¶5 The record before us on this appeal discloses that the petition in the present case is in all material respects substantially similar to the petition filed in the former case. Henry v. City of Oklahoma City, Oklahoma, No. 30056, decided in this court November 26, 1940, 188 Okla. 308, 108 P.2d 148.

¶6 In fact, the only difference in the two cases which plaintiff claims exists may be shown in his own words which we now quote from his briefs:

"The right to vote without a tax receipt is the only question pleaded and decided that was put directly in issue in the Henry Case.

"In the Henry Case, supra, there is also mentioned in paragraph four of said opinion, the Constitution, wherein the court says: 'That the election officials must determine what electors presenting themselves to vote are wholly qualified,' and cite 18 A. J. page 227, section 72, which apparently holds against the court, as said citation provides the 'Legislature may determine how a voter may qualify,' which was attempted by the enactment of section 6042, of the 1931 statutes. In paragraph 5 of said opinion the court says: 'That we are of the opinion that until the Legislature may otherwise provide, the election officials are justified in accepting from prospective electors affidavits of their eligibility to vote. The Attorney General has so advised election officials for many years and we feel it may be held to amount to an administrative construction of the law on the subject.' We have always believed it sound to hold that opinions of the Attorney General acquiesced in for a long period of time amounted to an administrative construction of the point involved, we applied the same reasoning in the Attorney General opinions with reference to section 6042 of the 1931 statute, however, we have not been able to find an opinion by the Attorney General wherein he says that an elector voting at a bond election held under article 10, section 27, of the Constitution, may vote on a so-called affidavit which fails to state therein that he is a property taxpaying voter of the city in which the election was held. It is this question that is raised for the first time in the case at bar."

And, again, the following:

"The main difference as the plaintiff sees these cases is that in the Henry Case, supra, the court was construing a statute and held that a voter did not have to have a tax receipt as required under section 6042 of the 1931 statute, thereby nullifying same. Under the Cunningham Case, the allegations are that the election is void for the reason that the provision with reference to elections of this kind as provided under the Constitution were violated and that voters were allowed to vote at said election without any further qualification than was provided by the so-called affidavit; then it is the plaintiff's belief that the rule laid down in the Henry Case cannot possibly apply in the Cunningham Case . . ."

¶7 As we understand plaintiffs present contention, he does not claim any difference in facts in the two cases, but his position is that in the former case the Supreme Court did not specifically pass upon the question of whether or not votes were cast in violation of the Constitution, but therein merely passed upon certain statutory provisions, and that in the present suit he seeks to have a determination of a purely legal question upon the same facts as the present case because that particular legal question was not raised or passed upon in the former case.

¶8 Plaintiff cites Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195; Washington, Alexandria & Georgetown Packett Co. v. Sickles, 72 U. S. 580, 18 L. Ed. 550; Hine v. Board of County Com'rs, 188 Okla. 260,108 P. 112; Mobile County V. Kimball, 102 U. S. 691, 26 L. Ed. 238; Johnson v. Whelan et al., 186 Okla. 511, 98 P.2d 1103; Fayerweather v. Ritch, 195 U. S. 276, 49 L. Ed. 193, in support of his contention that the question in the present case was not specifically decided in the former case, and that the rule of res judicata is not applicable.

¶9 We think the rule of these cases as pertains to the present question is correctly reflected in 30 Amer. Juris. page 925, paragraph 180, as follows:

"The rule granting conclusiveness to a judgment in regard to issues of fact which could properly have been determined in the action is limited to cases involving the same cause of action. Where a second action is upon a different claim, demand, or cause of action, the established rule is that the judgment in the first action operates as an estoppel only as to the points or questions actually litigated and

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