Excise Bd. of Carter Cnty. v. Chi., R. I. & P. Ry. Co.

• Decision Date: 06 October 1931
• Docket Number: Case Number: 21255
• Citation: 152 Okla. 120,1931 OK 583,3 P.2d 1037
• Parties: EXCISE BOARD OF CARTER COUNTY v. CHICAGO, R. I. & P. RY. CO.
• Court: Oklahoma Supreme Court

1931 OK 583

3 P.2d 1037

152 Okla. 120

EXCISE BOARD OF CARTER COUNTY v. CHICAGO, R. I. & P. RY. CO.

Case Number: 21255

Supreme Court of Oklahoma

Decided: October 6, 1931

Syllabus

¶0 1. Judgment--Petition as Part of Judgment Roll.

The petition upon which a judgment is rendered in a court of general jurisdiction is part of the judgment roll.

2. Same -- Taxation -- Judgment Against Municipality Upon Petition Disclosing Invalidity of Claim Held Void on Face and Subject to Collateral Attack in Court of Tax Review.

A judgment entered upon a petition which not only fails to state a cause of action upon a claim against a county, or other municipality, but affirmatively shows that no cause of action can be stated upon such claim, is void upon the face of the judgment roll and subject to collateral attack in the Court of Tax Review.

3. Counties--Debt in Excess of Legal Limits Void in Any Form.

"A debt which is in excess of the constitutional or statutory limit is void; and in no form can such debt be held valid upon any theory of quantum meruit, or equitable obligation. The absolute lack of power to contract such indebtedness bars every form of action and every legal device by which recovery is sought." Protest of Carter Oil Co., 148 Okla. 1, 296 P. 485.

4. Same--Bridges--Statute Authorizing Reconstruction or Repair of Bridges Construed.

Section 10102, C. O. S. 1921, does not and cannot, authorize the creation of an indebtedness against a county, on account of the reconstruction or repair of bridges owned by the county, in excess of the income and revenue provided for road and bridge purposes, for the fiscal year in which such reconstruction or repair is done.

5. Schools and School Districts -- Election Each Year Required to Authorize Increase of Rate of Tax Levy Above Five Mills.

Any increase of the annual rate of levy for school purposes above five mills on the dollar must be authorized by a majority vote of the electors of the school district at an election held for that purpose for each year for which such proposed increase is sought to be made.

Appeal from Court of Tax Review: Hal Johnson, Harve L. Melton, and T. G. Chambers, Judges.

Protest of the Chicago, Rock Island & Pacific Railway Company against certain items of tax levy made by the Excise Board of Carter County. Judgment for protestant, and the excise board appeals. Affirmed.

John L. Hedge, Joe Brown, and S. A. George, for plaintiff in error.

W. R. Bleakmore, W. L. Farmer, John Barry, and Robert E. Lee, for defendant in error.

RILEY, J.

¶1 This is an appeal from the Court of Tax Review sustaining a protest of the Chicago, Rock Island & Pacific Railway Company against certain items of the tax levy of Carter county for the fiscal year ending June 30, 1930.

¶2 The judgment appealed from sustains the protest as to a .687 of a mill made for the county sinking fund to cover interest and accruals upon two judgments against the county and in favor of one Quinn Wicker, and .5 of a mill levied for school district No. 19 (independent school district, city of Ardmore).

¶3 The sinking fund levy to the extent stated was protested upon the ground that it was to provide for interest and one-third of the principal of two judgments aggregating some $ 60,000, taken upon claims against the county for work, labor, and material furnished in the reconstruction and repair of certain bridges which had been damaged or destroyed by extraordinary floods and storms during the spring of 1927.

¶4 The contention is that said judgments were void as having been rendered upon claims in excess of the income and revenue provided for road and bridge purposes in said county for the fiscal year in which the work and labor was done and material furnished and without having been authorized by vote of the people at an election held for that purpose.

¶5 The petitions upon which the judgments were based are in the record, and among other things allege that in the spring of 1927, unprecedented rains and floods occurred in Carter county whereby a number of bridges theretofore built by the county were washed away; that by appropriate resolutions the board of county commissioners declared an emergency to exist and determined to proceed at once to reconstruct said bridges; that pursuant thereto plaintiff in said action and certain other persons were employed by the board to replace the bridges, which was done, and the other parties assigned their claims therefor to the plaintiff Quinn Wicker; that itemized, verified claims therefor were filed with the county clerk, and "that each and all of said claims have been presented to the board of county commissioners and by them disallowed for the reason that there is no appropriation out of which to pay same."

¶6 The answer of the county in each case was a general denial. Plaintiff in error concedes that the judgments were upon claims in excess of the appropriation for said purposes for that year and asserts that at the time the budget was made and approved for that fiscal year, the bridges and roads were intact; that no one assumed or could know the damage would occur which caused the emergency on account of which the work was done and the judgments in question were taken.

¶7 The principal contention of plaintiff in error is that the judgment roll does not show the judgments to be void, and that, therefore, they cannot be successfully attacked in a collateral proceeding before the Court of Tax Review.

¶8 If the judgments in question are fair and valid on the judgment roll, we are inclined to agree with the contention that they cannot be successfully attacked collaterally in proceedings of this nature, but if the judgment roll shows upon the face thereof that the judgments are void, then they are subject to collateral attack before the Court of Tax Review, and the judgment therein rendered is correct.

¶9 A number of cases are cited to show of what the judgment roll consists. Generally it may be said to consist of the petition, process, return, pleadings subsequent thereto, reports, verdict, orders and judgment and all material acts and proceedings of the court. LeClare v. Calls Him, 106 Okla. 247, 233 P. 1087; Pettis Johnston, 78 Okla. 277, 190 P. 681. All the cases hold that the petition is a part of the judgment roll. Cases are also cited wherein it is held that the fact that the petition defectively states a cause of action, or fails to state one, does not make the judgment void on collateral attack. McDougal v. Rice, 79 Okla. 303, 193 P. 415; Lindeberg v. Messman, 95 Okla. 64, 218 P. 844.

¶10 But a different rule seems to apply where the petition not only fails to state a cause of action, but affirmatively shows that no valid cause of action can be stated upon a particular claim against a municipality.

¶11 Section 26, art. 10, Constitution of Oklahoma, specifically provides that:

"No county, city, town, township, school district, or other political corporation, or subdivision of the state, shall be allowed to become indebted, in any manner, or for any purpose, to an amount exceeding in any year, the income and revenue provided for such year, without the assent of three-fifths of the voters thereof, voting at an election, to be held for that purpose. * * *"

¶12 It has been repeatedly held that a debt of a municipality, incurred in violation of this section of the Constitution, is void.

¶13 In Protest of Carter Oil Co., 148 Okla. 1, 296 P. 485, it is held:

"A debt which is in excess of the constitutional or statutory limit is void; and in no form can such debt be held valid upon any theory of quantum meruit, or equitable obligation. The absolute lack of power to contract such indebtedness bars every form of action and every legal device by which recovery is sought."

¶14 In that case the judgment attacked was held to be void. In the body of the opinion Mr. Justice Andrews, speaking for the court, says:

"There was no allegation in the petition that any appropriation had ever been made for the purpose of purchasing school busses," or that there was any available appropriation for that purpose.

"This court cannot give its approval and hold valid a judgment rendered on the 29th day of August, 1928, for busses purchased by a school district on the 22nd day of August, 1928, in the absence of proof that at the time of purchase there was an appropriation out of which the purchase could have been legally made or that such an appropriation had been thereafter made, when there has been no allegation made in the petition of such an appropriation."

¶15 In Re Gypsy Oil Company, 141 Okla. 291, 285 P. 67, one of several grounds for sustaining a protest against the tax levy made to cover a judgment was that the petition upon which the judgment was taken did not state a cause of action.

¶16 In the instant case the petitions upon which the judgments were taken not only failed to state that there was an appropriation, but affirmatively alleged that no appropriation was ever made, and show that the claims were disallowed for that reason.

¶17 Plaintiff in error cites section 10102, C. O. S. 1921, as authority for the creation of the indebtedness upon which the judgments were taken. Said section reads as follows:

"The board of county commissioners may pay for the reconstruction or repairing of such county bridges as have been heretofore or may be hereafter damaged or destroyed by floods, and including bridges where the same, by reason of an emergency, have been repaired or reconstructed by any person or persons, without first having contracted to repair or reconstruct the same with said county commissioners; Provided, that the authority granted by this section shall apply only to claims for repairing or reconstructing bridges previously owned by the county on the same site."

¶18 This section does authorize the board of county commissioners to pay for the reconstruction or repair of county bridges damaged or destroyed by floods, etc., but does not purport to give authority to...