CITY OF PAWHUSKA, OKL. v. Midland Valley R. Co.

• Decision Date: 10 June 1929
• Docket Number: No. 8304.,8304.
• Parties: CITY OF PAWHUSKA, OKL., ex rel. GRAHAM v. MIDLAND VALLEY R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

33 F.2d 487 (1929)

CITY OF PAWHUSKA, OKL., ex rel. GRAHAM v. MIDLAND VALLEY R. CO.

No. 8304.

Circuit Court of Appeals, Eighth Circuit.

June 10, 1929.

N. C. Orr, of Tulsa, Okl. (Allen, Underwood & Smith and Sam S. Canterbury, all of Tulsa, Okl., on the brief), for appellant.

O. E. Swan, of Muskogee, Okl. (James D. Gibson, of Muskogee, Okl., on the brief), for appellee.

Before LEWIS and VAN VALKENBURGH, Circuit Judges, and SYMES, District Judge.

LEWIS, Circuit Judge.

This suit was brought in the name of the city on relation of an owner of a $500 bond issued by the city, which by its terms is payable only out of benefits which had been assessed against lots and parcels of land in Street Improvement District No. 18. The procedure by which a city may create improvement districts for permanent improvement of its streets and other public places and assess the cost as a special tax against the property therein is fully prescribed by the Act of March 23, 1923, Oklahoma Laws (Laws 1923, c. 173). The City of Pawhuska passed a resolution which purported to create District No. 18. It ascertained the cost of the contemplated improvements, appointed appraisers to apportion them as benefits to the property abutting on each side of the street and later, on February 11, 1924, passed an ordinance assessing the property with the amounts so apportioned as special benefits. Against one parcel of land owned by defendant, appellee here, it levied and assessed $4,241.25, and against another parcel owned by defendant it levied and assessed $1,891.17. Under the ordinance any property owner might pay within thirty days from the date the ordinance was published the whole of the assessment against his property. As to those who failed to pay in that way, the amounts levied and assessed against their property were to be paid in ten equal annual installments, the ordinance providing in that respect:

"That the assessments hereby levied against said several lots, pieces and parcels of land, shall bear interest from the date of the passage of this ordinance, at the rate of seven (7) per cent. per annum and said assessments shall be payable in ten equal annual installments, the first of such installments, with interest to that date on the whole assessment, shall be payable, on or before the first day of September, 1924, and one installment thereof, with interest on the whole amount remaining unpaid to said dates, respectively, shall be payable on or before the first day of September of each of the years 1924 to 1933, inclusive."

Interest-bearing bonds were issued by the city against the deferred payments.

This suit was instituted October 18, 1926, in the state district court, pursuant to said Act of March 23, 1923, one section thereof reading thus:

"Any holder of any street improvement bond issued under the provisions of this Act shall have the right to institute, in the name of the city or town, issuing such bond, an action in the district court of the county in which said property is located to foreclose the lien of such assessment whenever such assessment is delinquent at least for a period of twelve (12) months, stating in said petition generally the ownership of such bond, describing the property assessed, the nature of the improvement, the amount of the unpaid delinquent assessment and penalty thereon at the rate of twelve (12%) per cent. per annum, and praying for the foreclosure of such lien. Summons shall be issued on such petition as in other civil actions and the cause tried by said district court. Judgment may be entered thereon for the amount of such unpaid assessment, together with interest thereon at the rate of twelve (12%) per cent. per annum from the date said assessment was due and payable up to the time of the institution of such action and for the sum of six (6%) per cent. interest on said judgment from the time of...