Walker v. Oak Cliff Volunteer Fire Protection District , 807 P.2d 762 ( 1990 )

KAUGER, Justice.

The dispositive questions presented are: 1) whether a special election to establish a fire protection district, held without the notice prescribed by 19 O.S.1981 § 901.3,¹ is valid; and 2) if the election is invalid, whether parties contesting an election to form a fire protection district may seek redress either in law or in equity. We find: 1) that an election to create a fire protection district is void unless it is preceded by publication notice for two weeks in a newspaper of general circulation in the territory comprising the proposed district as required by 19 O.S.1981 § 901.3; and 2) that equity will intervene to cure defects in elections called to form fire protection districts even though 26 O.S.1981 § 8-109² precludes contesting the election.

FACTS

On December 14, 1982, a special election was held to establish a fire protection district. In December of 1983, the appellants/contestants who reside in Logan County received their ad valorem tax statements increasing the taxes on their property. One of the contestants, Mr. W. had attempted to file a pro se petition with the District Court to have the election declared null and void on June 11, 1984. The trial judge refused to allow the petition to be filed, and advised Mr. W to obtain counsel. Nine months later, on August 14, 1984, the contestants filed an action in district court to permanently enjoin operation of the ap-pellee, the Oak Cliff Volunteer Fire Protection District (Fire Protection District), and to account for all funds collected. The contestants alleged that the Fire Protection District had been formed in violation of 19 O.S.1981 §§ 901.1³ and 901.3. Section 901.1 requires that a petition, signed by twenty-five percent of the title holders within the proposed fire protection district, must be filed with the board of county commissioners. Before an election to form a fire protection district can be held, section 901.3 provides that publication notice of a special election to form a fire protection district “shall ” be given for two weeks in a newspaper of general circulation within the territory comprising the proposed fire protection district.

On September 6, 1984, the Fire Protection District filed a demurrer to the contestants’ petition asserting that it contained a defect of parties, and that it failed to state a cause of action. The contestants filed an application with the district court to file an amended petition on December 12, 1984. The amended petition dismissed several named defendants, because they were not personally liable for reimbursement of funds collected or expended by the Fire Protection District. On December 28, 1984, the Fire Protection District filed a motion to dismiss for failure to state a claim. It also alleged that the cause was barred by the equitable doctrine of laches. On March 6, 1985, the trial court denied the contestants’ motion to file a second amended petition, and granted the motion to dismiss. The contestants appealed the trial court’s decision. On May 13, 1986, the Court of Appeals reversed finding that: 1) no attempt had been made to comply with the notice provisions of § 901.3;⁴ and 2) because the motion to dismiss did not present any evidence of laches, the trial court erred in sustaining the motion. The cause was remanded with directions to proceed to trial.

At the hearing on the cause on October 1, 1986, testimony was elicited from a number of witnesses opposing the election. Mr. W, Ms. P, Mrs. V., and Mr. T testified that they were unaware an election had been held until they received their tax assessments — a year after the election. Mr. W testified that on initial inquiry, he was assured by the Election Board, the County Commissioners, and the County Clerk that the election had been advertised and that it was “proper and legal.” Once residents of the Fire Protection District became aware of the additional tax, they took action to vitiate the election. Mr. W testified that immediately upon receiving his tax bill, he contacted the District Attorney concerning the inadequacy of signatures on the petition calling for organization of the Fire Protection District. He also contacted the County Clerk and local newspaper for proof of publication. When these sources failed to respond to his concern, he contacted the Attorney General’s office. Mr. W spoke with the Minority Speaker of the House who also contacted the Attorney General’s office concerning the election’s validity.

Community meetings were held beginning in February of 1984, to discuss the alternatives to paying the additional ad va-lorem taxes which resulted from the creation of the Fire Protection District. Those opposing the Fire Protection District hired an attorney in April. In June, the opponents filed a petition with the Board of County Commissioners seeking to withdraw from the Fire Protection District pursuant to 19 O.S.1981 § 901.23.⁵ In a letter dated July 29, 1984, the Board of County Commissioners denied the petition, because residents failed to show that the area did not benefit from inclusion within the Fire Protection District.

It is undisputed that the notice mandated by § 901.3 was not given, and that there was no publication in a newspaper of general circulation before the election. An article concerning the election did appear in the Guthrie Daily Leader on December 13, 1982 — the day before the election. Advertisements for ballot bids and minutes of the Logan County Commission meetings were published. The date of the election was included in both the bid advertisement and the minutes which were published on October 21, November 10, 11, 12, and 18, 1982. Establishment of the Fire Protection District was discussed in a social calendar calling for attendance at a fund-raising dance. Members of the volunteer fire department passed out flyers on a house-to-house basis in the Fire Protection District, and these same flyers were sent home with children riding buses in the Fire Protection District.

Although it found that these publications were not in compliance with § 901.3, the trial court ruled in favor of the Fire Protection District on December 2, 1986. It found that the attempts at notice were in substantia] compliance with the intent of the statute. The election was upheld on the basis that the contestants had failed to prove that the results of the election would have been altered had notice been given. This appeal, the contestants second attempt to protect their right to statutory notice, was filed on December 5, 1986.

I

TITLE 19 O.S.1981 § 901.3 REQUIRES THAT AN ELECTION TO CREATE A FIRE PROTECTION DISTRICT BE PRECEDED BY PUBLICATION NOTICE FOR TWO WEEKS IN A NEWSPAPER OF GENERAL CIRCULATION IN THE TERRITORY COMPRISING THE PROPOSED DISTRICT.

The contestants assert that the election must be set aside because they were not given notice of the election. While recognizing that the statutorily required notice was not given, the Fire Protection District argues that, absent proof of fraud or corruption, the election results must stand.

The only “publicity” concerning the election which might conceivably constitute notice to the approximately three thousand voters in the Fire Protection District that their property taxes would be increased if the vote carried, appeared in the Guthrie Daily Leader on December 13, 1982 — the day before the election. However, the timing of the article precludes its being considered as a substitute for the required notice. Because the Fire Protection District is located in a rural area, some residents do not receive their paper until the day following publication. Other information relating to the election may be found in advertisements for ballot bids, minutes of Logan County Commissioner meetings, and a social calendar calling for attendance at a fund-raising dance. The advertisements for bids and the publication of minutes were located in the classified portion of the paper. It would be incongruous to consider the advertisement for bids as a substitute for the required notice. If an interested property owner had stumbled over the Commissioner minutes, he/she would not necessarily understand that an election which would affect property rights was pending. The minutes gave only scant details of the proceedings at the meetings. Obviously, newspaper articles, comments, or similar publicity cannot lawfully substitute for the mandatory requirements of § 901.3.⁶ Even if the Court were to adopt substantial compliance as a standard of review, the election would still be invalid.⁷ The record reflects that there was absolutely no compliance with the statutorily required notice.

The Okla. Const., art. 3, § 4, vests the Oklahoma Legislature with the authority to prescribe the time and manner of holding all elections.⁸ By enacting § 901.3, the Legislature has mandated that adequate notice constitutes two publications in a newspaper of general circulation. The language of § 901.3 is not ambiguous. It provides that the County Clerk “shall cause notice of the election to be given for two (2) weeks” in a newspaper of general circulation. The Legislature’s use of the word “shall” connotes a mandatory duty equivalent to a command.⁹ A plain reading of § 901.3 reveals a Legislative directive requiring notice of an election to create a fire protection district. Here, the notice required by § 901.3 was not given. Requiring anything less than strict compliance with the statutory requirements of § 901.3 results in overt judicial legislation.¹⁰ We do not sit as a council of revision, empowered to rewrite legislation when the statute is free from ambiguity.¹¹

An election to create a fire protection district is a special election. Notice requirements may be relaxed for general elections, because the public is presumed to know when they are held.¹² However, special elections are not set on a date certain. If notice is not given, voters may well be unaware that an election is being held at all,¹³ and thus unable to express their sovereign will. The number of voters within the Fire Protection District is disputed with the alleged range being between two and three thousand. Because only 216 votes were cast,¹⁴ an exact estimate is unnecessary — the best estimate is that 10% of the voters cast their ballots. It is obvious that notice of a special election is required to inform voters that an election will be held and its purpose.¹⁵

Post-election contests considered by the courts of other jurisdictions support our finding that the election must be invalidated.¹⁶ The electoral process fails and the right to vote is abridged if a person does not have prior notice that an election which affects his/her interests is to take place.¹⁷ Voters may decide not to vote, but the right to exercise the right cannot be denied.

II

IN THE ABSENCE OF A STATUTORY REMEDY, EQUITY WILL INTERVENE TO CURE ELECTION DEFECTS.

The Fire Protection Act (the Act), 19 O.S.1981 § 901.1 et seq., outlines the procedures to follow in creating a fire protection district. Section 901.4¹⁸ provides that such elections are to be conducted in accordance with the general election laws. These laws are found in Title 26. Section 8-109¹⁹ proscribes contests in any election “except those in which candidates are seeking office.” ²⁰ This statute does not conflict with any provision of the Fire Protection District statutes. Its language is clear and unambiguous. Because the legislative intent is clearly expressed, it is unnecessary to apply rules of construction.²¹ The clear language of § 8-109 prohibits contests in any election not involving the right to hold office. We may not fabricate a different meaning from the one expressed in § 8-109 in order to provide the contestants with a remedy to address their wrong.²² However, we are mindful of the importance of the right to be preserved — the right to vote.

Were we to stop with this analysis of § 8-109 the public would be left without an avenue to address wrongs which may occur in the conduct of special elections. We find instructive case law from other jurisdictions in which the courts have found that if no other remedy exists, equity will intervene.²³ Other courts allow equity proceedings if, as here, property rights are affected or taxes are to be imposed as a result of the election.²⁴ Almost an equal number of jurisdictions have found that courts of equity have no power to determine an election’s validity.²⁵ The courts which allow the invocation of equity to protect against adverse consequences from invalid elections are more persuasive than those which ignore them. We find that if there is no statutory provision allowing an election contest involving civil or property rights rather than purely political rights,²⁶ the controversy may proceed in equity.

Although we recognize that the right to contest an election may be lost by laches or inexcusable delay,²⁷ laches is not an appropriate defense to one who lacks notice of a right to proceed or a cause of action.²⁸ Several of the contestants had no notice that there had been an election to contest until they received their tax statements in December of 1983 — one year after the election. Six months later, Mr. W attempted to file a pro se petition to have the election set aside. Nine months later, they filed this cause to nullify the election. Only after investigation, did the contestants find that the election had not been advertised as required by § 901.3. On first inquiry, Mr. W was assured by County officials that the election had been properly advertised. When delay is caused by an adverse party, that party may not use the defense to his/her benefit.²⁹ Although there is no evidence that the Fire Protection District gave the contestants misleading information, there is evidence in the record that less than accurate information was given by County officials.

The plain language of § 901.3 requires advertisement of the election to form the Fire Protection District. ■ Failure to follow that directive violated a legal duty. This is not a case where nothing was done until the action was filed. We fail to see how laches can apply when: 1) inquiries were made as soon as the contestants became aware of the additional tax; 2) local officials, elected state representatives, and the Attorney General were contacted in an attempt to obtain relief; and 3) an attempt was made to file a pro se action within six months of notice, and suit was filed within nine months of notice of the assessment.

CONCLUSION

The plain language of 19 O.S.1981 § 901.3 requires that notice of an election to form a fire protection district be published for two weeks in a newspaper of general circulation in the territory comprising the proposed district. When the prescribed notice is not given, and there is no substantial compliance with the mandated statutory notice, the results of the special election must be invalidated.

Although there is no statutory precedure for redress for the failure to provide notice of an election to form a fire protection district, equity will intervene to protect the fundamental right to vote. Laches is not a defense to an election contest if affirmative steps are taken timely to set aside the election. Because the contestants were improperly informed concerning statutory notice on the first inquiry, and because affirmative steps were taken to have the Fire Protection District dissolved or the election set aside, laches is inapplicable.

REVERSED AND REMANDED.

OPALA, V.C.J., and HODGES, ALMA WILSON and SUMMERS, JJ., concur. HARGRAVE, C.J., and LAVENDER, SIMMS and DOOLIN, JJ., dissent.

1 . Title 19 O.S.1981 § 901.3 provides:

“The County Clerk shall cause notice of the election to be given for two (2) weeks by publication in a newspaper of general circulation in the territory comprising the proposed district. Such notice shall state the time and place of holding the election and set forth the description of the boundaries of the proposed district and its general purpose and intention. Such notice shall require the electors to cast ballots which contain the words: ‘Fire Protection District — Yes’, and ‘Fire Protection District — No’, or words equivalent thereto. All persons resident of such proposed district, who are qualified electors in their respective precincts, shall be qualified to vote on such proposition."

2 . Title 26 O.S.1981 § 8-109 provides in pertinent part:

"... Contests shall not be permitted in any election except those in which candidates are seeking office."

Section 8-109 was amended effective May 24, 1989. It now provides in pertinent part:

"... Contests alleging irregularities or fraud shall not be permitted in any election except those in which candidates are seeking office. Nothing in this section shall be construed to prohibit any proceedings in district court, which are otherwise authorized by law, alleging irregularities or fraud in an election."

3 . Title 19 O.S.1981 § 901.1 provides:

"Whenever twenty-five percent (25%) of the holders of title to lands outside of the corporate limits of any incorporated city or town shall petition the Board of County Commissioners of the County in which such area owned by them is located for the formation of a Fire Protection District, and compliance had with the provisions of this act, the said Board of County Commissioners shall enter its order organizing such district, and when so organized such District shall have the powers conferred herein or such as hereafter may be conferred by law upon such Fire Protection Districts.”

4 . The Court of Appeals found that the required signatures had not been obtained. However, it remanded the cause only on the equity issue. On remand, the trial court did not allow evidence on the procurement of signatures on the petition. It found that if there was any defect, it was cured when the petition was presented to the County Commissioners without objection.

5 . Title 19 O.S.1981 § 901.23 provides in pertinent part:

“Any portion of the District which will not be benefited by remaining therein may be withdrawn from the District by the filing of a petition containing the names of more than fifty-one percent (51%) of the property owners within the portion sought to be withdrawn, requesting the withdrawal of such portion from the District on grounds that it will not be benefited by remaining therein.... The Board of County Commissioners shall consider and pass upon all objections and if it find that the portion of the district sought to be withdrawn will not be benefited by remaining within the District and will not serve as a fire hazard to the remaining portion of the District, and that the territory remaining in the District will be benefited by continuing as a District then it shall grant the petition .... ”

6 . Special Tax School Dist. No. 1 v. State, 123 So.2d 316, 322 (Fla.1960); Ashcraft v. Estill County, 290 S.W.2d 31, 33 (Ky.1956); Wiggins v. Lopez, 73 N.M. 224, 387 P.2d 330, 334 (1963). But see, Long v. City of Olympia, 72 Wash.2d 85, 431 P.2d 729, 733 (1967); Dowsett v. City of E. Moline, 8 Ill.2d 560, 134 N.E.2d 793, 798 (1956); Eustace v. Speckhart, 14 Or.App. 485, 514 P.2d 65, 67 (1973). In these cases, publicity was considered on the issue of notice. However, in each of the cases, there was some form of statutory notice.

7 . Substantial compliance with a mandatory statute such as § 901.3 is not shown unless it appears that the purpose of the statute has been served by some other method. Matter of Estate of Lahr, 744 P.2d 1267, 1271 (Okla.1987).

8 . Okla. Const, art. 3, § 4 provides:

"The Legislature shall prescribe the time and manner of holding and conducting all elections, and enact such laws as may be necessary to detect and punish fraud in such elections. The Legislature may provide by law for the registration of electors throughout the state and, when it is so provided, no person shall vote at any election unless he shall have registered according to law."

9 . Fuller v. Odom, 741 P.2d 449, 453 (Okla.1987).

10 . American Legion Phillips Post v. City of Malden, 330 S.W.2d 189, 192 (Mo.App.1959).

11 . Cooper v. Dix, 111 P.2d 614, 617 (Okla.1989); Toxic Waste Impact Group, Inc. v. Leavitt, 755 P.2d 626, 630 (Okla.1988).

12 . State v. Whittle, 401 S.W.2d 401, 404 (Mo.1966); Turner v. Lewie, 201 S.W.2d 86, 88 (Tex.Civ.App.1947).

13 . See, Veterans’ Finance Comm. v. Betts, 11 Cal.Rptr. 103, 106, 55 Cal.2d 397, 359 P.2d 471, 474 (1961); McNair v. Achord, 215 Ga. 540, 111 S.E.2d 236, 238 (1959); Annot., "Notice of Election to Fill Vacancy in Office at General Election,” 158 A.L.R. 1184-85 (1945). Although not specifically stated, this is the fair inference drawn from the language of these decisions. Harvard Law Review Assoc., A Uniform System of Citation, p. 8 (14th Ed.1987).

14 . One hundred fifty-five were in favor of the fire district. Sixty-one were opposed.

15 . Webb v. Clatsop County School Dist., 188 Or. 324, 215 P.2d 368, 372 (1950).

16 . Solomon v. North Shore Sanitary Dist., 48 Ill.2d 309, 269 N.E.2d 457, 460 (1971); Bouldin v. City of Homewood, 277 Ala. 665, 174 So.2d 306, 313 (1965); Veterans’ Finance Comm. v. Betts, see note 13, supra; State ex rel. Stokes Mound School Dist. No. 7 v. Colliver, 243 S.W.2d 344, 350 (Mo.1951); City of Berkeley v. Holmes, 358 Mo. 1237, 219 S.W.2d 650, 652 (1949). See also, Morabito v. Hagerman Fire Dist., 128 Misc.2d 340, 489 N.Y.S.2d 989, 993 (1985). See also, Annot., "Statutory Provision as to Manner and Time of Notice of Special Election as Mandatory or Directory," 119 A.L.R. 661-62 (1939), stating that where, as here, the record is entirely void of the necessary publication notice, the election is invalid.

17 . Garcia v. Guerra, 744 F.2d 1159, 1164 (5th Cir.1984), cert denied, 471 U.S. 1065, 105 S.Ct. 2139, 85 L.Ed.2d 497 (1985); Schooler v. Lisle, 299 S.W.2d 792, 794 (Ky.1957). Garcia involved a determination of the right to attorneys' fees, the Fifth Circuit was faced with a determination of prevailing party status in an action to enjoin an election. In making its determination that the parties opposing the change of election date were prevailing parties, it analyzed the importance the right to vote presents. Relying on cases decided by the Supreme Court, the appellate court found that the right to vote is "abridged if a person does not have prior notice that an election is to take place.” Here, an election was held without the statutorily required notice — the right to vote was abridged. Schooler involved a contested election of a public official. However, in invalidating the election, the Kentucky Court of Appeals recognized two important privileges of a democracy — the right to vote and the right to be elected. It found that the democratic process failed when the voice of the people was not heard. Failure to invalidate the special election at issue is an effective muzzle on the voice of residents affected by the increased tax. Although the facts in Garcia and Schooler do not parallel those presented, the nature of the right to vote is not changed.

18 . Title 19 O.S.1981 § 901.4 provides in pertinent part:

“Such elections shall be conducted in accordance with the general election laws of the state and the regular election officials shall be in charge at the usual polling place of each regular precinct, or part of a precinct, which shall include lands within the boundaries of such proposed district ...”

19 . Title 26 O.S.1981 § 8-109, see note 2, supra.

20 . The issue relating to equitable relief for contesting an election in which there is no candidate will be statutorily addressed if a bill, recently introduced in the Legislature, is passed. Senate Bill 861 proposes a new law to be cited as the "Issue Election Contest Act." As written, the Act provides for contests of issue elections to be filed with the secretary of the county election board responsible for certifying the results of the election before 5 p.m. on Friday following an election conducted on Tuesday. The proposed Act encompasses all election questions, including bond issues, sales tax issues, and all other issues, voted upon by the voters of a county, municipality, school district, or other political subdivision. However, because the Bill is subject to the legislative process, it is necessary .to address the issue of equitable relief.

21 . Fuller v. Odom, see note 9, at 452; Anschutz Corp. v. Sanders, 734 P.2d 1290, 1292 (Okla.1987).

22 . Wade v. Brown, 516 P.2d 526, 528 (Okla.1973); In re Guardianship of Campbell, 450 P.2d 203, 205 (Okla.1966).

23 . Cook v. Hill, 224 Or. 565, 356 P.2d 1067, 1069 (1960); Patton v. Independent School Dist., 242 Iowa 941, 48 N.W.2d 803, 808 (1951); Pierce v. Superior Court, 1 Cal.2d 759, 37 P.2d 453, 455, 96 A.L.R. 1020 (1934); Poe v. Sheridan County, 52 Mont. 279, 157 P. 185, 187 (1916); Ashley v. Richard, 32 Idaho 551, 185 P. 1076, 1079 (1919); In re Evans, 227 N.J.Super. 339, 547 A.2d 344, 346 (1988); Schieffelin v. Komfort, 86 Misc. 678, 149 N.Y.S. 254, 257 (1914), aff’d, 163 A.D. 741, 149 N.Y.S. 65 (1914), aff’d 212 N.Y. 520, 106 N.E. 675 (1914).

24 . Dorf v. Skolnik, 280 Md. 101, 371 A.2d 1094, 1100 (1977); Kacoonis v. City of Mountain View, 224 Ga. 151, 160 S.E.2d 364, 366 (1968); Barger v. Ward, 407 S.W.2d 397, 399 (Ky.1966); City of Nameoki v. Granite City, 408 Ill. 33, 95 N.E.2d 920-21 (1950); Appalachian Elec. Power Co. v. Town of Galax, 173 Va. 329, 4 S.E.2d 390, 392 (1939); Jones v. Commissioners of Person, 107 N.C. 248, 12 S.E. 69, 70 (1890).

25 . Curry v. Dawson, 238 Ark. 310, 379 S.W.2d 287, 288-89 (1964); Nichols v. Reorganized School Dist. No. 1, 364 S.W.2d 9, 13 (Mo.1963); Griffin v. Buzard, 86 Ariz. 166, 342 P.2d 201, 201-02 (1959); Scully v. Town of Westport, 145 Ct. 648, 145 A.2d 742, 746 (1958); Stickney v. Town of Salem, 96 N.H. 500, 78 A.2d 921, 921-22 (1951); Flake v. Pretzel, 381 Ill. 498, 46 N.E.2d 375, 377 (1943); Swan v. Bowker, 135 Neb. 405, 281 N.W. 891, 893 (1938); State ex rel. Jackson County v. Waltner, 340 Mo. 137, 100 S.W.2d 272, 275 (1936); Ewing v. Harries, 68 Utah 452, 250 P. 1049, 1050 (1926); Brown v. Randolph County Court, 45 W.Va. 827, 32 S.E. 165, 167 (1899).

26 . See, State ex rel. Cameron v. Jones, 165 Okl. 193, 25 P.2d 648, 650 (1933).

27 . Wickersham v. State Elec. Bd., 357 P.2d 421, 424 (Okla.1960).

28 . Chisholm v. House, 183 F.2d 698, 705-06 (10th Cir.1950); Lawson v. Haynes, 170 F.2d 741, 744 (10th Cir.1948).

29 . Nadel v. Zeligson, 207 Okl. 658, 252 P.2d 140, 144 (1952).