Alley v. City of Muskogee
| Decision Date | 14 March 1916 |
| Docket Number | 5502. |
| Citation | 156 P. 315,53 Okla. 230,1916 OK 332 |
| Parties | ALLEY v. CITY OF MUSKOGEE ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Section 723, Comp. Laws 1909, conferring upon the mayor and council of cities of the first class authority, whenever they shall deem it necessary, to grade, pave, macadamize, gutter, curb drain or otherwise improve any street, avenue, alley or lane or any part thereof, within the limits of the city, for which a special tax is to be levied, by resolution to declare such work or improvement necessary to be done; and which resolution shall be published in six consecutive issues of a weekly newspaper published and having a general circulation within such city, provides for a sufficient notice to the owners of property sought to be charged with the cost of the improvement, and is therefore not repugnant to section 7 art. 2, Okl. Constitution, or to the Fourteenth Amendment to the federal Constitution.
The due publication of the resolution of necessity of the mayor and city council, provided for in said section 723, together with the publication of the notice given by the city clerk required by section 726, Comp. Laws 1909, as exhibited by the petition, was sufficient notice to property owners affected thereby, of the proposed street improvements.
A newspaper published on each day of the week except Monday is a daily newspaper within the meaning of sections 723 and 726, Comp. Laws 1909, providing, respectively, for the publication of the resolutions of the mayor and council, and notice of hearing by the city clerk, in street improvement work.
Section 723 requires that the resolution "be published in six consecutive issues of a daily newspaper," while section 726 provides that notice of the session of the mayor and council "shall be published by the city clerk in five successive issues of a daily newspaper." Section 730 provides that the publication of all notices in a daily newspaper called for in the act shall be the number of days therein specified, exclusive of Sundays and legal holidays. Held, a compliance with the statute, where the resolution and notice were published, respectively, in six and five consecutive issues of a newspaper published each day in the week except Monday, and omitting the Sunday edition.
Additional Syllabus by Editorial Staff.
A "special assessment" is an enforced proportional contribution, to pay the cost of a local improvement, levied only occasionally as required, upon a limited class of persons, who are interested in such improvement, and presumed to be benefited by it to the extent of the assessment.
Error from Superior Court, Muskogee County; Farrar L. McCain, Judge.
Action by E. C. Alley against the City of Muskogee and others. Judgment for defendants, and plaintiff brings error. Affirmed.
Charles A. Cook, of Muskogee, for plaintiff in error.
S. V. O'Hare and James C. Davis, both of Muskogee, for defendants in error.
W. L. Cunningham, of Muskogee, amicus curiæ.
On the 19th day of April, 1913, plaintiff instituted a suit in the superior court of Muskogee county, to enjoin the levy and collection of taxes upon certain lots within street improvement district No. 129 of the city of Muskogee, which taxes were at the time about to be levied and collected to pay for said street improvement. Plaintiff's petition set forth five separate causes of action, to each of which a demurrer was filed. A hearing on the issues of law being had, the demurrer to the first, second, and fourth causes of action was sustained, and overruled as to the third and fifth. From the court's action in sustaining the demurrers, plaintiff brings error.
Three points of attack are directed to the judgment of the trial court: (1) That the statute under which the special assessment was levied and proceedings had is void, in that the same is in contravention of article 2,§ 7, of the state Constitution, and the Fourteenth Amendment to the federal Constitution; (2) that the publication of the resolution as authorized by section 723, Comp. Laws 1909, was not sufficient to confer jurisdiction upon the mayor and council to act in the premises; (3) that both the publication of the resolution and the subsequent notice of the city clerk were not published, respectively, for six and five consecutive issues of a daily paper as required by said statute.
At the outset it may be said that, like general taxes, special assessments are enforced proportional contributions, imposed, not at regularly recurring periods to provide a continuous revenue, but instead are levied only occasionally as required; they are imposed, not upon the general body of the citizens, but upon a limited class of persons who are interested in a local improvement, and who are assumed to be benefited by the improvement to the extent of the assessment; they are imposed and collected as an equivalent, actual or presumed, for the benefit, and to pay the cost of the improvement. Special assessments proceed upon the theory that when a local improvement enhances the value of neighboring property, it is reasonable and competent for the Legislature to provide that such property should pay for the improvement. In a general levy of taxes, a contribution is exacted in return for the general benefits of government; in special assessments, the contribution is exacted because the property of the taxpayer is considered by the Legislature to be benefited over and beyond the general benefit of the community.
In Dillon on Municipal Corporations, § 1432, it is said that whether the Constitutions of the various states contain provisions which prohibit the Legislature from assessing the expense of local improvements upon property in the vicinity has given rise to numerous decisions; that in the leading case (People v. Brooklyn, 4 N. Y. 419, 55 Am. Dec. 266) it was held, upon great consideration, in an opinion, the reasoning and conclusion of which have almost everywhere been adopted, and which is regarded as historically and legally sound, that the ordinary and usual legislation of such character does not contravene the constitutional provision that:
"No person shall be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation."
The former provision is identical with section 7, art. 2, of the Oklahoma Constitution, of which it is said the statute is violative. It may be regarded as definitely settled that the Legislature of a state may create, or authorize the creation of, special improvement or taxing districts, and charge the costs of a local improvement, in whole or in part, upon the property in such districts, or according to valuation or superficial area or frontage, without violating the Fourteenth Amendment to the federal Constitution; and that the whole expense of paving or of improving a street or highway may be assessed by a municipality pursuant to statutory authority, upon the lands abutting upon the street or highway so improved, in proportion to the feet frontage of such lands, without providing for a judicial inquiry into the value of such lands and the benefits actually to accrue to them by the proposed improvement. Dillon on Mun. Corp. § 1436; French v. Barber Asphalt Pav. Co., 181 U.S. 324, 21 S.Ct. 625, 45 L.Ed. 879; Tonawanda v. Lyon, 181 U.S. 389, 21 S.Ct. 609, 45 L.Ed. 908; Webster v. Fargo, 181 U.S. 394, 21 S.Ct. 623, 45 L.Ed. 912; Shultise v. Town of Taloga, 42 Okl. 65, 140 P. 1190.
Section 723, Comp. Laws 1909, contains an express delegation of power to the mayor and council of cities of the first class whenever they shall deem it necessary, to grade, pave, macadamize, gutter, curb, drain, or otherwise improve any street, avenue, alley, or lane, or any part thereof, within the limits of the city for which the special tax is to be levied; to, by resolution, declare such work or improvement necessary to be done. That thereupon such resolution shall be published as therein provided, and if the owners of more than one-half in area of the lands liable for assessment to pay for such improvement of any such highway shall not within 15 days after the last publication of such resolution file with the clerk of said city their protest in writing against such improvement, then the mayor and council shall have power to cause such improvement to be made and to contract therefor, and to levy assessments as therein provided; and that any number of streets, avenues, lanes, alleys, or other public places or parts thereof, to be so improved, may be included in one resolution. The petition charges the adoption, approval, and publication of the resolution declaring the necessity of the work or improvement to be done, and in which was included certain lots belonging to plaintiff, situate, abutting, and fronting on South B street, and within the territory described in the resolution. It is not claimed that there was a failure to comply with the requirements of the statute, prescribing the acts and things necessary to be done in the levying of a special assessment for street improvement work, except the resolution and subsequent notice were not published in sufficient consecutive issues of a daily paper, within the meaning of the statute. On the other hand, the first ground of attack is that the statute authorizing the publication of the resolution is void and without effect, in that it provides for no sufficient notice to the owner of the property sought to be charged with the cost of the improvement. In principle, the question is not a new one in this jurisdiction. In City of Perry v. Davis et al., 18 Okl. 427, 90 P. 865, in a well-considered opinion, article 1, c. 6, of the Sess. Laws of 1903, under which a tax for the construction...
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