City of El Reno v. Cleveland-Trinidad Paving Co.
| Decision Date | 08 February 1910 |
| Parties | CITY OF EL RENO et al. v. CLEVELAND-TRINIDAD PAVING CO. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The fact that the parties, plaintiff in error and defendant in error, in the instant case were not placed in adversary positions as parties in the former case will not deprive the final judgment therein of its force and effect when pleaded as an estoppel to the instant case, provided they were all proper parties to the first case, and the questions now raised were or could have been as fully asserted and maintained in the former suit as this.
A judgment rendered upon a demurrer to a petition or complaint between the same parties and on the same facts pleaded in a subsequent action is final and conclusive until reversed on appeal, and is a bar to any subsequent action based thereon.
A resident taxpayer of an improvement district in a city of the first class, although he shows no special private interest may invoke the interposition of a court of equity to restrain the carrying into effect of an invalid contract for paving and guttering said improvement district, and such suit is not premature because commenced before the passage of the assessment ordinance and the creation thereby of a lien against his property.
Such a suit may properly be brought in the name of one or more of the taxable inhabitants of the district for themselves and all others similarly situated, and the court should then regard it in the nature of a public proceeding to test the validity of the corporate acts sought to be impeached, and deal with and control it accordingly.
When a resident taxpayer of an improvement district in a city of the first class brings a suit for himself and all others similarly situated against certain defendants to enjoin the carrying into effect of a contract for paving and guttering said district upon the ground that said contract was invalid and a final judgment adverse to said plaintiffs is entered therein and remains unappealed from, there is sufficient identity between the parties filing such suit and a subsequent suit brought by one of the defendants of the former suit against his codefendants, wherein the validity of said contract is involved, to justify the pleading of the decree entered in the first suit as res judicata as to all questions concerning the validity of the contract that are identical in both cases, and that were or could have been tried in the former.
If an ordinance be passed and is invalid, the jurisdiction of the courts may then be invoked for the protection of private rights that may be violated by its enforcement.
Error from District Court, Canadian County; Frank M. Bailey, Judge.
Action by the Cleveland-Trinidad Paving Company against the City of El Reno and others. Judgment for plaintiff, and defendants bring error. Affirmed.
R. B Forrest and Lucius Babcock, for plaintiffs in error.
M. D Libby and D. C. Westenhaver, for defendant in error.
This was a suit commenced by the defendant in error, plaintiff below, against the city of El Reno, Okl., J. A. La Bryer, mayor of said city, F. T. Stackpole, city clerk of said city, C. C. Brown, T. J. Abbott, John W. Freeborn, A. L. Nicholson, L. J. Stoneman, William Devine, J. M. Carter, and W. B. Roberts, councilmen of said city, to enjoin them from publishing and putting into effect an ordinance repealing a certain assessing ordinance passed by the authorities of said city for the purpose of providing a means to pay for paving a certain portion of said city, for the performance of which work the plaintiff and the city authorities had entered into a contract. The petition sets out in full all the proceedings of the council in relation to the authorization of such improvement, the making and entering into the contract with the plaintiff, the appraisement and apportionment of the benefits therefrom to the lots and tracts of land in the improvement district, the confirmation of such appraisement and apportionment, the passage of the assessing ordinance, the adoption of the resolution providing for the issuance of the bonds in payment thereof, and the subsequent proceedings approving the estimate and authorizing the bonds to be executed and delivered in payment therefor. The petition further sets out the proceedings whereby the council attempted by ordinance to repeal such assessing ordinance, and further alleges that the passage, approval, and publication of said repealing ordinance will cause all persons owning property in said district to refrain from paying the installment of the assessments falling due on the 1st of September, 1909, and would thereby deprive the plaintiff of such payment as is due under the terms of his contract; that the defendant the city clerk, and other defendants, threaten to and will cause said repealing ordinance to be published, unless restrained; that the repealing ordinance is an attempt to violate the terms of the contract between the plaintiff and the city; that the mayor and councilmen had no power or authority to repeal the same upon the grounds and for the reason set forth in the repealing ordinance; that there is no valid ground or reason existing sufficient to justify, authorize, or empower the mayor and councilmen of said city of El Reno to repeal said assessing ordinance; that said ordinance attempting so to repeal the assessing ordinance is null and void; that, if it is permitted to stand and be published, it will cast a cloud upon the validity, and destroy the value of the bonds due and to become due to the plaintiff under and by virtue of its contract, and will thereby deprive the plaintiff of the means of performing its contract, to its great and irreparable injury and damage. The answer of the defendants as supplemented by an agreed statement of facts raises the question as to the sufficiency of the proceedings had by the city authorities to authorize the making of a valid contract for such street improvements, and also raises the question of the power of the court to enjoin the action of the council, on the assumption that such action is legislative in its character, and beyond the control of the courts. The reply of the plaintiff introduces two affirmative defenses, only one of which it will be necessary to notice. It avers: That one J. E. Jones, the owner of property in said street improvement district, brought an action in the district court of Canadian county, the same court wherein this proceeding was begun, which was finally heard and disposed of on the 20th day of January, 1909. That the plaintiff in that case made the Cleveland-Trinidad Paving Company and the mayor and members of the city council of El Reno parties defendant, and afterwards, by order of the court, the city of El Reno was also made a party defendant. That the plaintiff in that case brought his action on behalf of himself and all other property owners similarly situated in said paving district for the purpose of enjoining the carrying into effect the same contract involved in this case. That all of the grounds of objection to the validity and regularity of any and all of the proceedings upon which this contract is based that are made in this case were made in that. That a general demurrer was filed to the petition in that case by all the defendants, the Cleveland-Trinidad Paving Company also filing an answer thereto. That on the 20th day of January, 1909, the court heard that case upon the demurrers, and sustained the same. Thereupon, the plaintiff refusing to plead further, and announcing to the court that he stood upon his amended petition, the court found for the defendants and rendered judgment against the plaintiff, to the effect that he take nothing by his action, and that the defendants and each of them go hence without day, etc. That this judgment remains in full force and effect, unreversed and not appealed from. On the 28th day of September, 1909, the case at bar came on to be heard upon the questions raised by the foregoing pleadings, and upon the stipulation embodying the evidence. On the same day the court, by its final judgment, decreed the repealing ordinance to be null and void and of no force and effect, and that the cloud created by the passage and the approval of the same upon the plaintiff's contract and the bonds authorized to be issued in payment of the work done and to be done thereunder is removed and cleared. The defendants, and each of them, were perpetually enjoined from publishing said ordinance, and from taking any other or further action for the purpose of putting the same into force and effect. To reverse this decree, this proceeding in error was commenced in this court.
If the plea of res judicata, interposed by the reply of the defendant in error, is fully sustained and ample to estop the plaintiffs in error in this case from again litigating the same questions that were litigated in the case of J. E. Jones v. City of El Reno et al., it will not be necessary for us to examine in detail the proceedings upon which the contract in this case is based. Jones was a property owner in the paving district, and sued on behalf of himself and all others similarly situated. The Cleveland-Trinidad Paving Company and the city of El Reno, the real parties in interest in the present case, were parties defendant in the Jones Case. The purpose of that suit was to enjoin the carrying into effect the contract herein set out, and the grounds with one exception which will be hereafter noticed, upon which Jones sought relief, were the same as those urged as a defense to the case at bar. The fact that the plaintiff in error and defendants in error were all defendants, and not placed in an adversary position in the Jones Case, does not deprive the final...
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