State ex rel. City of Tulsa v. Mayes

• Decision Date: 22 October 1935
• Docket Number: Case Number: 25288
• Citation: 174 Okla. 286,1935 OK 1027,51 P.2d 266
• Parties: STATE ex rel. CITY OF TULSA v. MAYES
• Court: Oklahoma Supreme Court

1935 OK 1027

51 P.2d 266

174 Okla. 286

STATE ex rel. CITY OF TULSA v. MAYES

Case Number: 25288

Supreme Court of Oklahoma

Decided: October 22, 1935

Syllabus

¶0 1. Municipal Corporations -- Provisions of Statues That Certain Powers Granted to Cities Are to Be Exercised by Mayor and Council Held Superseded by City Charter Abolishing Such Offices and creating Others in Their Stead.

The provisions of general statutes of the state that powers granted to cities in certain matters pertaining purely to municipal affairs are to be exercised by the mayor and council, are superseded by the provisions of a city charter adopted as provided by the Constitution, by which the offices of mayor and councilmen are abolished and providing that the powers conferred upon such city shall be exercised by a board of commissioners or other offices created by such charter.

2. Taxation--Property of City Owned for Water Right Purposes not Taxable Though Situated Outside City Limits and in Another Country.

Under section 6, art. 10, of the Constitution, exempting the property of municipalities from taxation, lands or property acquired and owned by a city for water right purposes are not liable to taxation by a county or other taxing district, though such lands or property are situated without the limits of such city and in a county other than that in which the city is located, though said property may be used in part for other purposes.

Original action for writ of prohibition by the State on relation of the City of Tulsa against W. E. Mayes, County Treasurer of Mayes County, et al. Writ granted.

H. O. Bland, E M. Gallaher, Carl Ravis, Langley & Langley, Bert E. Johnson, O. H. Searcy, and C. L. Hamilton, for petitioner.

D E. Martin, County Atty., and R. A. Wilkerson, for respondents.

RILEY, J.

¶1 This is an original action in which the city of Tulsa seeks a writ of prohibition against W. E. Mayes, as county treasurer of Mayes county, and Lee Battenfield, as judge of the county court of said county.

¶2 The application for the writ alleges that about October 30, 1933, Earl Ward, the duly appointed tax ferret for Mayes county, filed with the county treasurer a report to the effect that the real property, dam, conduit lines, and appurtenances thereunto connected, constituting the Spavinaw water project, had been omitted from the tax rolls of Mayes county for the years 1923 to 1932, inclusive; that thereafter notice was given to the city of Tulsa by the county treasurer; that the city of Tulsa had filed written protest; that upon a hearing had before the treasurer an order was entered by the county treasurer placing said property upon the tax rolls of Mayes county and assessing it at $ 1,472,020 for each of the ten years; that appeal was duly taken to the county court of Mayes county; that the county court had assumed jurisdiction and made an order for a hearing on January 22, 1934.

¶3 It is alleged that the property involved is the property of the city of Tulsa, and not subject to taxation in Mayes county, or any other county, and that neither the county treasurer nor the county court of Mayes county has jurisdiction or power to place property of the city of Tulsa upon the tax rolls or assess it for taxation.

¶4 This court is asked to issue a writ prohibiting further proceedings toward assessing said property for taxation or placing same upon the tax rolls of Mayes county.

¶5 Respondents have filed their response and in substance allege that the city of Tulsa has not acquired said property according to law. It is admitted that the city has acquired possession of the property, but it is specifically denied that it acquired title thereto in the manner provided by law, in that the City did not use the agencies and means in the manner provided by law for the acquisition of title to real estate by a municipality, in that the attempt was made to acquire the property by and through a water commission, instead of by the mayor and board of commissioners. It is urged that the amendment to the charter of the city of Tulsa under which the water commission assumed to act is in conflict with the Constitution and constitutional laws of the state, and therefore void; that, the property is taxable for the further reason that the city of Tulsa is engaging in business in connection with said property not authorized by section 6, art. 18, of the Constitution. in that it is engaged in the business of selling and distributing water to private persons, firms, and corporations and other municipalities outside the limits of the city of Tulsa; and that the city is engaged in the unauthorized business of selling boating rights and privileges and hunting and fishing licenses; that by reason thereof the enterprise should be classified as private business and the property used should be declared taxable the same as privately owned property.

¶6 The parties have filed a lengthy statement of facts upon which they rely in this action. Those facts about which there is controversy, as to their effect, are: The amendment to the charter of the city of Tulsa creating a water commission and prescribing its power and duties, the material portions of which read:

"Section 1. There is hereby created a 'Water Commission' consisting of five (5) qualified electors of the city of Tulsa whose rights, powers and duties shall be as herein provided.

"Section 2. The 'Water Commission' herein mentioned shall consist of five (5) members one of whom shall be the Water Works and Sewerage Commissioner provided for in the charter who shall be ex-officio chairman and member of said 'Water Commission' and four (4) other members who shall be elected and serve a term of four (4)years from and after their election, except as herein provided."

And:

"Section 12. The 'Water Commission' herein shall have and exercise full, complete and exclusive rights, powers and duties in the doing and performing of all and every of the things to be done and performed in the construction, operation and maintenance of the water system or systems of the city of Tulsa; and the acquiring of real estate by purchase, condemnation proceedings, donation, bequest, lease, or other legal method of acquisition necessary and proper for the construction, operation and maintenance of such water system or systems; provided, that in all matters requiring action at law on the part of the city of Tulsa, such action at law shall be instituted, prosecuted and carried on in the name of the city of Tulsa by its officers as by law provided."

¶7 The agreed statement then reads:

"4. Pursuant to said amendment to said charter as above outlined, and during the years 1922 and 1923, the said Water Commission purchased amicably and appropriated by eminent domain proceedings a large acreage of land, lying on Spavinaw creek (the upper part located in Delaware county, and the lower, the major portion, located in Mayes county) lying near the old town of Spavinaw, for a basin for a reservoir, and it constructed a dam across said creek at a point in section 15, township 22 north, range 21 east, in Mayes county, creating a large lake, and inundating said acreage; and said plaintiff city also by amicable purchase and condemnation proceedings acquired a strip of hand running from said dam across Mayes county through Rogers county, and into Tulsa county, to a point near the city of Tulsa, where an emergency storage reservoir was constructed, and on this strip the plaintiff city laid a concrete conduit line, this strip being about 100 feet in width, except in certain places, Wider, never exceeding 200 feet in width; and, the plaintiff city made improvements of its water distribution system in the city of Tulsa; and since about April, 1924, the plaintiff city has diverted water from said creek, flowing out of said reservoir through said conduit line, to said plaintiff city, a distance of about 70 miles, and which water the plaintiff city as a municipality has been selling to its residence and inhabitants for domestic, industrial, and sanitary purposes, using a portion thereof for fire protection purposes. During said period of time said plaintiff city has been selling water to outlying municipalities, namely, Owasso, Dawson, and the little town of Spavinaw, and during all of said time, said plaintiff city has been furnishing water for a fixed charge per month to individuals owning land through which land said conduit line runs, there having been placed a water tap on each separately owned tract of land through which said conduit line runs at time of construction of the line.

"5 During all of said time, and approximately since April, 1924, the plaintiff city has granted by contract to individuals the right to maintain and operate a boating business upon said lake, which consists of storage boats, and renting of boats for profit.

"6. During all of said time, the plaintiff city has issued and sold to the public fishing find hunting privileges upon said lake for a fixed charge: and shortly prior to the institution of this action, the charges for such privileges to residents of the city of Tulsa was fifty per cent. of the charge made of nonresidents of the plaintiff city.

"7. During a portion of said time, and at the time of the institution of this suit, the plaintiff city rented to individuals a plot of ground lying west of the said dam, near said dam, for a fixed annual rental, for the purpose of the lessee keeping and retailing to fishermen live bait for fishing purposes.

"8. The title to all of the aforesaid land so taken in said water projects was taken in the name of the plaintiff city, and said land and the improvements belonging exclusively to the said plaintiff city.

"9. The cost of said land, and the construction of the improvements, etc., consisting of said water project, known as the Tulsa-Spavinaw water project, aggregated about nine million dollars. Bonds were issued by the plaintiff city to finance said undertaking. The bonds are ad valorem or sinking fund

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