Quinn v. City of Tulsa
| Decision Date | 18 July 1989 |
| Docket Number | No. 71801,71801 |
| Citation | 1989 OK 112,777 P.2d 1331 |
| Parties | Tom QUINN, Appellant, v. CITY OF TULSA, Oklahoma, A municipal corporation, Appellee. |
| Court | Oklahoma Supreme Court |
Robert A. Todd, Tulsa, for appellant.
Niel E. McNeill, City Atty., Alan L. Jackere, Asst. City Atty., Tulsa, for appellee.
On August 20, 1987, the Mayor and Board of Commissioners of appellee, City of Tulsa (City) adopted a Resolution of Notice of Special Election, pursuant to 26 O.S.1986 Supp. § 13-102, notifying the election boards in Tulsa, Rogers and Osage counties of a special election to be held on October 6, 1987, for the purpose of submitting to the voters of Tulsa the questions of whether a certain temporary one-percent sales tax should be extended and whether certain additional bonded indebtedness should be incurred.
The Resolution set out the ballot titles for the proposed bond election in eight propositions and was approved and enacted with an emergency clause which gave it immediate force and effect. Thereafter, on September 22, 1987, Ordinance No. 16900 was adopted by the City which authorized and directed the calling and holding of the special election. This ordinance set forth the propositions to be voted on and each specific project which was to be funded with revenue from the sale of the proposed bond issue. 1
On that same date a Special Election Proclamation and Notice was executed by the Mayor which set the date of the special election on October 6, 1987. The election was held and seven of the eight propositions on the ballot were approved by the voters.
On November 4, 1987, appellant filed his petition against City, the Metropolitan Tulsa Chamber of Commerce, and the Vote "Yes" for Tulsa Committee, which petition alleged that City, by and through its agents, employees and servants, had committed illegal and improper acts in the conduct of the election. Specifically, appellant alleged City had in one form or another expended public money in an effort to promote passage of the tax and bond issues, had made misrepresentations to the public and had engaged in improper procedures in promulgating the above-mentioned Resolution, Ordinance and Ballot.
Appellant contended that the acts of City had resulted in an illegal tax which should be enjoined. He further petitioned the trial court to issue its injunction to prohibit City officials from engaging in any similar activities during future bond elections.
Further, appellant alleges the trial court erred in issuing a certain protective order during the course of discovery, which order limited his access to information on the campaign in the hands of the Metropolitan Tulsa Chamber of Commerce.
Following trial to the court, judgment was entered in which it was found that the form and content of the ballots were sufficient, that City officials did not act improperly in individually supporting the bond proposals, and that there was insufficient evidence of fraud or coercion on the part of elected officials or employees during the campaign. The court did find that City officials had acted improperly in allowing or authorizing the expenditure of public funds in support of the bond proposal, but it held that injunctive relief to restrain the issuance and sale of the bonds would not lie to redress those improper acts. The court further declined to enjoin future acts by the City.
From this judgment appellant appeals and on appeal he asserts the following propositions of error:
I.
In his first proposition of error, supplied by an Amended Petition in Error, Appellant argues that the procedures by which the City authorized the election on the contested bonds are totally defective because they did not comply with the time limits prescribed in Title 4, Section 37 of the Revised Ordinances of the City of Tulsa. That ordinance says:
"No ordinance or resolution of the City of Tulsa shall become operative until thirty (30) days after its passage and approval by the Mayor, and if an ordinance is passed over his veto, such ordinance shall not take effect and become operative until thirty (30) days after such final passage, except measures necessary for the immediate preservation of peace, health, or safety; and no such emergency measure shall become immediately operative unless it shall state, in a separate section, the reasons why it is necessary that it should become immediately operative, and the question of emergency shall be ruled upon separately and approved by the affirmative vote of three-fourths of all the members elected to the Board of Commissioners taken by ayes and noes and the whole measure be approved by the Mayor or passed over his veto."
While Appellant does not allege the bond ordinance fails to facially comply with this section, he says it does not comply in fact because there was no genuine emergency which affected the peace, health or safety of the City of Tulsa. He says its designation as an emergency was mere ploy by the Board of Commissioners and the Mayor to provide immediate effect and so to gain some unspecified advantage in the election.
We note that this proposition of error concerns an argument which was only barely raised during proceedings before the trial court. While some testimony was elicited about the enactment of the ordinance as an emergency and the motives of the City Commissioners, appellant did not argue this precise legal point in the trial court.
Inasmuch as there was some testimony, however abbreviated and unremarked-on, from which the trial judge could have perceived the issue, and because the matter was brought before this Court in the Amended Petition in Error, we cannot say the issue does not merit resolution.
In every instance where this Court has been called upon to examine the correctness or foundation of an emergency clause in legislation, we have always declined to go behind the decision of the legislative body. As we said in Oklahoma City v. Shields: 2
We conclude that the judgment of the Legislature in determining whether or not an emergency existed--that is, whether or not a measure is immediately necessary for the preservation of the public peace, health, or safety--rests solely with the Legislature. It is not subject to review by the courts, or any other authority except the people. [emphasis added].
This holding was subsequently applied to the enactment of city ordinances in In re Referendum Petition in Ponca City Concerning Ordinance Number 4478, 3 when this Court held that the determination of the existance of an emergency, in ordinances as well as statutes, is exclusively a legislative function and is conclusive in judicial proceedings where its inclusion is not proscribed. Because appellant has shown no authority to the effect that an emergency clause is proscribed from inclusion in the type of ordinance here under challenge, we find such clause to be presumptively correct and binding.
Therefore, we find appellant's first proposition of error insufficient to disturb the ruling of the trial court.
II.
In his second proposition of error, appellant argues that the trial court erred in not enjoining the issuance of that portion of the bonds which were approved by the voters under Ballot Proposition No. 4. 4 That proposition's ballot title, appellant contends, failed to meet the requirement of Article 10, Section 16, of the Oklahoma Constitution, which says:
All laws authorizing the borrowing of money by and on behalf of the State, County or other political subdivision of the State, shall specify the purpose for which the money is to be used, and the money so borrowed shall be used for no other purpose.
Appellant says the ballot title of Proposition Four violated this section because while the proposition asked the voters to approve some $16.1 million for work on the City's sewage system, the City's plans called for projects with a total cost of about $60 million. Therefore, he argues, the purpose of the $16.1 million approved by the voters was to begin projects which could be completed only by subsequent government grants, borrowing or new bonds supported by new taxes. Appellant believes that because these other sources of funds were not spelled out, the proposition did not state the purpose of the indebtedness.
In support of his position, appellant cites Borin v. City of Erick. 5 There, as here, a taxpayer brought suit to enjoin the sale of bonds which had been issued pursuant to an allegedly illegal election. The City Council of Erick officially proposed to build a power plant to be financed with $50,000 in the form of a grant from the federal Public Works Administration, supplemented by $60,000 from a bond issue. In contemplation of the construction of a $110,000 facility the bond issue was approved. Thereafter the PWA grant was withdrawn and the council decided to proceed with the bond money to build a lesser facility with lesser capabilities.
The Court held the sale and delivery of the bonds should be enjoined saying:
The very purpose of section 16 is to require officials to reveal in the ballot the true purpose in mind. To contemplate one purpose and submit a substantially different one to the vote of the people constitutes a direct violation of said section 16. We do not say that the personal intentions of the officers will enter into the question. But their official acts will. Here the whole structure of the plan was founded on the official acts of the council looking toward the construction of a plant with financial aid from the Government. On this question the people did not cast their ballots. In any event the proposition was not properly submitted and the purpose not properly disclosed. [citations omitted] 6
It is clear from this ruling that a municipality may not officially plan a specific project at a specified cost and then use bond proceeds which were voted in contemplation of that project for another one which is substantially different. In Borin it was clear that the City...
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