# Porter v. Oklahoma City

> Supreme Court of Oklahoma · October 22, 1968 · 446 P.2d 384

URL: https://www.frixlaw.com/law-library/cases/9534244

## Case

- **Full name:** William T. PORTER, Plaintiff, v. OKLAHOMA CITY, a Municipal Corporation; James H. Norick, Mayor of the City of Oklahoma City; Patience Latting, John N. Smith, H. T. Moran, Dr. Harry L. Deupree, Bill H. Bishop, Ben Franklin, A. L. Dowell and Rowe Cook, Members of the City Council; Mr. S. Dale Rorem; The Oklahoma Taxpayers Association, Inc.; Honorable Fenton R. Ramey, District Judge; The District Court of the Seventh Judicial District of Oklahoma; Honorable Clarence M. Mills, Judge of Said Seventh Judicial District; And Albert Harold Johnson, Jr., Defendants
- **Court:** Supreme Court of Oklahoma
- **Decided:** October 22, 1968
- **Citations:** 446 P.2d 384
- **Precedential status:** Published
- **Opinion:** Concurring in part by Hodges
- **Judges:** Hodges, Lavender, Jackson, Irwin, Davison, Williams, Berry, McInerney
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9534244

## Opinion text

HODGES, Justice,
(concurring in part and dissenting in part).
I concur in all matters and issues promulgated by the majority opinion, except that part which denies the application for a Writ of Certiorari.
The case of S. Dale Rorem, an individual and Oklahoma Taxpayer’s Association v. Oklahoma City, Case No. 183,721, District Court of Oklahoma County, has been adversely decided against the applicants by the trial court, and is presently in the process of appeal to this court.
The Rorem case and the present case both involve the same subject matter, facts and issues. Due to the urgency for a prompt determination, and for the protection of the rights of all parties concerned, and affected thereby, this court should under its superintending authority grant a Writ of Certiorari ordering a review of the record in the Rorem case and consolidating the matters therein presented in the present case for an immediate determination.
SUPPLEMENTAL OPINION
LAVENDER, Justice.
Subsequent to our opinion of October 11, 1968, an action was filed in the district court of Oklahoma County, Oklahoma, entitled, Albert Harold Johnson, Jr., Plaintiff v. The City of Oklahoma City and the same officers of said municipal corporation who are defendants in this proceeding. The action brought by Mr. Johnson is case No. 184,477 in said district court and shall be hereafter referred to as the “Johnson case” or by its district court number. Responsive to an application by the defendants in this proceeding, an Order to Show Cause was directed to said Johnson and to the Hon. Clarence Mills, Presiding Judge of the 7th Judicial District of the State of Oklahoma to appear in this court and show cause why the district court suit should not be dismissed and the plaintiff therein and the judge of said court be enjoined and prohibited, respectively, from further proceeding in said matter in view of this court’s opinion upon what appeared to be the same issues involved in the district court action. The parties were directed to appear on the 15th day of October, 1968, at 1:30 o’clock P.M.
On the 14th day of October, 1968, the defendants in this proceeding filed a Motion *393 in which it was requested that S. Dale Rorem; The Oklahoma Taxpayers Association, Inc.; The Honorable Fenton R. Ram-ey, District Judge of the Seventh Judicial District, as well as the above named Albert Harold Johnson, Jr. and the Honorable Clarence M. Mills be made parties defendant herein. In said Motion it was recited that both of the judges have entered their general appearances in this proceeding. According to the certificate attached to said Motion, a copy thereof was mailed to all of the last named persons.
Thereafter, on the 15th day of October, 1968, the defendants and the parties sought to be made additional defendants all appeared before this court, and a hearing was held at the conclusion of which, this court informed S. Dale Rorem and Albert Harold Johnson and the Oklahoma Taxpayers Association, Inc. that it appeared that the issues in Mr. Johnson’s district court suit, as well as the issues in district court case No. 183,721 (which involved Mr. S. Dale Rorem and the Oklahoma Taxpayers Association, Inc. as plaintiffs) were the same issues determined by this court’s opinion of October 11, 1968, and that if such were the facts that in the interest of preserving the integrity of this court’s opinion upon those issues, the court might enjoin the parties from proceeding further in said district court suits and prohibit the respective judges and the court in which said proceedings were pending from proceeding further in said matters. Whereupon Mr. Johnson, through his attorney of record, asked permission to introduce evidence for this court’s consideration upon the question and for that purpose this court designated one of its Referees to hear any and all of such evidence and to submit same to this court by a typewritten transcription of such testimony as may be adduced. Mr. S. Dale Rorem and the Oklahoma Taxpayers Association, Inc. was invited by the court to also produce at that hearing any evidence that they might have upon the issue to be determined.
Thereafter, on the 16th day of October, 1968, at 9:30 A.M., the Referee commenced hearing testimony and upon the conclusion thereof a transcript of the evidence was submitted to this court.
Thereafter, after this court had studied the record of evidence adduced, it issued its order wherein S. Dale Rorem; the Oklahoma Taxpayers Association, Inc.; the Honorable Fenton R. Ramey, District Judge; and the District Court of the Seventh Judicial District of Oklahoma; and the Honorable Clarence M. Mills, Judge of the said Seventh Judicial District; and Albert Harold Johnson, Jr., were made parties defendants in this matter. Said Order, which was issued on the 18th day of October, 1968, further stated that “ * * * the court is of at least the tentative opinion that the evidence adduced at said hearing was not sufficient to establish any new or different grounds for declaring the bond election invalid other than those same issues and grounds discussed (in the opinion).” All of the parties were further directed to file briefs in this proceeding not later than 1:30 P.M., October 21, 1968, addressed to the question of why, in view of the circumstances, this court should not prohibit and enjoin all further proceedings in the two district court actions.
The only party defendant who has filed any response to this court’s order of October 18, 1968, were the defendants S. Dale Ror-em, individually, and The Oklahoma Taxpayers Association, Inc. The instrument filed by these defendants was entitled a “Motion” and it contested this court’s statement contained in the original opinion of the city’s contention that if these bonds were not sold and delivered on the dates agreed upon, additional interest cost would result in more expense to the city. Defendants Rorem and Taxpayers Association argue now that no evidence of such increase in interest rates has been shown. We fail to see how, or in what respect, the failure to adduce such evidence could affect the issue mentioned in our October 18 order and to which the said parties were directed to brief — namely, whether the evidence adduced at the hearing before the Referee disclosed issues not determined by this court’s *394 October 11 opinion. We are not concerned —at this juncture of the case — with why this court assumed original jurisdiction in the first instance, rather than leaving the parties to their district court remedies. The contention was made — prior to our original opinion' — and accepted by this court that increased costs would result to the city if speedy disposition of the matters was not made. No contest of that contention was then made and we were justified in assuming the correctness of it. Regardless, however, of whether the interest rate is in fact declining or increasing, we take judicial notice that the costs of the projects, for which these bond funds are to be obtained, is steadily increasing and that further delay could very well increase the cost of the projects to the taxpayers of Oklahoma City. The remainder of the defendants’ “Motion” is concerned with argument as to the sufficiency and effect of the evidence adduced at the hearing before the Referee.
Before discussing that evidence in detail, however, we pause to note that in this proceeding on the 18th day of September, 1968, at a hearing before this court, Mr. S. Dale Rorem and the Oklahoma Taxpayers Association, Inc., were invited to join in this original proceeding and to stipulate upon the issues to be determined. They were further authorized at that time to file briefs in this matter. This was, of course, long prior to the promulgation of our opinion. The defendants declined to do so, as of course was their right. Again, as we have referred to, Mr. Rorem and the corporate defendant were invited by this court to produce evidence before this court’s Referee bearing upon any claim of invalidity in the bond proceedings involved in our opinion. Not only did these defendants not produce any evidence at the hearing, but they declined again to appear either in person or by counsel. Notwithstanding the failure of these parties to appear they were, by this court’s order of October 18, again given the opportunity to file a brief in this matter. The “Motion” above referred to was filed instead.
We also wish to point out that in our opinion of October 11, 1968, we inadvertently referred to Series “A” Fire Station and Fire Equipment Bonds of 1968 of said City dated October 1, 1968, in the aggregate principal amount of $365,000.00. Such bonds were not involved in the July 16, 1968, election and should not, therefore, have been mentioned in the opinion. All reference to such bonds in our original opinion is therefore withdrawn. We further notice that the thirty day period in which a contest may be filed of the Bond Commissioner’s approval of the bonds herein involved, as provided by Tit. 62 O.S. 1961 , § 13, has now expired.
Considering now the evidence which was adduced before the Referee, we find that three persons testified in behalf of the plaintiff, Mr. Johnson. The first of these was an employee of the company which printed the certificate-tally sheets so referred to in our opinion and which (the witness stated) were printed after the proofs had been approved by an employee of the election board. We fail to see the significance of this testimony as we have heretofore held that “ * * * the will of the people, as indicated by this vote at such election, cannot be defeated by irregularities (particularly those resulting from some act or acts on the part of election officials) which are not sufficient to change the results of the election.”
The next two'witnesses were Mrs. Mc-Elroy and a Mrs. Lapp. The first witness stated she checked some precincts and discovered a difference in the total votes as shown on the “public counter” on the voting machine as compared with the total signatures on the voters’ book. This is the book or voters’ list kept in the polling place during the voting and in which each voter signs his or her name when they come in to vote. The witnesses testified they did not check the votes cast for or against any one of the propositions or for or against all of them in any one precinct. They simply counted the signatures of the voters and compared that total with the total “official” *395 vote tallied for that precinct. Mrs. McEl-roy testified that of the precincts she or her helpers checked there were from one to forty more votes shown on the total official tally than there were signatures on the voters’ book or list. The votes of various precincts were described in detail. In addition to this “irregularity” the witness testified as to nine persons, whom she named, who voted but who were not registered voters in the precinct in which they voted — that is to say, these persons names were not typed on the prepared voters’ lists or book, but were written in — apparently by the voter when he or she voted. These were the only “irregularities” or variances noted by the witnesses and although they stated they had not completed their “investigation” of the election, they admitted nothing else had been checked since September 13th. The witness further stated that she did not know whether any of the “extra” votes were cast for or against the propositions.
Mrs. Lapp testified in corroboration of Mrs. McElroy concerning the matters above mentioned. Mrs. Lapp further testified as to what she called “irregularities.” These consisted of her observing the election officials in her precinct ask voters if they had tax receipts. The voters would answer yes and pull some papers out of their pockets and the officials did not “check” these papers; and that she asked Mr. Newman (Secretary of the Oklahoma County Election Board) to keep the voters’ affidavits so she could check them and he told her that they didn’t “keep those things.”
Mr. Newman, for the defendant City, testified that the affidavits mentioned by Mrs. Lapp are in storage and available, but that no one has requested to see them. He further testified that they were not stored until a few days prior to the hearing and that they were readily available to Mrs. Lapp or Mrs. McElroy prior to that time. This witness further stated that the “total votes cast” is obtained from the public counter device on the voting machine and that each time the curtain is opened by activating a lever on the machine one more number is added to the counting device and that it was entirely possible that one more such number could be added without any actual votes being cast on the propositions. He gave as an example, the situation not uncommon according to him, where a voter might sign the book, enter the booth and pull the curtain, then decide that he is not going to vote on any (or only on one or two) of the propositions. When such a voter opens the curtain to leave the booth, one vote is added to the counter (which later appears in the total votes cast or tallied for that precinct) and it is entirely possible that the voter did not vote at all on one or more of the propositions. Mr. Newman further testified that the voter registration book furnished the precinct contains the names of the voters registered in that precinct as of a day or so prior to the election. Regardless of whether a voter’s name appears on the registration lists, he is permitted to vote on his Voter’s Identification Card and upon his signing the affidavit. Other instances were noted where a person may only recently have registered with the precinct registrar and that person may not have forwarded the voter’s name into the county election board offices.
Regarding the so-called “differences between the number of signers on the registration book and the total votes counted in the precinct, Mr. Newman stated that in order to determine if there is in reality any such difference or the extent of it, one must count not only the names appearing in the registration book, but must also include the affidavits of those whose names are not typed in — he pointed out that notwithstanding the precinct officials are instructed to add the signers of the affidavits to the voters’ list, sometimes this is not done and in those instances one can only obtain an accurate comparison by considering the signatures in the book plus the affidavits and compare this total with the total appearing on the counter at the end of the day. He testified that he did this in connection with three of the precincts found by Mrs. McElroy and Mrs. Lapp to reflect *396 a large “extra” unauthorized vote and the “differences” disappeared. In other words, the total of the voters who signed the book plus those who signed affidavits equalled exactly the total of the number appearing on the counter.
We have carefully and completely reviewed all of the evidence in the record made before the court’s Referee and based thereon we are of the opinion and hold that the evidence of irregularity in the conduct of the election and/or on the part of the election officials is not sufficient within the rule expressed by this court in the fourth paragraph of the syllabus in our October 11, 1968, opinion to invalidate the election or to render ineffective the approval of the propositions made by the voters. We are of the view therefore that the issues in the district court suits are or were identical with the issues determined by this court in its October 11, 1968, opinion.
It is a rule of this jurisdiction that where this court has once determined the issues arising out of a transaction the same issues may not thereafter be presented to a court of lesser jurisdiction where the probable result of such subsequent litigation would be an intolerable conflict between this court’s opinion and the decision of the court of lesser jurisdiction. We believe such rule to be well founded and conducive to orderly procedure in the administration of justice. See Oklahoma Turnpike Authority v. District Court of Lincoln County, 203 Okl. 330 , 222 P.2d 514 .
We are of the view that to refuse the requested relief of prohibition and injunction against the maintenance of the district court suits, under the circumstances as reflected by this record, would work a great wrong against the taxpayers and citizens of the City of Oklahoma City and in effect would result in a denial of justice to them. We believe that under the authority of cases such as State ex rel. Freeling v. Ross, 76 Okl. 11 , 183 P. 918 , and Clark, Highway Comm’r v. Warner, County Clerk, 85 Okl. 153 , 204 P. 929 , we are justified in granting extraordinary relief in the premises.
Therefore in order to make this court’s prior opinion wholly effective (see State ex rel. Trapp v. Chambers, 96 Okl. 78 , 220 P. 890 , 30 A.L.R. 1144 ), it is Ordered and Adjudged that the Hon. Fenton R. Ramey, Judge of the Seventh Judicial District and the District Court of said judicial district be prohibited from proceeding further in case No. 183,721 wherein S. Dale Rorem and the Oklahoma Taxpayers Association, Inc. are plaintiffs and it is further Ordered, that as an incident to the granting of prohibition, the said parties plaintiffs in said proceeding and who are parties defendants in this proceeding be and they are hereby, perpetually enjoined from continuing further with said action, either in the said district court or by appeal from that court to this court.
It is further Ordered and Adjudged that the Hon. Clarence M. Mills, Judge of the Seventh Judicial District and the District Court of said judicial district be prohibited from proceeding further in case No. 184,-477 in which Albert Harold Johnson, Jr. is the plaintiff and, it is further Ordered, as an incident to the granting of the writ of prohibition, that the said plaintiff in case No. 184,477 be perpetually enjoined from continuing to maintain said action or from in any way proceeding further with the same.
All the Justices concur.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9534244. Public record. Not legal advice.