TOWN OF GANS v. COOKSON HILLS ELEC. COOP.

TOWN OF GANS v. COOKSON HILLS ELEC. COOP.
1955 OK 273
288 P.2d 707
Case Number: 36764
Decided: 10/11/1955
Supreme Court of Oklahoma

TOWN OF GANS, A MUNICIPAL CORPORATION, STATE OF OKLAHOMA, PLAINTIFF IN ERROR,
v.
COOKSON HILLS ELECTRIC COOPERATIVE, INC., A CORPORATION, AND JEFF MONTGOMERY, MANAGER OF COOKSON HILLS ELECTRIC COOPERATIVE, INC., DEFENDANTS IN ERROR.

Syllabus

¶0 1. In the present case where one of the decisive issues was whether or not the defendant electric cooperative had been authorized by resolution of the Board of County Commissioners to construct and maintain electric transmission lines in the area occupied by plaintiff's unincorporated predecessor town and it was made to reasonably appear as a foundation for the introduction into the evidence of an unsigned, incompletely dated and unattested purported copy of said resolution that the 'original record' thereof could not be found; Held: Under the circumstances, the trial court [288 P.2d 708] did not abuse his discretion or commit reversible error in such admission.

2. Where in such case the plaintiff re-incorporated town sought judgment against the defendant electric cooperative and its manager requiring them to remove the cooperative's facilities from the area within said town's limits and enjoining them from entering upon plaintiff's 'streets, avenues, alleys and public places' for the purpose of constructing 'poles, wires and other appliances', for conducting the business of distributing electricity in said plaintiff town without a franchise from it; and the trial court entered judgment refusing to order discontinuance of such described use of such portions of the town as were in use prior to its re-incorporation; evidence examined and held: Said judgment was not erroneous.

[288 P.2d 708]

Appeal from District Court of Sequoyah County; A.E. Summers, Judge.

Action by re-incorporated town as plaintiff, against an electric cooperative and its manager, as defendants, for a judgment requiring defendants to remove electric transmission facilities from plaintiff's streets, avenues, alleys and public places and enjoining them from entering those places for constructing such facilities and conducting the electric cooperative's business. From a judgment partially granting and partially denying the relief sought, plaintiff appeals. Affirmed.

Roy Frye, and Roy Frye, Jr., Sallisaw, for plaintiff in error.

Jack L. Rorschach, Vinita, J. Fred Green, Sallisaw, and J.F. Hudson, Stigler, for defendants in error.

BLACKBIRD, J.

¶1 This action was commenced in the district court by plaintiff in error, as plaintiff, against the defendants in error, as defendants, to require the latter to remove from the area within the incorporated Town of Gans, in Sequoyah County, Oklahoma, all of the poles, lines, wires, appliances and other property used by the defendant electric cooperative, in providing said town and its inhabitants with electricity and for a permanent injunction preventing said defendants from selling or delivering electricity or conducting any other business therein without first obtaining a franchise from said town.

¶2 As the parties appear here in the same order they appeared in the trial court, our continued reference to them will be by their trial court designations. As the electric cooperative's manager bears no significant or noteworthy relation to the issues involved in this appeal, it will be discussed as if the cooperative was the only party defendant.

¶3 According to the parties' stipulation of facts, the Town of Gans was originally incorporated with a population of 259 in the year 1902, at which time its streets and alleys were dedicated for street and alley purposes. From that date, to and including the date of the trial, its population has never been greater, nor has its plat of streets and alleys been different. In 1933, the town became unincorporated and remained in that status until September 22, 1953, when it was re-incorporated. During the interim, or in 1946, while the town was unincorporated, the defendant started furnishing it and its inhabitants electricity as it now does, but it has never, since said town's re-incorporation, received from it a franchise to use its streets and alleys and public places for its transmission lines. This principal fact formed the basis of this action against it by plaintiff.

¶4 In its petition, plaintiff alleged, among other things, that defendant has "no legal right to use" its public places for the purposes above indicated and repeatedly alleged that defendant was thus using them and the town's streets and alleys "without a proper license * * *". Among other defenses, defendant pleaded, and at the trial without a jury, introduced evidence tending to show, in substance, that in 1946, the Board of County Commissioners of Sequoyah County who it alleged had the prerogative at that time (during the period the town was unincorporated) to do so, gave it "the right, privilege and franchise to erect, maintain, own, operate and conduct a system of transmission and distribution lines of electrical energy to all [288 P.2d 709] eligible citizens and inhabitants of Sequoyah County, Oklahoma." Such proof was made by introducing an unsigned an incompletely dated document, identified by the witness, W.L. Brockman, an official of the defendant corporation in 1946, as a copy of a resolution passed by the aforesaid Board of County Commissioners and signed by its members in his presence on its regular meeting date, the first Monday of March, 1946. During this witness' testimony the trial judge indicated that in his opinion such resolution of the Board of County Commissioners was sufficient to authorize the defendant to use the aforesaid public ways in the Town of Gans in said county for the purposes here involved. And, in the absence of any evidence disputing the passage of said resolution, the Court, at the close of the evidence, entered a judgment in which he found that, by reason thereof, the defendant's "lines, poles, wires, connections and other appliances * * * were legally in place * * *", notwithstanding the fact it had no valid "franchise" from plaintiff. The Court specifically concluded "as a matter of law" that defendant is now and prior to September 22, 1953, "was legally using" for the afore-described uses in its business certain streets and alleys within the present incorporated plaintiff town, and that said town's subsequent incorporation "could not and would not deprive * * * Defendant of * * * (its) existing right" to such use. Accordingly, the injunction granted plaintiff was limited to the building of additional lines; defendant's declared right to maintain and operate its facilities as they were prior to the town's re-incorporation on the above date, being by said judgment specifically upheld. From said judgment, plaintiff perfected the present appeal.

¶5 Under the First Proposition of its brief, plaintiff contends that the trial court erred in admitting in evidence the above-described copy of the Resolution which, according to defendant's evidence, was passed by Sequoyah County's Board of County Commissioners in March, 1946. Its argument is directed both at the sufficiency of such evidence and the manner of its introduction. As to the latter, it is asserted, in substance, that no proper predicate was laid for the introduction of such an unsigned, undated and unauthenticated carbon copy and that the introduction of such a paper was in violation of the "best evidence" rule which would have required, in the absence of the original resolution, the introduction of "the records or minutes" of the County Commissioners' meeting at which the resolution was represented as having been passed. Defendant's answer to this argument is that as a predicate for the introduction of such "secondary evidence" it made a sufficient showing, agreed to by counsel for defendant, that the "primary" or original record of said resolution could not be found, and thus complied with the rule governing such matters, citing McCormick v. Stonebraker, 133 Okl. 34, 270 P. 1098, and Bean v. Harris, 93 Okl. 10, 219 P. 300. In support of its position, defendant also cites the record of the trial proceedings. The following excerpt therefrom shows all that transpired at the trial with reference to the evidence under discussion:

"Mr. Green. We desire to introduce this resolution of the Board of County Commissioners of Sequoyah County, Oklahoma in evidence as the Defendants' Exhibit 2. If they don't agree that was a resolution passed by the Board then we will have to introduce proof on it.

"Mr. Frye: We don't agree to this. We object to this exhibit as incompetent, irrelevant and immaterial. * * *"

(Soon afterward the following occurred, during the examination of the witness, W.L. Brockman, by defendant's attorney, Mr. Green):

"Q. Would you tell the court just what happened that time in connection with the approval or adoption of that resolution by the Board of County Commissioners?

"Mr. Frye: To which we object as incompetent, irrelevant and immaterial and the proper way to prove such a resolution by the Board of County Commissioners and also the best evidence would be the records of the [288 P.2d 710] Board of County Commissioners and not by this witness.

"Mr. Green: We agree with counsel that is ordinarily true but we have searched the records of that office and the same cannot be found.

"The Court: Do you agree, Mr. Frye, that the original record can't be found?

"Mr. Frye: Yes, sir.

"The Court: All right, overruled then.

"Q. (Mr. Green) Go ahead. * * *"

(At the end of the witness' cross examination, the following transpired):

"Mr. Green: We offer this in evidence now as Defendant's Exhibit 2.

"Mr. Frye: We object to it as not being dated or signed and it is not a certified copy and it is not an official record of the Board of County Commissioners of Sequoyah County, Oklahoma and the evidence is insufficient to establish it as a valid record.

"The Court: The witness says it was approved and signed by all three members of the board and you have agreed that the original record can't be found; overruled.

"Mr. Frye: Exception."

¶6 As will be noted from the quoted colloquy between the attorneys and the trial judge, it does not unequivocally appear what they meant by their use of the term: "original record"; and whether they thereby referred to the book in which Tit.

"`The best evidence by which a fact may be proven should be used. But it is of importance that the truth be developed in the simplest manner, without regard to impractical technicalities. While rules of evidence should be followed, they are not themselves the end to be attained. They are only the means to the end.'"

¶7 In the Second, Third and Fourth Propositions of its brief plaintiff's counsel argue that the above-described resolution of the Board of County Commissioners, if such resolution was in fact passed, is void as in violation of Tit.

¶8 WILLIAMS, V.C.J., and WELCH, CORN, HALLEY and JACKSON, JJ., concur.