Board of Com'rs of Grady County v. Hammerly

• Decision Date: 18 October 1921
• Docket Number: 11736.
• Citation: 204 P. 445,85 Okla. 53,1921 OK 356
• Parties: BOARD OF COM'RS OF GRADY COUNTY ET AL. v. HAMMERLY.
• Court: Oklahoma Supreme Court

204 P. 445

85 Okla. 53, 1921 OK 356

BOARD OF COM'RS OF GRADY COUNTY ET AL. v. HAMMERLY.

No. 11736.

Supreme Court of Oklahoma

October 18, 1921

Rehearing Denied Feb. 14, 1922.

Syllabus by the Court.

The act of the Legislature approved April 5, 1919 (chapter 200 Session Laws 1919, pp. 286 and 287), entitled "An act providing for the liquidation of back taxes and assessments conferring jurisdiction on district courts; providing for sale of property in full settlement of back taxes [sic] and assessments and providing for distribution of same and declaring an emergency," conferring upon the district and superior courts of this state jurisdiction to determine and adjudicate the amount of delinquent ad valorem taxes and penalties due the state, county, city, town, township, school district, or other municipal subdivision and the amount of any special assessments upon any tract, body, piece, or parcel of real estate or any lot or part of lot in any incorporated city or town having a population of 3,500 or more, in any action by any owner or part owner, trustee mortgagee, lienholder, or holder of any bond or bonds issued for any public improvement in a district wherein such property is situated in any such city, and to decree that such property be sold by the sheriff as a sale of real property under execution, and that the proceeds of such sale be distributed as the interest of the parties to the title may appear, under the following sections of the Constitution:

Section 59, art. 5: "Laws of a general nature shall have a uniform operation throughout the state, and where a general law can be made applicable, no special law shall be enacted."

Section 20, art. 10: "The legislature shall not impose taxes for the purpose of any county, city, town, or other municipal corporation, but may, by general laws, confer on the proper authorities thereof, respectively, the power to assess and collect such taxes."

Section 14, art. 10: "Taxes shall be levied and collected by general laws, and for public purposes only. * * *"

Section 7, art. 10: "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"

-- held:

(a) Under section 59, art. 5, of the Constitution, supra, it is beyond the power of the Legislature to pass any special law where a general law can be enacted.

(b) Under section 20, art. 10, of the Constitution, supra, taxes cannot be levied or collected except by general law and for public purposes only, and the Legislature has no power to impose taxes for the purpose of any county, city, town, or other municipal corporation, but the levying, assessing, and collection of such taxes must be done by the proper authorities of such counties, cities, towns, or other municipalities, respectively, under a general law of the state under authority delegated to the proper authorities of the respective counties and municipalities.

(c) Under section 14, art. 10, of the Constitution, supra, taxes may be levied and collected by general laws for public purposes only, and the Legislature is without power to authorize the collection of the same for any other purpose, such as the liquidation of liens for the purpose only of quieting title to real estate.

(d) Under section 7, art. 10, of the Constitution, supra, the Legislature is vested with the power by general law to authorize county and municipal corporations to levy and collect assessments upon property for the purpose of making local improvements benefited thereby, but it is beyond the power of the Legislature to take such power away from the officers of such county or municipal corporations in levying and collecting such assessments and confer the same upon the judiciary and other officers other than upon the proper officers of county and municipal corporations as provided by general law.

(e) Chapter 200, Session Laws of 1919, being in contravention of the above-named sections of the Constitution supra, is void.

Appeal from District Court, Grady County; Will Lynn, Judge.

Action by Harry Hammerly against the Board of County Commissioners of Grady County, Okl., the City of Chickasha, and another. Plaintiff's demurrer to defendants' answer was sustained, and defendants appeal. Judgment reversed, and cause remanded, with directions to dismiss.

W. M. Stacey, Co. Atty., and H. L. Grigsby, City Atty., both of Chickasha, and M. D. Libby, of El Reno, for plaintiffs in error.

Frank M. Bailey, of Oklahoma City, and Harry Hammerly, of Chickasha, for defendant in error.

B. B. Blakeney and Hubert Ambrister, both of Oklahoma City, amici curiæ.

KENNAMER J.

This case presents error from the district court of Grady county. For convenience the parties will be designated herein as they appeared in the trial court. The questions involved necessitate setting forth plaintiffs' petition and statute involved in toto.

Plaintiff by his petition alleges:

"That he is a resident of Grady county, Okl., and is the owner of and in possession of all the lots numbered 11 and 12 in block No. 51 in the city of Chickasha, in Grady county Okl.

That heretofore, on the 9th day of May, 1910, the defendant the city of Chickasha herein passed an ordinance numbered 427 whereby it levied certain assessments against the aforesaid lots for the purpose of paying a portion of the costs of paving Chickasha avenue in said city; said avenue being located in what was designated and known as improvement district West Chickasha avenue of the city of Chickasha.

That, pursuant of such ordinance, an assessment matured and became due on the 1st day of September, 1912, in the sum of $52.68, and on the 1st day of September, 1913, in the sum $50.31, and on the 1st day of September, 1914, in the sum of $47.96, and on the 1st day of September, 1915, in the sum of $45.60, and on the 1st day of September, 1916, in the sum of $43.23, and on the 1st day of September, 1917, in the sum of $40.87, and on the 1st day of September, 1918, in the sum of $40.54; that each and all of said sums became due and delinquent on the 1st day of September, after the maturity of such assessment, and each has since said time been bearing penalty at the rate of 18 per cent. per annum, and that all of said assessments and penalties thereon for each and all of the seven years as hereinbefore described and alleged are now due, delinquent, and unpaid in the total sum of $556.37 for principal and penalty.

That the total amount of assessments levied against said lots together with penalties thereon, under Ordinance No. 427, of the city of Chickasha up to and including the 1st day of September, A. D. 1920, amounts to the sum of $663.78.

That the total amount of special assessments levied, assessed, matured, and unpaid against said lots under Ordinance No. 383 of the city of Chickasha up to and including the 1st day of September, A. D. 1920, amounts to the sum of $84.12.

That the total amount of ad valorem taxes assessed, levied, due, and unpaid against said lots up to and including the 1st day of September, A. D. 1920, amounts to the sum of $86.36.

That each and every holder of the bond or bonds issued in the payment and satisfaction of the improvement constructed under said ordinance in improvement district West Chickasha avenue in the city of Chickasha are unknown to him. But plaintiff alleges that he is advised, and charges to be true, that Spitzer, Rorick & Co., of Toledo, Ohio, are the fiscal agents for the collection of said bonds and interest thereon.

That on the 21st day of August, 1909, the defendant the City of Chickasha passed its Ordinance No. 383, whereby it created and designated improvement district No. 5 for the purpose of improving certain streets therein, by grading the same, and that a portion of Chickasha avenue whereon the hereinbefore mentioned property is situated was and is a part of said improvement district.

That the said ordinance levied assessments against said lots for such improvement due in each of the years 1912 to 1919, inclusive, which, together with interest and penalties thereon at this time, amounts to the sum of $38.29, which the plaintiff alleges is long past due and unpaid.

That each and every holder of the bond or bonds issued by the defendant city of Chickasha to defray the expense and cost of the improvement in said improvement district No. 5 are unknown to plaintiff herein, but this plaintiff alleges and charges to be true that Spitzer, Rorick & Co., of Toledo, Ohio, are the fiscal agents for the collection of said bonds.

That ad valorem tax for the years 1917 and 1918, amounting to the sum of $51.23, are due and unpaid; that said tax has been assessed for the use and benefit of the state of Oklahoma, the county of Grady, its municipal subdivisions, and the city of Chickasha.

That each and all of the taxes and special assessments hereinbefore enumerated and alleged constitute a valid lien upon said premises, and that each and all of said liens are coequal. And plaintiff alleges that under and by virtue of the terms and provisions of House Bill 265, the act of the Legislature of 1919, plaintiff is entitled to have this court adjudicate and determine all taxes, assessments, and penalties, and order said premises sold by the sheriff of Grady county, as a sale of real property under execution, and that from the proceeds of the sale the costs of this action be paid, and that the remainder be prorated among the lienholders, beneficiaries of the lienholders herein set out.

That said property is located and situated in the city of Chickasha, a city of the first class, and that said city has now, and had at all times mentioned herein, a population far in excess of 3,500.

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