Fairbanks Co. v. City of Sulphur

• Decision Date: 05 December 1916
• Docket Number: 5106.
• Citation: 161 P. 811,62 Okla. 10,1916 OK 1006
• Parties: FAIRBANKS CO. v. CITY OF SULPHUR.
• Court: Oklahoma Supreme Court

161 P. 811

62 Okla. 10, 1916 OK 1006

FAIRBANKS CO. v. CITY OF SULPHUR.

No. 5106.

Supreme Court of Oklahoma

December 5, 1916

Syllabus by the Court.

Where warrants and claims sued upon are prima facie valid, and the defendant city seeks to avoid payment on the ground that the contracts upon which such warrants and claims are based were incurred in excess of a constitutional or statutory limitation, the burden of showing that such debt limit had been exceeded is upon the city.

A city has no right to apply the revenue provided for the current year to the satisfaction of obligations of a preceding year so long as there are or may be legal claims outstanding against the city for such current year; and, where the revenue provided for the current year is misapplied to the payment of obligations of a preceding year, the funds so misapplied will be considered as in the treasury in determining whether or not a constitutional or statutory limitation has been exceeded.

Commissioners' Opinion, Division No. 4. Error from County Court, Murray County; Harry W. Fielding, Judge.

Action by the Fairbanks Company against the City of Sulphur. Judgment for defendant, and plaintiff brings error. Reversed and remanded for new trial.

Broadbent & Rawlings, of Sulphur, for plaintiff in error.

Ira M Roberts, of Sulphur, for defendant in error.

DAVIS C.

Parties mentioned herein as in court below. Plaintiff sold defendant the following bill:

"New Orleans, Dec. 9th, 1907.

Sold to the City of Sulphur, I. T. 6 Fairbanks hydrants, 2 1/2 bury, 4"' Universal joint connections 2-2 1/2"' hose nozzles, $27.50 each, $165.00."

Duly sworn to by F. A. Maddox, Mgr., state of Louisiana, parish of Orleans, before W. Morgan Gurley, notary public, with seal.

The following warrant was thereafter duly issued and delivered to plaintiff by defendant:

"City Warrant.

No. 921. $165.00.

The treasurer of the city of Sulphur, Oklahoma, will pay to Fairbanks Co. or order the sum of one hundred sixty-five dollars for account, out of water fund. By order of council 1st day of June, 1908. D. J. Kendall, Mayor.

Attest: R. L. Merrill, City Clerk. [ Seal.]"

Said warrant was duly presented by plaintiff to defendant for payment on May 17, 1909, and was by the city treasurer stamped, "Not paid for want of funds," and payment refused. Plaintiff sued on said warrant before justice of the peace U. A. Fox, Sulphur township, Murray county, Okl., on November 22, 1911, and on December 13, 1911, trial was duly had before said justice, resulting in a judgment for plaintiff and against the defendant in the sum of $165 with interest after May 17, 1909, at 6 per cent., amounting to $24.75 and costs. Defendant duly appealed to the county court of said county, and a trial was had to said court on October 22, 1912, a jury being duly waived, resulting in a judgment that plaintiff take nothing by its suit, and that the defendant go hence without day, and that the plaintiff pay all costs of the suit. Plaintiff has duly appealed from the judgment of said court by petition in error and case-made, and the cause is thus before us for review.

The debt was contracted after statehood. The warrant evidencing said indebtedness was issued after statehood. The record shows that Sulphur was a city located in the Indian Territory prior to statehood, and hence governed by the laws in force in said territory as to contracts, etc., arising thereunder prior to statehood.

The act of Congress of June 28, 1898, commonly known as the "Curtis Bill," section 14, provided, among other things, as follows:

"Such city or town governments shall in no case have any authority to impose upon or levy any tax against any lands in said cities or towns until after title is secured from the tribe; but all other property, including all improvements on town lots, which for the purposes of this act shall be deemed and considered personal property, together with all occupations and privileges, shall be subject to taxation. And the councils of such cities and towns, for the support of the same and for school and other public purposes, may provide by ordinance for the assessment, levy, and collection annually of a tax upon such property, not to exceed in the aggregate two per centum of the assessed value thereof, in manner provided in chapter one hundred and twenty-nine of said digest, entitled 'Revenue,' and for such purposes may also impose a tax upon occupations and privileges."

This was the only way said defendant herein could raise revenue to run the city by taxation.

The evidence in the case shows that the defendant passed the following ordinance:

"Ordinance No. 150, City of Sulphur, Ind. Ter., passed July 25, 1907, provides tax levy as follows:

General fund ....... 2 1/2 mills

Water fund ......... 5 mills

School bond ........ 2 mills

Street and bridge .. 1/2 mill

School ............. 9 mills

Salary ............. 1 mill, and it was stipulated and agreed by both parties that the assessed valuation of all taxable property within the city of Sulphur, Ind. Ter., at time of above levy was $1,000,000.00, and that a 5-mill levy would amount to $5,000.00."

This would provide $20,000 for all funds or purposes and $5,000 for the water fund of said defendant for the fiscal year 1907-08, under the provisions of said law and stipulation, ante.

The record shows that the fiscal year began July 1, 1907, and ended June 30, 1908. The record further shows that warrants had been drawn on the water fund of defendant prior to November 16, 1907, amounting to $5,067.02, and that the amount of the warrant indebtedness drawn on the water fund on the 1st day of June, 1908, was...