Jurisdictional Statement — State of Illinois v. State of Indiana

INDEX

Sussect Inpex

Statement as to jurisdiction

Statutory provisions sustaining jurisdiction

Dates of judgment and oasaninee for appeal

Statement of case ...

Question presented .....

Cases believed to sustain jurisdiction

Appendix—Opinion of the Supreme Court of the

State of Oklahoma |

Tas.e or Cases CirTep

First National Bank v. Anderson, 269 U.S. 341

RFC v. Beaver County, Pa., 328 U. 8. 204

U.S. v. Chavez, 290 U. S. 360...........

Statutes Cirep

Act of Congress of June 16, 1906, 34 U. S. Stats. at

Large, pages 267-278, Section 21 BED SS LORCA:

Oklahoma Statutes, Volume 11, 41, sections 482 and

ESR Re em eR Macia rr yt No Faye e

United States Code, Title 28, Section 1257 (2)

—472

_

_—

oro

3, 4

b>

IN THE SUPREME COURT OF THE STATE

OF OKLAHOMA

No. 34,166

A. W. PALMER, Puarytirr, anp PUBLIC SERVICE

COMPANY OF OKLAHOMA, a Corporation, IyTeErR-

VENOR, Plaintiffs in Error,

vs.

TOWN OF SKIATOOK, a MuvnicrpaL Corporation,

ET AL.,

Defendants in Error

Leave is hereby granted to file this 24 day of August,

1950. Denver N. Davison, Chief Justice.

STATEMENT OF BASIS OF APPELLATE

JURISDICTION

The following is a statement of the basis on which Appel-

lant contends the Supreme Court of the United States has

jurisdiction to review on appeal the judgment appealed

from, as required by Supreme Court Rule 12.

Pursuant to Supreme Court Rule 12 (Paragraph 1, Public

Service Company of Oklahoma, a corporation, the above

named Appellant, files this its statement particularly dis-

closing the basis on which it contends that the Supreme

2

Court of the United States has appellate jurisdiction to

review on appeal the judgment of the Supreme Court of the

State of Oklahoma appealed from, as follows:

1

The statute believed to sustain appellate jurisdiction

is 28 U. S. Code, Section 1257, Subdivision 2, which pro-

vides :

‘*Final judgments or decrees rendered by the highest

court of a State in which a decision could be had, may

be reviewed by the Supreme Court as follows: (2)

By appeal, where is drawn in question the validity of a

statute of any State on the ground of its being repug-

nant to the Constitution, treaties or laws of the United

States, and the decision is in favor of its validity.”’

2

The judgment appealed from was entered May 23, 1950,

as appears from the decision of the Supreme Court of the

State of Oklahoma appearing at unnumbered Pages 180

to 194 of the typewritten transcript being prepared for this

appeal and became final July 18, 1950, upon the order de-

nying the petition for rehearing as shown by such order

appearing at unnumbered Pages 198 to 198 of the type-

written transcript being prepared for this appeal.

3

The petition for an order allowing an appeal was pre-

sented to the Honorable Denver N. Davison, Chief Justice

of the Supreme Court of Oklahoma August 1, 1950, and

such petition was denied on that date and was thereafter

presented to a Justice of the Supreme Court of the United

States and was allowed on August 24, 1950, as shown by such

order appearing at unnumbered Pages 210 to 213 of the

typewritten transcript being prepared for this appeal.

ae

The appeal herein is from a decision of the Supreme

Court of the State of Oklahoma affirming a judgment of the

District Court of Tulsa County, Oklahoma, in a civil action

involving both legal and equitable issues relating to the

validity of bonds sought to be issued by the Town of Skia-

took, Oklahoma. Such bonds are attacked by appellant,

as authorized by Oklahoma Statutes, and are alleged by

appellant to be invalid because of defects in the existence

of the municipality because of which such bonds cannot

affect property in Osage County, Oklahoma (The Osage

Indian Reservation) illegally included in the Town of Skia-

took, Oklahoma. It was the contention of the appellant that

the act of the Town of Skiatook, incorporated prior to state-

hood contiguous to but wholly outside of the Osage Indian

Reservation, annexing after statehood property wholly in-

side Osage County, Oklahoma (Osage Indian Reservation)

whether or not authorized by statute, was in violation of

and repugnant to the Act of Congress June 16, 1906, 34 U.S.

Stats. at Large, Pages 267-278, Section 21. The judgment

of the trial court and the decision of the Supreme Court of

the State of Oklahoma hold that the Town of Skiatook,

Oklahoma, by virtue of 11 O. S. 41, Sections 482 and 1042

had authority to annex territory lying in Osage County

(Osage Indian Reservation) despite the Act of Congress

June 16, 1906, 34 U. S. Stats. at Large, Pages 267-278, See-

tion 21, although the Town of Skiatook had up to that time

existed wholly outside Osage County, Oklahoma (Osage

Indian Reservation). The judgment of the trial court and

the decision of the Supreme Court of Oklahoma appear re-

spectively at unnumbered Pages 52-54, and 131 to 133 and

180 to 194 of the typewritten transcript being prepared for

this appeal.

4

4

5

There is one general question presented by this appeal.

Whether a town in Oklahoma, incorporated prior to state-

hood adjacent to but wholly outside the Osage Indian Reser-

vation, may now annex territory wholly in Osage County,

Oklahoma (Osage Indian Reservation) by virtue of certain

Oklahoma statutes which we contend are repugnant to the

Act of Congress June 16, 1906, 34 U. S. Stats. at Large,

Pages 267-278, Section 21. It is appellant’s contention that

the act of the Town of Skiatook, Oklahoma, existing wholly

in Tulsa County, Oklahoma, annexing territory wholly in

Osage County, Oklahoma (Osage Indian Reservation)

effected a change in Osage County, Oklahoma, prior to the

change of that county by the Legislature of Oklahoma, as

required in The Act of Congress June 16, 1906, 34 U. 8S.

Stats. at Large, Pages 267-278, Section 21, and that the

annexations herein complained of were done under the

authority of general laws of Oklahoma not applicable to

Osage County (Osage Indian Reservation) as contemplated

by The Act of Congress June 16, 1906, 34 U. S. Stats. at

Large, Pages 267-278, Section 21, and that the effect of the

decision appealed from is to give force and effect to those

general statutes of the State of Oklahoma despite the pro-

visions of The Act of Congress June 16, 1906, 34 U.S. Stats.

at Large, Pages 267-278, Section 21. The validity, applica-

bility and effect of the State statutes under this record are

highly debatable, the issues are substantial, and are of a

character that directly conflicts with the expressed will of

Congress in a sphere where the power of Congress is

supreme.

-

6

The cases believed to sustain the jurisdiction of the Su-

preme Court of the United States on this appeal are:

RFC v. Beaver County, Pa., 328 U. 8. 204;

First National Bank v. Anderson, 269 U.S. 341;

U.S. v. Chavez, 290 U.S. 260.

Respectfully submitted,

(S.) E. J. Doerner,

(S.) THropore Rryenart,

(S.) Harry D. Moreiann,

1510 National Bank of Tulsa Bldq.,

Tulsa, Okla.,

Attorneys for Appellant.

(S.) Jack E. Camppe.y,

(S.) Pavi A. Waker, Jr.,

Of Counsel.

“7

6

APPENDIX

IN THE SUPREME COURT OF THE STATE OF

OKLAHOMA

No. 34,166

A. W. Paver, Plaintiff and Pustic Service Company or

Ox.anoma, a Corporation, Intervenor, Plaintiffs in Error,

Vs.

Town or Skiatook, a Municipal Corporation, Boarp or

Trustees oF THE Town or Sxiatook, Fart FE. Yercaty,

J. Miuron Patrick, Russe. G. Jones, Wu. J. Supernaw,

Frank F. Cocurayn, and Excuance Bank or SKIATOOK,

a Corporation, Defendants in Error

Filed in Supreme Court of Oklahoma, May 23, 1950, Andy

Payne, Clerk.

SyLLasus

1. The extension of its boundaries into Osage County by

the Town of Skiatook, originally located entirely in Tulsa

County, held not to be violative of the Enabling Act, or the

Constitution of the State, and to be authorized by 11 O. S.

1941, sections 482 and 1042.

2. An ordinance annexing territory to a city or town is

not void on its face merely because it fails to recite the

existence of jurisdictional facts. The only effect of failure

to recite jurisdictional facts is to enable an interested party,

other than the state, to attack the validity of the ordinance,

and show, if he can, that the jurisdictional facts did not

exist.

3. Municipal bonds issued under authority of Article 10,

section 27 of the Constitution, and following the procedure

outlined in 11 O. S. 1941, sections 61-66, are not invalid

because they do not conform to 11 O. S. 1941, sections 1007

and 1008.

4. The proposition submitted to the voters of the Town of

Skiatook for the issuance of negotiable bonds to provide

funds ‘‘for the purpose of purchasing an electric distri-

—

bution system and repairing and improving same, or con-

structing a new electric distribution system, if that be more

expedient or desirable,’’ held not void for indefiniteness or

uncertainty.

5. Allegations in plaintiffs’ petition to the effect that the

town trustees in holding a bond election was actuated by

some undisclosed or secret purpose, held properly stricken

by the trial court.

7

APPEAL FROM THE DISTRICT COURT OF TULSA

COUNTY, OKLAHOMA

Hon. Horace D. Batiatye, Judge

Action by A. W. Palmer, Boyd Hisaw, and Publie Ser-

vice Company of Oklahoma to enjoin the issuance and sale

by the Town of Skiatook of bonds for the purpose of con-

structing an electric distribution system. The trial court

refused to grant a permanent injunction, and dismissed

the case. Plaintiffs appeal.

APFIRMED

Doerner, Rinehart & Stuart, Harry D. Moreland, Jack

E. Campbell, all of Tulsa, for Plaintiffs in Error.

R. L. Davidson, Jr., James G. Davidson, both of Tulsa.

for Defendants in Error.

Lutrren, J.:

This action was brought by A. W. Palmer and Boyd

Hisaw as plaintiffs, to enjoin the Town of Skiatook and its

board of trustees from issuing and disposing of bonds in

the amount of $49,600.00 for the purpose of acquiring or

constructing an electric distribution system. The Public

Service Company of Oklahoma, which was then serving the

town with electricity, without a franchise, intervened in the

action and joined with the plaintiffs in asserting the invalid-

ity of the bonds. The trial court issued a temporary injune-

tion when the petition was filed, but thereafter, upon a full

hearing, set the temporary injunction aside, denied a per-

manent injunction, and dismissed the action at the cost of

7

plaintiffs and intervenor. Thereupon Boyd Hisaw with-

drew as plaintiff, and the action proceeded in the name of

A. W. Palmer, and Publie Service Company of Oklahoma.

The petition of plaintiffs alleged several grounds in sup-

port of their contention that the issuance and sale of the

bonds should be enjoined, and in this court in their briefs

and orgal argument, they urge these contentions. or grounds,

and assert that the trial court should have issued the per-

manent injunction as prayed for. We will dispose of these

contentions in the order in which they appear in the brief

of plaintiff in error.

The first contention made by plaintiffs is that the annexa-

tion of certain additions to the town of Skiatook, the resi-

dents of which were permitted to vote in the bond election,

was invalid, and that therefore the voters residing in those

precincts were not entitled to vote. Plaintiffs assert that

the town of Skiatook was originally incorporated solely in

Tulsa County, and that the annexation of these additions,

which lay within Osage County, was forbidden by the

Enabling Act and by Art. 17, section 8, of our Constitution,

which provided that the boundaries of Osage County should

remain unchanged until all the lands of the Osage Tribe of

Indians should have been allotted, and until the same shall be

changed as provided by the Legislature for changing county

lines. We find nothing in the provisions of the Enabling

Act nor of the Constitution to support the argument that

the extension of the boundaries of the town of Skiatook into

Osage County Changed the county line in any respect.

Therefore there was no violation of the constitutional pro-

visions or of the provision of the Enabling Act.

Plaintiffs also contend that no statutory authority exists

authorizing a town to extend its boundaries into another

county, although under our statutes towns may be incorpo-

rated in two or more counties, citing 43 C. J. p. 117, section

74. Examination of our statutes discloses that the Legis-

lature in 11 QO. S. 1941, section 1101 expressly authorized the

incorporation of a town in two or more counties. By 110.8.

1941, section 482, and 11 O. S. 1941, section 1042, towns are

given the authority to extend their boundaries under the

conditions in these sections specified. In these sections

there is no restriction placed upon the right to take in addi-

tional territory because of the fact that it does not lie within

the same county, and in addition it is expressly provided

that a map or plat of the territory annexed shall be filed

in the office of the register of deeds of the county ‘‘where

the annexed territory or a greater portion of it is situated”’.

We consider this sufficient statutory authority for the in-

corporation by a town into its territorial limits of any prop-

erty which it was authorized to annex by the sections cited,

regardless of the county in which such territory may be

situated.

Plaintiffs further assert that an ordinance admitting

one of said additions into the town is void because of its

failure to recite the jurisdictional facts. This for the reason

that the ordinance recites that the petition for annexation

was signed by more than three-fourths of the residents,

whereas 11 O. S. 1941, section 482 requires that it be signed

by not less than three-fourths of the legal voters. In Mis-

souri-Kansas-Texas R. Co. v. Maltsberger, 189 Okla. 363,

116 P. 2d 977, we said,

**An ordinance annexing territory to a city or town is

not void on its face merely because it fails to recite

the existence of jurisdictional facts. The only effect

of failure to recite jurisdictional facts is to enable an

interested party, other than the state, to attack the

validity of the ordinance, and show, if he can, that the

jurisdictional facts did not exist."’

In that case we pointed out that in Barton v. Stuckey, 121

Okla. 226, 248 P. 492, and City of Maud v. Tulsa Rig. Reel &

Mfg. Co., 165 Okla. 181, 25 P. 2d 792, and similar cases, the

ordinance affirmatively showed on its face an absence of

jurisdictional facts. In the instant case the ordinance does

not show that the residents signing the petition were not

legal voters, and therefore the burden was upon plaintiffs

to show such fact by evidence. This they wholly failed to do.

The other additions were taken into the town by resolution

under the provisions of 11 O. S. 1941, section 1042, and no

irregularity in connection therewith is shown.

10

Furthermore, it appears that these additions were annexed

to the town of Skiatook in 1912, and have constituted a part

of the town from that time to the present.

In City of Blackwell v. City of Newkirk, 31 Okla, 328, 121

P. 260, cited with approval in Biggerstaff v. City of Altus,

114 Okla. 98, 243 P. 751, we said:

‘*When sufficient facts exist to confer authority and

jurisdiction on the city council to annex adjacent terri-

tory to the city, and there has been a substantial com-

pliance with the provisions of the statutes relating

thereto, the validity of such annexing ordinance can-

not be attacked in a collateral proceeding by reason of

defects, informalities, or irregularities in its passage.”’

It follows that this contention of plaintiffs is without sub-

stantial merit.

In their next contention plaintiffs assert that the bonds

are invalid for the reason that the procedure prescribed in

11 O. S. 1941, sections 1007 and 1008 was not followed. Ex-

amination of the record discloses that the proceedings for

the issuing of the bonds were in accordance with the pro-

visions of Art. 10, section 27 of the Constitution, and 11

O. S. 1941, sections 61 to 65 inclusive.

In State v. Keith, 179 Okla. 563, 66 P. 2d 1059, we held that

Art. 10, section 27 of the Constitution was self executing,

and that the power therein conferred could not be restricted

or extended by the Legislature, but stated that we did not

hold that the Legislature could not provide a specific and

convenient method of carrying out the provisions of sec-

tion 27.

Counsel for plaintiffs assert that sections 1007 and 1008

were enacted for this purpose, but examination of those

sections discloses that they were apparently enacted for the

purpose of providing an alternate or different method which

might be pursued by towns in establishing a system of elee-

tric lights. Said sections provide for the levy of a tax to

provide the money necessary to establish such electric light-

ing system, and further provide that in the event the tax is

insufficient to raise the necessary amount, then the town

may issue its bonds therefor. This provision and the

eee

11

further provision that the bonds shall not exceed five per

cent of the taxable value of the property does not evidence

a purpose to carry out the provisions of Art. 10, section 27 of

the Constitution, but are inconsistent therewith, 11 0. S.

1941, Sections 61-66 was apparently enacted by the Legis-

lature for the purpose of providing a method or procedure to

be followed in order to carry out the grant of power in Art.

10, section 27, and this was the procedure followed by the

town of Skiatook. This was in our judgment, sufficient, and

the town was not required to comply with the provisions

of 11 O. S. 1941, sections 1007-1008,

It is next contended that the initial steps for the issuance

of bonds were taken at a special meeting of the town trus-

tees, and that such meeting was not legal for the reason

that no call or notice was issued or given as required by

11 O. S. 1941, section 641. The evidence shows that the

town had never provided for regular meetings of the town

trustees, but that all their business was conducted at

special meetings, and that in this case, although no call

was issued for the special meeting, all the trustees were

present and signed a written waiver of notice of the time

and purpose of the meeting. This was sufficient, in our

judgment, to make this special meeting legal.

The proposition submitted to the voters of Skiatook reads

in part as follows:

‘*Proposition

**Shall the Town of Skiatook, State of Oklahoma,

ineur an indebtedness in the sum of Forty-nine Thou-

sand Six Hundred ($49,600.00) Dollars by issuing its

negotiable coupon bonds in said sum to provide funds

for the purpose of purchasing an electric distribution

system and repairing and improving same, or con-

structing a new electric distribution system, if that be

more expedient or desirable, said electric distribution

system to be owned exclusively by said town; * * *”

Plaintiffs contend that by this proposition two purposes

for the use of the bonds were submitted to the people with-

out designating how much of the money should be used

for each purpose. They say the purposes are (1) to pur-

12

chase or construct the distribution system, or (2) to re-

pair the distribution system. They urge that the failure —

specify the amount of money to be used to purchase or

construct the system, and the amount to be used for re-

pairs, made the proposition void for uncertainty, citing

City of Alva v. Mason, 150 Okla. 25,300 P. 784; Bowen v.

Garber, 77 Okla. 16, 185 P. 1095, and State, ex rel. City

of Cushing v. King, 162 Okla. 69, 19 P. 2d 138. We are

unable to agree with this contention.

The reasonable interpretation of the proposition sub-

mitted to the voters of Skiatook was that the bonds were

to be used for the purpose of acquiring an electric dis-

tribution system in one of two ways, (1) the purchasing,

repairing, and improving of an electric distribution sys-

tem, or (2) in constructing a new electric distribution sys-

tem if the council found that the construction of a new

system was preferable to the purchase and repair of an

old one. In either event only such portion of the bond issue

as was necessary to effect the purpose was to be used.

While the proposition does not so state, it is reasonable

to assume that the town proposed to acquire, if possible,

the distribution system than being used to service the

town, and to improve and repair the same as might be

found necessary in order to put it is the best possible con-

dition. This was, we think, contemplated by proposition

(1). If the system then serving the town could not be ac-

quired, or if the cost thereof, with the necessary repairs

and improvements, was too great, then the trustees were

to construct a new distribution system.

These purposes were in the alternative, and the ques-

tion of the amount of repairs and improvements neces-

sary, if the old plant was acquired, was, we think, dis-

cretionary with the trustees, depending upon the amount

paid for the old plant, and what repairs or improvements

were most necessary to enable the trustees to place the

old plant in good working order. In this respect the propo-

sition is somewhat similar to the proposition involved in

MeDougald v. Incorporated Town of Broken Bow, 71 Okla.

231, 176 P. 959. In that case the proposition submitted to

the voters was whether the town should issue its bonds

13

in the amount of $17,500.00 for the purpose of providing

funds for purchasing a site, and constructing a building

thereon for a town hall and jail, and furnishing the same.

In support of the claim that the proposition was too indefi-

nite and uncertain, it was suggested that the board of

trustees might attempt to use only a small part of the

proceeds in the erection of a comparatively worthless

building, and spend practically the entire fund in furnish-

ing the same. We rejected this contention, saying that

we must presume that the funds would be expended in

good faith and in a lawful, reasonable and business-like

manner for the purposes for which the indebtedness was

authorized, and we held that the proposition was suffi-

ciently definite and certain, and sustained the validity of

the bonds. Likewise in the instant case we think that the

amount to be expended for the acquisition of the system

and for repairs and improvements, if one was purchased,

was properly left to the judgment of the trustees, and

we will presume that they will act in good faith for the

best interests of the town. There is nothing in the record

to indicate a contrary intention on their part.

The last contention of plaintiffs is that the trial court

erred in striking certain allegations from plaintiffs’ plead-

ings, and in refusing to permit plaintiffs to amend their

petition to present such issues. By the allegations so

stricken plaintiffs alleged that the board of trustees of

Skiatook knew that an adequate new distribution system

could not be purchased for the sum of $49,600.00 but “uat

it would cost $75,000.00, or more, to construct ar u.dequate

new system. They further alleged that *’ voters had

theretofore rejected a proposition to issue bonds in the

sum of $75,000.00 for such purpose, and that in truth and

in fact it was the intention of the board to obtain approval

of the bonds in the sum of $49,000.00, which they knew

to be inadequate, and later attempt to secure the approval

of an additional bond issue necessary to complete the dis-

tribution system. The trial court sustained the motion of

defendants to strike these allegations and refused to permit

similar allegations by way of amendment.

14

In their argument on this contention plaintiffs rely upon

Borin v. City of Erick, 190 Okla. 519, 125 P. 2d 768. In

that case the purpose of the council, as reflected by the

statutes of its meetings, was to construct a plant costing

$110,000.00 by the use of a bond issue of $60,000.00 and

a loan to be obtained from the federal government. Pur-

suant to this purpose the proposition to issue bonds in the

amount of $60,000.00 was submitted to and approved by

the voters. After the bonds had been voted the federal

government withdrew its contemplated grant of $50,000.00.

Notwithstanding this fact the city was proceeding to sell

and deliver the bond issue when the plaintiff brought an

action to enjoin such sale and delivery. In that case we

held that the bond ordinance, and the proposition sub-

mitted to the voters did not actually spegify the real pur-

pose of the bond issue, since they did not mention the

proposed federal grant, when as a matter of official record,

the purpose was that the bond issue, together with the

sum to be obtained through the federal grant, should be

used to erect a $110,000.00 plant.

There is nothing in the record in the instant case which

makes it comparable to the situation in the Borin case.

In the Borin case we pointed out that in Reid v. City of

Muskogee we held that the motives of officials and electors

were not proper subjects of judicial inquiry in an action

like this, and said that the court there referred to per-

sonal motives and not to purposes as expressed by official

action.

In the instant case there is no official action by which the

motives or purposes of the trustees is in any wise impugned.

In Price v. Storms, 191 Okla. 410, 130 P. 2d 523, we

refused to consider evidence of newspaper articles stating

that the editor had been assured by representatives of the

city council and chamber of commerce that the bonds would

not be issued except that the guarantee of the federal gov-

ernment that an army flying school would be located in

Okemah if the airport for which the bonds were to be voted

was built. In that case we called attention to the fact that

the Borin case was based upon the showing of purpose

reflected by the minutes and proceedings of the city council,

15

and that nothing of that kind was reflected in this case. The

rule announced in Price f. Storms, supra, applies in the

instant case, and evidence of what purpose the trustees

might have, but had not expressed, could not be used to

defeat the bond issue. From the record it appears that

the proceedings leading up to the issuance of the bonds had

been duly approved by the Attorney General, and that the

bonds can be sold and the proceeds used for the purposes

stated in the proposal submitted to the voters. We find

nothing in the record invalidating or affecting the validity

of the bonds, and the objections of the plaintiffs and the

intervenor to their validity are, in our judgment wholly

untenable.

Affirmed.

(472)