Perrine v. Bonaparte, Co.

• Decision Date: 15 October 1929
• Docket Number: Case Number: 19094
• Citation: 140 Okla. 165,1929 OK 439,282 P. 332
• Parties: PERRINE v. BONAPARTE, Co. Treas.
• Court: Oklahoma Supreme Court

1929 OK 439

282 P. 332

140 Okla. 165

PERRINE v. BONAPARTE, Co. Treas.

Case Number: 19094

Supreme Court of Oklahoma

Decided: October 15, 1929

Syllabus

¶0 1. Municipal Corporations--Municipalities Authorized to Engage in Business Enterprise.

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 franchise from said corporation.

2. Same--Municipally Owned Utility--Neither Rates to Be Charged nor Disposition of Profits Prescribed by Law.

Neither statute nor Constitution specifically prescribes rates to be charged by municipally owned utility; neither statute nor Constitution specifically prescribes purpose to which profits derived from municipally owned utility must be appropriated. (Const. art. 18, sec. 6; Comp. St. 1921, sec. 4507.)

3. Same--Tax Levy to Pay Public Utility Bonds Required by Constitution.

Compliance with Constitution requiring tax levy by city to pay for bonds issued to buy public utility is part of contractual obligation of bonds; Legislature cannot take away rights or relieve city of duties imposed by constitutional provision permitting cities to issue bonds to buy utilities. (Const. art. 10, secs. 26, 27.)

4. Same--Tax Levy Held Valid.

An ad valorem tax levy to pay interest and create sinking fund to pay bonds issued for municipally owned utility held valid. (Const. art. 10, secs. 27, 28.)

5. Evidence--Judicial Notice of Provisions of City Charters.

Courts take judicial cognizance of the charter provisions of cities under a charter form of government for the reason that by both the Constitution and statutes such charter provisions, when not inconsistent with the Constitution, supersede the statutes pertaining to municipal affairs, and thereby become the superior law of the state in matters pertaining to municipal affairs, and the courts are charged with knowledge of such provisions.

Error from District Court, Oklahoma County; T. G. Chambers, Judge.

Action by Mrs. J. K. Perrine against E. B. Bonaparte, County Treasurer of Oklahoma County. Judgment for defendant, and plaintiff appeals. Affirmed.

Adelbert Brown and Gordon Stater, for plaintiff in error.

George M. Callihan, Co. Atty., W. F. Smith, Asst. Co. Atty., M. W. McKenzie, Mun. Counselor, and A. L. Hull, Asst. Mun. Counselor, for defendant in error.

SWINDALL, J.

¶1 This action was commenced in the district court of Oklahoma county by plaintiff in error, as plaintiff below, against E. B. Bonaparte, county treasurer, Oklahoma county, Okla., as defendant.

¶2 The parties hold the same position in this court as they did in the trial court, and will be here referred to as plaintiff and defendant. The action was instituted on the 18th day of May, 1927, by the filing of a petition seeking to recover certain taxes paid by the plaintiff under protest, and which plaintiff claims are illegal. The defendant filed a demurrer to the petition, and while this demurrer was pending the second half of the taxes became due and payable, and by order of the court an amended and supplemental petition was duly filed covering the matters set forth in regard to the second half of the protested tax.

¶3 There are several causes of action in the petition, but the issues in this appeal are narrowed to the propositions stated in the four causes of action in the petition, and amended and supplemental petition, which, omitting the formal petition, is as follows:

"Plaintiff alleges that a levy of 17.69 mills was made upon the property of the plaintiff for the benefit of Oklahoma City. Okla., for the fiscal year beginning July 1, 1926, and that of said levy 8.93 mills thereof was made to satisfy the sinking fund requirements.

"Plaintiff alleges that said levy is illegal, for the reason that there was included in the appropriations for sinking fund requirements for said taxing jurisdiction for said fiscal year the full amount of interest and the full amount of annual accrual on the following bonds, to wit:

"A bond issue of $ 80,000; $ 20,000; $ 225,000; $ 200,000; $ 35,000; $ 150,000; $ 150,000; $ 250,000; $ 1,500,000; $ 1,405,000; $ 1,600,000; and $ 25,000; or a total of $ 5,667,000, representing bonds for water works purposes in the city of Oklahoma City; that the total amount of interest for the aforesaid bond was included in the sinking fund requirements for the aforesaid fiscal year being in the sum of $ 281,120 and that the total accruals on the appropriated needs were $ 234,941.68.

"Plaintiff alleges that the interest requirements and 3 per cent. of the principal of said bonds cannot legally be raised by ad valorem taxation, and that the inclusion of the sum of $ 281,120, representing interest and $ 170,010, representing 3 per cent. of the principal of said bonds, producing $ 451,130 in the sinking fund requirements, was wholly without authority of law, but that said sum of $ 451,130, with 10 per cent. added thereto as an allowance for delinquency, $ 54,113, producing $ 496,243, was erroneously included in the sinking fund requirements, wholly without authority of law; and that if said amount had not been erroneously included in said sinking fund requirements the net amount required to be raised by ad valorem taxation would have been reduced to the extent of $ 496,234, which sum based upon the total assessed valuation of all the property in said taxing jurisdiction for said fiscal year, $ 118,973,221, would have reduced said sinking fund tax levy to the extent of 4.17 mills, and that, therefore, said sinking fund levy is illegal and void and made for a purpose unauthorized by law to the extent of 4.17 mills.

"Plaintiff further alleges that the estimated revenue, as determined by the taxing officials, for the water department for the city of Oklahoma City for the fiscal year beginning July 1, 1926, was $ 669,421.15 and the estimated needs for the operating expense of said waterworks department were $ 372, 830, leaving an operating surplus of $ 286,591.51, which surplus was not even applied or used for waterworks purposes, but was illegally and wrongfully applied otherwise, and that if said income from miscellaneous sources representing operating profit of the waterworks department had been deducted from the sinking fund requirements for said waterworks bonds, the net amount to be raised by ad valorem taxation for sinking fund requirements for said waterworks bonds would have been reduced to the extent of $ 286,591.15, with 10 per cent. allowance for delinquency added thereto, producing a total reduction in the net amount to be raised by ad valorem taxation in the sum of $ 315,250.26, a surplus in the water fund of $ 408,080.53, in that the actual receipts of the water department for the fiscal year beginning July 1, 1925

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