Baldwin v. City of Lawton
| Decision Date | 15 April 1947 |
| Docket Number | 32925. |
| Citation | 185 P.2d 699,198 Okla. 585,1947 OK 121 |
| Parties | BALDWIN v. CITY OF LAWTON et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied May 13, 1947.
Appeal from District Court, Comanche County; Cham Jones, Judge.
Suit by M. C. Baldwin against the City of Lawton and others to enjoin defendants from proceeding further with proposed street improvements in a designated improvement district. From a judgment denying an injunction, plaintiff appeals.
Affirmed.
Syllabus by the Court.
1. The fact that the local improvement may incidentally benefit the entire city does not destroy its use as a foundation for local assessment.
2. The judgment of a trial court finding that a proposed street paving project was within the constitutional and statutory provisions authorizing local assessments for payment of its cost, and that the municipal officers had not acted fraudulently, capriciously, or unjustly, will not be reversed unless against the clear weight of the evidence.
Paul D Busby and L. M. Gensman, both of Lawton, for plaintiff in error.
Charles W. Jennings, of Lawton, for defendants in error.
The City of Lawton, Oklahoma, through its proper officers and in the manner prescribed by statute, organized Paving District No. 64 consisting of 'D' avenue, from the west side of seventh street, east to the city limits, approximately 12 blocks. Near the center of this district the avenue is intersected by the north and south right-of-way of the C R.I. & P. railroad. The city engineer was directed by resolution to prepare plans, specifications and estimates for the paving of the above street. After preparation they were adopted by resolution and notice was given by publication as required by statute. Within the time provided, plaintiff and others, representing a majority of the owners of lots aubtting on 'D' avenue between second street and the railroad, filed a protest with the city council, which was not acted upon because it was not signed by a majority of the land owners in the entire district.
This action was then filed in the district court, seeking an injunction restraining the city and its various officers from proceeding further with the proposed improvements in said improvement district. The protest, and the petition herein were based upon the allegations that that part of the paving district between second street and the railroad had a paving in good condition, sufficient for the amount and type of traffic thereon which, under the proposed plan of improvement, was to be torn up and removed and used on other streets of the city which would constitute the taking of property in violation of the constitution. That the inclusion of this two block area in the improvement district was arbitrary and capricious, and for the purpose of defeating the right to protest, of plaintiff and others similarly situated, and was without authorization of law. That the costs of the improvements are far in excess of any benefits to be received by plaintiff.
Defendants filed a general denial and affirmatively pleaded that the protest was not signed by a majority of the owners of the lots in the district.
The testimony disclosed that plaintiff's property was approximately one block west of the railroad and that the proposed paving was to be of seven inch reinforced concrete, 72 feet wide from the railroad west, and 40 feet wide east of the railroad through what is known as the 'industrial area,' owned by the city for the purpose of inducing large business organizations to locate plants there. The purpose of constructing the proposed improvement was to furnish facilities for access to the area sufficient for the anticipated type and amount of traffic based on a 40 year plan.
The testimony introduced by plaintiff further shows: That the old paving along plaintiff's property is sufficient for present uses and with some repair would be satisfactory for several years; the approximate value of the individual lots in the two block area involved herein, and the approximate cost of the new pavement to each; that located between the railroad and second street are small businesses which would be benefited little, if any, by the new paving, other than as a civic improvement, and inducement of pride in the city; that the principal use of the new pavement would be by anticipated through heavy traffic to and from the 'industrial area' east of the railroad.
The trial court denied the application for injunction and the plaintiff brings the case here on appeal.
Section 85 of title 11 O.S.1941 provides that, within 15 days after the publication of the resolution approving the plans, specifications and estimates of the proposed improvements, protests may be filed thereto, and if the owners of more than 50% of the land liable for the assessments on any one street within the district file protests, further proceedings shall not be taken, and it shall not be again advertised for six months.
The following section, 11 O.S.1941 § 86, provides the procedure by which an owner or owners of less than 50% of the property subject to assessments, or any interested person, may protest construction of the proposed improvements by suit in the district court, which was followed by plaintiff herein:
'Any property owner, or other person interested in such proposed improvement, shall have the right to institute an action in the District Court of the county in which said city or incorporated town is located, at any time not later than fifteen (15) days after publication of the resolution provided for in Section 5 of this Act, to contest the action of the governing body of such city or incorporated town in adopting and...
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