City of Chickasha v. O'Brien
| Decision Date | 12 October 1915 |
| Docket Number | Case Number: 6872 |
| Citation | 159 P. 282,1915 OK 813,58 Okla. 46 |
| Parties | CITY OF CHICKASHA et al. v. O'BRIEN et al. |
| Court | Oklahoma Supreme Court |
¶0 1. TRIAL--Right to Trial by Jury--Equitable Causes. In cases of purely equitable cognizance, the court may, of its own motion, call in a jury or, upon request of one of the parties, consent to one for the purpose of advising him upon questions of fact, and may submit to it any issue or issues he desires.
2. SAME--Submission of Issues to Jury--Effect. When a jury trial is not a matter of right, and the court submits to the jury special questions of fact, the answers returned thereto are merely advisory, and the court may decide for itself all questions of fact and the law of the case, notwithstanding the findings of the jury.
3. APPEAL AND ERROR--Trial by Court--Instructions. In equitable actions when findings of fact are made by the court, the instructions to the jury are wholly immaterial, and error cannot be predicated thereon.
4. MUNICIPAL CORPORATIONS--Public Improvements--Assessments--Bonds. Under section 644, Rev. Laws 1910, an action to enjoin assessments levied to pay certain bonds issued under the paving act, and to cancel said bonds on the ground that the work was not performed according to contract owing to fraud upon the part of the contractor and city officials, where the city acquired jurisdiction by proper proceedings to make the improvements, cannot be maintained after the expiration of 60 days from the passage of the ordinance making the final assessment.
ON PETITION FOR REHEARING.
5. CONSTITUTIONAL LAW--Municipal Corporations--Assessments--Obligation of Contract--Due Process of Law. Section 644. Revised Laws of 1910, is not unconstitutional, and does not impair the obligations of contracts nor deprive persons of their property without due process of law.
Error from District Court, Grady County; J. T. Johnson, Judge.
Action by Dennis O'Brien and others against the City of Chickasha and others. Judgment for plaintiffs, and defendants bring error. Reversed and suit dismissed.
Harry Hammerly, City Atty. of Chickasha, and M. D. Libby, for plaintiffs in error.
Stuart, Cruce & Cruce and Bond, Melton & Melton, for defendants in error.
¶1 Defendants in error brought suit in the district court of Grady county to cancel certain improvement bonds and assessments levied to pay the same, and to enjoin the collection of said assessments, and for other equitable relief. Issues were joined, and at the trial, upon the request of the plaintiffs, a jury was impaneled, and the court submitted 17 special interrogatories to the jury, and gave them certain instructions, and the jury returned answers to said interrogatories, and thereafter, upon consideration of the evidence, the interrogatories, and answers by the jury, the court made independent special findings of fact, and adopted and incorporated into said findings the verdict of the jury, and thereupon rendered judgment declaring the contract under which the improvements were made to be void, and enjoined the collection of the assessments that had been levied to pay the bonds which had been issued. Plaintiffs in error complain of the action of the court in impaneling the jury, and in submitting such interrogatories, and also complain of the instructions given.
¶2 This being an equity case, the court was authorized upon its own motion to call in a jury, or consent to one upon the request of either party, and submit to it any issue or issues of fact which he desired for the purpose of being advised by the jury upon such questions of fact so submitted. Barnes v. Lynch, 9 Okla. 11, 59 P. 995; McCoy v. McCoy, 30 Okla. 397, 121 P. 167, Ann. Cas. 1913C, 146; Watson v. Borah et al., 37 Okla. 357, 132 P. 347; Oklahoma Trust Co. v. Stein et al., 39 Okla. 756, 136 P. 746.
¶3 The answers of the jury to the interrogatories are advisory merely, and the court may adopt or reject them, as it sees fit, for in such case it is the duty of the court to consider all the record and weigh the evidence, and then determine whether the findings of the jury should be adopted as the findings of the court. Tobin v. O'Brieter, 16 Okla. 500, 85 P. 1121; Wah-tah-noh-zhe et al. v. Moore, 36 Okla. 631, 129 P. 877; Okla. Trust Co. v. Stein, supra.
¶4 Error cannot be predicated upon the charge of the court to the jury in such case, because, notwithstanding the instructions may be erroneous, it is the duty of the court to review the record and make his own findings, and, where it appears that the court has discharged this duty, the case will not be reversed for error in the instructions given to the jury. Apache State Bank v. Daniels, 32 Okla. 121, 121 P. 237, 40 L.R.A. (N. S.) 901, Ann. Cas. 1914A, 520; Wah-tah-noh-zhe et al. v. Moore, supra; Watson v. Borah et al., supra. And though it be that the interrogatories submit mixed questions of law and fact to the jury, still this could not prejudice the parties where the court, upon a review of the record, either adopts the findings of the jury as his own or rejects the verdict and makes other findings.
¶5 It is urged by plaintiffs in error that this action is barred by section 644, Rev. Laws 1910, while defendants in error insist that the limitation applicable hereto is found in the third subdivision of section 4657, Id. Section 644 is as follows:
"No suit shall be sustained to set aside any such assessment, or to enjoin the mayor and council from making any such improvement, or levying or collecting any such assessment, or installment thereof, or interest or penalty thereon, or issuing such bonds, or providing for their payment, as herein authorized, or contesting the validity thereof on any ground, or for any reason other than for the failure of the city council to adopt and publish the preliminary resolution provided for in cases requiring such resolution and its publication, and to give the notice of the hearing on the return of the appraisers, unless such suit shall be commenced not more than 60 days after the passage of the ordinance making such final assessment. * * *"
¶6 The third subdivision of section 4657 provides that action shall be brought:
¶7 The plaintiffs in the court below sought to enjoin the collection of the assessments and to cancel the bonds involved, upon the ground of fraud upon the part of the contractor and the city officials in the performance of the work under the contract, occurring more than 60 days after the passage of the assessing ordinance and the issuance of the bonds, and say that by reason thereof this statute applies, and not section 644. It is readily seen that subdivision three of section 4657 is a general statute of limitations, while section 644 is a special statute applying to that class of causes involved in the present proceeding.
¶8 Defendants in error base their right to maintain this action upon section 4881, Rev. Laws 1910, which is as follows:
¶9 If this section and section 644 each are to be given full effect according to the ordinary meaning of their language, it might be said that there is an apparent conflict between the two. Such a conflict appeared to exist in the laws of the State of Kansas, and was considered by the Supreme Court of that state in Lynch et al. v. City of Kansas City et al., 44 Kan. 452, 24 P. 973; and that court held the general statute was amended, "so far as restraining the collection of an assessment is concerned," by the statute of limitations contained in the paving law of that state, and also in the case of Beebe et al. v. Doster, 36 Kan. 666, 14 P. 150, held:
"Where in special cases a different limitation is prescribed by statute, the action shall be governed by such limitation."
¶10 So, applying the same rule here, the seeming conflict, if in fact there be any, between section 4881 and section 644 may be obviated by construing section 644, which is a special statute applying to this class of cases, as an amendment to section 4881, in so far as actions of the character mentioned in section 644 are involved.
¶11 There is no question made as to the regularity of the proceedings of the council prior to and including the passage of the final assessing ordinance, or the issuance of the bonds; the fraud complained of, as stated, being in the performance of the work.
¶12 The rule is well established in this state, that:
"When a city acquires jurisdiction by preliminary proceedings to pave certain of its streets, a property owner who sits by and sees such improvements made, with the knowledge that the city authorities intend to levy and collect a special tax against his property, and that these who do such work cannot be compensated in any other way, and there is no objection thereto until complete performance of the work...
To continue reading
Request your trial