Herndon v. Excise Bd. of Garfield Cnty.

• Decision Date: 20 January 1931
• Docket Number: Case Number: 21855
• Citation: 1931 OK 8,295 P. 223,147 Okla. 126
• Parties: HERNDON v. EXCISE BOARD OF GARFIELD COUNTY et al.
• Court: Oklahoma Supreme Court

1931 OK 8

295 P. 223

147 Okla. 126

HERNDON v. EXCISE BOARD OF GARFIELD COUNTY et al.

Case Number: 21855

Supreme Court of Oklahoma

Decided: January 20, 1931

Syllabus

¶0 1. Census -- Evidence -- Official Notice of City's Population.

A statement contained in a census bulletin officially issued, that it was subject to correction, does not make the bulletin incomplete as a promulgation of the census of a city, or prevent official notice being taken of the population as therein stated.

2. Mandamus--Writ not Issued Where Confusion Would Be Created.

Mandamus will not be awarded unless a clear legal right thereto exists, nor even where the legal right is clear, where the issue of the writ would disturb official action, or create disorder or confusion.

Error from District Court, Garfield County; O. C. Wybrant, Judge.

Mandamus by F. W. Herndon against the Excise Board of Garfield County et al. Judgment for defendants, and plaintiff appeals. Affirmed.

W. E. Crowe, H. J. Sturgis, C. F. Dyer, Van W. Stewart, and W. H. Hills, for plaintiff in error.

Dan Mitchell, Co. Atty., and A. L. Zinser, Asst. Co. Atty., for defendants in error.

RILEY, J.

¶1 This appeal is from a judgment denying mandamus. The writ was sought to compel the excise board to approve an item in the estimate or appropriation, of $ 6,350, duly submitted for salary and expense of a city court of Enid, Okla., said to have been created by section 4691, et seq., C. O. S. 1921. F. W. Herndon maintained 206 P. 517, asserted that mandamus would lie to compel the making of a levy provided by law.

¶2 On the other hand, the contention of the county attorney below and on appeal is that (1) no law exists authorizing said court, in that section 4691, et seq., supra, was repealed by the enactment of section 4671, C. O. S. 1921, and (2) even though section 4691, et seq., supra, be adjudged in force and effect authorizing the court, that by its terms the existence of such court is limited to cities having a population of more than 25,000 and less than 55,000 inhabitants as shown by the last federal census, whereas the 14th census showed Enid to be less than the population required and the 15th census is not complete nor officially declared. In other words, the defendants denied that the city of Enid "now has, or at the time alleged in plaintiff's petition, a population of more than 25,000 and less than 55,000 people as shown by the last federal census."

¶3 Proof was made that, on May 3, 1930, a preliminary announcement of the census of Enid was made by Ray C. Smith, supervisor of the census of the district embraced, showing a preliminary count of 26,331, and containing the notice that "These figures are preliminary and subject to correction." This announcement was authorized by regulations promulgated by the Director of the Census providing for the filing of same with the Director of the Census at Washington, D. C., local officials, etc., and for the purpose of a future, final, correct determination of the census.

¶4 Two days after this action was filed the following certificate of the Director of the Census was made:

"Department of Commerce,

"Bureau of the Census.

"Washington, September 22, 1930.

"I hereby certify that according to the official preliminary count of the return of the 15th census of the United States on file in the Bureau of the Census, the population of the city of Enid, county of Garfield, state of Oklahoma, taken as of April 1, 1930, is twenty-six thousand three hundred, ninety-eight (26,398).

"W. M. Stewart,

"Director of the Census."

¶5 The Act of Congress, June 18, 1929, providing for the 15th census and subsequent decennial censuses, contains no specific provision with reference to the time of final announcement of the same, nor as to the time the same shall become effective. The Act of March 6, 1902, authorizes preliminary announcements. Vol. 5, U.S. Comp. Stats. 1916, par. 4414:

"The Director of the Census is authorized and directed to have printed, published and distributed, from time to time, bulletins and reports of the preliminary and other results of the various investigations authorized by law. * * *"

¶6 Section 13, Act of Congress, June 18, 1929, so provides:

"That he is further authorized to have printed by the public printer, * * * preliminary and other census bulletins and final reports of the result of the several investigations," etc.

¶7 The last Act of Congress, in section 5 thereof, provides that:

"Each supervisor shall perform such duties as may be imposed upon him by the Director of the Census in the enforcement of this chapter," etc.

¶8 Thus it follows that the supervisor was clothed with authority to perform the duties imposed upon him by the Director of the Census, one of which duties was the preliminary announcement of the census involved in the case at bar. So, then, the preliminary announcement of May 3, 1930, was an official announcement of the census of Enid; moreover, the certificate of the Director of the Census, dated September 22, 1930, showing a population of 26,398, was official even if not final. It follows that the city of Enid fell into the classification contained in section 4691, C. O. S. 1921, providing for said court.

¶9 Two Oklahoma decisions are cited as bearing upon the effectiveness of creative acts of the Legislature. In each of the cases the acts were held effective on the date the required census was officially made known by the United States Census Bureau. Apparently no consideration or differentiation is had between a preliminary announcement and a final one. State ex rel. Brennan v. Shelton, 27 Okla. 322, 111 P. 545; State ex rel. West, Atty. Gen., v. Breckinridge, 34 Okla. 649, 126 P. 806.

¶10 The case of Holcomb v. Spikes (Tex. Civ. App.) 232 S.W. 891, involves the point. Therein it was held:

"The national census which determines whether a county shall elect a tax collector under the Constitution, article 8, section 16, is so much of the last national census relating to the population of that county as had been completed and ready to be officially published."

And further:

"Since Act of Congress March 3, 1919, providing for the 14th and subsequent decennial censuses, did not expressly provide for the official promulgation of the results of the censuses, and did not expressly repeal Act of March 6, 1902 (C. St. sec. 4414), authorizing the Director of the Census to publish and distribute bulletins and reports of the results of the various investigations by him, the issuance of a bulletin by the Director of the Census stating the population of a particular county is the completion of the census as to that county, of which official notice can be taken in determining whether the county has a population entitling it to elect a tax collector."

And in the decision, as reflected by the 5th paragraph of the syllabus, it was by that court held that the certificate that the bulletin showing the census was subject to correction did not prevent its being complete or prevent official notice being taken of the population as therein stated.

¶11 The case of Childers v. Duvall, 69 Ark. 336, 63 S.W. 802, and others hold that until the law authorized announcement of the enumeration of the census, no official notice of it could be taken. But herein we have seen the law authorized the announcement as made. The result is that when such bulletins are so publicly filed and distributed, they then become an official pronouncement under the law, of which the public and all officials may take notice. Nelson v. Edwards, 55) Tex. 389, so holds.

¶12 The case of State v. Braskamp, 87 Iowa 588, 54 N.W....