Thompson v. Haskell , 24 Okla. 70 ( 1909 )

"The Legislature shall provide by general laws for the creation of new counties or altering or changing lines and the equitable division of assets and of liabilities, and the original location of county seats in such new counties. * * * Nor shall any territory be taken from an existing county for any purpose bringing the newly created line of such existing county nearer than ten miles to the county seat thereof. Nor shall the taxable area, population, or taxable wealth of said existing county be reduced below that required for a new county. Nor shall any territory, in any case, be transferred from one county to an existing county, if, by such transfer of territory, the county from which the territory be taken will then be smaller in area than the county to which the addition is made. Provided, that when territory is to be transferred from an existing county to either a new or an existing county there must be sixty per centum of the vote cast in such particular territory in favor of the transfer, and, in case the transfer be to an existing county, the acceptance of such territory must first be approved by a majority of the electors of said county, at an election to be called and held therefor, as may be provided by law."

The first Legislature of the state passed a law carrying into effect said provisions of the Constitution. Sess. Laws 1907-08, pp. 275-279, c. 26, §§ 1-10, art. 1. Section 2 of said act provides that, before any election shall be called as therein provided, there shall be a petition signed by 25 per centum of the qualified electors residing in the territory sought to be created into a new county or transferred to another county, such per centum to be determined by the total vote cast in said territory for the head of the state ticket at the next preceding general election, said petition to be verified by affidavit showing that the petitioners are qualified electors of said territory and are 25 per centum thereof, and such petition shall be filed with the Governor, accompanied by the affidavits of three freeholders, qualified electors of said territory, stating that the change sought to be made will not bring the newly created lines of such existing county nearer than ten miles of the county seat, and that the taxable wealth of said existing county will not be reduced below that required for a new county. Section 3 provides that, when said petition accompanied by the required affidavits shall be filed with the Governor, he shall within 20 days thereafter issue his proclamation calling an election to be held in the territory sought to be detached not less than 30 nor more than 60 days from the date of his proclamation, such election to be held under the provisions of the election laws of the state, and upon such notice as the Governor in his proclamation may direct, and the Governor shall cause to be placed upon the ballots to be voted at such election the metes and bounds of the territory sought to be transferred, and said ballots shall also contain the words. "Shall said territory become a part of __________ [filling in the name of the county to which said territory is sought to be transferred] county?" followed by the words, "Yes," "No." Section 4 further provides that, upon the holding of such election, the board of canvassers shall certify and return said vote to the Governor, as required by law, and he shall within 10 days thereafter declare the result of such election, and, if 60 per centum of the voters at such election vote "Yes," the Governor shall within 10 days after declaring the result of the election issue his proclamation calling an election to be held in the county to which said territory is sought to be transferred, which election shall be not less than 30 days nor more than 60 days thereafter. Section 7 provides for a division of the assets and liabilities, etc. No provision appears to have been made to contest such election. There is some question, however, as to whether or not such election may be contested in chancery, and its powers invoked to restrain the declaring of the result thereof by the Governor. See the following authorities: Dickey v. Reed et al., 78 Ill. 263;Moulton v. Reid, 54 Ala. 323; Gibson v. Board of Supervisors,80 Cal. 359, 22 P. 225; State v. Eggleston, 34 Kan. 714, 10 P. 3; U.S. Standard Voting Machine Co. v. Hobson, 132 Iowa, 38, 109 N.W. 458, 7 L. R. A. (N. S.) 512, 119 Am. St. Rep. 539, 10 Am. Eng. Ann. Cas. 975; State v. Carlson, 72 Neb. 837; 101 N.W. 1004; Hamilton v. Carroll, 82 Md. 326, 33 A. 648;Fletcher v. Tuttle, 151 Ill. 41, 37 N.E. 683, 25 L. R. A. 143, 42 Am. St. Rep. 220; Harris v. Schryock, 82 Ill. 119; Ogburn etal. v. Elmore, 121 Ga. 73, 48 S.E. 702.

The machinery and the procedure for the election for detaching territory from one county and annexing it to another is clearly marked out by the provisions of the Constitution and the enactments of the Legislature. The enforcement and execution of these provisions are committed to the election officers and the governor of the state, all of whom are members of the executive department. With the municipal government of the county, which is the agency of the state in that political subdivision (Frantz et al. v. Autry, 18 Okla. 616, 91 P. 211), not complaining here, when an individual citizen seeks to intervene and invoke the jurisdiction of chancery to do that which the agency of sovereignty has failed or refused to do, he must show that he has a clear and undisputed right to do so. Clearly a party residing in Kiowa county, but not within the proposed detached territory, when there is no contention that such detachment will reduce Kiowa county below the minimum as to population, taxable wealth and area, has no such interest as would enable him to maintain such an action; but has a resident and taxpayer of that portion of Kiowa county proposed to be detached? Is it to be said that to reside within any portion of the state of Oklahoma, relative to the subdivision thereof into counties, works an irreparable injury to a citizen, and operates as an injury in the nature of a private wrong? But it is insisted that the county tax rate of Kiowa county is only two mills, and that it is eight mills in Tillman county. It is to be assumed and presumed, however, that taxes are only levied for benefits, and thereby are not burdens; that the citizens derive reciprocal benefit therefor quid pro quo. 1 Cooley on Taxation (3d Ed.) p. 27. And there is no special allegation to overcome such assumption and presumption. In the case ofKellogg v. School District No. 10 Comanche County,13 Okla. 285, 74 P. 110, It is held that injunction at the suit of a taxpayer is the proper remedy to restrain a school district from contracting for or constructing schoolhouses at unauthorized places, and irregularly and wrongfully contracting liabilities which the district would be liable for and the taxpayers required to pay, being in accord with the rule laid down in Crampton v. Zabriskie, 101 U.S. 601, 25 L. Ed. 1070, wherein the right of taxpayers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of a county or illegal creation of a debt which they, in common with other property holders of the county, may otherwise be compelled to pay, is recognized and declared to be the rule of the state courts in numerous cases. But in this case the relief sought is to prevent the detachment of a subdivision of Kiowa county and the annexation of the same to Tillman county. In the petition of complainants it is alleged for the purpose of showing a right to maintain this action that the county tax rate in Kiowa county is two mills, and that in Tillman county it is eight mills; but that does not bring the complainants within the rule of Kellogg v. School District No. 10, supra. There the question was the creation of an unauthorized debt, for which the complainant, as a taxpayer, would be liable.

The case at bar is a question relative to the creation of or addition to, or subtraction from political subdivisions; it being insisted that the county tax rate in the former county is less than that of the county to which the annexation is to be made. But it appears from the record that there are no bridges or public improvements in that area sought to be detached, and it is expected, if it is annexed to the other county, that there will be such public improvements made. Taxes, as a rule, are levied in accordance with legal authorization for benefits that have legally accrued or are legally accruing. The detaching of a part of the territory from Kiowa county and the annexation of it to Tillman county is strictly a political act. There are no allegations in the petition of any request made on the county attorney or proper county officers to institute the proper action to test or contest this election, or any refusal so to do. The rule is announced in the case of Craft v. JacksonCounty Commissioners, 5 Kan. 518, that for wrongs against the public, where actually committed or only apprehended, the remedy, whether civil or criminal, is by a prosecution instituted by the state in its political character, or by some officer authorized by law to act in its behalf, or by some of those local agencies created by the state for the management of such of the local affairs of the community as may be intrusted to them by law; that the individual citizen does not in his own name interfere in behalf of the interests of society, but society acts through and by its properly constituted agencies. The law as a general principle has not deemed it proper that offenses or grievances of a public character should be investigated at the suit of a private individual, nor that the officers to whom important trusts have been confided should be held liable for their acts to any one. When those acts affect every one alike, such officers are as amenable as private citizens for any abuse of their authority. If the injury is one that peculiarly affects a person, he has his right of action. If it affects the whole community alike, their remedy is by proceedings by the state through its appointed agencies.

In the case of Stiles, Treasurer, v. City of Guthrie,3 Okla. 39, 41 P. 388, the court said:

"When considering this question, however, as applied to the right of a private citizen to maintain an action where his own separate and distinctively private interests are not involved, the Supreme Court of Kansas has uniformly held under our Code that a private person cannot, by virtue of being a citizen and taxpayer, maintain an action against public officers where the act complained of affects only the interests of the public in general, and not those of a private person in particular.Nixon v. School District, 32 Kan. 510, 4 P. 1017; Craft v.Commissioners of Jackson Co., 5 Kan. 518; Bobbett v. State exrel. Dresher, 10 Kan. 9; Turner v. Commissioners of JeffersonCo., 10 Kan. 16; Bridge Co. v. Commissioners of Wyandotte Co.,10 Kan. 326, 331; State ex rel. v. Commissioners of JeffersonCo., 11 Kan. 66; Miller v. Town of Palermo, 12 Kan. 14; A., T. S. F. Ry. Co. v. State, 22 Kan., 1-13."

The case of Kellogg v. School District No. 10, supra, does not appear to go to the extent of permitting private individuals to restrain public officers to correct purely public wrongs, but to restrict the right of a private individual to that class of cases which involve the creation of debts illegally against, or the wrongful expenditure of moneys of, the taxpayers. The Kansas rule was to the effect that one taxpayer could not enjoin a tax levied against another taxpayer; that each must sue for himself, either in an action brought by himself alone or in an action brought by himself and others with a like interest. And this appears to be the rule recognized in the case of Stiles,Treasurer, v. City of Guthrie, supra; but the case of Kelloggv. School District No. 10, supra, seems to have extended this rule so as to permit a taxpayer to maintain an action to prevent the levying of a tax unauthorized, or the disposition of public funds other than as authorized by law.

Under the Kansas rule, as indicated in Stiles, Treasurer, v.City of Guthrie, for what purpose could the complainants have maintained this bill? Is there anything unauthorized to be restrained or prevented that would work a hurt or irreparable injury in law to them? If this township is detached from Kiowa county and annexed to the other county, will any tax be imposed upon them other than in strict accord with, and as authorized by law? If not, how will it work any hurt or irreparable injury to them? It may be, as alleged, that the county tax rate in said township in Kiowa county is only two mills, and that, when annexed to Tillman county, it will be eight mills. But, if the levies are not authorized and are unlawfully made, as taxpayers, in the event they become residents of that county, they will have adequate remedies for protection. And it is to be assumed that in Tillman county, with a tax levy of eight mills for county purposes, they will have bridges and public improvements commensurate with the burdens they bear. When a party seeks the intervention of a court of equity to stay the administration and execution of the law by the executive department of state, he must bring himself clearly within the rule, and show an irreparable injury or otherwise a clear right thereto, before equity will lend its strong arm to stay the administration or work of the co-ordinate branch of government.Noble State Bank v. Haskell et al. 22 Okla. 48, 97 P. 609. It does not appear that the complainants herein have the capacity to maintain this action. As to whether or not, had this action been instituted by the proper law officer of the proper political subdivision under proper allegations, relief should be afforded in equity, we now refrain from expressing an opinion.

The judgment of the lower court is affirmed.

Kane, C. J., Hayes and Turner, JJ., concur; Dunn, J., dissents.