Kellogg v. Sch. Dist. No. 10 of Comanche Cnty.

• Citation: 13 Okla. 285,1903 OK 81,74 P. 110
• Parties: HARRY H. KELLOGG v. SCHOOL DISTRICT NO. 10 OF COMANCHE COUNTY, OKLAHOMA TERRITORY.
• Decision Date: 10 September 1903
• Court: Supreme Court of Oklahoma

1903 OK 81

74 P. 110

13 Okla. 285

HARRY H. KELLOGG v. SCHOOL DISTRICT NO. 10 OF COMANCHE COUNTY, OKLAHOMA TERRITORY.

Supreme Court of Oklahoma

Decided: September 10, 1903

Syllabus

¶0 1. MUNICIPAL DEBT--Who May Sue to Prevent. A resident taxpayer although he shows no special private interest, may invoke the interposition of a court of equity to prevent an illegal disposition of the money of the municipality, or the illegal creation of a debt which he in common with other property owners may otherwise be compelled to pay.

2. INJUNCTION--Proper Remedy, When. Injunction at the suit of a taxpayer is the proper remedy to restrain a school district from contracting for or constructing school houses at unauthorized places, and contracting liabilities therefor which the district would be liable for and the taxpayers required to pay.

3. SCHOOL DISTRICT--Authority. A country school district, not embracing a city of the first class, a union graded school or separate school for colored pupils, has no authority to construct more than one school house in the district, and can only maintain one school at the public expense.

4. SCHOOL--Where Located. A country school district is prohibited from selecting a building site for a school house more than one half mile from the center of the district, and the school board is required when they do build, to construct a house on such site.

5. SCHOOL DISTRICTS--Remedy in Regard to. If a school district is too large, relief must be had by application to the county superintendent for the creation of new school districts.

6. PATENT ERROR--Effect of. Where error is apparent upon the face of the judgment roll or record proper, no motion for new trial is necessary in order to have the judgment reviewed.

7. SAME. Where there is manifest error on the judgment roll or record proper, the judgment may to attacked for the first time in the supreme court by a proper assignment in the petition in error.

8. SCHOOL DISTRICT--Duties of Officers. The officers of a school district have no power to borrow money, except by issuing bonds and selling the same in the manner provided by statute, and the officers cannot circumvent the statute by issuing warrants and selling them and investing the proceeds. A warrant is only authorized to be issued in payment of a valid, existing obligation of the school district, previously created or imposed.

9. SAME--Warrants. A school district warrant is not negotiable paper and the purchaser or holder is not an innocent purchaser, but takes such warrant with notice of, and subject to, all defects and irregularities in its issuance.

10. SAME--Action to Prevent Payment of Warrants--Parties. A taxpayer may maintain an action to restrain the payment of an illegal warrant of the district, without making the holder of the warrant a party to such action.

June, 1903, Decided

Error from the District Court of Comanche County; before Frank E. Gillette, Trial Judge.

C. W. Starling and Frank McMaster, for plaintiff in error.

Cunningham & Hudson and J. A. Baker, for defendant in error.

BURFORD, C. J.:

¶1 The plaintiff in error, Harry H. Kellogg, brought this action in the district court of Comanche county to enjoin the defendant in error, School District No. 10 of Comanche county, from erecting four school houses in said district, and from creating a debt against said school district for the construction of said buildings. He alleges in his petition that he is a resident of, and taxpayer in, said district; that said school district was organized at a meeting of the electors of said district and a site for a school house selected within one-half mile of the center of said district, and that said site had been donated to the school district by the owner; that afterwards the school district abandoned said site and determined to construct four school houses in said district, none of which are in one-half mile of the center of the district. That in order to procure the means for constructing said buildings, the school board for said district issued a warrant upon the treasury of said district for the sum of fifteen hundred dollars, and exchanged said warrant for lumber of the value and amount of twelve hundred dollars, and were proceeding to use said lumber in the construction of four several school houses in the four quarters of said school district. He further alleges that said warrant in amount exceeds four per cent. of the assessed valuation of the taxable property in said school district, and he prays that the school district and its officers be restrained from erecting more than one school house, and from erecting any school house more than a half mile from the center of said district, and that they be further restrained from paying said warrant.

¶2 To this petition the school district answered, admitting that the site near the center of the district had been secured by the school district, and that it was not the purpose of the board to build upon said site at this time. That the electors of said district had decided to construct four school houses, and conduct four separate schools at four different places in said district, and that the school district and its officers were proceeding to carry out said plan, and had located four several sites, none of which were within one-half mile of the center of said district, and had issued a warrant for fifteen hundred dollars, and sold the same for twelve hundred dollars, and had contracted for twelve hundred dollars' worth of building material, to be delivered at the four sites selected by the school district.

¶3 The issues were closed by a reply, and the case submitted to the court upon the pleadings and oral testimony. The district court rendered judgment for the defendants in error, and dismissed plaintiff's action. Kellogg appeals and the case is here for review.

¶4 It is contended by counsel for defendant in error that there is no sufficient assignment of error to present any question for the consideration of this court. This contention is not without some merit. In the trial court the plaintiff in error filed his motion for new trial, on which his only ground assigned was: "Errors of law occurring at the trial, and duly excepted to by the plaintiff." This is the eighth cause for new trial, as embraced in the code (Wilson's Stat., sec. 4493), and will present to the trial court any objection or exception properly saved during the progress of the trial. ( Boyd v. Bryan, 11 Okla. 56; 65 P. 940.) And an assignment of error in this court to the effect that the trial court erred in overruling the motion for a new trial, will bring before this court for review every exception saved by the complaining party during the progress of the trial. But the errors complained of in this case do not belong to that class embraced in the term "occurring at the trial." This specification embraces every ruling and decision of the trial court upon the trial of the cause, from the time the trial begins until the cause is submitted to the jury for its verdict, or the court for its decision. But it does not include an erroneous verdict by the jury, or decision by the court upon the facts. The sixth cause for new trial is "That the verdict, report or decision is not sustained by sufficient evidence, or is contrary to law." This cause was not set out in the motion for new trial, but the contention of the plaintiff in error is, in this court, that the judgment of the court is contrary to law upon the pleadings and undisputed facts.

¶5 The contention of counsel for defendant in error is correct, that the motion for new trial does not present the objections urged by counsel for plaintiff in error in his brief. However, it does not necessarily follow that there is nothing presented by the record that this court can consider. There are some errors that may be presented for the first time in this court. It is a general rule that the appellate court will not review any alleged errors which were not presented to the trial court for its reconsideration, yet there are some exceptions to this rule. When the error is apparent upon the face of the judgment roll, or as we say in more modern language, upon the face of the record proper, then such error will be considered by the appellate court, although not presented to the trial court in the motion for new trial. ( Territory ex rel. Taylor v. Caffrey, 8 Okla. 193; 57 P. 204; Caffrey v. Overholser, 8 Okla. 202; 57 P. 206.)

¶6 In this case the record proper or judgment roll consists of the petition, answer, reply, orders of the court and final judgment.

¶7 The fourth assignment in the petition in error is: "Said court erred in not rendering judgment for the plaintiff in error upon the pleadings and undisputed testimony." This assignment sufficiently presents to this court any error apparent upon the face of the judgment roll. While we cannot go into the testimony under any assignment of error contained in the record, yet if the judgment is contrary to law, as appears from the facts alleged and admitted in the pleadings, then this court is required to reverse such judgment. ( Territory ex rel. Taylor v. Caffrey, supra.) It appears from the undisputed facts contained in the pleadings that the school district and its officers are proceeding to erect four separate and several school houses upon four several and separate sites in the same school district, and to conduct and maintain four several and separate schools in said district, from the common funds of said school district, and that none of said sites are within one-half mile of the center of said district; also that the school board is expending the funds of the district for said four several school houses, and that they have issued a warrant for fifteen hundred dollars against the funds of said district, and traded it for material to erect four school houses. It further appears that this is a country school district, and there is no allegation or contention that any of...