State v. Barnes
| Decision Date | 12 September 1908 |
| Citation | 97 P. 997,22 Okla. 191,1908 OK 191 |
| Parties | STATE ex rel. MANHATTAN CONST. CO. et al. v. BARNES, Mayor, et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A convention hall, to be owned, controlled, and used exclusively by a city, to accommodate public gatherings of the people of the city, and for such other public uses as may be designated by the mayor and city council, is a "public utility," within the meaning of that term as used in section 27, art. 10, of the Constitution (Blunn's Ed. § 293).
[Ed Note.-For other cases, see Municipal Corporations, Dec. Dig § 864. [*]
For other definitions, see Words and Phrases, vol. 8, p. 7774.]
The act of the Legislature, approved May 29, 1908 (Laws 1907-08, p 316, c. 31), providing a general election law, did not repeal section 9, art. 1, c. 12 (section 354) Wilson's Rev. & Ann. St. Okl. 1903.
[Ed Note.-For other cases, see Elections, Dec. Dig. § 95. [*]]
Said act did repeal article 2, c. 13, p. 157, Sess. Laws Okl. 1903, entitled "An act to require the registration of voters in cities of the first class."
[Ed. Note.-For other cases, see Elections, Dec. Dig. § 95. [*]]
Subarticle 8 of said act of the Legislature approved May 29, 1908 (Laws 1907-08, p. 352, c. 31, art. 1), providing a system of registration in cities of the first class, does not apply to special city elections in such cities, and applies only to primary and general elections in the state, for the purpose of nominating and electing state, county, and township or precinct officers.
[Ed. Note.-For other cases, see Elections, Dec. Dig. § 95. [*]]
The failure of the inspectors, judges, and clerks of an election to take the oath prescribed by law, in the absence of fraud in the election and of collusion or willful neglect on the part of said officers to take such oath, does not invalidate the election.
[Ed. Note.-For other cases, see Elections, Cent. Dig. § 47; Dec. Dig. § 55. [*] ]
Application by the state, on relation of the Manhattan Construction Company and H. M. Fielding, for a writ of mandamus to C. M. Barnes and others. Writ granted.
This is an original action brought by the state, on the relation of the Manhattan construction Company, a corporation, and H. M. Fielding against C. M. Barnes, as mayor, and E. W. Kinnan, as city clerk, of the city of Guthrie. Plaintiffs seek by their petition to have issued a writ of mandamus directed to the defendants, commanding them to execute and deliver to the city treasurer of said city certain utility bonds, in accordance with an ordinance of said city. An alternative writ was issued at the time plaintiffs filed their petition, to which defendants have filed their return, together with an agreed statement of facts, and the case is submitted upon plaintiffs' petition, defendants' return to the alternative writ, and the agreed statement of facts. The fact will be stated in the opinion.
Cottingham & Bledsoe, for plaintiffs.
Tibbetts & Green, for defendants.
This action arose out of an attempt of the city council of the city of Guthrie to issue bonds under section 27, art. 10, of the Constitution (Bunn's Ed. § 293), for the purpose of building a convention hall in said city. On the 6th day of June, 1908, the mayor and city council of the city of Guthrie duly adopted a resolution, authorizing and directing the mayor to issue a call for an election by the qualified voters of the city to vote for bonds running 25 years from date, for public utilities and city improvements within the city. A convention hall is one of the public utilities named in said resolution. Pursuant to this resolution the mayor, on June 9, 1908, issued a call for a special election of the qualified taxpaying voters of the city, to be held on the 23d day of June, 1908. This proclamation was published, as by law required. By the last paragraph of the proclamation the city clerk was directed to open registration books at once, and to keep the same open until Saturday, the 20th of June, 1908, for the purpose of registering the qualified taxpaying voters of the city. The election was held, and it is agreed that, except as to the method of registration, and the oaths taken by the judges, inspectors, and clerks of said election, the same was conducted and held in substantial compliance with the election laws of the state governing special elections in cities of the first class, and in substantial compliance with the general election laws of the state in so far as same apply to special elections in cities of the first class; that the election was conducted without fraud, and the result thereof was properly certified and declared; that no one but the persons qualified under section 27, art. 10, of the Constitution were permitted to vote at said election, and that no one who was qualified under said section was refused permission to vote, although not registered. On the 26th of June, 1908, the city council in regular session canvassed the vote and the returns of said election, and declared the result upon the various propositions submitted at said election. The vote upon the question whether bonds should be issued for the purpose of constructing a convention hall was declared to be 937 for the proposition, and 39 against. The city council, in obedience to the declared will of the qualified voters of the city of Guthrie expressed at said election, proceeded to issue public utility bonds in the sum of $150,000 for the construction of the convention hall, and sold the same to petitioners, and by resolution authorized and directed that the city treasurer deliver same to the petitioners as soon as prepared and executed by the proper officers of the city. The issuance of said bonds was authorized by an ordinance of the city council, passed in regular session, and the bonds were prepared in due and regular form, but the mayor and city clerk refused to sign, execute, or deliver same to the city treasurer, to be delivered to petitioners. Petitioners stand ready to perform the conditions of their contract of purchase of said bonds, and in their petition seek to have the city authorities required to perform the contract. Defendants by their return to the alternative writ present three alleged reasons why they refuse to execute and deliver the bonds as prayed for, and three defenses against petitioners' right to the relief prayed for in their petition. They contend: First, that a convention hall is not a public utility; second, that no proper registration of voters was had before the election was held; third, that the election officers did not take and subscribe to the oath prescribed by law. We shall discuss these propositions in the order named.
Section 27, art. 10, of the Constitution (Bunn's Const. § 293) under which the city council is attempting to issue the bonds in question, reads: "Any incorporated city or town in this state may, by a majority of the qualified property taxpaying voters of such city or town, voting at an election to be held for that purpose, be allowed to become indebted in a larger amount than that specified in section twenty-six, for the purpose of purchasing or constructing public utilities, or for repairing same, to be owned exclusively by such city: Provided, that any such city or town incurring any such indebtedness requiring the assent of the voters as aforesaid, shall have the power to provide for, and, before or at the time of incurring such indebtedness, shall provide for the collection of an annual tax in addition to the other taxes provided for by this Constitution, sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof within twenty-five years from the time of contracting the same." The term "public utility," as used in this section of the Constitution, was before this court for construction in State v. Millar, not yet officially reported, but to be found in 96 P. 747. In that case it was held that sewers are public utilities within the meaning of the term as used in the Constitution, and Valley City Salt Co. v. Brown, 7 W. Va. 191, in which the term "public utility" is construed as being synonymous with "public use," was cited with approval. The term "public use" has frequently been defined by the courts in connection with eminent domain statutes and in connection with the provision of the Constitution of the United States, and the provisions found in the Constitutions of most of the states, to the effect that private property shall not be taken for public use without just compensation. A review of the authorities soon discloses that there are two well-defined views as to what constitutes a "public use." One is that a use to be a public use must be a use, or right of use, on the part of the public or some limited portion of it; and the other is that it must be a public benefit utility, or advantage. The latter view we find expressed by Mr. Tiedeman in his work on State and Federal Control of Persons and Property, p. 692, in the following language: "The ever-increasing complications of modern civilization have compelled an application of the right of eminent domain to other than public or governmental uses, and the meaning of the term 'public' was broadened, from time to time, in order to cover these new applications of the right, until now the term is synonymous with the term 'public good."' In Olmstead v. Camp, 33 Conn. 532, 89 Am. Dec. 221, the court defines "public use" to mean public utility, advantage, or what is productive of public benefit. In Seely v. Sebastian et al., 4 Or. 25, the same term was held to mean for the use of many, or, where the public is interested. Other cases holding that a "use" is a public use when it is for the public...
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