Syllabus
by the Court.
1.
Section 2, art, 8, c. 32, p. 256, Laws 1897, relative to the
construction of courthouses and jails, is not repealed by
chapter 11, p. 146, Laws 1903. The Laws of 1893, and article
8, c. 32, p. 256, and article 1, c. 12, p. 111, of the Laws
of 1897, and chapter 11, p. 146, of the Laws of 1903, each
provide additional plans to raise revenue for and the
construction of county buildings. Neither was intended to
take the place of the other.
2. A
contract providing for the construction of a courthouse and
jail, and the payment of an annual rental, under the
provisions of section 2, art. 8, c. 32. p. 256, of the Laws
of 1897, and at the end of which time the title to be vested
in the county, does not create a present indebtedness against
the county in a sum equal to the aggregate amount of such
rentals for the entire period of time for which the contract
is to run.
Error
from District Court, Cleveland County; before Justice C. F
Irwin. Action by G. W. Giles and others. Judgment for
defendants, and plaintiffs bring error. Affirmed.
BEAUCHAMP
J.
This is
an action brought by the plaintiffs in error, in the district
court of Cleveland county, as citizens and taxpayers of that
county, to perpetually enjoin the defendants in error, as the
board of county commissioners, from proceeding further in
contracting for the construction of a courthouse and jail
and from creating a debt, expending money, or making a tax
levy therefor under the notice and advertisement for bids
which had been published by order of the board, and reads:
"Notice
to Architects and Contractors. -- The Board of County
Commissioners of Cleveland County, Oklahoma Territory, will
meet in Norman, O. T., April 15, 1904, in regular session,
and at said meeting at the hour of 9 o'clock, A. M. of
said day, will consider bids and propositions from any
person or persons desiring to build a court house and jail
for Cleveland County, O. T., on the rental plan under the
provisions of the Laws of Oklahoma, 1897, section 2,
article 8, chapter 32, as follows: 'The court funds
shall be used, only, for the payment of witnesses, jurors,
stenographers, bailiffs, janitors for the district court
room, and the fees of the justices of the peace, probate
judges, constables and clerks of the district court, and in
addition in counties which have heretofore or may hereafter
construct court houses or jails to be paid for by an annual
rental, such rental shall be a proper charge against the
court fund, and an additional levy, not exceeding 3 mills,
may be levied for that purpose.'
"Said
building to be paid for in semi-annual installments as
rent.
"Bids
must be filed in the office of said county clerk not later
than 6 o'clock P. M. April 14, 1904.
"Said
court house to contain district court room, judges'
chambers, district clerk's office, two rooms and vault,
3 jury rooms, probate court room, probate clerk's
office and vault, county treasurer's office, 2 rooms
and vault, sheriff's office, school
superintendent's office and vault.
"Said
jail to be large enough to accommodate twenty prisoner, and
jailer's office. Both buildings to be fitted with steam
heating, plumbing, sewers and lighting. Both of said
buildings to be constructed of stone or brick of best
material, at a cost not to exceed $35,000.00. All bids to
be sealed and accompanied with plans and specifications in
detail. All bidders must accompany their bids and
propositions with certified check for 20 per cent.of the
amount bid, and come prepared to show to said board their
financial ability to carry out their contract. Such
buildings to be ample for the purposes designed, and
suitable in every way. The rental contract to be for a term
of ten years. Buildings to be erected on grounds belonging
to the county, and at the expiration of the rental period
to become the property of said county without additional
payment. The board reserves the right to reject any or all
bids, propositions, plans and specifications.
"J. F. Dennison, Chairman.
"Attest:
F. O. Miller, County Clerk."
Application
was made to the judge of the district court in vacation for a
temporary injunction, and upon the hearing thereof evidence
was heard in support of the allegations of plaintiffs'
petition, and a temporary injunction was denied, to reverse
which order denying the temporary injunction the case is
brought here by petition in error.
From
the notice quoted, which is made a part of plaintiffs'
petition in error, it will be seen that the defendant board
of county commissioners of Cleveland county proposed to
receive and consider bids and propositions from any person or
persons desiring to build a courthouse and jail for Cleveland
county under the provisions of section 2, art. 8, c. 32, p.
256, Laws 1897. There are only two questions raised and
argued by plaintiffs in error: First. Has the statute under
which defendants are attempting to proceed been repealed?
Second. Will such a contract be in violation of the statutes
of the United States? In support of the first proposition,
counsel for plaintiffs in error argues that section 2 of
article 8, c. 32, of the Laws of 1897 (page 256), which is
the section quoted in the notice by the board for bids herein
before copied, and therefore unnecessary to further quote
here, is repealed in express terms by chapter 11, Laws 1903
(page 146), which reads:
"Section
1. The boards of county commissioners are hereby authorized
to provide for the construction or repairing of court
houses, jails or other necessary buildings, and make
contracts on behalf of the county for building or repairing
the same, and for the purpose
of providing a fund for the payment of the cost of the same
such boards of county commissioners are hereby authorized
and empowered to levy a tax not exceeding ten (10) mills in
any one year and to continue such levies from year to year
for a period not exceeding five years: provided, that such
levy for such purpose together with the levies for all
other purposes shall not exceed the amount now authorized
by law, and provided further, that the money, raised by
such levy or levies, shall constitute a separate and
distinct fund from all others in the hands of the county
treasurer until the obligation assumed by the board of
county commissioners under authority of this act shall have
been discharged, and any unexpended balance which may
remain in the county treasury after all claims against such
fund shall have been paid, and the purposes for which it
was created have been fully observed, may be transferred to
other funds of the county by the county commissioners. And
provided further, that no levy or levies of taxes for the
purpose of this act shall be made by the board of county
commissioners of any county until after a majority of the
legally qualified voters of said county, voting upon said
proposition, shall have voted in favor of the expenditures
whose payment is to be provided for by said levy or levies
of taxes, at a general election at which said proposition
shall be submitted, or at a special election called for the
purpose of voting upon said proposition. The proposition
submitted at such general or special election, shall be
whether or not the board of county commissioners shall be
authorized to expend the sum desired (stating such sum) for
the building of a court house, jail, or other necessary
building, and shall be arranged on the ballot in suitable
and convenient form for voting. Such special election shall
be held as nearly as possible in conformity to the general
election laws of the territory; and at any such general or
special election the votes upon the propositions submitted
shall be counted and canvassed, the returns thereof made,
and the results declared as nearly in conformity to the
general election laws of the territory as possible:
provided, that notice of the submitting of such proposition
to the voters of the county shall be given by the county
clerk by publication in at least two newspapers published
in said county and having a general circulation therein,
for not less than thirty days immediately prior to said
election: and provided further that if there is only one
paper published in such county, publication in that paper
for the required time shall be sufficient; and if no paper
be published therein, notice of such election shall be
given by posting up written or printed notices thereof for
the required time, at least one in each voting precinct of
such county at the most public places in said precinct.
"Sec.
2. All acts and parts of acts in conflict with the
provisions of this act are hereby repealed."
To
arrive at a fair understanding of the questions presented, it
will be necessary to examine the numerous provisions of the
Statutes bearing upon the question as to the rental and
construction and erection of courthouses and jails. Section
1798, St. 1893, provides that: "In any county where
there is no court house or jail erected by the county, or
where those erected have not sufficient capacity, it shall be
the duty of the board of county commissioners to provide for
court room, jail and offices for the following named
officers: Sheriff, treasurer, register of deeds, county
clerk, county attorney, superintendent of public schools and
judge of probate, to be furnished by the county in a suitable
building or buildings, for the lowest rent to be obtained, at
the rooms at a free rent within the limits of the county
seat, or to secure and occupy suitable rooms at a free rent
within...
