Blythe v. City of Tulsa

• Decision Date: 11 June 1935
• Docket Number: Case Number: 23459
• Parties: BLYTHE v. CITY OF TULSA
• Court: Oklahoma Supreme Court

1935 OK 652

46 P.2d 310

172 Okla. 586

BLYTHE v. CITY OF TULSA

Case Number: 23459

Supreme Court of Oklahoma

Decided: June 11, 1935

Syllabus

¶0 1. MUNICIPAL CORPORATIONS - Authority to Levy Special Assessments on Property Belonging to Municipal Subdivisions.

A municipality which has been given general power to levy special assessments for local improvements on property benefited thereby has authority to levy such assessments upon property belonging to municipal subdivisions of the state in the absence of specific constitutional or statutory exemption.

2. SAME - Property not Exempt From Special Assessments Because of General Exemption from Taxation.

A constitutional or statutory provision generally exempting property from taxation does not exempt such property from a levy of special assessments for local improvements to the property benefited thereby.

3. SAME.

There is no constitutional or statutory provision in the law of this state which exempts property owned by a municipal subdivision of the state from a levy of special assessments for local improvements to the property benefited thereby.

4. SAME - Property of Municipal Subdivision and Used for Public Purposes not Subject to Forced Sale in Payment of Special Assessments.

Upon the grounds of public policy, property owned by a municipal subdivision of the state and used for public purposes cannot be subjected to forced sale in payment of special assessments for local improvements.

5. SAME - Property not Used for Public Purposes Subject to Lien for Special Assessments Just as Property of Private Persons.

Property owned by municipal subdivisions of the state, which is not used for public purposes, is subject to the lien of special assessments for local improvements, and is subject to the same laws and procedure against the property for collection as property owned by private persons.

Appeal from District Court, Tulsa County; Owen Owen, Judge.

Action by J.E. Blythe against the City of Tulsa et al. to quiet title to real estate in the City of Tulsa. Judgment for some of the defendants, and plaintiff appeals. Affirmed.

Charles Skalnik, for plaintiff in error.

Allen, Underwood & Canterbury, for defendant in error Standard Paving Company.

H.O. Bland, for defendants in error City of Tulsa and D.H. Pratt, Commissioner of Finance and Revenue of the City of Tulsa.

WELCH, J.

¶1 This is an appeal from the district court of Tulsa county. The parties occupy the same relative position here which they occupied in the trial court, and will be referred to as plaintiff and defendants.

¶2 The suit was instituted for the purpose of quieting title to blocks I and 2, Lonsdale addition to the city of Tulsa, in Tulsa county. The property is unimproved. Plaintiff acquired title to the property by a county deed from Tulsa county, dated January 19, 1931. Tulsa county acquired title to the property by resale tax deed dated April 20, 1925, and filed for record June 16, 1925. The defendant, Standard Paving Company, a corporation, is the holder of certain special paving tax bills issued pursuant to and under the provisions of the ordinances of Tulsa, numbered 3065 and 3497, dated August 10, 1926, and April 9, 1929, respectively. The trial court rendered judgment for the defendants, and plaintiff has appealed.

¶3 The question presented by this appeal is whether or not special assessment tax bills for local improvement purposes create a lien against land belonging to the county at the time the special assessments were levied. It is agreed that all things were legally done which would create a lien against the property involved, if such property was subject thereto in any event.

¶4 Plaintiff, in support of his contention that the property is not subject to special assessment for local improvements, cites a portion of section 9575, C. O. S. 1921, as follows:

"Exemptions: The following property shall be exempt from taxation: * * *

"Third. All property of the United States, and of this state, and of counties and municipalities of this state."

¶5 He appears to treat section 20, chapter 173, Session Laws 1923, which provides as follows:

"Any property which shall be owned by the city, town or county or any board of education or school district, shall be treated and considered the same as the property of other owners, and such city, town, county, school board or board of education within such district to be assessed, shall annually provide by the levy of taxes in a sufficient sum to pay the maturing assessments and interest thereon"

- as general statutory authority to cities and towns to levy special assessments for local improvements on property owned by municipal subdivisions within this state, and proceed upon the theory that without such specific authority such assessments cannot be levied and a lien on the property be created thereby. He points out that the assessments here levied were not levied under the general laws of the state, but were levied under the charter and municipal ordinances of the city of Tulsa; and calls attention to the fact that the city charter contains no such provision as is contained in section 20 of chapter 173, S. L. 1923, supra, and that therefore, under the authority by which the assessments here were made, property belonging to the county could not be assessed and a lien created thereon thereby.

¶6 We do not agree with plaintiff's theory that the city of Tulsa was without authority to levy special assessments for local improvements against property belonging to municipal subdivisions of the state under its charter. Such power and authority existed prior to the, enactment of chapter 173, S. L. 1923, and quite apart from same.

¶7 Section 7, article 10, of the Constitution of Oklahoma provides:

"The Legislature may authorize county and municipal corporations to levy and collect assessments for local improvements upon property benefited thereby, homesteads included, without regard to a cash valuation."

¶8 Under the provisions of section 3(a), article 18, of the Constitution, any city containing a population of more than 2,000 inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and laws of this state. The city of Tulsa adopted its charter on July 3, 1908, and the same was approved by the Governor on January 5, 1909. The charter relative to levying special assessments for local improvement purposes provides ill part as follows:

"The cost of any such improvement assessed against any property together with all cost and reasonable expenses in collecting the same, including reasonable attorney's fee when incurred, shall be secured by a lien upon such property superior to all other liens, claims, or titles, except city, county and state taxes."

¶9 It will be observed that under the constitutional and charter provisions referred to, the city of Tulsa, upon adoption of its charter, was given general power to levy special assessments on property benefited by local improvements to be secured by lien thereon. We observe further that there was no exemption of property owned by a municipal subdivision of the state from such assessment. We hold that, in the absence of an exemption from such assessments, such property was subject to levy. County Com'rs El Paso Co. v. Colorado. Springs, 66 Colo. 111, 180 P. 301; McLean Co. v. Bloomington, 106 Ill. 209; Edwards & Walsh Construction Co. v. Jasper Co., 117 Iowa, 365, 90 N.W. 1006; City of St. John v. Bd. of Com'rs of Stafford Co., 111 Kan. 128, 205 P. 1033; Board of Com'rs of Franklin Co. v. City of Ottawa, 49 Kan. 747, 31 P. 788; Ricker v. Helena, 08 Mont. 350, 218 P. 1049.

¶10 See Board of Commissioners of Franklin County v. City of Ottawa, supra, for extended discussion which is of special value here.

¶11 The fact that the property of a county is exempt from taxation by the laws of the state does not exempt the same from a special assessment levy for improvement purposes. Board of Com'rs of Franklin County v. City of Ottawa, supra; City of St. John v. Board of Commissioners of Stafford County, supra.

¶12 Although there are authorities to the contrary, we adhere to the rule that a general constitutional or statutory provision exempting such property from general taxation does not include an exemption from special assessment levies for improvement purposes.

¶13 It therefore follows that the property herein involved was not exempt from the levy of the special assessment herein considered. The question then arises, Does property belonging to the county become impressed with a lien securing such special assessment levies? This question appears to have been before the courts on many occasions. It has been held that where the law has not specifically exempted publicly owned property from a levy or assessment for improvement purposes, the same was subject thereto, but in cases where the property was used for public purposes the courts have announced the rule almost universally that a lien did not attach to the specific property, or at least that the property itself was not subject to forced sale for payment thereof. In Board of Com'rs of Franklin County v. City of Ottawa, supra, the court said:

"The serious difficulty in this case is as to the manner of collecting the special assessment. We held in the case of Board of Com'rs of Stafford Co. v. Firs' Nat. Bank of Stafford (Kan.). 30 P. 22 (recently decided), that, as the statute makes special provision for the collection of taxes they are not a debt in the ordinary sense of the term, and consequently an action will not lie for their recovery. We have no inclination to change that ruling. A courthouse cannot be sold or disposed of under tax proceedings or at forced sale for special assessments or taxes levied upon the ground thereof. Such grounds are for the uses and Purposes of the public, and are essential to the administration of the executive and judicial duties of the county and

...