Blythe v. Pratt

• Citation: 171 Okla. 2,41 P.2d 895,1935 OK 191
• Decision Date: 05 March 1935
• Docket Number: Case Number: 23107
• Parties: BLYTHE v. PRATT et al.
• Court: Supreme Court of Oklahoma

1935 OK 191

41 P.2d 895

171 Okla. 2

BLYTHE v. PRATT et al.

Case Number: 23107

Supreme Court of Oklahoma

Decided: March 5, 1935

Syllabus

¶0 1. Municipal Corporations - City Charter Provision Held not Attempt to Make Lien for Street Improvements Inferior to Lien for Other Taxes.

A city charter which provides for a procedure in assessing and collecting costs of street improvements assessed against property, and which provides: "The cost of any such improvements assessed against any property, together with all costs and reasonable expenses collecting the same, including reasonable attorney's fees, when incurred, shall be secured by a lien upon such property superior to all other liens, claims, or title, except city, county and state taxes, and such lien may be enforced, * * *" does not thereby attempt to make the lien for such street improvements inferior to the lien for city, county, and state taxes.

2. Same - Statutory Provision Making Lien for Special Assessments Coequal With Lien of Other Taxes and Superior to All Other Liens.

Under the provisions of section 4609, C. O. S. 1921, special assessments and each installment thereof and interest thereon are declared to be a lien against the lots and tracts of land so assessed from the date of the ordinance, levying the same, coequal with the lien of other taxes, and prior and superior to all other liens against such lots or tracts; and such lien shall continue as to unpaid installments and interest until such assessments and interest thereon shall be fully paid.

3. Same - Taxation - Exclusive Statutory Procedure for Enforcement of Tax Liens Including Special Assessments.

The statutes of this state provide a full and comprehensive system by which delinquent taxes on real estate may be collected by a sale of such real estate by the county treasurer, the collecting agency. Such method, being the only one authorized by the statutes, is exclusive for the enforcement of such tax liens, including special assessments for street improvements.

4. Same - Lien for Paving Assessments not Discharged by Failure to Include Same in Sale of Real Estate for Delinquent Ad Valorem Taxes.

Where the county treasurer sells real estate for delinquent ad valorem taxes and fails to include a sale for delinquent installment or installments of paving assessments against the real estate, the sale does not discharge the lien for special paving assessments, and such a sale may be had by the county treasurer during a subsequent year.

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

Action by J.E. Blythe against H. D. Pratt et al. to quiet title to real estate. Judgment for defendants, and plaintiff appeals. Affirmed.

Charles Skalnik, for plaintiff in error.

R.P. Colley and Orr & Rust, for defendants in error.

BUSBY, J.

¶1 The plaintiff in error, J.E. Blythe, filed a petition in the district court to quiet title to six lots in Oak Terrace addition to the city of Tulsa. The Securities Adjustment Company, H. L. Cannady Company, H.D. Pratt, commissioner of finance and revenue of the city of Tulsa, and the city of Tulsa were named as defendants.

¶2 The Securities Adjustment Company and H. L. Cannady Company filed disclaimers. The defendant H.D. Pratt filed his answer alleging that he claimed some right, title, or interest in the property by virtue of ordinance No. 2760 passed by the city of Tulsa on December 12, 1924, which levied special paving assessments against the property described. The plaintiff filed his reply alleging that the ordinance was unconstitutional in seeking to create a personal liability reaching beyond the property assessed and therefore void, and further replying, the plaintiff alleged that the defendant Pratt, commissioner of finance and revenue of the city of Tulsa, is not the real party in interest to the claim under ordinance 2760, upon which he relies.

¶3 By agreement the matter was submitted to the court on an agreed statement of facts, and with the issues joined, the court found that the plaintiff took his title to the property in question subject to the lien created by ordinance No. 2760, and that all installments for paving due thereon since the issuance of the tax deed were valid and subsisting liens, payable in installments according to the conditions stated in the tax bills. The plaintiff has appealed from that judgment.

¶4 The lots under consideration were sold at resale to Tulsa county, and by the county, through its county commissioners, sold to the plaintiff.

¶5 It was agreed that the only question presented to the court for determination was whether or not the plaintiff acquired title in fee simple, free and clear of all incumbrances, and particularly the lien created by ordinance No. 2760 of the city of Tulsa, and whether the tax deeds have such force and effect as to strike down the lien of paving assessments not yet matured or due and still owing under the terms of the ordinance at the time of the issuance of the tax deeds.

¶6 The plaintiff contends that the purchaser at a tax sale takes not the title of the owner, but a new, independent, paramount, and superior title from the sovereign state, extinguishing all prior liens and incumbrances, including special assessments. The plaintiff admits that his contention is based directly upon the case of Franklin Securities Co. v. Allen P. Clay, 146 Okla. 102, 293 P. 529, wherein this court, by a commissioner's opinion, held:

"Where the holder of tax bills, issued by a city to a contractor to pay for street improvements, elects to follow the procedure provided by the city charter instead of state statute; and where all of the proceedings, including the passage of the assessment ordinance, are had and taken under such charter, the charter and assessment ordinance providing that the lien thereby created shall be superior to all liens except city, county, and state taxes, the holder thereof will take the same subject to the lien of the state for ad valorem taxes; and where the property, upon which the lien for such improvements attaches, is sold by the county for delinquent ad valorem taxes, a purchaser at the tax sale will take title superior and paramount to the lien created by the tax bills"

- and said:

"It will be noted that the charter, as well as the assessment ordinance, makes the lien for street paving and other street improvements subordinate to the lien for city, county, and state taxes. This charter provision, as well as the proceedings thereunder, has been held valid and sustained by this court in the case of M., K. & T. Ry. Co. v. City of Tulsa, 113 Okla. 21, 238 P. 452."

¶7 We agree that the provisions of the charter of the city of Tulsa and the proceedings thereunder relative to street improvements were held valid and sustained by this court in the case of M., K. & T. Ry. Co. v. City of Tulsa, supra, in so far as the matters necessary to be determined in that case were concerned. We do not agree that the city charter of Tulsa, or the city ordinance considered in that case, or the one here to be considered, designated as ordinance No. 2760, makes the lien for street paving and other street improvements subordinate to the lien for city, county, and state taxes.

¶8 The part of section 13, art. 9, of the city charter of Tulsa relative to street improvements provides, in part, as follows:

"The cost of any such improvements assessed against any property, together with all costs and reasonable expenses in collecting the same, including reasonable attorney's fees, when incurred, shall be secured by a lien upon such property superior to all other liens, claims, or title, except city, county and state taxes, and such lien may be enforced either by suit in court of competent jurisdiction, or by sale in the same manner as far as applicable, as sales are authorized to be made by the city of Tulsa for nonpayment of taxes. * * *"

¶9 It might be well to state here that the city charter of Tulsa has been so amended under the holdings of this court as to leave the collection of all ad valorem taxes in the hands of the county treasurer.

¶10 The assessing ordinance in question provides, in part, as follows:

"That the assessment hereby levied against each of the above-described lots and parcels of land shall bear interest at the rate of seven per centum (7%) per annum, and both principal and interest are hereby declared to be a debt against the owners of the land and a lien upon such lots and parcels of land prior to all other liens, except the lien for state, county and city taxes, from this date, and the same shall be enforced and collected as other taxes in the city of Tulsa, Okla., are enforced and collected, or may be recovered and the lien enforced by appropriate judicial proceedings."

¶11 Thus we see that while the charter and city ordinance both provide that the lien for street improvements shall be prior to all other liens, except the lien for city, county and state taxes, in neither is it said that such lien is inferior to the lien for taxes due the city and county and state.

¶12 Under the provisions of section 3a, art. 18, of the Constitution of Oklahoma, any city having 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. In M., K. & T. Ry. Co. v. City of Tulsa et al., 113 Okla. 21, 228 P. 452, this court had occasion to consider certain portions of the city charter of Tulsa, relative to the right of the city of Tulsa to assess and collect assessments against real estate for street improvements. It was the contention of the railroad company that the city had no authority to levy the assessments in question and to provide for their collection by suit in the district court, in a manner different from the general statute provided for same on revenue and taxation, and that any different procedure prescribed by a city is in conflict with the state Constitution. Upon appeal, this court held:

"The provisions

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