Clark v. City of Weatherford

• Decision Date: 13 May 1930
• Docket Number: Case Number: 19358
• Citation: 288 P. 278,1930 OK 237,143 Okla. 165
• Parties: CLARK et al. v. CITY OF WEATHERFORD et al.
• Court: Oklahoma Supreme Court

1930 OK 237

288 P. 278

143 Okla. 165

CLARK et al. v. CITY OF WEATHERFORD et al.

Case Number: 19358

Supreme Court of Oklahoma

Decided: May 13, 1930

Syllabus

¶0 Municipal Corporations--Validity of Paving Assessments--Municipally Owned Land in Paving District Included in Determining Whether More Than Half of Area of District Protested Improvement.

Property owned by a municipality is liable to assessment for street and alley improvements under section 20, chapter 173, Session Laws 1923, and should be considered in computing (under sec. 5, c. 173, S. L. 1923) "the owners of more than one-half in area of the land liable to assessment to pay for such improvement" to determine whether the governing body of the city by the protest filed is divested of power to enter a contract for the improvement for which it had by resolution declared a necessity.

Commissioners' Opinion, Division No. 2.

Error from District Court, Custer County; E. L. Mitchell, Judge.

Action by H. H. Clark et al. to enjoin the City of Weatherford et al. from collecting special assessments. Injunction denied. Plaintiffs appeal. Affirmed.

A. J. Welch and W. P. Keen, for plaintiffs in error.

T. W. Jones, Jr., City Atty., for City of Weatherford.

G. A. Paul, for defendants in error.

EAGLETON, C.

¶1 Clark et al. brought suit against the city of Weatherford et al. to enjoin collection of special paving taxes in the city of Weatherford. On refusal of the injunction on trial plaintiffs appealed. The only question presented is whether or not property owned by the city and property owned by the board of education lying within the paving district are to be considered when computing the percentage of property owners objecting to the improvement. The plaintiffs give the following undenied figures which, for the purpose of this opinion, will be accepted as correct: Total area in paving district, 923,450 square feet; total school and city owned area, 155,500 square feet, total protesting area, 401,937 square feet. It will thus be seen that if the school and city property is considered, less than 50 per cent. in area of the paving district protested the improvement. If the city and school property is not considered, more than 50 per cent. in the area of the paving district protested the improvement.

¶2 The law applicable, and which must be interpreted, is found in sections 5 and 20, chapter 173, Session Laws 1923. The pertinent portion of section 5 reads:

"* * * Such notice shall provide that if the owners of more than one-half in area of the land liable to assessment to pay for such improvement shall not within fifteen (15) days after the last publication of such resolution file with the clerk of said city or with the clerk of said incorporated town their protest in writing against such improvement, then the city or town shall have the power to cause such improvement to be made and contract therefor and to levy assessments for the payment thereof. * * *"

¶3 Section 20 reads:

"Public Property. Any property which shall be owned by the city, town or county or any board of education or school district, shall be treated and considered the same as the property of other owners, and such city, town, county, school board, or board of education within such district to be assessed, shall annually provide by the levy of taxes in a sufficient sum to pay the maturing assessments and interest thereon."

¶4 It is the contention of the plaintiffs that the land owned by the city and school district is not "liable to assessment to pay for such improvement," for the reason that a special method and procedure for the payment of the portion of the cost of the improvement for which the said land would have been liable is otherwise provided, in that the city or board of education "shall annually provide for the levy of taxes in a sufficient sum to pay the maturing assessments and interest thereon." They contend that an assessment cannot be levied against this public property for the reason that no assessment could be enforced against it; it is against public policy to allow such a purported assessment to be enforced and the property sold to liquidate the charge. It is therefore necessary to determine what an assessment is. This court, in Alley v. City of Muskogee, 53 Okla. 230, 156 P. 315, said:

"In a general levy of taxes, a contribution is exacted in return for the general benefits of government; in special assessments, the contribution is exacted because the property of the taxpayer is considered by the Legislature to be benefited over and beyond the general benefit of the community."

¶5 At an earlier date this court in discussing the same question in Jones v. Holzapfel, 11 Okla. 405, 68 P. 511, said:

"It was said in Emery v. San Francisco Gas Co., 28 Cal. 345, that the words 'taxation' and 'taxed,' in section 13 of article 11 of the Constitution of that state which provides that 'taxation shall be equal and uniform throughout the state. All property in this state shall be taxed in proportion to its value,' related to such general taxation upon all property as is levied to defray the ordinary expenses of the state, county, town and municipal governments, and not to assessments levied on the lots fronting on a street in a city to pay the expenses of their improvements.

"The court there said that 'there is another class of expenses, also of a public nature, necessary to be provided for, peculiar to the local governments of counties, cities and towns, and even smaller subdivisions, such as opening, grading, improving in various ways, and repairing highways and streets, and constructing sewers in cities, and canals and ditches for the purpose of drainage in the country. They are generally of peculiar local benefit. These burdens have always, in every state, from its first settlement, been charged upon the localities benefited, and have been apportioned upon the various properties, but whatever principle of apportionment has been adopted, they have been known, both in the legislation and ordinary speech of the country, by the names of assessments. Assessments have, also, very generally, if not always, been apportioned upon principles different from those adopted in taxation, in the ordinary sense of that term; and any one can see, upon a moment's reflection, that the apportionment, to bear equally, and do substantial justice to all parties, must be made upon a different principle from that adopted in taxation, so-called'."

¶6 Section 21, chapter 173, Session Laws 1923, provides for the manner of charging the cost of improvement against the property benefited:

"Section 21. Manner of Assessment. The lots, pieces or parcels of land fronting or abutting upon any improvement, shall be chargeable with the cost thereof. * * *"

¶7 Section 20, quoted above, provides that the city, town, county, school board, or board of education within such district "to be assessed, shall annually provide by the levy of taxes in a sufficient sum to pay the maturing assessments and interest thereon." The same section provides that the property owned by the city, town, or county or board of education or school district "shall be...