Walker v. Oak Cliff Volunteer Fire Protection Dist.
| Decision Date | 27 March 1990 |
| Docket Number | No. 67839,67839 |
| Citation | 1990 OK 31,807 P.2d 762 |
| Parties | Eugene E. WALKER, et al., Appellants, v. OAK CLIFF VOLUNTEER FIRE PROTECTION DISTRICT; David Rinkenmeyer, John Stelle, David Berlman, and James Perry, individually and as directors and officers of Oak Cliff Volunteer Fire Protection District; Oak Cliff Volunteer Fire Department, Inc., an Oklahoma corporation; Board of Commissioners of Logan County, Oklahoma; Charles Haldik, Vance Kellogg, and Ralph Taylor, individually and as members of the Board of Commissioners of Logan County, Oklahoma; Shirley J. Rothermel, Logan County Treasurer; Logan County Election Board; Dean G. Mackey, Margaret Phillips and Lorray Dison, individually and as members of the Logan County Election Board, Appellees. |
| Court | Oklahoma Supreme Court |
Appeal from the District Court of Logan County; Ray Lee Wall, Trial Judge.
The trial court found that an election creating a fire protection district was valid even though the statutorily required notice had not been given. Two questions are presented on appeal: 1) whether a special election to establish a fire protection district, held without notice, is valid; and 2) if the election is invalid, whether parties contesting an election held to form a fire protection district may seek redress either in law or in equity. We find that: 1) Title 19 O.S.1981 § 901.3 requires that an election to create a fire protection district be preceded by publication notice for two weeks in a newspaper of general circulation in the territory comprising the proposed district; and that special elections held without the statutorily prescribed notice are void; and 2) Although 26 O.S.1981 § 8-109 precludes contesting an election held to form a fire protection district, equity will intervene to cure defects in elections.
REVERSED AND REMANDED.
Allen Mitchell, Sapulpa, for appellants.
Larry Brooks, Asst. Dist. Atty., Jeff L. Hirzel, Guthrie, for appellees.
The dispositive questions presented are: 1) whether a special election to establish a fire protection district, held without the notice prescribed by 19 O.S.1981 § 901.3, 1 is valid; and 2) if the election is invalid, whether parties contesting an election to form a fire protection district may seek redress either in law or in equity. We find: 1) that an election to create a fire protection district is void unless it is preceded by publication notice for two weeks in a newspaper of general circulation in the territory comprising the proposed district as required by 19 O.S.1981 § 901.3; and 2) that equity will intervene to cure defects in elections called to form fire protection districts even though 26 O.S.1981 § 8-109 2 precludes contesting the election.
On December 14, 1982, a special election was held to establish a fire protection district. In December of 1983, the appellants/contestants who reside in Logan County received their ad valorem tax statements increasing the taxes on their property. One of the contestants, Mr. W. had attempted to file a pro se petition with the District Court to have the election declared null and void on June 11, 1984. The trial judge refused to allow the petition to be filed, and advised Mr. W to obtain counsel. Nine months later, on August 14, 1984, the contestants filed an action in district court On September 6, 1984, the Fire Protection District filed a demurrer to the contestants' petition asserting that it contained a defect of parties, and that it failed to state a cause of action. The contestants filed an application with the district court to file an amended petition on December 12, 1984. The amended petition dismissed several named defendants, because they were not personally liable for reimbursement of funds collected or expended by the Fire Protection District. On December 28, 1984, the Fire Protection District filed a motion to dismiss for failure to state a claim. It also alleged that the cause was barred by the equitable doctrine of laches. On March 6, 1985, the trial court denied the contestants' motion to file a second amended petition, and granted the motion to dismiss. The contestants appealed the trial court's decision. On May 13, 1986, the Court of Appeals reversed finding that: 1) no attempt had been made to comply with the notice provisions of § 901.3; 4 and 2) because the motion to dismiss did not present any evidence of laches, the trial court erred in sustaining the motion. The cause was remanded with directions to proceed to trial.
to permanently enjoin operation of the appellee, the Oak Cliff Volunteer Fire Protection District (Fire Protection District), and to account for all funds collected. The contestants alleged that the Fire Protection District had been formed in violation of 19 O.S.1981 §§ 901.1 3 and 901.3. Section 901.1 requires that a petition, signed by twenty-five percent of the title holders within the proposed fire protection district, must be filed with the board of county commissioners. Before an election to form a fire protection district can be held, section 901.3 provides that publication notice of a special election to form a fire protection district "shall " be given for two weeks in a newspaper of general circulation within the territory comprising the proposed fire protection district.
At the hearing on the cause on October 1, 1986, testimony was elicited from a number of witnesses opposing the election. Mr. W, Ms. P, Mrs. V., and Mr. T testified that they were unaware an election had been held until they received their tax assessments--a year after the election. Mr. W testified that on initial inquiry, he was assured by the Election Board, the County Commissioners, and the County Clerk that the election had been advertised and that it was "proper and legal." Once residents of the Fire Protection District became aware of the additional tax, they took action to vitiate the election. Mr. W testified that immediately upon receiving his tax bill, he contacted the District Attorney concerning the inadequacy of signatures on the petition calling for organization of the Fire Protection District. He also contacted the County Clerk and local newspaper for proof of publication. When these sources failed to respond to his concern, he contacted the Attorney General's office. Mr. W spoke with the Minority Speaker of the House who also contacted the Attorney General's office concerning the election's validity.
Community meetings were held beginning in February of 1984, to discuss the alternatives to paying the additional ad valorem taxes which resulted from the creation of the Fire Protection District. Those opposing the Fire Protection District hired an attorney in April. In June, the opponents filed a petition with the Board of It is undisputed that the notice mandated by § 901.3 was not given, and that there was no publication in a newspaper of general circulation before the election. An article concerning the election did appear in the Guthrie Daily Leader on December 13, 1982--the day before the election. Advertisements for ballot bids and minutes of the Logan County Commission meetings were published. The date of the election was included in both the bid advertisement and the minutes which were published on October 21, November 10, 11, 12, and 18, 1982. Establishment of the Fire Protection District was discussed in a social calendar calling for attendance at a fund-raising dance. Members of the volunteer fire department passed out flyers on a house-to-house basis in the Fire Protection District, and these same flyers were sent home with children riding buses in the Fire Protection District.
County Commissioners seeking to withdraw from the Fire Protection District pursuant to 19 O.S.1981 § 901.23. 5 In a letter dated July 29, 1984, the Board of County Commissioners denied the petition, because residents failed to show that the area did not benefit from inclusion within the Fire Protection District
Although it found that these publications were not in compliance with § 901.3, the trial court ruled in favor of the Fire Protection District on December 2, 1986. It found that the attempts at notice were in substantial compliance with the intent of the statute. The election was upheld on the basis that the contestants had failed to prove that the results of the election would have been altered had notice been given. This appeal, the contestants second attempt to protect their right to statutory notice, was filed on December 5, 1986.
TITLE 19 O.S.1981 § 901.3
DISTRICT BE PRECEDED BY PUBLICATION NOTICE FOR TWO WEEKS IN
COMPRISING THE PROPOSED DISTRICT.
The contestants assert that the election must be set aside because they were not given notice of the election. While recognizing that the statutorily required notice was not given, the Fire Protection District argues that, absent proof of fraud or corruption, the election results must stand.
The only "publicity" concerning the election which might conceivably constitute notice to the approximately three thousand voters in the Fire Protection District that their property taxes would be increased if the vote carried, appeared in the Guthrie Daily Leader on December 13, 1982--the day before the election. However, the timing of the article precludes its being considered as a substitute for the required notice. Because the Fire Protection District is located in a rural area, some residents do not receive their paper until the day following publication. Other information relating to the election may be found in advertisements for ballot bids, minutes of Logan County Commissioner meetings, and a social calendar calling for attendance at a fund-raising dance. The advertisements for bids and the publication of minutes were located in the classified portion of the paper. It would be incongruous to consider the...
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