Town of Afton v. Gill

• Decision Date: 28 March 1916
• Docket Number: Case Number: 7588
• Citation: 156 P. 658,57 Okla. 36,1916 OK 393
• Parties: TOWN OF AFTON et al. v. GILL.
• Court: Oklahoma Supreme Court

1916 OK 393

156 P. 658

57 Okla. 36

TOWN OF AFTON et al. v. GILL.

Case Number: 7588

Supreme Court of Oklahoma

Decided: March 28, 1916

Syllabus

¶0 1. MUNICIPAL CORPORATIONS--Public Improvements--Assessment--Constitutional and Statutory Provisions. Section 464 of the Code (Rev. Laws 1910), directing that lateral sewers be paid for by the abutting property owners, is not in conflict with section 27, article 10, of the Constitution.

2. SAME--Bonds--Injunction. Where it is shown that funds derived from the sale of bonds about to be issued will be devoted to unlawful purposes, and where it is further shown that said funds may not properly be applied to the purposes for which they were voted, the issuance of the bonds will be enjoined.

3. INJUNCTION--Subjects of Relief--Discretionary Acts. Although a court of equity will not interfere to control the exercise of the discretion of a board upon a subject within its power, a court of equity will enjoin such board from attempting to do a wrongful act which is entirely outside of the limits of the discretion so confided.

4. MUNICIPAL CORPORATIONS--Bonds--Injunction--Interest of Taxpayer. A resident taxpayer, although he shows no special interest, may maintain a suit to enjoin the issuance of bonds under the circumstances set out in paragraph 2 of the syllabus.

Error from District Court, Ottawa County; Preston S. Davis, Judge.

Suit by H. R. Gill against the Town of Afton and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Geo. P. Glaze, for plaintiffs in error.

S. C. Fullerton, for defendant in error.

BURFORD, C.

¶1 This case, in its final sense, is a suit by a taxpayer and property holder of the town of Afton to enjoin the issuance and delivery of a certain portion of an issue of negotiable coupon bonds of the town of Afton, due in 25 years, which bonds had been regularly and lawfully voted for the construction of a sanitary sewer system. The injunction was sought and granted in the district court upon the ground that it was intended by the town officers to expend the funds derived from the sale of the portion of the bonds, the issuance of which was enjoined, to the building of what were called submain sewers, but which were, in reality, lateral sewers, and further, to expend a portion of said funds for the improvement of the city water plant. These allegations were proved to the satisfaction of the district judge, and the finding in that regard, after an examination of the evidence, we very readily and heartily approve. A temporary injunction was issued, and from such order an appeal has been prosecuted to this court.

¶2 Section 464 of the Code (Rev. Laws 1910) requires lateral sewers to be paid for by the abutting property owners, while main and submain sewers are, as a general rule, to be paid for by the public. The Constitution (section 27, art. 10) permits municipalities, by a vote of the qualified taxpaying voters, to become indebted for the purpose of "purchasing or constructing public utilities to be owned exclusively by said city." It is urged by the plaintiffs in error that, inasmuch as a sewer system is a public utility, as heretofore held by this court (State ex rel. Edwards v. Millar, 21 Okla. 448, 96 P. 747), the laterals are a part of the system, and both main and lateral sewers are to be paid for by the public, and that the act of the Legislature is void. This court has held that section 27, art. 10, of the Constitution is a self-executing grant of power to the qualified taxpaying voters of the municipality voting at a proper election. Being such, the Legislature has no power to improperly limit or abridge the grant. However, the Constitution does not define what shall be a public utility. This court has, in numerous cases, considered the term (State ex rel. Edwards v. Millar, supra; State v. Barnes, 22 Okla. 191, 97 P. 997; Barnes v. Hill, 23 Okla. 207, 99 P. 927; City of Ardmore v. State, 24 Okla. 862, 104 P. 913; Coleman v. Frame, 26 Okla. 193, 109 P. 928, 31 L. R. A. [N. S.] 556; Hooper v. State, 26 Okla. 646, 110 P. 912; Dingman v. City of Sapulpa, 27 Okla. 116, 111 P. 319; Oklahoma City v. State ex rel., 28 Okla. 780, 115 P. 1108), and has in these cases generally held that what was comprehended by section 27, art. 10, of the Constitution, was some utility owned exclusively by the municipality, and which was devoted generally to the public use. Now, although sanitary sewers are a public utility within the meaning of this section (State ex rel. Edwards v. Millar, supra), it may well be that the sewer system referred to in State ex rel. Edwards v. Millar, supra, comprehends only the main and submain sewers, which are devoted to the general use of the public, while the laterals, which are devoted more or less to the private use of a few abutting property owners, are not comprehended within the term "public utility." The act of the Legislature should be upheld, if it can be so construed as to be consistent with the Constitution. There being no definition of public utility in the Constitution, we hold that section 464 of the Code was not intended to require a public utility to be paid for by the abutting property owners, but that it stands as a legislative definition to the effect that a lateral sewer is not a "public utility" Within the meaning of the term as employed in the section of the Constitution above referred to. In this view the act is not, therefore, void.

¶3 Such being the case, there can be no doubt that if the town of Afton intended to apply the money arising from the sale of bonds for the construction of a public utility to a private or unauthorized use, such improper diversion of the funds might have been enjoined. The question arises, however, as to whether or not the issuance of the bonds in such case may be enjoined, or whether the remedy is confined to enjoining the unlawful disposition of the fund after the bonds are issued. Courts of equity may be depended upon not to abuse their own power. Each case must stand upon its own facts. The evidence, as so far adduced in the case at bar, tended to show that the $ 17,500 in bonds, the issuance of which was permitted by the district judge, was amply sufficient for the construction of all the actual main and submain sewers, the construction of which was in contemplation by the city authorities. If this is true, there could be no use whatever for the funds to be derived from the sale of the remaining portions of the bonds, except the unlawful use of paying for a lateral sewer under the guise of mains and submains and improving the water plant. It is apparent that there may be cases in which, although an intended diversion of the proceeds is proved, the issuance of the bonds will not be enjoined. Such a case was City of Tampa v. Salomonson, 35 Fla. 446-486, 17 So. 581. In that case, as in this, the bonds were lawfully voted. It was alleged and proved, however, that the funds to be derived from the sale of the bonds were intended to be administered by a board of trustees, and that the creation of such board of trustees for such purpose was unlawful. The court held, however, that the issuance of the bonds was not to be enjoined, inasmuch as the money might be devoted to the proper purposes, for which the bonds were voted, but that improper persons might be enjoined from expending it, and the proper board required to supervise its disbursement.

¶4 In State of Kansas ex rel. v. Clay Center, 76 Kan. 366, 91 P. 91, the municipality had voted funds for the construction of an electric light plant. It was sought to be proved that the city officials intended to divert the money, but the court held that nevertheless the issuance of the bonds would not be enjoined, as it was lawful to issue them to build a light plant, and that if there were an attempted misappropriation, the courts would then interfere. In that case there was nothing to show that the funds derived from the sale of the bonds might not be properly and advantageously used for the original purpose for which the bonds were voted. In the case at bar, however, so far as the record now shows,...