Henry v. Oklahoma City

• Citation: 108 P.2d 148,188 Okla. 308,1940 OK 472
• Decision Date: 26 November 1940
• Docket Number: 30056.
• Parties: HENRY v. OKLAHOMA CITY et al.
• Court: Supreme Court of Oklahoma

108 P.2d 148

188 Okla. 308, 1940 OK 472

HENRY v. OKLAHOMA CITY et al.

No. 30056.

Supreme Court of Oklahoma

November 26, 1940

Rehearing Denied Dec. 17, 1940.

Syllabus by the Court.

1. Where it is sought to review the validity of an election on the ground of illegal voting, those seeking to overcome the result as declared by the election officers have the burden of proving, not only that illegal votes were cast in sufficient number to change the result, but by whom and for whom, or for what issue or question submitted such votes were cast.

2. In an election contest, where the plaintiff has charged the election officials with error, mistake or fraud whereby the result of the election was wrongfully affected, the plaintiff cannot have the ballot boxes opened, and the contents thereof inspected and investigated without first offering proof of the error, mistake or fraud aliunde the ballot boxes to overcome the prima facie presumption of the regularity and the correctness of the action of the election officials.

3. A qualified property taxpaying voter under Art. 10, sec. 27 Constitution of Oklahoma, Okl.St.Ann., and sec. 6042 O.S.1931, 11 Okl.St.Ann. § 65, may establish his eligibility and qualification to vote in a bond election under Art. 10 secs. 26, 27, Constitution of Oklahoma, by means other than the actual presentation of a legal tax receipt dated within 12 months prior to such election.

Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.

Election contest by J. J. Henry against the City of Oklahoma City Okl., a municipal corporation, and others. From the judgment, the plaintiff appeals.

Affirmed.

Edward Kirby Brook, of Oklahoma City, for plaintiff in error.

A. L. Jeffrey and Leon Shipp, both of Oklahoma City, for defendants in error.

BAYLESS Chief Justice.

February 20, 1940, an election was held in Oklahoma City for the purpose of deciding whether said City should issue $6,911,000 negotiable coupon bonds for the purpose of providing funds for proposed water supply improvements. Admittedly the election was held in pursuance of the authority of Art. X, secs. 26 and 27, Constitution of Oklahoma, Okl.St.Ann., and is wholly governed by said constitutional provisions, as aided and construed by applicable laws of the State Legislature and decisions of this court.

The ballots cast at this election were counted, certified, canvassed and the result thereof declared: for the proposition 7578 votes; against the proposition 7182 votes. Calculation shows a majority for the proposition of 396.

March 4, 1940, an action was filed by J. J. Henry, "a registered property taxpaying voter of and in said city", against said city as a municipal entity, and the mayor and council, and its city manager, whereby it was sought to have said election declared "illegal, void and of no effect; that the said defendants *** be permanently enjoined from issuing, selling or offering to sell, hypothecating or otherwise disposing of said bonds" and other proper relief. There were allegations of various acts on the part of the City and those officials charged by law with the duty of the holding of the election whereby voters of a number sufficient to change the result of the election, not qualified by law, were permitted to vote by reason of which the election was alleged to be illegal and void. The defense pleaded was the general denial. Trial of the matter began on March 19, 1940, and was concluded on March 25, 1940, when the trial court sustained the defendants' demurrer to the plaintiff's evidence.

Fifteen assignments of error are made but they are arranged in three groups for the purposes of presentation, viz:

"Group One

1st. Those relating to the errors of court in overruling and denying on March 18th, 1940, the motion of the plaintiff in error for an order directing the Secretary of the County Election Board of Oklahoma County, Oklahoma, to produce for inspection and investigation the affidavits in form and tenor and on forms set out in said motion and made a part of plaintiff's petition herein as exhibit "B" thereof and accepted by the various election precincts boards of said City of Oklahoma City, Oklahoma, at the water bond election in said city on February 20, 1940, in lieu of Statutory and constitutional requirements as a test of qualification of the several respective individuals offering themselves as qualified property tax paying voters in said election, to which action of the court in denying said motion, the plaintiff in error excepted at the time, namely assignments of error numbers 2, 9, 12 and 13.

Group Two

2nd. Those relating to the errors of the court in denying plaintiff's motion for a new trial, and other assignments of error namely, 1, 3, 4, 5, 6, 7, 8 and 10.

Group Three

3rd. Those assignments of error relating to qualified property tax paying voters, and other assignments namely, 11, 14 and 15."

Defendants answer these propositions and make an argument touching upon the constitutionality of a section of statute law relied upon by plaintiff.

Plaintiff presents first the errors included in group 3, although when all of the argument thereunder is considered it goes mostly to one point: who is a qualified voter within the purview of the constitution, and how is this qualification to vote to be evidenced.

Art. X, sec. 27, Constitution of Oklahoma, reads: "Any incorporated city or town in this State may, by a majority of the qualified property tax paying voters of such city or town, voting at an election to be held for that purpose, be allowed to become indebted in a larger amount than that specified in section twenty-six, for the purpose of purchasing or constructing public utilities, or for repairing the same, to be owned exclusively by such city: Provided, That any such city or town incurring any such indebtedness requiring the assent of the voters as aforesaid, shall have the power to provide for, and, before or at the time of incurring such indebtedness, shall provide for the collection of an annual tax in addition to the other taxes provided for by this Constitution, sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof within twenty-five years from the time of contracting the same."

Plaintiff asserts that the legislature apparently deemed the term "qualified property tax paying voters" indefinite and therefore ambiguous and unworkable, and to remedy the defect enacted Ch. 169, S.L.1913, cited as sec. 6042, O.S.1931, 11 Okl.St.Ann. § 65; reading: "A 'qualified [property] taxpaying voter' of any incorporated city or town as used in section 27 article 10 of the Constitution of the State of Oklahoma, is defined to be any qualified elector under the Constitution and laws of the State of Oklahoma, who has actually paid taxes on property within such city or town, and who has a legal tax receipt therefor dated within twelve months prior to such election."

Using the language of this section and giving it a literal meaning the plaintiff asserts that the only evidence of eligibility to vote in the election under consideration is a tax receipt for taxes paid within twelve months of the election. In other words, plaintiff insists that a prospective voter must actually possess a tax receipt and must exhibit it to the election officials as a prerequisite to vote. In support thereof he cites the following: Wright v. State Board of Canvassers, 76 S.C. 574, 57 S.E. 536, and other cases in South Carolina based thereon, and Rich v. Town of Mentz, 134 U.S. 632, 640, 10 S.Ct. 610, 33 L.Ed. 1074, cited by plaintiff.

Defendants argue that the interpretation of the statute contended for is too narrow and inflexible, and would constitute a restriction or abridgement of an otherwise constitutional right to vote.

We think an interpretation of the statute which would require a voter to physically possess "a legal tax receipt *** dated within twelve months prior to the election", and to present such receipt to the election officials as proof of his eligibility to vote is unjustified. In considering the question of fraud it is to be observed that the record contains several written opinions given by the Attorney General to the officials in Oklahoma who conduct elections wherein the statute supra has been given an interpretation different to that contended for by plaintiff. In all of such opinions it is recognized that qualified voters might be disfranchised if the statute were enforced as plaintiff insists it should be.

In the record there appears the testimony of several classes of voters who did not have tax receipts within the meaning plaintiff asserts. In some cases one of the spouses held joint property in his or her name; in other cases, although the property was held jointly, one had paid the taxes with joint funds, but held the tax receipt in one name; in other cases the voters had paid taxes on their property through some agency that held the receipts, and in other cases the money for the taxes had been paid into the County Treasurer, but owing to the press of business no receipt had been issued.

In all of these cases the trial judge ruled that such voters were fully qualified to vote within the meaning of the statute, and we think rightfully so. Those voters had receipts within the meaning of the statute, and it would be an unreasonable interpretation of the statute to hold otherwise.

We do not believe the case of State v. Williams, 157 S.C 290, 154 S.E. 164, 166, cited by plaintiff, sustains his contention. It is said in the opinion: "*** It would be a question for the managers of election to determine what proof would be required of the prospective voter of the payment of taxes." Just so in ...