State ex rel. Edwards v. Millar
| Decision Date | 23 June 1908 |
| Docket Number | Case Number: 120 |
| Parties | STATE ex rel. EDWARDS v. MILLAR, Mayor, et al. |
| Court | Oklahoma Supreme Court |
¶0 1. ELECTIONS -- Ballots -- Harmless Irregularities -- Statutory Provisions. The purpose of that part of section 2963, Wilson's Rev. & Ann. St. 1903, which provides that the election officers, whenever a question is to be voted on by the electors of a city or town, shall cause a brief statement of the same to be printed on the ballot and the words "Yes" and "No" under the same, is to prevent the use of any other than official ballots, and not to condemn as invalid official ballots which have been furnished to the electors by election officers charged with that duty for some oversight or error on their Dart.
2. SAME. An election held for the purpose of submitting to the qualified electors of a municipality the question of incurring indebtedness for the purpose of constructing public utilities is not invalid for the reason alone that the election officers who prepared the ballots had printed thereon to the left of the question to be voted on and under the squares the words "Yes" and "No," instead of placing the squares under the questions with the words "Yes" and "No" to the left of them as provided by section 2963, Wilson's Rev. & Ann. St. 1903.
3. SAME--Statement of Question Submitted--Constitutional Provisions. The term "for the construction of waterworks in said city, to be owned and operated by said city," printed on the ballots used at an election held for the purpose of submitting to the qualified electors of a municipality the question of incurring indebtedness for the construction of public utilities under section 27, art. 10, of the Constitution, is sufficiently comprehensive to include such work as re-equipping and making extensions to an existing waterworks system.
4. CONSTITUTIONAL LAW--Construction of Constitution--Defeat of Object. The construction of a constitutional provision must not be so strict or technical as to defeat the evident object and purpose of its adoption.
5. MUNICIPAL CORPORATIONS -- Public Improvements--Provisions for Payment--Ordinances--Sufficiency. City ordinances providing that a continuing annual tax sufficient to pay the interest when the same shall fall due, and for the purpose of providing a sinking fund with which to pay the principal of said bonds, shall be levied upon all the taxable property within said city, substantially comply with the requirements of section 27, art. 10. of the Constitution, in respect to providing funds for paying the interest and principal on bonds issued for the purpose of constructing Public utilities.
6. CONSTITUTIONAL LAW--Self-Executing Provisions of Constitution-Construction of Public Utilities. Section 27, art. 10, of the Constitution, is a self-executing grant of power to the qualified property tax-paying voters of a city or town voting at an election held for that purpose, by a majority vote, to become indebted in a larger amount than that specified in section 26, art. 10, of the Constitution, for the purpose of purchasing or constructing public utilities, or for repairing the same, to be owned exclusively by such city.
7. MUNICIPAL CORPORATIONS -- "Public Utilities"--Sewers. Sewers are "public utilities" within the meaning of the term as used in section 27, art. 10, of the Constitution.
8. SAME--Bonds--Time to Run. That part of section 27, art 10, of the Constitution, which provides that a sinking fund shall be created sufficient to pay the principal, in 25 years, of bonds issued to purchase, construct, or repair public utilities, clearly contemplates that such bonds shall run for a period of 25 years.
Original proceeding by the state of Oklahoma on relation of Robert J. Edwards, for a writ of mandamus directed to John E. Millar, as mayor, and A. R. Clement, as city clerk, of Norman, requiring execution and delivery of city bonds. Writ issued.
Shartel, Keaton & Wells, for petitioner.
Ben F. Williams and C. M. Keiger, for defendants.
¶1 This is an original proceeding wherein the petitioner prays that a writ of mandamus issue out of this court directed to the defendants, John E. Millar, as mayor, and A. R. Clement, as city clerk, of the city of Norman, a city of the first class, commanding them to execute a certain issue of waterworks and sewer bonds and the interest coupons thereto attached, in accordance with certain ordinances of said city, and to affix to said bonds the corporate seal of said city and to deliver the same to the petitioner, Robert J. Edwards, upon payment by him of the purchase price thereof.
¶2 The petition states, in substance, that Norman is a city of the first class; that the defendants are the duly elected mayor and clerk thereof; that on December 24, 1907, a resolution was adopted by the council of said city declaring it necessary that the city have funds to the amount of $ 45,000 for the construction of waterworks and $ 35,000 for the construction of sewers, and directing the mayor to call a special election for the purpose of voting on the question of issuing such bonds; that notices of such election were duly published, and such election was held on the 11th day of February, 1908, and the returns thereof duly canvassed by the council, 343 ballots being for the issuance of waterworks bonds and 12 against, and 327 being for sewer bonds and 24 against; that on February 14, 1908, the council, after having by resolution declared such proposition carried, passed ordinances Nos. 77 and 78, which provided for the execution and issuance of said bonds, prescribed the forms therefor, and provided for the levy of an annual tax sufficient to produce in each year the amount needed for interest, and to create a sinking fund to pay the principal of such bonds in 25 years; that such bonds were duly sold to the petitioner, who has furnished proper blanks and requested the mayor and clerk to execute the same, which they have refused to do.
¶3 Upon filing this petition an alternative writ of mandamus was issued, and the return thereto filed by the defendants raises certain legal questions that may be epitomized as follows: (1) Do certain variations from the form prescribed by law made by the election officers in the ballot used invalidate the election? (2) It is contended that the ballot used at the election stated the purpose of the issuance of the bonds to be "for the construction of waterworks in said city, to be owned and operated by said city," whereas, in fact, it was and is proposed to issue bonds for the purpose of re-equipping and making extensions of the city's existing waterworks system; the question thus arising whether the expression "the construction of waterworks" was broad enough to include remodeling, enlarging and re-equipping the old waterworks plant. (3) Was the provision made for the payment of interest and the creation of a sinking fund in compliance with the requirements of law? (4) Is section 27, art. 10, of the Constitution of the state of Oklahoma, a self-executing grant of power to municipalities or a limitation on the power of the Legislature? (5) Are sewers public utilities within the meaning of section 27, art. 10, of the Constitution? (6) Who are legal voters at elections called for the purpose of determining whether bonds shall issue for the erection of public utilities? (7) May bonds for the purpose of purchasing or constructing public utilities or re-equipping the same, to be owned exclusively by the city, be issued payable in 25 years? (8) Has a city authority to issue waterworks bonds before the contract providing for the contemplated waterworks improvement has been submitted to a popular vote and ratified by a majority of the voters of said city voting at a general or special election held therefor?
¶4 The foregoing questions will be noticed in the order above stated.
¶5 First. The variation in the form of ballot used consisted in this: Section 4, art. 1. c. 17, p. 233, Sess. Laws 1905, reads, in part, as follows:
"The voter shall then and without leaving the room go into any booth which may be unoccupied and indicate the candidates for whom he desires to vote by stamping a cross in the square immediately to the left of their names, and indicate his preference on any question or constitutional amendment or other special matters by stamping in the square immediately to the left of and preceding the words 'Yes' or 'No' under such question."
¶6 Section 2963, Wilson's Rev. & Ann. St. 1903, reads as follows:
¶7 On the ballots prepared for this election, the election officers placed the squares to the left of the questions to be voted on, and placed under the squares the words "Yes" and "No," instead of placing the squares under the propositions to be voted on and placing the words "Yes" and "No" at the left of the squares, as required by section 2963, Wilson's Rev. & Ann. St. 1903.
¶8 The instructions for voting printed on ballots read as follows:
"Those wishing to vote for the issuance of the bonds...
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