Johnson v. City of Muskogee , 194 Okla. 513 ( 1944 )

David E. Johnson, a resident taxpayer of the city of Muskogee, Okla., instituted an action in the district court of Muskogee county against the city, certain of its officers and three banks seeking to cancel certain municipal bonds and to enjoin the sale of these bonds of the city to the banks, and appeals from a judgment adverse to him.

The evidence consists of the records of the city council relating to the matters involved here, certain other printed documents and letters, and the testimony of certain witnesses. The records and printed matter speak for themselves and do not conflict. There is some conflict between the testimony of the witnesses and the documents but not of sufficient weight to affect the law.

The bonds under attack, according to the transcript furnished the Attorney General for his opinion, were issued for the purpose of enabling the city to acquire property for park purposes, an admittedly legitimate purpose under Schmoldt v. City, 144 Okla. 208, 291 P. 119.

From various items of printed evidence, beginning with the letters from various civic organizations in the city that induced the city to begin consideration of the proposition to issue bonds and including the minutes of the early sessions of the city council wherein the matter was considered and discussed, the plaintiff seeks to show that the true purpose of the city in acquiring the land discussed was to own it and to be in a position to offer it to the federal government as an inducement for the enlarging of the federal hospital facilities now located at Muskogee or to establish or locate a new, similar facility. See Reid v. City, 137 Okla. 44, 278 P. 339, and Borin v. City, 190 Okla. 519, 125 P.2d 768.

The trial court made findings of fact and conclusions of law wherein he found contrary to the implications raised by the items of evidence mentioned in the preceding paragraph.

Plaintiff relies on the Borin Case, supra, to establish error in the trial court's ruling. City attempts to distinguish the Borin Case, and relies on the Reid Case, supra, and other Oklahoma cases cited in the decision in that case.

In the instant case, it is true that various civic organizations were of the opinion that the bonds should be voted and lands be purchased near the Veterans Hospital so that if and when the Veterans Hospital should desire to expand its facilities, the land would be available for that purpose, and it is also true that certain city officials were in harmony with this idea, and acted accordingly.

The decisions of this court have been uniform in approving bond elections and bond issues (1) where the purpose was a legitimate municipal function; (2) where that purpose was plainly stated in the election proclamation, and (3) where legal formalities were observed. Extraneous evidence has not been allowed to overcome the purpose expressed in the formal proceedings. This does not mean that constitutional limitations on the use of the money thus raised can be ignored. Those decisions stand for the rule that the purpose stated in the bond election proclamation, manifested elsewhere in the transcript, was accorded the status of good faith. If it should thereafter be attempted to use the money for purposes that were violative of this stated purpose appropriate remedies are available.

We are of the opinion that the reasoning in the Borin v. City of Eric Case, supra, is not applicable to the fact situation in the present case for the reason that in the Borin Case, supra, the records of the city constituting a portion of the transcript affirmatively disclosed the plan agreed upon by which it could be seen that the plan to be carried out differed therefrom, whereas in the present case there is nothing in the records before us to indicate that it is the intention of the city council to use this land in violation of the stated purpose. Section 102, art. 9, Muskogee Charter, provides, in substance, that all property set aside for park purposes can be disposed of only by a vote of the people, and even had there been some indication or discussion proposing, in substance, that the property was to be donated to the Veterans Hospital, the people, under the charter provisions, still retained the right to either approve or disapprove such action. Another distinction between this case and the Borin Case is that the record does not disclose that the Veterans Administration had ever suggested or indicated that its hospital facilities at Muskogee were to be expanded. Therefore, any idea of donating the land to the hospital is speculative.

The city officials at no time submitted any publicity indicating that the hospital would be expanded or that the lands so purchased were to be donated to the Veterans Hospital.

The record before us does not present anything that necessitates a discussion of the effect of the plans discussed for donating this land rather than retaining and using it for a city park. It is true that suggestions were made that the land could or should be acquired under the guise of park property with the reserved and unexpressed intention to later give it away. But it is also a part of the minutes of the early meetings that the city attorney called attention to legal barriers to giving this land away, and advised that he was studying plans whereby a charter amendment could be submitted to be voted on at the same election which would remove such barriers. It is significant that no such proposal was included in the election procedure. Since the city council was advised of these barriers and was told how they could be removed, we cannot assume from this record that the city council chose not to submit directly to the voters the proposition of removing these barriers, but instead submitted the proposition contained in the transcript with a reserved but unexpressed intention to evade the barriers. The presumption required is that of good faith, not the contrary.

It is also contended that the bonds are illegal because the city failed to provide for the payment thereof or the interest thereon, as required by section 27, art. 10, Constitution of Oklahoma. It is argued that the ordinance adopted covering this aspect was not adopted in conformity with the provisions of the city charter. It is pointed out by the city that plaintiff's premise is at fault in the facts recited, and that while the ordinance contains an emergency clause, it was not adopted as an emergency ordinance on the day it was introduced, but was adopted in regular course several days after it was introduced. We think the city is correct in citing and relying on Whitson v. City of Kingfisher, 176 Okla. 145, 54 P.2d 616, even if plaintiff's fact basis had been sound.

The judgment is affirmed.

CORN, C.J., GIBSON, V.C.J., and WELCH, DAVISON, and ARNOLD, JJ., concur. RILEY and HURST, JJ., concur in conclusion.