Dunbar v. Tulsa Metropolitan Water Authority

• Decision Date: 28 February 1961
• Docket Number: No. 39080,39080
• Parties: , 1961 OK 51 Hansel D. DUNBAR et al., Plaintiffs in Error, v. TULSA METROPOLITAN WATER AUTHORITY, a Trust et al., Defendants in Error.
• Court: Oklahoma Supreme Court

Page 145

363 P.2d 145

39 P.U.R.3d 286, 1961 OK 51

Hansel D. DUNBAR et al., Plaintiffs in Error, v. TULSA METROPOLITAN WATER AUTHORITY, a Trust et al.,

Defendants in Error.

No. 39080.

Supreme Court of Oklahoma.

Feb. 28, 1961.

Rehearing Denied June 27, 1961.

Syllabus by the Court.

1. Under the provisions of Title 12 O.S.1951 § 134, an action against a municipal corporation created by the laws of this State may be brought in the county where the cause of action or some part thereof arose, even though that county is a county other than the situs of the municipal corporation.

2. Where a petition and amendments thereto state facts sufficient to challenge judicial inquiry as to venue of an action, it is error for the trial court to sustain a plea challenging such venue, without first hearing evidence upon which to base its decision.

3. Assuming that the District Courts and the Corporation Commission have concurrent jurisdiction of the subject matter in an action, if the Corporation Commission first assumes jurisdiction and the action is still pending before that tribunal, it has jurisdiction to the exclusion of the District Courts.

Appeal from the District Court, Creek County; W. A. Barnett, Judge.

Action by plaintiffs for a permanent injunction against the defendants. From an order dismissing the action on the grounds of venue and jurisdiction, the plaintiffs appeal. Affirmed in part, reversed in part.

Young, Young & Young, by Glen A. Young, Sapulpa, for plaintiffs in error.

Harry M. Crowe, Jr., Tulsa, for defendants in error, City of Tulsa and the Tulsa Metropolitan Water Authority.

John S. Carlson John L. Arrington, Jr., Carlson, Lupardus, Matthews, Holliman & Huffman, Tulsa, for defendant in error the Oaks Country Club.

IRWIN, Justice.

Plaintiffs brought this action for themselves and all others similarly situated to permanently enjoin defendants from discontinuing certain water services. Plaintiffs reside in Creek County and they purchase water from the Oaks Country Club which is located in Creek County. For at least 20 years, the City of Tulsa by contract, had furnished the water to the Oaks Country Club and a portion of said water had been resold to plaintiffs. The Oaks Country Club installed and owned all the lines and sistribution system and neither the City of Tulsa nor the Tulsa Water Authority owned any water to distribution lines in Creek County which are involved herein.

After defendants threatened to discontinue the water service, plaintiffs brought this action to permanently enjoin them from discontinuing the service. The trial court sustained the special appearance and plea to the venue and jurisdiction of the City of Tulsa and the Tulsa Water Authority and sustained the Oaks Country Club's plea to the jurisdiction and dismissed the action.

Plaintiffs perfected this appeal and will be referred to as plaintiffs. The defendants will be referred to as City, Water Authority and the Oaks.

Issues.

While plaintiffs and defendants both present several issues, there are actually only two basic issues, which are: (1) 'Did the trial court err in sustaining the pleas to the venue and jurisdiction of the City and the Water Authority,' and (2) 'Did the trial court err in sustaining the plea to the jurisdiction of The Oaks?'

Pleadings.

So far as material to this decision, the plaintiffs' petition and amendments thereto contain the following allegations: That they are residents of Creek County and are paying customers of and are connected to the public domestic water system owned and operated by the Oaks; that the Oaks, and its predecessors, for approximately 20 years past, have furnished and sold water through its distribution system for a profit and in doing so, such makes it both a 'public business' as defined by Title 79 O.S.1951, § 4, in so far as its water business is concerned and 'a public utility' under the terms of Title 17 O.S.1951 § 151.

That the City has sold and is presently selling domestic water to the Oaks for resale through a master meter located in Tulsa County; that it provides water for resale to four water improvement districts and in so operating has become a public business subject to Section 4, supra; That the Water Authority, operating by and through its trustees, under contracts with the City and the Oaks is a 'public business.'

That the Water Authority has constructed or intends to place in immediate operation a new water distribution system but the same does not duplicate or extend to the large majority of the customers of the present system and it is impossible for the plaintiffs to make or secure any extensions or connections with the new water system and plaintiffs are being discriminated against.

That in 1959 the Oaks threatened to discontinue said water service and was ordered not to do so by the Corporation Commission of Oklahoma by order No. 40114 in cause No. 22149, until such time and date of final adjudication of cause No. 22149, and the cause has not been finally adjudicated and no final order has been issued by the Corporation Commission.

That the Oaks, the City and Water Authority, individually and jointly have engaged in and are engaging in an unlawful combination and conspiracy to deprive plaintiffs of water and to discriminate against them; that the plan, combination and conspiracy were instigated by the Oaks whose office and principal place of business is in Creek County, and there joined in by the City and the Water Authority; that by 'jointly effectuating and threatening to effectuate such plan for discrimination within Creek County and elsewhere, * * * defendants have given rise to plaintiffs' cause of action within Creek County.'

The City filed a special appearance and plea to the venue and jurisdiction on the ground that the City is in Tulsa County and no part thereof in Creek County and that no part of the action against the City arose in Creek County. Attached to the plea was an affidavit of the Superintendent of Water which stated no water had ever been sold to the Oaks in Creek County but that such sales had only been made in Tulsa County and that the City has never been a party to a conspiracy.

The Oaks filed a motion to dismiss for lack of jurisdiction because an action was pending before the Corporation Commission involving the same subject matter between the same parties.

Conclusions.

The City of Tulsa contends that the venue of the action is in Tulsa County and relies on City of McAlester v. Fogg, Okl., 312 P.2d 867, 868, in which we held:

'1. A municipal corporation is 'a corporation created by the laws of this state' as that phrase is used in section 134 of Title 12 O.S.1951.

'2. Where an action for damages for personal injuries is brought in Oklahoma County jointly against a bus company, operating its lines and maintaining its principal office and served with summons in said county and against a municipal corporation situated in Pittsburg County wherein the alleged cause of action arose, and objection to the jurisdiction of said court, filed by said municipal corporation upon the grounds that the venue of said action as to said defendant was in Pittsburg County should have been sustained and, if not sustained, this court will prohibit further proceedings in said cause against said defendant by the Oklahoma County District Court.'

In that case the accident which formed the basis for the action occurred on the streets of the City of McAlester, Pittsburg County. The action was filed in Oklahoma County against the City of McAlester and the bus company, the bus company having its offices in Oklahoma County. We held that proper venue, as to the City of McAlester, a municipal corporation, was in Pittsburg County where the cause of action arose. We cited with approval Oklahoma City v. District Court, 168 Okl. 235, 32 P.2d 318, 93 A.L.R. 489, which held that under Title 12 O.S.1951, Section 134, an action against a municipal corporation created by the laws of the State may be brought in the county where the cause of action or some part thereof arose, even though that county is a county other than the situs of the municipal corporation. See also Oklahoma City v. Rose, 176...