Marlow v. School Dist. No. 4, Murray County

1911 OK 273, 116 P. 797, 29 Okla. 304, 1911 Okla. LEXIS 290

• Court: Supreme Court of Oklahoma
• Decided: July 11, 1911
• Docket: 940
• Status: Published

Opinion

WILLIAMS, J.

A temporary injunction was issued by the county judge of Murray county in the absence from said county of the district judge, enjoining the defendants in error from issuing for said school district bonds in the sum of $10,000. On motion at chambers, the temporary injunction was dissolved. The petition in due form, averring that said bond issue, including existing indebtedness, exceeded in the aggregate 5 per centum of the valuation of the taxable property of said school district, was properly verified. No evidence, by affidavit or otherwise, was offered in support of the motion to dissolve the injunction, except certain certificates from the county clerk and county treasurer.

One of the certificates by the county treasurer, purporting to be a cerified copy of the assessment records as to certain realty in his possession, does not show sufficient taxable valuation to bring said bond issue within the limit provided by section 20, art. 10, of the Constitution. We do 'not pass on the competency of this certificate; it not being essential, on account of the conclusions hereafter reached.

The other certificates by the treasurer and clerk purport to state what their records show. No statute has been called to our attention authorizing said officers, in their official capacity, to make such certificates. In such event, as a rule, they are not admissible in evidence. 2 Enc. of Evidence, p. 963; 3 Wigmore on Evidence, § 1633. Section 5908, Comp..Laws 1909 (section 4278, Stat. Okla. Ter. 1893), provides:

“The books and records required by law t.o be kept by any probate judge, county clerk, county treasurer, register of deeds, clerk of the district court, justice of the peace, police judge or other public officers, may be received in evidence in any court; and when any such record is of a paper, document or instrument authorized to be recorded, and the original thereof is not in the possession or under the control of the party desiring to use the same, such record shall have the same effect as the original; but no public officer herein named or other custodian of public records, shall be compelled to attend any court, officer or tribunal sitting more than one mile from his office with any record or. records belonging to his office or in his custody as such officer.”

As to whether this section has the effect of rendering competent the certified copy of assessment records as to certain realty, made by the county treasurer, we do not determine. In no case would it render competent the certificates made by the county clerk and county treasurer, purporting to state certain facts shown by the records ^in their custody.

Equity has jurisdiction to prevent public officers and boards from letting or carrying out unauthorized and illegal contracts for public buildings, bridges, and other improvements, when such actions may cause the levy of illegal taxes, the expenditure of public funds in an improper manner, or a complication of the public business that will bring about many actions at law. It is generally proper for the. application to be made by a taxpayer. Kellogg v. School District No. 10, 13 Okla. 285, 74 Pac. 110; Bowles v. Neely et al., 28 Okla. 556, 115 Pac. 344; Hannan v. Board of Education of Lawton, 25 Okla. 372, 107 Pac. 646, 30 L. R. A. (N. S.) 214; City of El Reno et al. v. Cleveland-Trinidad Pav. Co., 25 Okla. 648, 107 Pac. 163, 27 L. R. A. (N. S.) 650.

Injunction is a proper remedy to prevent the officers of a school district from issuing bonds" in excess of the debt limit as provided by section 26, art. 10. It follows that no sufficient evidence was before the tidal judge authorizing the discharge of the temporary injunction.

The judgment of the lower court is reversed, and this cause remanded, with- instructions to reinstate same, with permission to renew the motion to dissolve the temporary injunction.

All the Justices concur.