Faulk v. Board of Com'rs of Marshall County

• Decision Date: 28 April 1914
• Docket Number: 5956.
• Citation: 140 P. 777,40 Okla. 705,1914 OK 201
• Parties: FAULK ET AL. v. BOARD OF COM'RS OF MARSHALL COUNTY ET AL.
• Court: Oklahoma Supreme Court

140 P. 777

40 Okla. 705, 1914 OK 201

FAULK ET AL. v. BOARD OF COM'RS OF MARSHALL COUNTY ET AL.

No. 5956.

Supreme Court of Oklahoma

April 28, 1914

Syllabus by the Court.

Where as is required in section 26 of article 10 of the Constitution that three-fifths of the voters of the county city, or other subdivision of the state, voting at an election upon the proposition whether said county or any subdivision named in said section 26 shall become indebted for any purpose in an amount exceeding the income and revenue of such county, etc., in any year, and if as many as three-fifths of the voters vote in favor of such proposition then such indebtedness is allowed.

The qualification of such voter is prescribed in sections 1 and 4a of article 3 of the Constitution, and at elections held for the purposes defined in section 26, art. 10, his qualification is fixed without regard to his status as a property tax paying or non property tax paying voter.

Section 1625, Rev. Laws 1910, empowering the board of county commissioners to contract for the erection of courthouses and jails and to issue bonds therefor provided that the same shall be issued if a majority of the qualified tax paying voters voting at an election at which such matter is submitted, etc., does not affect the percentage of three-fifths required by the constitutional provision; and held, further, that it is not a limitation on the qualification of a voter as stated in sections 1 and 4a of article 3 of the Constitution.

The board of county commissioners, under section 1625, Rev. Laws 1910, are empowered to contract for the purchase or erection of a courthouse and jail, when a majority of those voting in favor of the proposition submitted by the board are qualified property taxpaying voters.

Error from District Court, Marshall County; R. C. Allen, Judge.

Action by D. L. Faulk and others against the Board of County Commissioners of Marshall County, Oklahoma, composed of W. S Lasiter and others, and against Edwin Kirk, County Clerk, and Ava Miller, County Treasurer. Judgment for defendants, and plaintiffs bring error. Affirmed.

The qualification of a voter at an election to authorize a county indebtedness pursuant to Const. art. 10, § 26, is that prescribed by Const. art. 3, §§ 1, 4a, and does not depend on whether he is a property tax paying or nonproperty tax paying voter.

An election was held in Marshall county on September 29, 1913 at which was submitted two propositions by the board of county commissioners, namely: (1) Shall the county commissioners be authorized to expend the sum of $75,000 for the construction of a courthouse to be owned and used by the county, etc.; and (2) should an indebtedness be incurred by the issuance of a 5 1/2 per cent. interest-bearing negotiable coupon bond of said county in the sum of $75,000 for such purpose and a levy of a tax to pay the interest on said bonds, as well as to provide a sinking fund to pay the principal thereof?

The returns of the election were duly canvassed, and both propositions were declared to be carried by the requisite constitutional majority; and in the month of October, 1913, the board of county commissioners proceeded to the issuance of the bonds in said sum, and, the treasurer of said county being about to sell the bonds and deliver them, the plaintiffs in error began this action to enjoin the defendants in error upon the grounds as alleged that said propositions were not carried by the vote required, and therefore the election was void, and, having no adequate remedy at law, they prayed that the defendants be restrained by the district court of Marshall county. A restraining order was issued and the cause set down for hearing in the district court. Plaintiffs in error amended their petition. Defendants in error filed general and special demurrers to the petition, which were overruled by the Honorable R. C. Allen, district judge authorized to hold a term of the court in Marshall county. The defendants in error answered, and the allegations of the petition as well as those of the answer will be sufficiently reviewed, if necessary, in the opinion of the court without stating the matters here. As was said, temporary injunction was issued and the cause went to trial before Hon. R. C. Allen in the district court of Marshall county before the court, without the intervention of a jury, and was submitted upon the pleadings and agreed statement of facts signed by all of the counsel for both plaintiffs and defendants. Upon hearing of the cause, the court, on the 10th day of November, 1913, dissolved the temporary injunction issued in the case and dismissed the petition of plaintiffs. Plaintiffs' motion for a new trial was heard and overruled, time allowed in which to serve a case-made; and this proceeding in error is regularly before the court to determine the questions at issue.

The agreed statement of facts filed in the district court of Marshall county and shown by the case-made on pages 30 to 32 inclusive, is as follows: "In the District Court of Marshall County, State of Oklahoma. D. L. Faulk et al., Plaintiffs, v. The Board of County Commissioners of Marshall County et al., Defendants. Stipulation. Come now the above-named plaintiffs in person and by their attorneys, Hatchett & Ferguson, and the defendants in person and by their attorneys of record, and stipulate and agree that the following contains a true statement of all the facts in this case: (1) That plaintiffs are residents and taxpayers of Marshall county, Okl.; that the defendants W. S. Lasiter, Hugh Wiggs, and A. P. Ray are the duly elected, qualified, and acting county commissioners of Marshall county, Okl.; that Ed Kirk is the duly elected, qualified, and acting county clerk of Marshall county, Okl.; and that Ava Miller is the duly elected, qualified, and acting county treasurer of Marshall county, Okl. (2) That on the 29th day of September, 1913, pursuant to proper and legal procedure, theretofore had, an election was regularly held in Marshall county, Okl., at which election there was submitted to the qualified electors of said county two propositions, as follows: 'First Proposition. Shall the county commissioners of Marshall county, state of Oklahoma, be authorized to expend the sum of seventy-five thousand ($75,000.00) for the construction of a courthouse, in, to be owned by and for the use of said county? Second Proposition. Shall the board of county commissioners of Marshall county, state of Oklahoma, incur an indebtedness of said county, by issuing the negotiable coupon bonds of said county in the sum of seventy-five thousand dollars ($75,000.00) for the purpose of providing funds for the purpose of building a courthouse, in, to be owned by and for the use of said county, and levy and collect an annual tax in addition to all other taxes upon all of the taxable property in said county, sufficient to pay the interest on said bonds as it falls due, and also to constitute a sinking fund for the payment of the principal thereof at maturity; said bonds to bear interest at the rate of five and one-half (5 1/2) per centum per annum, payable annually?' Said election was held in accordance with the laws then in force and in all respects was properly and legally conducted. That in said election, in all, 2,524 electors participated. That of said number, 2,054 were property tax paying voters. That at said election there were cast by non property tax paying voters, in favor of the first proposition, 303 votes and 149 votes against said proposition, and there were cast in favor of the second proposition by non property tax paying voters 311 votes and against said proposition 151 votes. That there were cast by the property tax paying voters at said election, in favor of the first proposition, 1,222 votes and against said proposition 820 votes, and that there were cast by the property tax paying voters at said election in favor of the second proposition 1,223 votes and against said proposition 826 votes. That at said election there were 13 ballots cast that were discarded as mutilated and not counted; these 13 being included in the total number above stated in this stipulation, to wit, 2,524 votes. That the figures as shown above were ascertained and determined by the returns of the county canvassing board and the count of the ballots made in open court, and that the same are the true and correct result of said election. It is further stipulated and agreed that, as shown by the above figures, more than three-fifths of all the legal votes cast at said election were cast in favor of both the first and second propositions; that more than a majority of the property tax paying voters of Marshall county at said election cast their ballots in favor of both the first and second propositions, but that less than three-fifths of the property taxpaying voters voting in said election cast their ballots in favor of either the first or second propositions. It is further stipulated and agreed that subsequent to said election and on, to wit, the 1st day of October, 1913, the county commissioners canvassed the returns from the various precincts and determined that both propositions had carried by more than 60 per cent. of both the non property tax paying voters and the property tax paying voters and by proper resolution declared both propositions carried; that no appeal was ever prosecuted from the action of the board of county commissioners. It is further stipulated and agreed that, subsequent to said election and the canvass made by the board of county commissioners, the defendants herein attempted to negotiate the bonds, and at the time of the institution of this suit were attempting to sell and negotiate said bonds. It is further agreed that this cause shall be...