Baccus v. Banks, Case Number: 32427

• Decision Date: 28 October 1947
• Docket Number: Case Number: 32427
• Citation: 1947 OK 322,192 P.2d 683,199 Okla. 647
• Parties: BACCUS v. BANKS
• Court: Oklahoma Supreme Court

1947 OK 322

192 P.2d 683

199 Okla. 647

BACCUS v. BANKS

Case Number: 32427

Supreme Court of Oklahoma

Decided: October 28, 1947

Syllabus

¶0 1. MUNICIPAL CORPORATIONS - Special assessments - Injunction proper remedy to prevent sale of property to satisfy special assessment liens.

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

2. STATUTES - Rule of ejusdem generis as aid to construction.

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. SAME - Applicability of statute to foreclosure of special assessment liens by tax sale and resale as well as by civil action.

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. LIMITATION OF ACTIONS - Sufficiency of mandamus proceedings to toll running of statute so sale and resale of property subject to special assessment liens can be completed.

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. CONSTITUTIONAL LAW - Limitation statute as applying to obligation of contracts - Power of Legislature to change period.

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

6. SAME - When limitation statutes apply to existing contract rights.

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. SAME - STATUTES - Period of time allowed in statute for enforcement of existing contract obligations, due or to be due, more than three years by Nov. 1, 1939, not unreasonable.

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. MUNICIPAL CORPORATIONS - Owners of special assessment bonds not deprived of any remedies they previously had by 11 O.S. 1941 § 242.

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

9. CONSTITUTIONAL LAW - Power of Legislature to make limitation statute applicable to existing contract rights.

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. SAME - Statute of limitation does not unconstitutionally impair contract of owner of special assessment bonds and does not violate Federal or State Constitution under 11 O.S. 1941 § 242.

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.

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

Action by W.F. Banks against Vernon Baccus, County Treasurer of Wasita County; A.F. Reeder intervening. From judgment granting plaintiff permanent injunction, defendant and intervener appeal. Affirmed.

Appeal dismissed, 68 S.Ct. 743.

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, C.J.

¶1 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.

¶2 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, p. 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 delinquency of the assessments and that the intention was to sell the lot for said special assessment at the November, 1945, delinquent 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 fat 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.

¶3 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.

¶4 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

...