City of Lawton v. Morford

• Decision Date: 25 November 1930
• Docket Number: Case Number: 21134
• Citation: 146 Okla. 222,293 P. 1068,1930 OK 531
• Parties: CITY OF LAWTON v. MORFORD et al.
• Court: Oklahoma Supreme Court

1930 OK 531

293 P. 1068

146 Okla. 222

CITY OF LAWTON v. MORFORD et al.

Case Number: 21134

Supreme Court of Oklahoma

Decided: November 25, 1930

Syllabus

¶0 Municipal Corporations -- Paving Project Where City Owns Over 50 Per Cent. of Property to Be Benefited--Necessity for Submission to Vote of People.

Where, in a project to pave a roadway surrounding and crossing at intervals a city owned park, the city owns more than 50 per cent. of the property to be benefited by such improvement, and funds to pay therefor are not on hand and the proposal has not been submitted nor ratified by the voters of such city as contemplated by section 26, or 27, of article 10, Constitution of Oklahoma, but it is proposed by proceedings of the city council to issue paving bonds, as against such city owned property, which constitutes more than 50 per cent. of the property within the proposed improvement district, and to levy a tax in ten equal annual installments against all taxable property within said city for the payment of such interest-bearing bonds, in order to immediately procure such paving as a betterment to such park property, such proceedings may be enjoined, as the same constitute a proposed voluntary contractual obligation as prohibited by section 26, art. 10, Constitution of Oklahoma.

Error from District Court, Comanche County; E. L. Richardson, Judge.

Action by R. B. Morford and others against the City of Lawton. Judgment for plaintiffs, and defendant appeals. Affirmed.

A. J. Burton and G. A. Paul, for plaintiff in error.

Stevens & Cline, for defendants in error.

RILEY, J.

¶1 R. B. Morford, for himself and others similarly situated, brought this action in the district court of Comanche county to enjoin the city of Lawton from paving a strip of land 26 feet wide surrounding what was known as Gore boulevard, together with cross streets 34 feet wide, and to enjoin the levying of assessments according to benefits to be derived from the paving project as against the middle portion of said boulevard, and to enjoin the issuance of paving bonds based upon such proposed improvements, abutting city owned property, and to enjoin the levying of taxes against all taxable property within said city as proposed, to be levied in ten annual equal installments to provide funds to pay interest and retire such paving bonds so proposed to be issued.

¶2 Mabel LeMaster, as a taxpaying citizen, intervened, and likewise sought injunctive relief.

¶3 Gore boulevard was a thoroughfare of approximately 270 feet in width and a mile in length, situated within the city of Lawton. It was dedicated as a boulevard in the year 1901-09, by the federal government in recorded plats. By ordinances, the last of which is dated September 10, 1929, the city of Lawton diverted the larger and middle portion of said boulevard so as to form out of it a part of the park system of said city. Shortly thereafter the city commenced a project to pave a roadway, theretofore a part of the whole boulevard, now surrounding said park as by ordinances converted, together with cross-sections at intervals of each city block.

¶4 In the presentation of the case below it was agreed that the purpose of said city was, unless enjoined, to assess the cost of paving proportionately against abutting property owners. As shown by the maps contained in the record, the property to the north and to the south abutting the paving project is largely, if not wholly, individually owned, yet the city, by virtue of its ownership of the middle portion of the boulevard, or park as converted, and by reason of the proposed pavement of cross streets which abut upon the park as converted, owns much more than 50 per cent. of the abutting property, and it is agreed that the city's liability, by virtue of its ownership of said land, would be $ 63,000, whereas the record shows that the whole project of paving amounts to the cost of $ 93,973.95.

¶5 It is stipulated in the record that the city has no funds to meet any payment for the proposed improvement, and that no appropriation has been made therefor, and that the question of such liability for such a project has never been submitted to the voters of said city.

¶6 Likewise it is stipulated that the assessment for the cost of the city's share of such paving will, unless enjoined, be levied against all property within the city subject to taxation, in ten equal annual installments.

¶7 The judgment below granted the injunction as sought. The city of Lawton appeals. The judgment below was based upon the principle that under the issues as joined a debt was about to be created against the city of Lawton in violation of article 10, sec. 26, Constitution of Oklahoma.

¶8 The city of Lawton contends in its first assignment of error that an assessment for paving is a forced charge for benefits, imposed by operation of law, and that the same does not create an indebtedness between the parties.

¶9 With the first part of the general statement of the law we agree, in so far as an individual property owner is concerned, for, as stated in Alley v. City of Muskogee, 53 Okla. 230, 156 P. 315:

"A 'special assessment' is an enforced proportional contribution to pay the cost of a local improvement, levied only occasionally, as required, upon a limited class of persons, who are interested in such improvements, and presumed to be benefited by it to the extent of the assessment." Riley v. Carrico, 27 Okla. 33, 110 P. 738; Jones v. Holzapfel et al., 11 Okla. 405, 68 P. 511

¶10 We bear in mind that a special assessment is not a tax in its general meaning, but an enforced assessment for betterment to real property as benefited. While there are limits beyond which taxes for general governmental purposes cannot go, yet, generally speaking, special assessments are not considered as a part of the general ad valorem tax so limited.

¶11 The plaintiff in error states in its third proposition for reversal as follows:

"Section 26, art. 10, Constitution of the state of Oklahoma, is a limitation of indebtedness, voluntarily incurred."

¶12 With that statement we agree. However, as we view it, under the facts presented in the case at bar, the assessment of $ 63,000, about to be made against the city of Lawton, is a voluntary contractual obligation, and, being so, it falls within the inhibition contained in the constitutional provision cited.

¶13 As applied to an individual owner of real property, there is no limit, in the absence of a sufficient protest, as to the amount for which his property may become liable for special assessment occasioned by benefits to his property, but, as applied to a municipality, there is a limitation in the event such liability is contractual or voluntary. That limitation is contained in section 26, art. 10, Constitution, which reads as follows:

"No county, city, town, township, school district, or other political corporation, or subdivision of the state, shall be allowed to become indebted, in any manner, or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year, without the assent of three-fifths of the voters thereof, voting at an election to be held for that purpose, nor, in cases requiring such assent, shall any indebtedness be allowed to be incurred to an amount including existing indebtedness, in the aggregate exceeding five per centum of the valuation of the taxable property therein, to be ascertained from the last assessment for state and county purposes previous to the incurring of such indebtedness. * * *"

¶14 That constitutional provision is not a limitation upon individual property owners, but upon municipalities, counties, cities, towns, townships, school districts, and other political corporations and subdivisions of the state as therein named.

¶15 Section 27, art. 10, Constitution, as a corollary to section 26, supra, permits a city, by a majority vote of qualified taxpaying voters voting, to become indebted beyond the 5 per cent. limitation contained in section 26, for exclusively owned public utilities. Parks have been held to be such public utilities ( City of Ardmore v. State, 24 Okla. 862, 104 P. 913), but a public street is not a public utility. Coleman v. Frame, 26 Okla. 193, 109 P. 928; Hooper v. State, 26 Okla. 646, 110 P. 912; Dingman v. Sapulpa, 27 Okla. 116, 111 P. 319.

¶16 Hereinafter we set out some strong phrases contained in decisions which when lightly considered might tend toward the conclusion that the phrase "in any manner, or for any purpose," as applied to indebtedness of municipalities, constitutes an insurmountable barrier beyond which indebtedness would not be countenanced, yet we know municipalities are frequently forced to pay for torts for which they are adjudged to be liable without regard to the tax limit ( Canton v. Mansfield, 108 Okla. 60, 233 P. 1071); and, again, municipal subdivisions are forced to pay for the maintenance of prisoners where to free them upon society would be in violation of criminal statutes and have a tendency to destroy government that exists for the very purpose of enforcing constitutional mandates. Smartt v. Board of Com'rs, Craig County, 67 Okla. 141, 169 P. 1101. So, we conclude that the constitutional inhibition is applicable where the indebtedness is voluntarily incurred, and that such proposed indebtedness is voluntarily incurred where, as in the case at bar, the city owns more than 50 per cent. of the property to be improved and by its acts, through its officers, puts in motion the project. 44 C. J. 1135 p. 4073; Feil v. Coeur D'Alene (Idaho) 23 Idaho 32, 129 P. 643, 43 L.R.A. (N.S.) 1095.

¶17 In City of Ottumwa v. Water Supply Co., 119 F. 315, it was held:

"The Constitution says: 'No municipal corporation shall be allowed to become indebted in any manner or for any purpose, more than five per centum on the last assessment, etc. The words 'for any purpose' seem to cover a system of waterworks, and the words 'in any manner' are broad enough to

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