City of Shawnee v. Exchange Nat. Co.
| Decision Date | 26 September 1939 |
| Docket Number | 24373. |
| Citation | 94 P.2d 250,185 Okla. 451,1939 OK 331 |
| Parties | CITY OF SHAWNEE v. EXCHANGE NAT. CO. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Unpaid delinquent sewer tax assessments, levied pursuant to the provisions of Sections 6047 and 6051, O.S.1931, 11 Okl.St Ann. §§ 274, 278, against the property of a city, cannot be made the basis of a personal judgment against said city.
Appeal from District Court, Pottawatomie County; Hal Johnson, Judge.
Action by the Exchange National Company against the City of Shawnee to recover judgment for certain past due installments on sewer tax warrants issued by defendant in payment of the cost of construction of sewers adjacent to property owned by the defendant. From a judgment in favor of the plaintiff, the defendant appeals.
Judgment reversed and cause remanded with directions to dismiss it.
Randall Pitman, City Atty., of Shawnee, for plaintiff in error.
Jos. L Hull, A. J. Kriete, and Arch K. Kriete, all of Tulsa, for defendant in error.
This action was instituted in the district court of Pottawatomie County by the Exchange National Company, hereinafter referred to as plaintiff, against the City of Shawnee, hereinafter referred to as defendant, wherein it was sought to recover judgment for certain past due installments on sewer tax warrants which had been issued by defendant in the year 1927 in payment of the cost of construction of sewers adjacent to the property owned by the City within certain sewer districts. From a judgment in favor of plaintiff, defendant has appealed.
The cause was tried upon a stipulation of facts. It was agreed that defendant was the owner of the property described in plaintiff's amended petition and that the same was used for public purposes; that the assessments against said property were due and unpaid; that no appropriation had been made to pay such assessments; that no demand had been made by plaintiff on the proper officials either by way of oral demand or mandamus for the making of a levy to pay such assessments; that no funds were available for the payment of such assessments.
It appears that the assessments herein involved were due in December, 1928, December, 1929, and December, 1930. A judgment was rendered against the City for the amount of said assessments plus interest at 8 percent per annum from the date they became due to the date of judgment.
As we view it, the determinative issue is whether or not a judgment may be taken against the defendant for delinquent unpaid sewer tax warrants for sewer tax assessments on property owned by the City and used for public purposes.
The levy of the assessments herein involved was made under authority of Section 6047, O.S.1931, 11 Okl.St.Ann. § 274, which provides that in the establishment of sewer districts the city shall be liable for the cost of said sewers in the same manner as other property owners within the district.
The plaintiff relies upon the rule announced in the case of City of Drumright v. McCormick, 118 Okl. 140, 247 P 25. In that case it was held that a judgment might be rendered against the City of Drumright for delinquent sewer tax warrants issued against real property owned by said city on the theory that since payment of said warrants could not be enforced by the foreclosure of a lien against public property, it was proper to render a judgment against the municipality for the amount of the unpaid warrants. The reasoning adopted by the Court in that case was specifically disapproved in the case of Independent School District No. 39 v. Exchange National Company, 164 Okl. 176, 23 P.2d 210, 95 A.L.R. 685. In that case we were dealing with delinquent special assessments against certain property owned by the School District for paving laid adjacent to said property. It was pointed out that taxes are not debts but are the creatures of statutes and must be enforced in the manner provided by statute; that the board of education of the school district was required, as a ministerial duty, to include an amount equal to each assessment in the annual estimate, and that the county excise board was charged with the duty of making an annual levy in an amount sufficient to pay said assessments, and that the remedy of mandamus was available to the holder of the bonds to require the officials to discharge said duty. It was further held that said remedy was exclusive and that the holder of the paving bonds was not entitled to take a judgment against the school district. In the case of City of Drumright v. Exchange National Company, 164 Okl. 158, 23 P.2d 213, the same rule was applied where the city was the owner of the property. In these cases the statutes construed were Sections 4593, C.O.S.1921, and 4605, C.O.S.1921. Inasmuch as the assessments were made pursuant to the provisions of said sections, the statement found in the body of the opinion in the case of Blythe v. City of Tulsa, 172 Okl. 586, 46 P.2d 310, to the effect that section 20, chapter 173, Session Laws 1923, 11 Okl.St.Ann. § 100, was construed in the above cited cases was no doubt inadvertently made, and is...
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