Mayberry v. Gaddis

• Decision Date: 06 February 1923
• Docket Number: Case Number: 13332
• Citation: 1923 OK 78,88 Okla. 286,213 P. 316
• Parties: MAYBERRY et al. v. GADDIS et al.
• Court: Oklahoma Supreme Court

1923 OK 78

213 P. 316

88 Okla. 286

MAYBERRY et al. v. GADDIS et al.

Case Number: 13332

Supreme Court of Oklahoma

Decided: February 6, 1923

Syllabus

¶0 1. Counties--Elections--Issuance of Road Bonds--Publication of Notice.

Section 7621, Revised Laws 1910, requires that the proclamation of the board of county commissioners calling an election for the purpose of voting on the issuance of bonds for the construction of permanent roads and bridges shall be published in a weekly newspaper of general circulation in the county for four consecutive weeks prior to the election, but the publication in a daily newspaper published in such county, and of general circulation therein, on Thursday of each week for four weeks prior to the date of the election is a substantial compliance with the statute.

2. Elections--Validity--Mere Irregularities.

If the statute does not provide that the violation of certain statutory provisions will render an election void, the violation of the statute will be treated as an irregularity going to the form instead of the substance. Where from all the facts the court concludes that, in spite of the departure from the statutory requirements, a full and fair ballot has been cast.

3. Counties--Bond Election--Illegal Votes--Burden of Proof.

Where it is sought to prevent the issuance of road bonds because illegal votes were cast in the election authorizing the issuance of such bonds, those seeking to overcome the result as declared by the election officers have the burden of proving not only that illegal votes were cast, but by whom, and for what issues or question submitted such votes were cast.

4. Elections--Preventing Voting--Burden of Proof.

One who seeks to have an election declared void and set aside on the ground that by irregularities and fraudulent misconduct of the election officers in some precincts persons were prevented from voting, must allege and prove that such persons were qualified voters, and that the number thereof was sufficient that, if they had voted and had cast their vote for the losing proposition, the result of the election would have been changed.

5. Counties--Road Bond Election--Ballot--State Road.

Section 1, chapter 22, Laws of 1916, authorizes bonds to be issued for building and constructing permanent state roads, but it is not necessary that the road along the route described in the ballot shall have been designated as a state road prior to the time of the election.

6. Same--Issuance of Bonds -- Compliance with Statutory Requirements as to Time and Interest.

A ballot providing "Shall the board of county commissioners issue negotiable coupon bonds of Washington county, Oklahoma, in the sum of $ 675,000 to mature within 25 years from date thereof, bearing interest at the rate of not to exceed six per centum per annum, payable semi-annually, for the purpose of building and constructing a permanent state road," is in substantial compliance with the provision of section 1, chapter 95, Session Laws 1921, and section 7625, Revised Laws 1910, as to the length of time the bonds are to run and the rate of interest they shall bear.

7. Counties--Bonds for State Roads and Bridges--Conditions.

the Legislature having conferred authority to incur indebtedness and issue bonds for permanent state roads and bridges, and the provisions of the statute being silent in regard to the conditions which may be imposed, the voters were authorized to impose as condition precedent to the sale of the bonds the following: "The building and constructing of said permanent state road shall be in conjunction with the federal or state Government, and only so much of said bonds shall be sold at any one time as will equal the amount of federal or state aid money then allotted for the purpose of contributing toward making the improvements for which said bonds are to be issued," and such provision does not invalidate the election and such condition is valid and binding upon the county in the sale of the bonds issued by authority of such election.

8. Same--Taxation -- Submission of Question--Invalidity of Statute.

Section 1611, Revised Laws 1910, providing that there shall accompany a proposition of incurring the indebtedness a proposition to authorize an annual tax for the payment thereof in addition to the usual taxes provided by law, and providing that no vote adopting the question proposed shall be valid unless it likewise adopts the amount of tax to be authorized to meet the liability incurred, is repugnant to the provisions of section 26, article 10, of the Constitution, which provides that the county incurring the indebtedness provided for therein shall "before or at the time of doing so provide for the collection of an annual tax 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 25 years from the time of contracting the same," and it is not necessary to submit to the voters the proposition of the amount of tax to be authorized to meet the indebtedness authorized by the election.

Error from District Court, Washington County; J. R. Charlton, Judge.

Action to enjoin issuance of road and bridge bonds by W. F. Mayberry et al. against Gaddis et al., composing the Board of County Commissioners of Washington County, Oklahoma. Judgment for defendants, and plaintiffs bring error. Affirmed.

Kornegay & Probasco, for plaintiffs in error.

H. C. Farrell, Co. Atty., and B. A. Lewis, Asst. Co. Atty., for defendants in error.

COCHRAN, J.

¶1 The plaintiffs in error filed this action in the district court of Washington county to enjoin the issuance of $ 700,000 of road and bridge bonds. Judgment was rendered for the defendants, and plaintiffs have prosecuted their appeal to this court. The trial court made special findings of fact and conclusions of law and we have examined the record and find that the findings of fact are supported by the evidence. We shall now consider the various objections made to the conclusions of law.

¶2 The notice of the time and place where the special election to vote on the bond issue would he held was published in five issues of the Bartlesville Daily Enterprise, a daily paper published in the city of Bartlesville, the publication appearing on Thursday of each week for five weeks. The plaintiffs contend that under the provisions of section 7622, Rev. Laws 1910, the notice should have been published in a weekly newspaper for four consecutive weeks prior to the date of said election. The court found that at the time of the publication there were weekly newspapers in general circulation in Washington county; that the Bartlesville Daily Enterprise had been designated by the county commissioners as the official paper of Washington county, and that it was also a paper of general circulation in Washington county. The defendants call attention to chapter 81, Session Laws 1919, which provides:

"It shall not be necessary to publish legal notices, when published in a daily newspaper, in every issue thereof, but it shall be sufficient to publish such notices in the issue of a daily newspaper published on Thursday of each week during the required period of publication."

¶3 We are of the opinion that the last mentioned statute does not authorize the publication of notices in a daily newspaper where under existing provisions of law it is provided that such notices shall be published in a weekly newspaper, but where the law provides that the legal notices shall be published for a certain number of weeks, a publication in a daily newspaper on Thursday of each week would be a compliance with the statute by reason of chapter 81, Session Laws 1919, and so it is our opinion that a strict compliance with the provisions of the law required a publication of the notices of this bond election to be given by publication for four consecutive weeks in a weekly newspaper. It does not necessarily follow, however, that a failure to give the notices in the manner prescribed by the statute invalidates the election or the bond issue based thereon. In North v. McMahan, 26 Okla. 502, 110 P. 1115, this court had occasion to pass on a bond issue where the provision of law required notice by publication in two weekly newspapers, which notices, among other things, were required to state the date of the election. The notice in one of the papers gave the correct date of the election. The other gave the date of the election as October 12th, instead of October 19th. The court held that the irregularity of the notice did not invalidate the election and said:

"Where, in a controversy arising out of a county election held for the purpose of voting courthouse and jail bonds, it is shown that the provisions in reference to notice of the date of election were substantially complied with, as required by Snyder's Compiled Laws Oklahoma, 1909, section 1715, and there is no averment or showing that the electors did not have actual knowledge of the election and failed to participate therein by reason thereof, said election nor the bonds issued pursuant thereto will not be set aside."

¶4 In Lamb v. Palmer, County Treasurer, 79 Okla. 68, 191 P. 184, it was contended that the election was void for the reason that the election was held in the city hall and not in the different wards of the city, as required by statute, and this court in the second syllabus of the opinion held:

"The general rule is, where the statute does not in express terms declare an election void for violation of certain statutory provisions, the election will be sustained, and the violation of the statute will be treated as an irregularity going to the form, instead of to the substance where, from all the facts, the court concludes that, in spite of the departure from statutory requirements, a full and fair ballot has been cast, and a true and fair return of the entire election has been canvassed and made."

¶5 In the case of Town of Grove v. Haskell, Governor, et al., 24...