Bd. of Cnty. Com'Rs of Kiowa Cnty. v. Kiowa Nat. Bank of Snyder

• Decision Date: 26 November 1935
• Docket Number: Case Number: 24249
• Citation: 175 Okla. 3,1935 OK 1146,52 P.2d 777
• Parties: BOARD OF COUNTY COM'RS OF KIOWA COUNTY et al. v. KIOWA NAT. BANK OF SNYDER
• Court: Oklahoma Supreme Court

1935 OK 1146

52 P.2d 777

175 Okla. 3

BOARD OF COUNTY COM'RS OF KIOWA COUNTY et al. v. KIOWA NAT. BANK OF SNYDER

Case Number: 24249

Supreme Court of Oklahoma

Decided: November 26, 1935

Syllabus

¶0 1. Drains--Counties--Nonliability of County on Bonds Issued for Construction of Drainage Ditch--Liability for Amount Collected on Assessments.

Bonds issued by a county for the purpose of providing revenues to construct a ditch in a drainage district cannot be made a charge against the county either in an action ex contractu or ex delicto, for negligence, delay, or refusal to assess or reassess the property to provide funds for the payment of the bonds, but it is liable to the extent of the money collected from assessments made and still held in its hands.

2. Same--Other Lands Within Drainage District not Subject to Reassessment to Cover Invalid Assessments Against Indian Lands.

Invalid assessments against restricted Indian lands included within a drainage district cannot be reassessed against other lands within the district against which there have been original valid assessments, for the purpose of paying the bonds issued against the drainage district.

3. Drains -- Validity of Drainage Ditch Bonds--Irregularities in Issuance Waived by Long Recognition as Valid.

The provisions of the statute relative to the issuance and sale of bonds for the purpose of paying the expenses of constructing a drainage ditch must be complied with, but where the bonds have been issued and sold for more than ten years and the interest coupons on said bonds have been regularly paid during the whole period, and where 27 of the bonds have been paid in full, leaving only four of the last maturity of said bonds outstanding, and the interest coupons on them have been regularly paid and no objection is made until after the last four bonds have matured, in the absence of fraud or corruption, mere irregularities in the issuance of said bonds will be considered as waived and payment may not be avoided upon a mere technicality.

Appeal from District Court, Tillman County: E. L. Richardson, Assigned Judge.

Action by the Kiowa National Bank of Snyder against the Board of County Commissioners of Kiowa and Tillman counties. Judgment for plaintiff, and defendants appeal. Judgment affirmed in part and reversed in part.

Geo. L. Zink, W. A. Bolding, Co. Atty., and Herman S. Davis, Co. Atty., for plaintiffs in error.

Bailey & McLaury, for defendant in error.

PHELPS, J.

¶1 Prior to April 1, 1910, the county commissioners of Kiowa county, pursuant to the laws then existing, formed and organized Otter creek drainage district within the territorial limits of Kiowa county. With the organization of the drainage district, contracts were let and the work contemplated was performed, in payment for which, as the same progressed, the county commissioners caused their warrants to be issued on the various funds then in the hands of the treasurer of Kiowa county.

¶2 The project having been completed and paid for by warrants thus issued, the county commissioners issued their ten-year bonds, to the number of 31, in the aggregate amount of $ 17,500, and delivered the same to the Farmers & Merchants Bank of Snyder, Okla., which bank had paid the various warrants issued by said board of county commissioners as they were presented by the parties to whom they were issued, and by such exchange took up said warrants. Assessments were levied against the property embraced in the drainage district and collections made and all bonds paid with the exception of bonds numbered 28, 29, 30, and 31, aggregating the total amount of $ 4,500, due on April 1, 1920.

¶3 When the above-mentioned bonds fell due and there was no money on hand to pay them, it was then discovered that the assessments levied and collected against the property benefited by the project was insufficient to equal the amount of the bonds issued. $ 2,038.01 of this delinquent amount was due to the fact that this amount was levied against untaxable Indian lands, and the court's judgment recited that "the cause of further shortage in the fund is not easily discernible from the record." The Farmers & Merchants Bank of Snyder, while the holder of the bonds here in question, was, with all its assets, taken over by the State Bank Commissioner and these bonds were afterward sold to the Kiowa State Bank of Snyder, Okla.

¶4 In the meantime a portion of the territory embraced in the Otter creek drainage district was detached from Kiowa county and attached to Tillman county. The bonds not having been paid, suit was brought in the district court of Kiowa county, in which judgment was sought against both counties. Before the cause was disposed of, the remainder of the territory embraced in the drainage district was detached from Kiowa county and attached to Tillman county. The district court of Kiowa county rendered judgment for the plaintiff, from which appeal was taken to this court (Board of Commissioners v. Kiowa National Bank, 141 Okla. 271, 284 P. 634), and this court held that, the entire area covered by the Otter creek drainage district having been detached from Kiowa county, the district court of that county had no jurisdiction and remanded the cause to the district court of Kiowa county with instructions to transfer the cause to the district court of Tillman county. In the meantime the Kiowa National Bank became the owner of all the assets of the Kiowa State Bank and was substituted as plaintiff, and the drainage district and drainage commissioners were made additional parties defendant.

¶5 Upon trial of the cause in the district court of Tillman county, judgment was rendered against Kiowa county for the sum of $ 632.23, with interest, this being the amount of money the evidence showed remained in the hands of Kiowa county from the collected assessments against the drainage district, and judgment was rendered against Tillman county for the sum of $ 199.57, the amount shown to have been collected by Tillman county. The court further found that the plaintiff was entitled to recover $ 2,038.01, the amount assessed against the Indian lands, and issued its peremptory writ of mandamus directing the board of county commissioners of Tillman county to take the necessary steps and levy additional assessments against the property of the drainage district in order to raise said amount, and held that these amounts were all that plaintiff was entitled to recover.

¶6 From this judgment the defendants appeal.

¶7 It was the contention of plaintiff in the trial court, and as defendant in error it is its contention here, that in view of the fact that the county commissioners failed to take steps to cause a reassessment of the property benefited by the drainage district to provide the funds for satisfying the unpaid balance due on the bonds, the counties themselves became liable, and it asked for judgment against the counties.

¶8 The trial court declined to take that view of the case and held that the counties were not individually liable except in so far as the two counties involved had in their possession funds which had been collected for the drainage district from the assessments levied upon the property.

¶9 In Severns Paving Co. v. Oklahoma City, 158 Okla. 182, 13 P.2d 94, this court had a similar question before it, under a different statute, however, but there is similarity in the...