State ex rel. McNeill v. Long

• Decision Date: 15 December 1936
• Docket Number: 25469.
• Parties: STATE ex rel. McNEILL v. LONG et al.
• Court: Oklahoma Supreme Court

63 P.2d 60

178 Okla. 409, 1936 OK 828

STATE ex rel. McNEILL v. LONG et al.

No. 25469.

Supreme Court of Oklahoma

December 15, 1936

Syllabus by the Court.

1. By the provisions of section 5 (a), article 18, of the Constitution, a majority of the qualified electors of a municipal corporation may approve or disapprove the granting of a franchise at a special election called for that purpose upon thirty days' notice; but if said election is called upon 13 days' notice, said election will not, for this reason alone, be declared void, where it is not shown or alleged that any one failed to vote because of the failure to give a full thirty days' notice of said election, and where it is conceded that the general voting public had notice of the election and participated therein.

2. After election, statutory and constitutional requirements as to time of giving notice of the election are directory unless it appears that failure to give notice as prescribed prevented electors from giving free expression of will.

Appeal from District Court, Payne County; Freeman E. Miller, Judge.

Mandamus proceeding by the State of Oklahoma, on the relation of J. J McNeill, against Joe Long, Chairman of the Board of City Commissioners of Cushing, Oklahoma, and another. From a judgment for defendants, plaintiff appeals, and on the death of J. J. McNeill pending the appeal, Anna Mae McNeill, as administratrix of the estate of J. J. McNeill, deceased, and also in her own right, was substituted as a party, and Clyde Hearn was allowed to interplead.

Affirmed.

PHELPS RILEY, WELCH, and GIBSON, JJ., dissenting.

Brown Moore, of Stillwater, for plaintiffs in error.

S. J. Barton, of Cushing, for defendants in error.

OSBORN Vice Chief Justice.

This action was instituted in the district court of Payne county by the State of Oklahoma ex rel. J. J. McNeill, hereinafter referred to as plaintiff, against Joe Long, Chairman of the Board of Commissioners of the City of Cushing, and T. E. Hough, Clerk of the City of Cushing, hereinafter referred to as defendants. Plaintiff sought to obtain a writ of mandamus to compel defendants to call an election for the purpose of voting upon a proposed ordinance granting a franchise to the Interstate Power Company to operate a light and power plant in the city of Cushing. This action was instituted on the theory that a former election held in the city of Cushing, wherein the proposed ordinance was defeated, was void for certain reasons hereinafter set out. The cause was tried to the court and the relief sought by plaintiff was denied, whereupon an appeal was perfected to this court. While the appeal was pending, J. J. McNeill died. Upon motion of one Clyde Hearn, he was allowed to interplead and prosecute the appeal.

On March 16, 1931, certain citizens of Cushing filed with the City Clerk of Cushing an initiative petition requesting that an election be called to vote upon the proposition of granting a light and power franchise. The city clerk referred the matter to the Board of City Commissioners, who made an order holding the petition insufficient. An original proceeding was filed in this court by the petitioners wherein it was sought to compel the city officials to hold the election. An opinion in that case was promulgated on February 16, 1932; a petition for rehearing was filed on April 19, 1932; the opinion was withdrawn, corrected, re-filed, and rehearing was denied. See In re Initiative Petition No. 2 of Cushing, 157 Okl. 54, 10 P.2d 271. It was held in that opinion that it was the duty of the city clerk to pass upon the sufficiency of the petition and to report his finding to the chief executive officer of the city who should, if the petition be sufficient, call the election, upon 30 days' notice. But due to the fact that the city clerk was not a party to that action the prayer was denied.

It appears that when the opinion of this court in the former case was received by the city officials the city clerk orally informed the chairman of the board of city commissioners that the petition was sufficient, and on February 24 the proclamation was issued calling an election to be held on March 8, 1932. Said proclamation was published in the Cushing Citizen, a newspaper of general circulation in said city, on February 25 and March 3, 1932.

On March 8, 1932, an election was held. The election officials certified that 1,189 voters voted in favor of granting the franchise and 1,925 voters voted against granting the franchise, and that there were cast seven mutilated ballots, making a total of 3,121 votes cast. This action was instituted on June 27, 1933, almost 16 months after the date of the election.

It is insisted, first, that the election is void because the same was held while the former action was still pending in this court, or prior to the ruling of this court on the petition for rehearing. Plaintiffs are in no position to raise this issue. Plaintiffs in this case and plaintiffs in the former original action in this court were the proponents of the proposed ordinance granting the franchise. They prevailed in the former action. An examination of the petition for rehearing filed in said original action in this court discloses that no effort was made by the defendants therein (defendants herein) to obtain a reversal of the opinion promulgated. Said defendants agreed with the rules of law announced in the opinion but sought to have the opinion amended to conform to the facts.

It is next contended that under the provisions of section 5(a), article 18, of the Constitution, as construed by this court in the case of In re Initiative Petition No. 2, Cushing, supra, it is required that 30 days' notice of the election be given, and since only 13 days' notice was given in the instant case the election was null and void. In the case of City of Ardmore v. State ex rel. Best, 24 Okl. 862, 104 P. 913, it is said: "In ordering an election in a city of the first class, on a question of whether certain public utility bonds shall be issued, 10 days' notice of such election, by publication of the mayor's proclamation calling the election in a newspaper of general circulation in such city at least 10 days prior to the date of the election, is required (section 1, art. 4, of an act entitled "An Act regulating elections in cities and towns * * *" [Sess.Laws 1909, p. 268, c. 16]); but, if the notice be published for a less time than 10 days prior to the election, a court of equity will not, for this reason alone, declare the election void, where it is not shown or alleged that any one failed to vote because of the failure to publish the proclamation for the full statutory period, and where it is conceded that the general voting public had notice of the election and participated therein."

We quote further from the body of the opinion:

"This court, in the case of Town of Grove v. C. N. Haskell et al., 24 Okl. 707, 104 P. 56, wherein a question very similar to the one now under consideration was involved, said:

'Counsel for plaintiffs in their petition in no manner aver or charge that any voter failed to attend and vote at the election held by reason of want of notice or knowledge, or that the failure to post the notices in exact conformity with the requirements of the proclamation had any effect whatever upon the result of the election. In the absence of such a showing and averment it is our judgment the correct rule in such cases is that, although the notices may be posted for a time less than that specified, the court will not, for this reason alone, declare the election void, at the suit of a party who participated therein, where it is not also shown that the electors of the county did not participate therein by reason of lack of notice or knowledge, and that a different result would have obtained if the full statutory notice had been given."'

In the case of Town of Grove v. Haskell, supra, it is said further: "Elections are the ultimate expression of the sovereign will. When fairly expressed-that is, free from taint of fraud or charge of improper conduct-it becomes the duty of courts to sustain them, where it can be done by a liberal construction of the laws relating thereto, rather than defeat them by requiring a rigid conformity to technical statutory directions, which do not affect the substantial rights of the electors. All reasonable presumptions as to their regularity will be indulged, and the penalty of disfranchisement will not be visited upon a qualified voter where he is not at fault, except in response to a plain mandatory requirement of the statute."

We quote from the body of the opinion in the case of State ex rel. Freeling v. Sullivan, 80 Okl. 81, 194 P. 446, 448: "'When a special election is assailed on the ground of a lack of compliance with all of the statutory requirements in reference to notice, but there is no averment or showing that the electors did not have actual notice or knowledge of the election and failed to participate therein by reason thereof, the same will not be held void on this account.' Town of Grove v. Haskell, Governor, 24 Okl. [707] 717, 104 P. 56; City of Ardmore et al. v. State ex rel. Best, 24 Okl. 862, 104 P. 913; North v. McMahan, 26 Okl. 502, 110 P. 1115; Haskell, Governor, v. Reigel, 26 Okl. 87, 108 P. 367; Lowe et al. v. Consolidated School District No. 97, Blaine County, et al. 191 P. 737; Ratliff et al. v. State ex rel. Woods, County Attorney 191 P. 1038."

In the case of Wadsworth v. Neher, 138 Okl. 4, 280 P. 263 it was held: "In the absence of fraud, an election will not be held invalid on the ground that mandatory provisions of the state election laws have been disobeyed, unless it is expressly declared in the statute that the particular act is essential to the...