City of Coalgate v. Gentilini

• Decision Date: 05 October 1915
• Docket Number: Case Number: 5333
• Citation: City of Coalgate v. Gentilini, 152 P. 95, 51 Okla. 552, 1915 OK 742 (Okla. 1915)
• Parties: CITY OF COALGATE et al. v. GENTILINI.
• Court: Oklahoma Supreme Court

1915 OK 742

152 P. 95

51 Okla. 552

CITY OF COALGATE et al. v. GENTILINI.

Case Number: 5333

Supreme Court of Oklahoma

Decided: October 5, 1915

Syllabus

¶0 1.MUNICIPAL CORPORATIONS -- Ordinances -- Effect -- Time.Section 3390,Rev. Laws 1910, provides that a city ordinance does not become operative until 30 days after its passage and approval.Held, that this does not render the ordinance void; and it cannot be treated as not in existence during that time, but while it is inoperative, yet the effect and purpose of the ordinance is, from and after the date of its passage and approval, to take control of the subject of the ordinance.

2.MUNICIPAL CORPORATIONS--Public Improvements--Rights of Property Owners--Laches.When money has been expended by a city for public improvements, and a property owner of the city sits silently by and allows the expenditures and improvements to be made, with full opportunity to prevent its accomplishment, yet without taking legal steps to prevent the same, after the money has been expended, the improvements made, and the relations of property and parties have been changed, it is then too late for him to ask a court of equity to relieve against that which his own laches has permitted to be done.

Error from District Court, Coal County; Tom D. McKeown, Assigned Judge.

Action by John Gentilini against the City of Coalgate and others.Judgment for plaintiff, and defendants bring error.Reversed and remanded, with directions.

George Trice, for plaintiffs in error.

Fooshee & Brunson, for defendant in error.

BRETT, C.

¶1 This action was commenced in the district court of Coal county by John Gentilini, defendant in error, as plaintiff, against the plaintiffs in error, as defendants, to enjoin the levy and collection of certain special tax against certain real estate owned by Gentilini in the city of Coalgate.A trial was had in the district court which resulted in judgment in favor of the plaintiff in that court, John Gentilini, and enjoined the defendants from levying and collecting this special tax.

¶2 The material facts in the case briefly stated are as follows: A number of resident property holders in the city of Coalgate petitioned the mayor and council to establish a district sewer embracing certain territory described therein.It does not appear that this petition was signed by a majority of the resident property holders of the proposed district.But on May 29, 1912, the mayor and council passed an ordinance creating and establishing the sewer districts, which was approved by the mayor May 30, 1912; and on June 6th this ordinance was published in the Record-Register, a weekly newspaper published in the city of Coalgate; and in the same issue of this newspaper the mayor published notice that bids would be received on June 12th for the construction of this sewer system, and on that date awarded the contract for the construction of the system for a sum less than the estimated cost of the system.The evidence shows that prior to the passage of the ordinance the defendant in error (plaintiff below), John Gentilini, had from time to time met with the council and vigorously protested against the construction of the system.But when the ordinance was passed, and the contract let, he took no further steps until the system had been completed, and then sued out this action to enjoin the levy and collection of taxes against his property to pay for the system, which had been completed.

¶3The plaintiffs in error contend that, inasmuch as the defendant in error sat silently by, after the passage of this ordinance, and allowed these expenditures and public improvements to be made which would tend to benefit his property without objecting, he should not now be aided by a court of equity to escape the duty of paying for the benefits which he has tacitly accepted.But the defendant in error insists that at the time this contract was let, the council was without authority to act; that the ordinance creating the district had not become operative; that under section 3390,Rev. Laws 1910, in the absence of an emergency clause, the ordinance did not become operative until 30 days after its passage and approval, and that the contract was let on the thirteenth day after its approval; that the notice for bids was published only one week, instead of two consecutive weeks, as provided by law; that the petition was not signed by a majority of the resident property owners within the proposed district, and for these reasons the council had no authority or jurisdiction to act in the premises.

¶4 There seems to be no doubt that under section 989,Comp. Laws 1909, the mayor and council had authority without a petition to establish a sewer district.City of Perry v. Davis et al., 18 Okla. 427, 90 P. 865;City of Muskogee et al. v. Rambo et al., 40 Okla. 672, 138 P. 567.And did the fact that they acted before the ordinance creating and defining the boundaries of this district became operative, deprive them of jurisdiction, and place them in the attitude of mere trespassers in having this work performed?In other words, was the ordinance void simply because it had not yet become operative?We think not.In Nor. P. Ry. v. Washington, 222 U.S. 370, 32 S. Ct. 160, 56 L. Ed. 237, the court was considering an act of Congress which did not go into effect until one year after its passage, and it was urged there, as in the case at bar, that as a result of that fact, the act should be treated as not existing, until the expiration of a year from its passage.But Mr. Chief Justice White, in delivering the opinion, says, "We are of the opinion that this view is not compatible with the paramount authority of Congress," and holds that the effect and purpose of this act was to take control of the subject of the act from the date of its passage, and that no such purpose could be manifested by a void statute, since a void statute is not effective for any purpose.See, also, Title, etc., Co. v. Harland & Hollingworth, 228 U.S. 567, 33 S. Ct. 614, 57 L. Ed. 969.And we think the same reasoning applies in the case at bar, and that the effect and purpose of this ordinance from the date of the passage and approval were to take control of the subject of the ordinance.

¶5 The ordinance could have been challenged by a referendum...