Baccus v. Banks

• Citation: 192 P.2d 683,199 Okla. 647,1947 OK 322
• Decision Date: 28 October 1947
• Docket Number: 32427.
• Parties: BACCUS, County Treasurer (REEDER, Intervener) v. BANKS.
• Court: Supreme Court of Oklahoma

192 P.2d 683

199 Okla. 647, 1947 OK 322

BACCUS, County Treasurer (REEDER, Intervener) v. BANKS.

No. 32427.

Supreme Court of Oklahoma

October 28, 1947

Rehearing Denied Jan. 6, 1948.

Appeal from District Court, Washita County; Jno. B. Wilson, Judge.

Action by W. F. Banks against Vernon Baccus, County Treasurer of Washita County, Okl., to enjoin sale of plaintiff's realty to satisfy special assessments levied thereon, wherein A. F. Reeder, owner of bonds issued against paving district was allowed to intervene. From a judgment for plaintiff, the defendant and intervener appeal.

Affirmed.

Appeal dismissed, 68 S.Ct. 743.

GIBSON J., dissenting.

Syllabus by the Court.

1. Injunction will lie to prevent the sale of property to satisfy special assessment liens which have been extinguished.

2. The rule of ejusdem generis is resorted to merely as an aid in construction. If, upon consideration of the whole law upon the subject, and the purposes sought to be effected, it is apparent the Legislature intended the general words to go beyond the class specifically designated, the rule does not apply. Moreover, where the particular words exhaust the class, then the general words must be given a meaning beyond the class.

3. The provisions of 11 O.S.1941 § 242 are applicable to foreclosure of special assessment liens by tax sale and resale as well as by civil action.

4. The commencement of proceedings in mandamus to compel the proper officials to commence proceedings for sale and resale of property subject to special assessment liens within the period of limitations provided in 11 O.S.1941 § 242 would be sufficient to toll the running of the statute so that the sale and resale could be completed.

5. The existing limitation statutes do not ordinarily enter into and become a part of the obligation of contracts, and the Legislature may shorten such periods so long as a reasonable period remains.

6. Statutes of limitation may be made to apply to existing contract rights against which there were no such statutes in existence at the time they were created, provided a reasonable time is allowed for their enforcement, and such statutes do not violate the constitutional provision against impairment of the obligation of contracts.

7. The period of time allowed in 11 O.S.1941 § 242 (18 months and 19 days) for the enforcement of existing contract obligations which had been due more than three years or which were to be due more than three years by November 1, 1939, was not unreasonable.

8. 11 O.S.1941 § 242 did not deprive owners of special assessment bonds of any of the remedies they previously had.

9. The Legislature may, in enacting a statute of limitations, make it effective to take away both the remedy and the right and make it applicable to existing contract rights, so long as the period of limitations is reasonable.

10. The provision of 11 O.S.1941 § 242, that the running of the period of limitation therein fixed 'shall be an absolute bar to any action or proceeding brought thereafter, whether the same is plead as a defense or not, and the property against which such bonds theretofore represented a lien shall thereafter be, by operation of law, absolved of any lien or liability on account of said bonds,' is but a part of, and is intended to make effective, the statute of limitations therein, and the same does not unconstitutionally impair the obligation of the contract, nor does it violate the due process clause or the equal protection clause of either the State or Federal Constitution.

Raymond T. Plumlee, Co. Atty., of Cordell, for plaintiffs in error.

Jones & Wesner, of Cordell, for A. F. Reeder, intervener.

A. J. Welch and Milton Keen, both of Clinton, for defendant in error.

Holloway & Holloway, of Oklahoma City, Randall Pitman, City Atty., of Shawnee, Walter H. Thomas, City Atty., of Woodward, Forrest M. Divine, City Atty., of Hugo, Charles W. Jennings, City Atty., of Lawton, Norman E. Reynolds, W. Otis Ridings, and Norman E. Reynolds, Jr., all of Oklahoma City, and James F. Haning, of Wewoka, amici curiae.

HURST Chief Justice.

In March, 1929, the City of Cordell created paving district No. 8, paved the streets in said district, levied special assessments, and issued bonds under the 1923 paving law, 11 O.S.1941 §§ 81-117. The assessments and bonds became delinquent on March 17, 1939. The plaintiff, W. F. Banks, owned a lot in said paving district on which the assessment had not been paid. In October, 1945, Vernon Baccus, County Treasurer of Washita County, advertised the lot for sale at the November, 1945, delinquent tax sale to satisfy such special assessment. The amount of the special assessment and interest thereon then amounted to $672.62. On October 29, 1945, Banks commenced this action against the county treasurer to enjoin the sale of the same to satisfy the special assessment. A. F. Reeder, owner of bonds No. 34-39, inclusive, issued against said paving district, was allowed to intervene in the case.

In his petition, the plaintiff alleged that prior to the filing of this action, the lien for special assessments had ceased to exist by reason of the provisions of Section 1 of Article 6 of Chapter 33, Page 156, Session Laws of 1939, 11 O.S.1941 § 242, in that the owners of the bonds issued against said paving district had commenced no suit to enforce this special assessment lien. The county treasurer filed an answer admitting that the plaintiff owned the lot in question, admitting the levy of the special assessment and the issuance of the bonds and the deliquency of the assessments and that the intention was to sell the lot for said special assessment at the November, 1945, deliquent tax sale, and alleging that the plaintiff had an adequate remedy in law. The intervener filed an answer alleging that 11 O.S.1941 § 242, in so far as it attempted to extinguish the special assessment lien, impaired the obligation of his contract and was unconstitutional, and he further alleged that the plaintiff had an adequate remedy at law by payment of the special assessment and suing as provided by 68 O.S.1941 § 15.50.

To the answers of the defendant and intervener, the plaintiff filed a demurrer which was sustained by the court and thereupon the court entered judgment granting plaintiff a permanent injunction enjoining the county treasurer from selling the lot for said special assessment.

From that judgment, the defendant and intervener have perfected this appeal.

Section 242, on which the plaintiff relies, and which the intervener and amici curiae say is unconstitutional, is as follows:

'From and after the effective date of this Act, the right of any holder to enforce the lien of any 'Street Improvement Bond' issued under authority of Chapter 10, Article 12, Oklahoma Revised Laws of 1910, or of any 'Street Improvement Bond' or 'Refunding Street Improvement Bond' issued under any authority contained in Chapter 33, Article 14, Oklahoma Statutes of 1931, and statutes supplementary and amendatory thereto, by foreclosure, mandamus, refunding or otherwise, shall be barred upon the expiration of three years immediately following the maturity date named in the face of such bond, unless the holder of any such bond shall have commenced suit to foreclose his lien by filing an action for that purpose and procuring service of summons therein or shall have evidenced his willingness to accept Street Improvement Refunding Bonds issued under the provisions of this Act, in exchange therefor, prior to the expiration of said three year period of limitation; Provided, however, that in all cases where the period of limitation herein mentioned has expired or will expire prior to November 1, 1939, the holder of such bonds shall have until December 1, 1940, in which to pursue his remedy or obtain the benefits of this Act. The running of the period of limitation herein fixed shall be an absolute bar to any action or proceeding brought thereafter, whether the same is plead as a defense or not, and the property against which such bonds theretofore represented a lien shall thereafter be, by operation of law, absolved of any lien or liability on account of said bonds.

'It shall be the mandatory duty of the city clerk to notify the holders of all outstanding Street Improvement Bonds that the same are about to be barred by the Statute of Limitations, by mailing to the holder of each such bond at his last known address, as shown by the records of said city clerk, and by publication of notice in some newspaper of general circulation in the city or town in which such Street Improvement District is located, and if there be no newspaper published in said city or town, then the publication shall be made in some newspaper published in said county, and by publication thereof in at least one nationally recognized financial journal, which notices shall be mailed and published at least sixty days prior to the expiration of such Statute of Limitation; said notices shall be substantially in the following form:

"Notice to All Holders of Street Improvement Bonds of District No. ___ (or, if Appropriate, Insert the Ordinance or Serial No.) of the City of _____, Oklahoma:

"You are hereby notified that on the ___ day of _____, 19__, the above bonds and rights thereunder will be barred by Statute of Limitation, as provided in Senate Bill 164, Oklahoma Session Laws, 1939. You will govern yourselves accordingly.

________

"City Clerk of the City of _____, Okla.'

'Failure of the city clerk to give the notice provided herein shall not impair any of the provisions of this Act.'

1. The county treasurer argues that injunction will not lie to restrain the sale, but that the only remedy of the property owner was to pay the assessment under protest and...