City of Bartlesville v. Holm
| Decision Date | 13 January 1914 |
| Citation | 139 P. 273,40 Okla. 467,1914 OK 3 |
| Parties | CITY OF BARTLESVILLE ET AL. v. HOLM ET AL. |
| Court | Oklahoma Supreme Court |
Rehearing Denied March 10, 1914.
Syllabus by the Court.
Where jurisdiction is conferred upon a municipal body to provide for paving its streets, and charge the cost thereof against the property benefited, according to the method provided by law, a property owner who stands by while such work is being prosecuted, with full knowledge that large expenditures are being made for such improvement which will benefit his property, or, upon due notice, fails to appear at the proper time and before the tribunal prescribed by law, and present his objections, if he have any, will not, after the work is completed, be afforded relief by injunction against assessments levied against the property benefited to pay for such work.
Error from District Court, Washington County; R. H. Hudson, Judge.
Suit by H. J. Holm and others against the City of Bartlesville and others to enjoin collection of special assessment. Judgment for plaintiffs, and defendants bring error. Reversed and remanded.
M. D Libby, of El Reno, for plaintiffs in error.
Leahy & MacDonald, of Pawhuska, for defendants in error.
This was a suit in equity, commenced by the defendants in error plaintiffs below, against the plaintiffs in error, defendants below, to enjoin the collection of a certain special assessment for street paving purposes, levied against the property of the plaintiffs in the city of Bartlesville. Upon trial to the court, the relief prayed for was granted, to reverse which action this proceeding in error was commenced.
The specific ground of complaint on the part of the property owners is that the mayor and council of the city did not take the necessary steps, or do the things necessary, to confer jurisdiction upon the municipal authorities to make the assessment herein complained of, in that, after a time was appointed for holding a session of the city council, and a day and hour fixed to hear any complaints or objections that the property owners may have had concerning the appraisement and apportionment of the lots or tracts of lands involved in the improvement, and the publishing of notice of such session as required by section 726, Comp. Laws Okl. 1909, said mayor and city council proceeded with said public improvement without giving said property owners an opportunity to present their objections on the day fixed by them to hear such complaints or objections. The records of the city in that regard show: That the time fixed in the resolution providing for a hearing was Monday, the 18th day of January, 1909, at 8 o'clock p. m. at the city hall. That on the said 18th day of January, 1909, the following entry was made: "This being the date for the regular meeting of the council of the city of Bartlesville, and there being no quorum, it was moved and seconded that the council adjourn to Monday, January 25th. Carried." That on said 25th day of January, 1909 the following entry was made: That on said 26th day of January, 1909, the following entry was made: That on said January 28, 1909, a resolution was passed by said council wherein, after detailing the proceedings of the council in relation to said improvement, the following appears: "And whereas, at the time mentioned in said notice by the city clerk, to wit, January 18, 1909, quorum of the council failed to appear, and said meeting was then and there adjourned to this date; and whereas, the council has reviewed, revised, and corrected the said appraisement and apportionment, and the same as it now stands is correct, equitable, and just, and is in accordance with the laws governing such appraisement and apportionment: Now, therefore, be it resolved, by the mayor and councilmen that the said report of the said board of appraisers, as corrected and revised by the council, and said appraisement and apportionment of the cost of said improvements be and the same hereby is adopted, ratified, and confirmed."
Counsel for the defendants states his contentions as follows: "There are two principal questions arising upon this record, one of which is: Were the proceedings of the mayor and council touching the hearing as to complaints and objections which might be made concerning the appraisement and apportionment such as that the mayor and council proceeded without jurisdiction to pass the assessing ordinance? and the other of which is: Are not the plaintiffs below estopped and precluded by their acts from now contesting the validity of the assessment, even though the ordinance levying the assessment be absolutely void for want of jurisdiction, and have they not waived their right so to do by their acts?"
Counsel for the property owners insist that the questions which naturally arise out of the first principal proposition stated by counsel for the defendants have been settled by this court in the case of Morrow v. Barber Asphalt Paving Co., 27 Okl. 247, 111 P. 198, wherein it was held:
The two cases are not exactly analogous. In the Morrow Case the city authorities, after giving the preliminary notice, proceeded without taking any action upon the property owners' protest which was on file; whilst in the case at bar the property owners filed no complaints or objections, nor did they in any way indicate that they were in any way dissatisfied with the proceedings until they filed this suit in equity, long after the work had been completed. Moreover the doctrine of laches was not discussed in the Morrow Case, and probably would not apply to it on account of the protest of the property owners which was filed in due time and disregarded. There is authority to the effect that, where the property owner has given due notice of his intention to resist the assessment, he will be entitled to equitable relief, although he does not institute a suit to enjoin until after the completion of the work. Keys v. City of Meodesha, 64 Kan. 681, 68 P. 625; Edwards v. Cooper, 168 Ind. 54, 79 N.E. 1047. In the case at bar the court below, after reciting the facts in relation to the proceedings of the city council, as hereinbefore set out, further found in effect: That thereafter such other and further proceedings were had by said mayor and city council relating to the making of said improvement, and in conformity with the statutes in such cases made and provided, as that a contract was let by the mayor and council for the making of said improvement, and the costs thereof ascertained, and which resulted in the issuance by said city of a series of street improvement bonds in the aggregate amount of $29,556 in payment of such improvements. That the defendant Foster purchased said bonds, and paid therefor, without notice, knowledge, or information that the plaintiffs had any complaint or objection concerning the said appraisement and apportionment of benefits of the said improvements to said property, or to said assessment, until after the property owners had paid one or more of the installments of such assessment. That at the session of the council so appointed for the said 18th day of January, 1909, the said plaintiffs, nor any of them, nor any other persons, appeared for the purpose of making any complaints or objections concerning the said appraisement and apportionment, or did at any time or place make any complaints or objections concerning said appraisement and apportionment, prior to the commencement of this action. That said plaintiffs did not, nor did either of them, within 60 days after the passage and publication of the ordinance levying such final assessment, bring suit to set aside such assessment, or to enjoin the levying or collecting of such assessment, or to contest the validity thereof, upon any ground, or for any reason, or at all. That this action was commenced on the 28th day of September, 1912. That the plaintiffs, and each of them, had knowledge and notice of the said resolution passed by the mayor and council of said city on the 28th day of September, 1908, declaring such work of improvement necessary to be done, and had knowledge and notice of the passage of said resolution of October 23, 1908, expressing the determination of the mayor and council of said city to proceed with the said improvement, and had full knowledge and notice of the making of the said contract by and between the said city of Bartlesville and the contractors for constructing said improvement, and did know and understand from the time of the passage of the said resolution on the 28th day of September, 1908, that the cost of the improvement in said resolution and contract mentioned would be paid for by special assessments levied upon the lots and tracts of land fronting and abutting upon said improvement, and that such assessment would thereby become a lien upon plaintiff's...
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