Excise Board of Cheek County v. Gulf Pipe Line Co.

This is an appeal from a judgment of the Court of Tax Review sustaining the protest of the Gulf Pipe Line Company as to a portion of the levy of Mounds township, Creek county, made for sinking fund purposes for the fiscal year 1929-30.

The items involved are levies made to cover one-third of a judgment against said township dated October 26, 1928, in favor of Arthur P. Johnson — $1,652.55; one-third of a judgment against said township of the same date in favor of A.M. Smoot — $1,762.28; and a levy made to cover interest coupons, commissions to fiscal agencies and one annual accrual of a funding bond issue of said township in the sum of $93,000, dated June 10, 1921.

The judgment sustaining the protest as to the levies to cover the accruals on the bond issue is conceded to be erroneous under the stipulation of the parties and the holding of this court in the matter of the protest of Texas Pipe Line Company,143 Okla. 177, 288 P. 334, and Protest of Gulf Pipe Line Company, 143 Okla. 180, 288 P. 336, and must be reversed and remanded for a new trial.

This leaves for consideration only a levy of .49 of a mill made to cover the one-third of the two judgments mentioned.

This part of the levy is protested upon the ground that the judgments were taken upon warrants issued by said township in excess of the estimate made and approved for the fiscal year in which they were issued, and that no election was held authorizing such excessive indebtedness, and also upon the ground that the alleged indebtedness represented by the warrants was in excess of the five per cent. constitutional debt limit of the township, and that the judgments obtained on said warrants were void. The latter contention was abandoned at the trial. The protest was sustained upon the first ground set out, and the county excise board appeals.

There are ten specifications of error presented under four propositions:

The first proposition is that the court erred in overruling the special appearance and plea to the jurisdiction of the court.

It is first asserted that that the special plea should have been sustained because the protest was not signed by the protestant or any one in its behalf. This particular defect was not called to the attention of the trial court.

In 49 C. J. 485, the rule as to failure to sign pleadings is stated as follows:

"Failure by a party or his attorney to sign a pleading is ordinarily regarded as merely a formal error which may be cured by amendment, even after the jury is sworn, or after judgment. A motion for leave to amend an unsigned complaint is entitled to precedence over a motion to reject the pleading for want of a signature."

A proper way to reach such defect is by motion to strike. 49 C. J. 384.

Failure to sign a pleading, not being a defect in substance, does not render a judgment void. 49 C. J. 582.

If a judgment based upon an unsigned plea is not void, then the matter is not jurisdictional, and a plea to the jurisdiction of the court based upon such defect is properly denied.

It is next urged that the plea to the jurisdiction should have been sustained because the protest did not state facts sufficient to satisfy the requirements of section 2 of Initiative Petition No. 100, by stating "The grounds upon which said irregularities are based." This contention is without merit. Demurrer to the protest is the proper way to reach alleged defects of this nature, and none was filed.

The second proposition is that there is no competent evidence in the record to sustain the finding that the two judgments complained of were void. This proposition may be considered in connection with the third, which is that the judgments were rendered in a court of general jurisdiction, were regular and fair on the face of the judgment roll, and could not, therefore, be impeached by collateral proceedings in the Court of Tax Review.

The judgments alleged to be void were rendered in the district court of Creek county, and were based upon warrants of Mounds township, regular on their face. The petition in the Johnson judgment consists of three causes of action, setting up three separate warrants issued by Mounds township, series 1924-25, one for $23, issued to George Glenn and assigned to A.P. Johnson; one for $30, issued to Garrett Duff and assigned to A.P. Johnson; and one for $274, issued to A.P. Johnson. The Smoot judgment was based upon a warrant of the township for $205, series 1923-24, issued to A.M. Smoot, and a warrant for $1,204, series 1924-25, issued to Arthur Smoot.

The petitions alleged as to each warrant that it was issued upon duly verified claims for work and labor performed by the claimant within the fiscal year for which the warrant was issued; that the contract of employment was within the estimate of the township for road maintenance as allowed and approved by the excise board of Creek county; that although there was a sufficient amount in the estimate for road maintenance for the fiscal year at the time the services were rendered and at the date of the execution of the warrants, said funds were diverted by the township board to the payment of other claims and warrants issued after the issuance of the warrants in question, and the funds provided were thereby exhausted so as to leave nothing with which to pay the warrants. In each case it appears that the county attorney of Creek county filed an answer, setting up the defense that the warrants were illegally issued in that the work and labor for which they were issued was, in fact, performed during the previous fiscal year and not within the year for which the approved estimate against which the warrants were drawn was made, and also alleged that the indebtedness represented by the several warrants was in excess of the five per cent. constitutional debt limit of the county. For some reason not explained, these answers were stricken by the trial court and the township given further time to plead, which was extended from time to time, but no pleadings were ever filed, and at the time the judgments were rendered the township was in default for sometime. No defense whatever was made by the township or its officers.

The court, in each case, as shown by the journal entry of judgment, made and entered its findings, among which are the following:

"The court further finds that each of said amounts so due to the plaintiff is for the items so alleged in plaintiff's petition, and that each of said contracts, as alleged by the plaintiff, were within the estimate as made and approved by the excise board for the respective fiscal years for said township, and that the warrants so issued, as alleged in plaintiff's petition, were valid claims against the said defendant; that the said plaintiff has made all necessary proof concerning the validity thereof; that said plaintiff is the owner and holder of each of said warrants, and is entitled to judgment against said defendants for the amounts above set forth.

"The court further finds that after the execution of said contracts referred to in plaintiff's petition and the issuance of said warrants, as alleged in plaintiff's petition, said funds became exhausted, and that there is not now available, and has not at any time since said dates been available sufficient funds in possession of the township board of said defendant with which to pay said warrants, and that plaintiff is entitled to judgment against said defendant for the amounts so above found to be due."

It thus appears that each petition stated a cause of action against the township, and the trial court specifically found that the respective contracts for work and labor, as alleged in the petition, were within the estimates as made and approved by the excise board for the respective fiscal years, and

"* * * that the warrants so issued, as alleged in plaintiff's petition, were valid claims against the said defendant; that the said plaintiff has made all necessary proof concerning the validity thereof. * * *"

In the Protest of Carter Oil Company, 148 Okla. 1,296 P. 485, the validity of a judgment rendered in the district court was successfully attacked in a proceeding before the Court of Tax Review and upheld by this court. It was there held, in effect, that the judgment of the district court was void upon the judgment roll for the reason that the petition did not state a cause of action, in that there was no allegation that any appropriation had been made for the purposes of purchasing the busses by the school district, or that there was any available appropriation for that purpose. In that case no warrants had been issued by the school district, and the judgments were based upon a claim which had been disallowed, and warrants refused.

An entirely different state of facts is presented in this case. As stated before, the petition alleged a contract of employment within the estimate approved by the excise board for that particular year. An estimate duly made and approved by the excise board constitutes an appropriation. Section 9702, C. O. S. 1921.

The petition further alleged that the work and labor was performed under said contract and within the respective fiscal years, and further alleged that claims had been presented to and allowed by the township board and warrants issued. Copies of the warrants were attached to the petition, and in each instance showed upon the face thereof that they were issued within the estimate made and approved for the fiscal year during which they were issued. The actions were based upon the warrants thus issued and not upon an alleged contract based upon claims filed and disallowed by the board.

In Faught v. City of Sapulpa, 145 Okla. 164, 292 P. 15, it is said:

"Certainly there must be some forum in which the validity of a claim against a municipality may be asserted. Under the Constitution the courts of this state constitute the forum, and under certain circumstances, the federal courts constitute such a forum. The judgment of a court of competent jurisdiction, having jurisdiction of the subject-matter and the parties and jurisdiction to make the particular order made, is, in the absence of an appeal, final and conclusive, subject to be vacated, set aside or held for naught in the manner provided in the Code of Civil Procedure. When such a court renders a judgment in a proper proceeding after the necessary defendants are before the court, that judgment, unappealed from, is final until vacated, set aside, or held for naught in a lawful manner, and is binding and conclusive and cannot be collaterally attacked. That rule is fundamental, and no citation of authority therefor is necessary."

If the judgments here involved are not valid, or if the warrants upon which they were based were invalid, such does not appear upon the face of the record before us, and the judgment may not be defeated or evaded in an incidental proceeding not provided by law for the express purpose of attacking the judgment.

It is argued, however, that answers having been filed by the county attorney, and the judgment roll not showing that they were stricken by the court, no default judgment could be legally taken. The answer to this argument is that the record discloses that the entire judgment roll was not before the Court of Tax Review. There is evidence introduced, without objection, that the court struck the answers, but the order of the court was not introduced and is not in the record.

In Pettis v. Johnston, 78 Okla. 277, 190 P. 681, it is held:

"A judgment is void on its face when its invalidity is affirmatively disclosed by an inspection of the judgment roll, but it is not void in the legal sense for the want of jurisdiction unless its invalidity appears on the face of the record. Edwards v. Smith, 42 Okla. 544, 142 P. 302, followed."

It is asserted, however, that the judgments complained of are void for failure to comply with the provisions of chapter 106, S. L. 1925, the applicable provisions of which are:

"Section 2. Before final judgment in any suit based on contract shall be rendered against any municipality by any court of any county in the state of Oklahoma, except in proceedings to refund any indebtedness of said municipality, proof shall be made to the court of the existence, character and amount of the outstanding legal indebtedness of said municipality, which proof shall include a statement compiled by the various officers having custody of the records from which the information required in the statement is taken, under oath, showing the following:

"1. An itemized statement of the bonded indebtedness of said municipality, exclusive of the bonded indebtedness and the alleged indebtedness proposed to be converted into a judgment.

"2. An itemized statement of the legal indebtedness of said municipality, exclusive of the bonded indebtedness and the alleged indebtedness proposed to be converted into a judgment.

"3. An itemized statement of the indebtedness proposed to be converted into a judgment, so classified as to show, in separate exhibits, all items of questionable legality, if any, and the reasons of said officer or officers therefor:

"(a) The appropriations against which each warrant was drawn or claim accrued if in judgment, and if within the limits and purposes thereof as provided by law;

"(b) The income and revenue provided for the respective years, consisting of taxes levied and the actual collections of 'estimated income'; the total warrants issued against the same or the accumulated accruals as the case may be, and the amount, if any, in excess of the total income and revenue of the year;

"(c) The condition of each fund from which such indebtedness is payable as of the close of the month next preceding the filing of application. * * *

"Section 3. No judgment shall be rendered against any municipality by any court until the provisions of section 2 hereof, have been fully complied with. Any judgment rendered in violation of the provisions of this Act shall be void and of no effect."

In the instant case the judgments were taken upon warrants, and the question arises whether or not the statute referred to is applicable in an action based upon a municipal warrant, and whether or not such an action is an action based upon contract within the meaning of the statute mentioned. We think not. When the township officers employed the respective parties to whom the warrants were issued to perform the work and labor, this was a contract; when the work and labor had been done, the contract had been performed, and had the township board then refused to allow the claims and to issue warrants, and suits had been commenced to recover for the work and labor done and performed, the action would then have been based upon the contracts, and no presumption would exist in favor of the validity of the claims. It would then have been necessary for the claimant to present the proof required by chapter 106, supra, before final judgment could be entered. The reasons for requiring such proof are apparent. It is that the proper officers, having custody of the records showing the condition of the funds out of which the indebtedness is payable, present the information to the court in the manner prescribed by the statute. But where a warrant has been issued, all these things have been done. The warrants show upon their face the amount of the appropriation and the particular fund out of which they are payable, and also show the amount of warrants previously drawn against the fund, the amount of the warrant, and the balance left in the fund. They are signed by the township trustee and clerk and registered by the township treasurer as required by law, and are regarded as prima facie valid.

Municipal warrants are not defined as contracts. In Town of Bithlo v. Bk. of Commerce (Fla.) 110 So. 837, they are defined as follows:

"A warrant is the command of the council, board, or official whose duty it is to pass upon the validity and determine the amount of the claim against the municipality to the treasurer to pay money out of any funds in the city treasury, which are or may become available for the purpose specified, to a designated person whose claim therefor has been duly adjudged and allowed."

The same definition may be found in 2 Dillon on Municipal Corporations (5th Ed.) 1283. The warrant of a municipal corporation is, in fact, only the order of one of its officers upon another of its officers to pay some of its funds to a third person. Hornblower v. Pierre, 241 Fed. 450, 154 C. C. A. 282.

"There is a vast distinction between warrants and bonds. Warrants are mere orders or drafts on the treasurer, payable on presentation when funds are available, or at a fixed date with interest if authorized by statute." Marshall v. State, 88 Fla. 329, 102 So. 650.

Municipal warrants, signed by the proper officer, are prima facie valid and establish prima facie, though not conclusively, the validity of the claims for which they are issued, so as to cast on the municipality the burden of proving a defense of invalidity. 44 C. J. 1169. Hamilton Township v. Underwood,81 Okla. 256, 198 P. 300; City of Sulphur v. State, 62 Okla. 312,162 P. 744. In the latter case, it was held:

"It is a presumption of law that all public officers perform their duty, and in the absence of clear proof to the contrary, this court will refuse to hold that they did not do so in issuing warrants for claims against municipalities."

It is quite apparent that the Legislature did not intend that the provisions of chapter 106, supra, should apply to actions based upon warrants.

However, it further appears that the court, in its journal entry of judgment in each case, specifically found that the plaintiff had made all necessary proof concerning the validity of the warrants. This would include the proof required by chapter 106, supra, if it were necessary. The only evidence that such proof was not produced was the parol testimony of the witness George H. Jennings, who was attorney for plaintiffs in the two suits. We do not think the findings and judgment of a court of general jurisdiction can be impeached in this manner.

The judgment and order of the Court of Tax Review is reversed as to that part thereof relating to the levy made to cover the one-third of the two judgments, and that part thereof relating to the levy to cover interest coupons and accruals on the $93,000 funding issue is reversed and remanded for a new trial in accordance with the stipulation of the parties, and the opinion of this court in Protest of Texas Pipe Line Company and Gulf Pipe Line Company, supra.

CULLISON, SWINDALL, ANDREWS, and McNEILL, JJ., concur. LESTER, C. J., dissents from that part of the decision holding chapter 106, S. L. 1925, not applicable to a suit on warrants, and concurs in conclusion. KORNEGAY, J., dissents, CLARK, V. C. J., and HEFNER, J., absent.