Moomaw v. Sions
| Decision Date | 10 July 1923 |
| Docket Number | Case Number: 13957 |
| Citation | 1923 OK 481,96 Okla. 202,220 P. 865 |
| Parties | MOOMAW et al. v. SIONS. |
| Court | Oklahoma Supreme Court |
¶0 1. Municipal Corporations--Status of Municipality Operating Light Plant.
A municipal corporation engaged in the operation of a system of electric lights exercises business and administrative functions rather than those strictly governmental, and is governed largely by the same rules applicable to individuals or private corporations engaged in the same business.
2. Same--Power of Town to Abandon Part of Property Without Election.
A portion of the property bought with the proceeds of a bond issue for the construction of electric light works for an incorporated town may be abandoned by the board of trustees of such town when it has become unsuitable or unprofitable to use it for the purpose for which it was originally intended and it is not necessary to have an election for that purpose.
3. Same--Contract to Purchase Electricity--Validity.
A contract entered into by the board of trustees of an incorporated town for the purchase of electric current to supply its electric light system, which results in the practical abandonment of the plant which had theretofore been operated for generating electricity, and which plant had been purchased with the proceeds of a bond issue, is not invalid because the execution of the contract and the abandonment of the light plant was not submitted to a vote of the people.
4. Same.
Evidence examined, and held to support the finding of the trial court that the action of the trustees in making the contract was not entered into through caprice, fraud, or oppression.
Error from District Court, Okfuskee County; John L. Norman, Judge.
Action by Harry Sions, for himself and others, against Paul W. Moomaw and others, Trustees of the Town of Okemah and another, for injunction. Judgment for plaintiff, and defendants bring error. Reversed and remanded, with directions.
Cottingham, Hayes, Green & McInnis, Patterson & Dooley, Logan Stephenson, and Belfort & Hyatt, for plaintiffs in error.
Phillips, Douglass & Duling and White & Nichols, for defendant in error.
¶1 This action was commenced on August 7, 1922, by the defendant in error against the trustees of the town of Okemah and Oklahoma Power Company, plaintiffs in error, to enjoin the plaintiffs in error from carrying out the provisions of a contract made by the town of Okemah for the purchase of electric current from the Oklahoma Power Company. The parties will hereinafter be referred to as plaintiffs and defendants, as they appeared in the trial court. From the judgment in favor of the plaintiffs, the defendants have appealed.
¶2 In 1909, the citizens of Okemah, by an election held therefor, authorized the issuance of bonds in the sum of $ 5,500 for the construction of electric light works in said town. From the proceeds of the sale of the bonds so authorized, an electric light system was constructed, and has since that time been maintained under the provisions of the Constitution and statutes. Section 4765, Comp. Stat. 1921, provides:
"The board of trustees shall have the power to establish and maintain a system of electric lights for the town, and said board shall have the power to provide for a tax for the purpose of establishing and maintaining such system of electric lights."
¶3 Section 6, art. 18, Williams' Constitution of Oklahoma, provides:
"Every municipal corporation within this state shall have the right to engage in any business or enterprise which may be engaged in by a person, firm, or corporation by virtue of a franchise from said corporation."
¶4 On July 24, 1922, the board of trustees of the town of Okemah in regular session entered into a written contract with the Oklahoma Power Company for the furnishing of electric current to the town of Okemah for distribution by it to its citizens. An ordinance was adopted authorizing the execution of the aforesaid contract. Under the terms of this contract, the city retained all of the property which had been sued by it for generating electric current, but the plant was not to be used for generating electricity except under certain circumstances. The trial court found that this contract was an abandonment by the town of the operation of the light plant; that the light plant having been acquired by said town from the proceeds of a bond issue authorized by an election duly held therefor, the town was without legal power or authority to enter into a contract with the Oklahoma Power Company without authority from the tax paying voters of the town by an election called for that purpose. No election having been had, the court held the contract was void. The defendant the Oklahoma Power Company contends that the facts in this case do not show an abandonment of the light plant; but it is unnecessary for us to enter into a discussion of that question, and we may assume that the finding of the trial court was correct as to that question. There was no abandonment of the system of electric lights for the town, but, according to the finding of the court, an abandonment of the small plant which generated the electricity used in its system, for furnishing lights to its inhabitants.
¶5 The first question for determination is, can a board of trustees of an incorporated town, without authority from the people expressed at an election held for that purpose, enter into a contract for electric current to supply its electric system if the effect of such contract will be the abandonment of a portion of the equipment purchased with the proceeds of a bond issue, and theretofore used in the manufacture of electric current? It is insisted by plaintiffs that this case is controlled by the decision of this court in Perry Public Library Ass'n v. Lobsitz, 35 Okla. 576, 130 P. 919, in which it was held that where a public library was furnished and donation made upon the condition that the city council bind the city to furnish a site for the library building, and maintain a free library, and the donation was accepted on such condition and the building constructed in accordance therewith, the title to the building was not established in the city, the city's title to the same was that of a trustee and the city could not divert the building or any portion thereof to other uses. It is insisted by the plaintiffs that the city of Okemah holds the...
To continue reading
Request your trial
-
Sw. Light & Power Co. v. City of Elk City
...same rules applicable to contracts of other persons or corporations. See Fretz v. City of Edmond, 66 Okla. 262, 168 P. 800; Moomaw v. Sions, 96 Okla. 202, 220 P. 865, and City of Muskogee v. Turner, 186 Okla. 459, 98 P.2d 1095. ¶10 As to that portion of the final order of the Corporation Co......
-
Pool v. City of Cushing
...the construction and maintenance of an electric light and power plant is not governmental in this state, it is proprietary. Moomaw v. Sions, 96 Okla. 202, 220 P. 865; City of Durant v. Allen, 67 Okla. 1, 168 P. 205. In the Moomaw Case we said that a municipal corporation engaged in the oper......
-
City Nat. Bank of Fort Smith v. Inc.
...was originally dedicated is not an abandonment. Tonkawa Milling Co. v. Town of Tonkawa, 15 Okla. 672, 83 P. 915; Moomaw et al. v. Sions, 96 Okla. 202, 220 P. 865. That subdivision 2 of sec. 4762, supra, has reference to the first class of property above mentioned seems clear from the langua......
-
Thomas v. Reid
...right to local self-government, and the right to majority rule. ¶21 This court in the first paragraph of the syllabus in Moomaw v. Sions, 96 Okla. 202, 220 P. 865, said: "A municipal corporation engaged in the operation of a system of electric lights exercises business and administrative fu......