Sublett v. City of Tulsa

• Decision Date: 11 May 1965
• Docket Number: No. 41338,41338
• Parties: John W. SUBLETT, Plaintiff, v. The CITY OF TULSA, Oklahoma, a municipal corporation, et al., Defendants.
• Court: Oklahoma Supreme Court

Page 185

405 P.2d 185 1965 OK 78 John W. SUBLETT, Plaintiff,
v.
The CITY OF TULSA, Oklahoma, a municipal corporation, et
al., Defendants. No. 41338. Supreme Court of Oklahoma. May 11, 1965.
As Corrected May 19, 1965.
As Amended on Denial of Rehearing June 8, 1965.

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Syllabus by the Court

1. A constitutional amendment should be construed in the light of its purpose and given a practical interpretation so that the plainly manifest purpose of those who adopted it may be carried out.

2. The governmental character of public ports, piers, wharves, etc., as well as rights in navigable waters and landing places is a matter upon which the sovereign is free to legislate. The interests of the people in navigable waters and commerce over them, with the right to make improvements by erection of ports and terminal facilities is regarded as creating a duty upon the State, or a municipal corporation which acts in relation thereto, to develop facilities for benefit of the people.

3. The character of the use required to establish a public use, or purpose, sufficient to support exercise of the right of eminent domain by a municipal corporation need not be the use or benefit of the whole public or state, or a large portion, but may be for inhabitants of a restricted locality; such use and benefit must be in common, but not to particular individuals or estates.

4. An ordinance enacted under authority of Const., Art. X, Sec. 35 which proposes to refer to qualified tax-paying voters of the city the question of issuance of limited tax general obligation bonds to provide funds for securing and developing industry near the city, by acquisition of land and construction of port facilities and industrial park, by exercise of right of eminent domain, as well as purchase, sufficiently specifies the purpose of the proposed bond issue and does not violate Const., Art. X, Secs. 16 and 17.

5. Where the Constitution and State laws exempt all property of municipal corporations within the State from taxation, such property is exempt therefrom without regard to the character of the use, and the fact that certain property may be used by private corporations does not abrogate Const., Art. X, Sec. 5.

6. Bonded indebtedness is incurred within the meaning of Const., Art. X, Sec.

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26, when the bonds are voted, issued, approved and delivered, and not when the bonds are executed or dated.

7. Provisions of the charter granting the defendant city the right to contract and be contracted with, and to hold, manage and control real property for public use includes the power to lease property owned by the city.

8. Const., Art. XVIII, Sec. 3(a), authorizing cities of more than 2,000 population to frame a charter for its own government, not in conflict with the Constitution and laws of the State, reserves to the State a general legislative control in the State over such cities, and the general laws of the State pertaining to any rightful subject of legislation of general public concern, which conflict with any charter provisions of such municipalities, prevail over such charter provisions.

9. Where city charter of defendant is interpreted as granting authority to lease real property acquired by purchase or by right of eminent domain, the city may lease public utilities, wisdom of the transaction being a legislative function, and not matter of judicial inquiry.

10. Const., Art. X, Sec. 35, is self-executing and to be given a practical interpretation to carry out the manifest purpose expressed by its adoption, and clearly authorizes the acquisition of land and construction of facilities thereon in order to secure and develop industry.

11. Both Secs. 27 and 35 of Art. X of the Constitution provide methods for a charter city to construct public utilities, and Sec. 35 only provides an additional means of financing a utility which is proposed as a means of industrial development.

12. The word 'near' as used in Sec. 35 is not a legal term and has no precise meaning as applied to space or distance; it is a relative term depending for signification upon subject matter in relation to which it is used and the circumstances under which it becomes necessary to apply it to surrounding objects or localities, and may be used to denote distances which within themselves differ widely.

13. Const., Art. X, Sec. 35, makes no requirement that proceeds of bonds of municipal corporations as herein proposed must be spent only within county wherein city issuing such bonds is located.

14. 11 O.S.1961, Sec. 563, grants municipal corporations express authority to exercise the right of eminent domain outside the corporate limits for acquisition of sites and right-of-way for public utility.

Original action by plaintiff, for himself and other qualified taxpayers of defendant city, seeking writ of injunction to enjoin defendants from submitting ordinance no. 10051 to a vote of the people in an effort to authorize issuance of bonds for purposes stated in ordinances. Writ Denied.

John W. Sublett, pro se, Tulsa.

Charles E. Norman, City Atty., Paul H. Johnson, Asst. City Atty., John Robert Seelye, Asst. City Atty., Tulsa, for defendants.

BERRY, Justice.

Plaintiff, individually and in behalf of all tax-paying voters of the City of Tulsa similarly situated, brings this proceeding asking this Court to assume original jurisdiction by granting Writ of Injunction. Relief is sought against the named defendants, enjoining each from acting in his individual and official capacity in respect to the matters herein summarized. Only questions of law relating to welfare and right of taxpayers of the City are involved, the pertinent facts involved having been stipulated. Jurisdiction is sought to be invoked under the authority of this Court to exercise superintending control over matters which are publici juris, and wherein time is of the essence as revealed by the pleadings and stipulations filed. Const., Art. VII, Sec. 2; Meder v. City of Oklahoma City, Okl., 350 P.2d 916; McVickers v. Zerger, Okl., 389 P.2d 977.

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The defendant City is a municipal corporation operating under a charter form of government, the individually named defendants being duly elected officials who constitute the governing body. Pursuant to authority granted under Const., Art. X, Sec. 35, such officials adopted and approved Ordinance No. 10051, on December 29, 1964. The terms of the ordinance provided calling an election to submit the question of issuance of $2.5 million of limited tax general obligation bonds under Sec. 35, supra. Plaintiff brought this action to enjoin further proceedings in this proposed bond program.

As early as 1832 the Congress authorized a project for improvement of the Arkansas River (Rivers and Harbors Act, July 3, 1832). Consistently since that time the Congress has continued to extend authorization for improvement of the river channel. Most of this work has been confined to the portion of the river downstream from the confluence of Grand River, the principal improvements having been accomplished downstream from Ft. Smith, Arkansas. Subsequent to congressional authorization (Rivers and Harbors Act, 1935, Public Law 409, 74th Cong. H. R. 6732, 49 Stat. 1028), extensive surveys were conducted to ascertain feasibility of plans to improve the river and certain tributaries in Arkansas and Oklahoma.

Based upon these studies the Congress in 1945 acted upon the plans and recommendations, authorizing plans to improve the Arkansas by an extensive, coordinated construction and development of facilities for flood control, production of hydroelectric power, and to make the river navigable in Arkansas and Oklahoma. By appropriate legislation the Congress provided for a series (19) of locks and dams over 450 miles of the river, together with the requisite complement of installations upon various tributaries.

Included within the overall plan of development is a navigation channel nine feet deep from the mouth of Bird Creek, above Catoosa, Oklahoma, down the Verdigris River to the confluence with the Arkansas, and thence to the Mississippi River. Present plans encompass opening of the coordinated river system to navigation by barge traffic to the Town of Catoosa, adjacent to the City of Tulsa, by 1970, as all major installations presently are under construction, and those upon essential tributaries have been authorized. Unquestionably, completion of the river development plan and opening of the inland area to industrial nevigation will provide tremendous impetus for extensive growth and development of the entire Arkansas River Valley. Being the northernmost terminus of the system and the largest city on the Arkansas, the City of Tulsa necessarily will be an integral part of the development, and enjoy the benefits to be derived. A specially prepared analysis of the economic impact upon the area affected by development of the Arkansas-Verdigris Rivers Navigation System is one factual basis of the present application. The nature, types and amounts of commercial traffic to be handled through the Port of Catoosa is disclosed. Benefits which will accrue to the area contiguous to the port, as well as to the seven-state area within the sphere of the port's influence are readily definable. No doubt exists as to the ultimate economic benefits to be settled upon the affected inland portion of this country.

The original recommendation of the Arkansas River Survey Board was for construction of the project at federal expense, provided local interests should bear the expense of adequate terminal and transfer facilities for navigation. In House Document No. 758, 79th Congress, Second Session, p. 71, the analysis of economic justification states:

'122. Should navigation improvements be authorized for construction, local interests should be required to provide adequate terminal and transfer facilities, and to bear the increased cost of maintenance and operation of all altered rail and highway routes...