Michael v. City of Atoka

• Decision Date: 14 October 1919
• Docket Number: 8320. [*]
• Citation: 185 P. 96,76 Okla. 266,1919 OK 289
• Parties: MICHAEL v. CITY OF ATOKA.
• Court: Oklahoma Supreme Court

185 P. 96

76 Okla. 266, 1919 OK 289

MICHAEL v. CITY OF ATOKA.

No. 8320. ^[*]

Supreme Court of Oklahoma

October 14, 1919

Syllabus by the Court.

The intention and plain purpose of section 26, art. 10, of the Constitution is to require municipalities to carry on their corporate operations upon the cash or pay as you go plan. The revenues of each year must take care of the expenditures of such year; and any liability sought to be incurred by contract, express or implied, executed or executory, in excess of such current revenue in hand, or legally levied, is void, unless it be authorized by a vote of the people, and within the limitations therein provided.

Record examined and held: (1) That evidence reasonably tends to support the defense that indebtedness created by the contract set up in the first count of plaintiff's petition was illegal for the reason that it was incurred in contravention of section 26, art. 10, Williams' Constitution (section 291); (2) that in the absence of a motion to make more definite and certain or a demurrer, the allegations of the answer were sufficient to entitle defendant to establish this defense.

One who demands payment of a claim against a city must show some statute authorizing it, or that it arose from some contract express or implied, which finds authority of law; and it is not sufficient that the services performed for which payment is claimed were beneficial.

Error from District Court, Atoka County; J. H. Linebaugh, Judge.

Action by M. D. Michael against the City of Atoka. Judgment for defendant, and plaintiff brings error. Affirmed.

J. G Ralls, of Atoka, for plaintiff in error.

I. L Cook and J. M. Humphreys, both of Atoka, for defendant in error.

KANE J.

This was an action on contract, for the recovery of money commenced by the plaintiff in error, plaintiff below, against the defendant in error, defendant below. Hereafter, for convenience, the parties will be designated "plaintiff" and "defendant," respectively, as they appeared in the trial court.

The petition of the plaintiff contained two counts, but as only the first count is involved in this proceeding in error it will not be necessary to notice the second. The first cause of action was for an alleged balance due upon a written contract by the terms of which it was agreed that, for the sum of $6,867, the defendant would complete "the sewer system of the town of Atoka and build and construct a disposal plant, according to the plans and specifications designated in a former contract entered into between the parties hereto." The answer of the defendant in addition to a general denial specifically denied that it was indebted to the plaintiff and further alleged in substance that the claim set forth in the first count of plaintiff's petition was illegal and void for the reason that the funds available for the purpose of constructing the sanitary sewer system "had been wholly disbursed, expended, and paid out by said city prior to the presentation of said claims of the plaintiff to the city council of said city."

Upon trial to a jury there was a verdict in favor of the defendant upon the first cause of action, upon which judgment was duly entered, to reverse which this proceeding in error was commenced.

Counsel for plaintiff assigns numerous errors in his petition in error, but in his brief he has summarized them all under comparatively few subheads. An examination of these subheads shows that all, except one, of the errors relied upon for reversal, relate to alleged errors of the trial court in its rulings upon the admission or rejection of evidence or errors in the instructions given by the court; or errors in the instructions requested by plaintiff and refused by the court. All of such errors, except the ones hereinafter specifically noticed, may be disposed of by the observation, that inasmuch as the record discloses that there is no conflict in the evidence on any material issue of fact, with the possible exception of one, which will be noticed hereafter, these errors could not have resulted in a miscarriage of justice. The only grounds for reversal which do not belong to this class are stated by counsel in his brief under the subhead, "Errors Nos. 1, 28, 29, 30, 31, 38," as follows:

"All of these assignments go to the proposition that the plaintiff was entitled to recover upon his first cause of action that involves a reading of the evidence and the answer

of the defendant. There was no evidence offered by the defendant, tending to show payment; the city council had accepted the work, and the plaintiff was entitled to a verdict and a judgment for the amount sued for."

In support of this counsel cite the following Oklahoma cases Baker v. Newton, 27 Okl. 436, 112 P. 1034; Fitzpatrick v. Nations et al., 30 Okl. 462, 120 P 1020; Offutt et al. v. Wagoner et al., 30 Okl. 458, 120 P. 1018; Forbes v. First National Bank of Enid, 21 Okl. 206, 95 P. 785; Cockrell et al. v. Schmitt, 20 Okl. 207, 94 P. 521, 129 Am. St....