Crawford v. Cassity
| Decision Date | 27 April 1920 |
| Docket Number | 9589. |
| Parties | CRAWFORD ET AL. v. CASSITY ET AL. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 8, 1920.
Syllabus by the Court.
The rendition of a judgment, or a part thereof, which is entirely outside of the issues as made by the pleadings and the evidence, is erroneous.
Section 468, Revised Laws 1910, grants to the mayor and city council the power to determine the necessity of establishing certain sewer districts within said town or city, and the general rule is the finding by the city council that said improvement is necessary is final, and cannot be reviewed by the courts in the absence of circumstances of fraud and oppression.
A petition which alleges that an ordinance of the city council in creating a sewer district was unreasonable, unjust, and was passed designedly and capriciously, and was unnecessary and would be of no benefit to the property nor to the public contains sufficient allegations to state a cause of action.
Proceedings of a municipal corporation ordering public improvements and making assessments to pay for same are presumed to be regular, and the burden is upon the one attacking the legality of such assessments to show irregularity in such proceedings.
Whether lots in a sewer district are benefited to the amount of the assessment levied against such lots is a legislative question, and, having been determined by the legislative power of the city in regular proceedings, is conclusive in an action to enjoin the collection of the assessments on the ground that the cost exceeds the benefits.
The general rule is where the mayor and city council have determined a certain sewer improvement necessary the courts cannot interfere to prevent said improvement, except in cases where it clearly appears that the discretion of the local legislative branch of the government has been abused and said ordinance is so unreasonable and oppressive as to render it void.
The evidence examined, and held, the judgment of the trial court when the law applicable to such facts is applied to said evidence is clearly against the weight of the evidence.
Appeal from District Court, Kay County; Wm. M. Bowles, Judge.
Action for injunction by G. M. Cassity and others against W. R Crawford and others, as the City Council of Tonkawa, and F W. Keeney & Co. Judgment for plaintiffs, motion for new trial denied, and defendants appeal. Reversed and remanded, with directions to dismiss the petition.
W. W Davis, of Tonkawa, and John S. Burger, of Blackwell, for plaintiffs in error.
Sam K. Sullivan, of Newkirk, and J. H. Hill, of Tulsa, for defendants in error.
This action was instituted in the district court of Kay county by G. M. Cassity, Elihu Myers, and G. G. Overstreet against the city council of Tonkawa and F. W. Keeney & Co. to enjoin the city from constructing lateral C in sewer district No. 4, in the alley of block 30. It is alleged that the plaintiffs were the owners of all of the lots in said block and that lateral C, which extended into block 30, was placed in said ordinance by the said city council and officers of the said city designedly and capriciously and unnecessarily, for the reason a sewer placed in the alley of said block would not be beneficial to the citizens of the city of Tonkawa in any manner, would benefit no one, and the act of the city council in including said block in said ordinance was unreasonable, unjust, and not a reasonable and just exercise of the authority conferred upon the said mayor and council. It is further alleged there are sewers running along the sides of said block and that said lateral is unnecessary, and that defendants filed a protest with the city council and thereafter the city council let a contract to Keeney & Co. To this petition is attached the defendants' protest and the ordinance. The plaintiffs asked for a temporary injunction, which was denied by the court. Thereafter plaintiffs filed a supplemental petition, alleging that Keeney & Co. had filed its bond and was attempting to proceed with said work. Thereafter a second supplemental petition was filed, alleging in addition that the work had been completed and that the city council had passed an ordinance assessing the benefits to said lots amounting to $278, and asking that the same be declared illegal and void and the city be enjoined from collecting the same. The defendants answered, admitting a great portion of the allegations of the petition, except the fact that it was unnecessary that the sewer be installed in said block, and denies that said lateral C was included in said sewer district on account of any ill will or for oppression, but that said block is in the center of said city, a portion of the same was low and without sewerage and unsanitary; and further answered that the ordinance had been passed and sewer had been installed as provided in sections 462-471, Revised Laws 1910. With the issues thus formed the case was tried upon its merits to the court, and after hearing the evidence the court granted the injunction, and the court in granting the injunction stated as follows:
The defendants filed a motion for a new trial, which was overruled by the court. The plaintiffs in error for reversal argue two propositions, or it might be considered as three: First. That the trial court had no jurisdiction to hear and determine the matter presented in the petition of defendants in error, for the reason that the jurisdiction conferred by legislative enactment upon the mayor and council to proceed with the work of providing a sewer when they deemed it necessary is conclusive. Second. That the judgment of the trial court holding plaintiffs in error were without jurisdiction to order the sewer complained of in the petition, for the reason that after the protests were filed by defendants in error there was no finding by the city council, and no record made of any finding made in accordance with section 468 of Revised Laws of 1910, that said finding is not based upon evidence introduced into the trial of the case; and, further, that the judgment of the court is contrary to the weight of the evidence and is contrary to law.
We will first consider the finding of the court in regard to the city council having no jurisdiction to enter into the contract, for the reason that after the protest was filed the city council did not make a finding that the sewer was necessary. We have searched the pleadings to find where this question was ever raised or made an issue in the case at bar, and have been unable to find where such question was made an issue in the case either by the pleadings or the evidence.
The opening statement of defendants in error and their statements during the trial disclose that the question as to whether the city council had made an order after the protest was filed finding that the sewer was a necessity was not an issue in the case. Counsel for defendants in error in defining their position stated their contention was this lateral C was unnecessary; that the same was not for the benefit of plaintiffs' property and added no benefit to the property in any amount, no benefit to the citizens of Tonkawa, nor was it beneficial for the welfare of the city; and, further, the city could not take private property to benefit the public unless it gave the private property back sufficient benefit to the amount of the costs or taxes to be assessed against said property. There was no issue raised by the pleadings that the injunction was applied for upon the ground the city council acquired no jurisdiction by failing to make a record after the protest was filed that the city council considered the lateral a necessity. The record of the city council upon this proposition is not in evidence. The evidence does not disclose whether there was such a record or not. The evidence does disclose that the city council gave the protestants a hearing, but there was no evidence offered upon either side as to whether the council had overruled the protest or...
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