Speaker v. Board of County Com'rs of Oklahoma County

• Decision Date: 30 April 1957
• Docket Number: No. 37346,37346
• Citation: 312 P.2d 438,1957 OK 100
• Parties: Margueritte SPEAKER, Plaintiff in Error, v. The BOARD OF COUNTY COMMISSIONERS OF OKLAHOMA COUNTY, Oklahoma, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 438

312 P.2d 438

1957 OK 100

Margueritte SPEAKER, Plaintiff in Error, v. The BOARD OF COUNTY COMMISSIONERS OF OKLAHOMA COUNTY Oklahoma, Defendant in Error.

No. 37346.

Supreme Court of Oklahoma.

April 30, 1957.

Rehearing Denied June 11, 1957.

Syllabus by the Court.

1. Where an administrative remedy is provided by statute, relief must be sought from the administrative body, and that remedy must be exhausted before the courts will act; exhaustion of the administrative remedy is a jurisdictional prerequisite for resort to the courts.

2. Where, with reference to efforts to obtain the calling, by the Board of County Commissioners, of an election to determine whether or not a certain territory of Oklahoma County should be incorporated as a town, by the procedure prescribed in Tit. 11, O.S.1951, sec. 971 et seq., plaintiff, prior to the termination of proceedings before the Board and the entering of any order concerning the calling of the election, sought, by a petition instituting an action in the district court, to enjoin the Board from making such an order; Held: Said court committed no error in sustaining the defendant Board's demurrer to said plaintiff's petition and entering judgment dismissing the action on the ground of its lack of jurisdiction.

Appeal from the District Court of Oklahoma County; Glen O. Morris, Judge.

Action by plaintiff, a property owner in territory proposed to be incorporated as a town, under Tit. 11, O.S.1951 § 971 et seq., to enjoin the defendant Board of County Commissioners from calling an election to determine the matter. From a judgment sustaining the defendant's demurrer to plaintiff's petition and dismissing the action, plaintiff appeals. Affirmed.

Merson & Campbell, Clay M. Roper, Oklahoma City, for plaintiff in error.

James W. (Bill) Berry, County Atty. of Oklahoma County, M. M. Thomas, Asst. County Atty., Shapard & McConnell, Oklahoma City, of counsel, for defendant in error.

BLACKBIRD, Justice.

This appeal involves efforts to incorporate a certain area of Oklahoma County as a town to be known as: 'Valley Brook.'

The procedure prescribed by statute for such an incorporation contemplates that it be accomplished only after the majority of qualified voters of the territory to be incorporated, have approved it at an election, or 'meeting' called by the Board of County Commissioners. See Tit. 11 O.S.1951, § 971 et seq. The cited law provides, among other things, that, in order to obtain the Board's calling of such an election, the applicants, or proponents of the incorporation, shall file their petition with the Board, verified by affidavits, and subscribed by themselves and not less than one-third of the qualified voters of the territory, setting forth the boundaries, quantity of land and resident population of the territory, according to a map, survey, and census which the law provides that the applicants shall have caused to be made. The cited law further provides that the application shall be presented to the Board at the time indicated in the notice thereof, 'or as soon thereafter as the board can receive and consider' same. Sec. 975 of said law sets forth the procedure to be followed by the Board in hearing the application, and specifically provides that said body shall require proof that the aforesaid survey, map, and census were subject to examination by interested persons, for the period and in the manner prescribed in a previous section of said law. Said section, and those following it, further provide, among other things, that if the Board is satisfied that the requirements of the law have been fully complied with, 'they shall * * * make an order' declaring 'the territory shall become an incorporated town' if assented to by a majority of its qualified voters at the proposed election to be held 'on some day within one month therefrom, to determine whether such territory shall be an incorporated town.'

In the instance of the application to the Board to order the election, or 'meeting' here involved, the petition therefor was filed with said Board on March 1st, 1956. At the hearing held on said application, March 5th, it was attacked and protested. Whereupon, the Board referred the petition, map, and survey to the County Attorney and County Engineer for investigation as to sufficiency and validity, and continued the hearing until March 19th, 1956. At its further hearing on the latter date, the Board further continued the matter until March 26th. Before the latter date, the plaintiff in error, referred to hereafter as plaintiff, instituted the present action in the District Court to enjoin the Board of County Commissioners, hereinafter referred to as defendant, from calling the election, or 'meeting' above-described. By a judgment thereafter entered on April 12, 1956, said court sustained the defendant Board' demurrer to plaintiff's petition, on the ground that it had no jurisdiction to enjoin the Board from calling the election.

In her present appeal from said judgment, plaintiff contends that it was error, because her petition did allege facts sufficient to constitute a cause of action, over which the Court did have jurisdiction, and entitling her to the injunctive relief she prayed for. In its brief, defendant represents that after the trial court's refusal to enjoin the Board, the latter ordered the election or 'meeting' sought; and thereat the voters, of the territory involved, approved the proposed incorporation. On the basis of this alleged situation, defendant argues that the issue, herein presented, of the district court's jurisdiction to enjoin the Board from calling the election, has been rendered 'moot'. We will defer consideration of this argument and plaintiff's rebuttal that nothing which occurred after April 12th, 1956, the date of the judgment herein appealed from, can herein be considered, for if the trial court's judgment denying jurisdiction is affirmed on the ground of the insufficiency of the petition to invoke its jurisdiction, it will be unnecessary to consider other arguments advanced in support of it.

From the aforesaid reference to Tit. 11, sec. 971 et seq., supra, it will be observed that, with reference to a territory sought to be incorporated as a town, it is the voters of the territory, rather than the Board of County Commissioners, who determine for themselves, whether or not the territory shall be so incorporated; and that said statute designates said Board as the administrative agency to call the election, or 'meeting', for the purpose of affording said voters the opportunity of making such determination. It will also be observed that said law provides for a hearing before said Board to determine whether or not such 'meeting' shall be called, and further provides for the giving of notice of said hearing. Thus it will be seen that, by the provisions of said law, opportunity is given those wishing to protest the calling of such election, to appear at the hearing before the Board, and do so, and to challenge (for the purpose of obtaining the Board's rejection of the application for the calling of such election) the sufficiency, to meet the statute's requirements, of the matters and things done, and presented in making the application--just as, apparently, some parties did concerning the 'Valley Brook' application. But plaintiff did not wait for the Board to render its decision as to whether the statutory requirements for such an application had been complied with. Instead she instituted the present court action to prevent the Board from acting.

It is a well established principle of law that where an administrative agency is vested with the exclusive authority to determine a matter, the courts will not 'step in', and interfere with, or prevent, its making...