Edge v. Board of County Com'rs of Choctaw County

• Decision Date: 19 November 1957
• Docket Number: 37670,Nos. 37669,s. 37669
• Citation: 318 P.2d 621
• Parties: Stanley EDGE, Plaintiff in Error, v. The BOARD OF COUNTY COMMISSIONERS OF COUNTY OF CHOCTAW, State of Oklahoma, George D. Gastineau, M. I. Scott, Frank Parsons, Allie Melton, J. H. Roberts and Aubrey Williams, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 621

318 P.2d 621

1957 OK 291

Stanley EDGE, Plaintiff in Error, v. The BOARD OF COUNTY COMMISSIONERS OF COUNTY OF CHOCTAW,

State of Oklahoma, George D. Gastineau, M. I.

Scott, Frank Parsons, Allie Melton, J.

H. Roberts and Aubrey

Williams, Defendants in Error.

Nos. 37669, 37670.

Supreme Court of Oklahoma.

Nov. 19, 1957.

Syllabus by the Court

1. Where the qualified voters of a stock district have voted to allow swine to run at large for the months of December, January and February of each year, under the provisions of Section 102, 4 O.S.1951, the Board of County Commissioners may, upon proper petition, submit to the voters of the stock district the question or questions provided in Section 103, of the above title, to allow the voters to determine whether swine shall be permitted to run at large in the district during the entire year, under Section 111, 4 O.S.1951.

2. Where Board of County Commissioners order a special election on the question of whether swine shall be permitted to run at large in a stock district over the protest of certain electors on the ground that the petition for the election is not properly signed by the number of electors required by law and protestant appeals to the district court and tenders appeal bond, the election so ordered should be stayed pending appeal to the district court.

3. On appeal to the district court from an order of the Board of County Commissioners the trial in the district court shall be de novo, which means that the entire case must be tried anew on questions of both law and fact, and the district court has no jurisdiction to render judgment without hearing evidence to support its findings and conclusions. Section 434, 19 O.S.1951.

4. A protesting, taxpaying resident and legal voter of the territory affected by a stock law election which he contends was not held within the terms and under the provisions of the applicable statutes is an aggrieved person within the terms of 19 O.S.1951 § 431, and may appeal from County Commissioners' order approving such election over his protest to the district court to review the election proceedings.

Appeal from District Court of Choctaw County; Howard Phillips, Judge.

This is an appeal by Stanley Edge from a judgment of the District Court of Choctaw County, affirming an order of the Board of County Commissioners of that county, entered May 7, 1956, calling an election to be held June 2, 1956, submitting to the voters of Stock District No. 2 the following question, to-wit: 'Shall swine be permitted to run at large?' Also, an appeal from a judgment of the same court entered July 12, 1956, affirming the Resolution and order of said Commissioners, entered June 8, 1956, canvassing the returns of the special election, held in the same Stock District No. 2 on June 2, 1956. This was pursuant to the proceedings above referred to, in which order and Resolution of the Commissioners it was certified that the question 'Shall swine be permitted to run at large?', failed to receive a majority of the votes cast and did not pass. Judgment rendered for the defendants declaring election valid. Plaintiff appealed. Reversed with directions to declare the election void.

Hal Welch, Vester Songer, Hugo, for plaintiff in error.

Ralph K. Jenner, County Atty. of Choctaw County, Hugo, D. A. Stovall, James Bounds, Hugo, for defendants in error.

HALLEY, Justice.

This is an appeal by Stanley Edge from a judgment of the District Court of Choctaw County, entered June 7, 1956, affirming orders of the Board of County Commissioners of Choctaw County (hereinafter called Commissioners) entered May 7, 1956, calling an election to be held June 2, 1956, and submitting to the voters of Stock District No. 2 in that county the question, 'Shall swine be permitted to run at large?'

A companion case has been consolidated for the purpose of briefing, being an appeal by the same party from a judgment of the District Court of Choctaw County affirming the action of the Commissioners, on June 8, 1956, in canvassing the returns of the special election above referred to, in which they certified that the question submitted to the voters of the Stock District No. 2 failed to receive a majority of the votes cast and did not pass. Stanley Edge had challenged the sufficiency of the petition, praying that a special election be called, and sought a restraining order prevening a canvass of the votes cast until the District Court had disposed of his first appeal from the order approving the Commissioners' action in calling the election on the original petition filed by petitioning citizens. We will discuss the questions raised in both appeals in this opinion.

Separate motions for a new trial were filed, overruled and notice of appeal duly given.

Plaintiff first submits that:

'The proposition that was submitted to the voters of Stock District No. 2 at the election was not a question authorized by the statute to be voted upon since swine were lawfully running at large in said Stock District, pursuant to an election held in 1950, under the provisions of Title 4, O.S.1951, Sec. 102.'

In support of his first proposition Stanley Edge points out that the record shows that in 1950 a special election was held in Stock District No. 2, and resulted in allowing swine to run at large in that District from December 1 to March 1 of each year, and that such fact renders illegal and void the actions of the Commissioners here complained of. The result of the 1950 election was called to the attention of the Commissioners as a protest against the petition praying for the calling of the election here complained of.

In his protest against calling the 1956 election, Stanley Edge called the attention of the Commissioners to the 1950 election and he also denied the signatures on the petition filed with the Commissioners constitute one-fourth of the legal resident voters of the district as required by Section 102, 4 O.S.1951.

There is no question but that Sections 101, 102 and 103, 4 O.S.1951, control the creation and operation of stock districts in Oklahoma. Section 101 provides for the organization or creation of such districts; Section 102 provides the type of questions that may be submitted to the voters. The first form of question provided is: 'Shall domestic animals be permitted to run at large?'

Section 102 also provides for the question submitted in the 1950 election, that is: 'Shall domestic animals be permitted to run at large from the first day of ..... until the first day of ..... each year?'

The 1950 election having been ordered held and the results declared, it remains in force until set aside by a subsequent election under the provisions of Section 111, 4 O.S.1951.

Section 103, supra, provides that where any animals are running at large under authority of Art. 2, Chapter 4, Session Laws of 1908, the question may be submitted to the voters of the stock district, among others, 'Shall . . . (naming animals) . . . be restrained from running at large?'

The plaintiff submits for his second proposition as follows:

'The election which was held on June 2, 1956, was void for the reason that the Board of County Commissioners had lost jurisdiction to hold the election, pending a decision of the District Court on trial de novo.'

Section 431, 19 O.S.1951, provides in substance that an appeal may be taken 'From all decisions of the Board of County Commissioners * * *' to the district court by 'any persons aggrieved', including the county by its County Attorney, upon filing a bond to be approved by the county clerk. It provides that the County Attorney shall taken an appeal from any action of the Commissioners without bond upon demand by fifteen freeholders of the county, and that if the County Attorney fails or refuses to appeal, then any resident taxpayer of the county may be considered a person aggrieved and may appeal upon giving bond.

Section 432 of the same Title provides when appeal must be taken; Section 433 provides that when appeal so taken is filed in the district court '* * * said cause shall stand for trial at such term', and Section 434 provides that such appeals shall be docketed as other cases pending in the district court, and 'shall be heard and determined do novo.'

Section 435, supra, provides as follows:

'The district court may make a final judgment and cause the same to be executed, or may send the same back to the board with an order how to proceed, and require said board of county commissioners to comply therewith by a mandamus or attachment as for contempt.'

The real issue here presented is whether the appeal of the plaintiff from the order of the Commissioners calling an election in Stock District No. 2 had the effect of vacating or suspending such order until the appeal was decided by the district court. If the appeal had the effect of staying or holding in abeyance the orders of the Commissioners that an election be held, then it is clear that the election could have no effect and would be void.

It should be remembered that when plaintiff appealed from the order of the Commissioners ordering an election, he filed an application for a restraining order against holding the election until the appeal was determined by the District Court. The court denied the application and ordered the election.

Under section 435, supra, the...