Lackey v. State ex rel. Grant

• Decision Date: 11 July 1911
• Docket Number: Case Number: 2666
• Parties: LACKEY et al. v. STATE ex rel. GRANT et al.
• Court: Oklahoma Supreme Court

1911 OK 270

116 P. 913

29 Okla. 255

LACKEY et al. v. STATE ex rel. GRANT et al.

Case Number: 2666

Supreme Court of Oklahoma

Decided: July 11, 1911

Syllabus

¶0 1. MUNICIPAL CORPORATIONS--Freeholders' Charter--Form of Government--Validity. The charter of Oklahoma City, adopted March 11, 1911, by the qualified voters of that city in pursuance of section 3a, art. 18, of the Constitution, authorizing cities containing a population of more than 2,000 inhabitants to frame charters for their own government, consistent with and subject to the Constitution and laws of the state, provides by certain of its sections that the elective officers of the city under the charter shall be five commissioners, naming them, who shall be elected by the city at large, and vests said commissioners as officers of the municipality with the exercise of the general powers granted by the charter to the corporation. Held, that said provision of the charter superseded sections 348 and 353, Wilson's Rev. & Ann. St. (sections 645, 648, Comp. Laws, 1909), by which it is provided that the powers conferred upon cities of the first class shall be exercised by the mayor and council of said cities, and that the members of the council shall be elected from wards.

2. SAME--Charter--Operation--Municipal Election. Section 3, art. 10, of said charter provides that a special election shall be held on the eighth Tuesday after the adoption and approval of the charter for the election of the mayor and commissioners provided for by the charter. Held, that said section is not inconsistent with section 4, art. 3, of the Constitution, and it supersedes that portion of section 1 of the act of the Legislature approved March 24, 1910 (Sess. Laws 1910, p. 178), which provides that in all cases in which commission forms of government shall be adopted by cities under article 18 of the Constitution, more than four months before any general election of officers provided for by said act, the legislative authority of such cities shall have power to call a special election for the election of the elective officers under the charter, and where the charter is adopted less than four months before the next general municipal election of officers, said election of officers under the charter shall be at such general election.

Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge.

Mandamus by the State, on relation of Whit M. Grant and others, against Dan V. Lackey and others to compel the surrender of the books, records, funds, and other property of the city, claimed to be held by them in an official capacity. Judgment for relators, and respondents bring error. Affirmed.

Flynn, Chambers & Low, Everest, Smith & Campbell, and Warren K. Snyder, for plaintiffs in error

Jas. S. Twyford, Stuart; Cruce & Gilbert, Geo. A. Matlack, and J. W. Johnson, for defendants in error

HAYES, J.

¶1 On the 8th day of November, 1910, in pursuance of a resolution passed by the city council of Oklahoma City, an election was held in that city at which freeholders were elected for the purpose of writing a charter to be submitted to the qualified electors of the city. The freeholders elected at said election made, prepared, and compiled a charter to be submitted to the qualified electors for their rejection or adoption, and thereafter, on the 8th day of March, 1911, the proposed charter was voted upon at an election held within said city, at which more than three-fourths of the voters voting thereon cast their ballots in favor of the adoption of the charter. On the 14th day of March, 1911, the charter was presented to the Governor, and by him in all things approved. Section 1, art. 2, of that charter provides that the elective officers of the city shall be five commissioners, namely, the mayor, who is the commissioner of public affairs, a commissioner of accounting and finance, a commissioner of public safety, a commissioner of public works, and a commissioner of public property, all of whom shall be elected at large by the qualified electors of the city for a term of four years and until their successors are elected and qualified. Section 3 of article 10 of the charter provides that there shall be held on the eighth Tuesday after the charter shall have been adopted and approved by the Governor an election in the city for the purpose of electing the five commissioners provided for by the charter, who, when elected, shall constitute the board of commissioners for the city, with terms of office as provided for in the charter. Section 4 of the same article adopts and puts in full force and effect in the city, for the purpose of said special election, the general laws of the state applicable to municipal elections. On the 9th day of May, 1911, said special election was held, and defendants in error, relators in the court below and hereafter referred to as such, were duly elected as the commissioners provided for under the charter, and, after a canvass of the returns of said election, received certificates of election from the county election board of Oklahoma county. They thereafter took and subscribed to the oath of office required by law, and executed bonds in the sum prescribed by the charter, which were approved, and each of them then took possession of the office to which he was elected and entered upon the discharge of its respective duties. Respondents, who constituted the officers of the city and were in charge thereof, and engaged in administering the affairs of the city prior to the adoption of the charter, are in possession of the books, records, funds, and other property of the city, which are necessary to relators in the discharge of their official duties. Relators charge in their petition that respondents, acting together, wrongfully refuse to turn over to relators the books, records, and property of the city, and they pray in their petition for a writ of mandamus requiring respondents to deliver to them all books, accounts, contracts, records, paraphernalia, and all other property now in the possession of respondents belonging to the city. Respondents by their answer first make a general denial of the allegations of relators' petition, and then make certain specific admissions, and lastly they make various allegations of affirmative facts; but it will not be necessary to set out in further detail the pleadings. Some questions that might have been raised under the pleadings have been expressly waived by counsel in their presentation of the case to the court.

¶2 The contentions made by respondents in this court present two propositions for our consideration and determination, the first of which is: Has the city of Oklahoma City, which is now and has been for several years past a city of the first class, power to frame and adopt a charter which provides for the administering of its municipal affairs by a board of five commissioners elected by the people at large? And, second, Were relators elected at an election authorized by law?

¶3 Prior to the admission of the state into the Union, there existed in the territory now constituting the state two sets of municipal corporations, organized under two different general statutes. One set of these corporations was organized and their powers fixed under the provisions of chapter 29 of Mansfield's Digest of the Statutes of Arkansas, extended in force in the Indian Territory by Act of Congress approved June 28, 1898 (Act June 28, 1898, c. 517, 30 Stat. 495). The other set had been organized and their powers defined by chapters 12 and 13 of Wilson's Revised and Annotated Statutes of the Territory of Oklahoma of 1903, as amended by subsequent acts of the territorial Legislature. None of these municipal corporations were destroyed by the admission of the state, but all of them, by specific provision of the Constitution, were continued; but the general statutes in force in the Indian Territory side of the state, constituting the charter of such corporations, were superseded by the statutes of Oklahoma Territory, extended in force in the state; and while the municipal corporations of the Indian Territory continued to exist as municipal corporations in the state after its admission, the powers of such corporations, except as otherwise provided by the Constitution, are to be found in the general statutes of Oklahoma Territory, extended in force in the state, providing for the organization of municipal corporations and defining their powers. State ex rel. v. Ledbetter, 22 Okla. 251, 97 P. 834. Upon the admission of the state, there existed therein no municipal corporations with any other charter than that which was provided by some statute extended in force in the state.

¶4 Section 1 of article 18 of the Constitution provides:

"Municipal corporations shall not be created by special laws, but the Legislature, by general laws shall provide for the incorporation and organization of cities and towns and the classification of same in proportion to population, subject to the provisions of this article."

¶5 The power of the legislative department of the state to create municipal corporations and define their power is recognized by this section of the Constitution, which, in specific terms, puts certain limitation upon said power in that it prohibits the creation of any such corporation by a special law, and, on the other hand, commands that the creation of such corporations and their organization, so far as provided for by the Legislature, shall be by general laws; and it further directs that the classification of such incorporated towns and cities shall be based upon their population, and, added to these limitations of the section, is the further limitation that the powers therein named shall be exercised subject to the provisions of the article of which this section forms a part. The second section of the same article reads:

"Every municipal corporation now existing within this state shall continue with all of its present rights and powers until

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