Foote Co., Inc. v. City of McAlester
| Decision Date | 17 September 1946 |
| Docket Number | 32302. |
| Citation | 172 P.2d 617,197 Okla. 440,1946 OK 222 |
| Parties | FOOTE CO., Inc., v. CITY OF McALESTER. |
| Court | Oklahoma Supreme Court |
Appeal from District Court, Pittsburg County; R. W. Higgins, Judge.
Action by the Foote Company, Inc., against the City of McAlester, to recover the face value of paving bonds issued by the defendant with interest as damages on account of the alleged neglect of the defendant to take necessary action to collect the tax assessments levied to provide the fund for payment of the bonds and for failure to issue refunding street improvement bonds. From a judgment dismissing the action, the plaintiff appeals.
Judgment affirmed.
Syllabus by the Court.
Paving bonds issued by a city cannot be enforced against the city as a measure of damages for the negligence of its officers in failing or omitting to take the proper steps for the collection of the same or to issue refunding bonds therefor as provided by Title 11 O.S.1941 § 242.
A. C Markley, of McAlester, for plaintiff in error.
H. I Aston, of McAlester, for defendant in error.
Plaintiff in error is alleged to be the holder of 15 paving bonds issued by defendant in error. It commenced this action December 2, 1940, by filing its petition, as plaintiff, to recover against the city, as defendant, the face value of said bonds with interest as damages on account of the alleged neglect of the city to take the necessary action to collect the tax assessments levied to provide the fund for payment of such bonds; and the alleged neglect and wilful omission and failure of said city and its governing board to exercise its powers for the payment of said paving bonds by the issuance of refunding street improvement bonds as provided by Senate Bill No. 164 of the Seventeenth Oklahoma Legislature (11 O.S.1941 § 242) after plaintiff had delivered to the city clerk of said city on September 12 1939, its application therefor, in accordance with the terms of said act.
The trial court sustained the defendant city's demurrer to plaintiff's petition and, upon plaintiff's election to stand on said pleading, entered judgment dismissing the action. From said judgment plaintiff has appealed.
Plaintiff's position is that its petition stated a cause of action in damages against defendant, while defendant maintains that the trial court's judgment to the contrary was correct for the reason, among others, that it was not liable as in tort for the neglect, omission and failure of its officers and agents alleged by plaintiff, but that the latter's remedy, if any, is by proceeding for a writ of mandamus to compel said officers and agents to act.
As authority for its position, plaintiff cites the annotation at 38 A.L.R. 1271, showing some cases in which municipalities have been held liable in damages to the holders of municipal improvement bonds for the neglect or refusal of the municipal authorities to perfect or enforce assessments to liquidate such bonds, as well as the cases of Wilson v. City of Hollis, 193 Okl. 241, 142 P.2d 633, 150 A.L.R. 1385; Board of Education of City of Chickasha et al. v. City of Chickasha, 195 Okl. 127, 155 P.2d 723; City of Drumright v. McCormick, 118 Okl. 140, 247 P. 25; and Oklahoma City v. Orthwein, 8 Cir., 258 F. 190. The opinions by this court, thus cited, all dealt with the remedy of a bondholder for compelling payment of special assessments against public property and do not purport to hold that a municipal corporation may be held liable in damages for the failure of its officers or agents to make or collect assessments to pay paving bonds. In this case, it is not alleged that there is any property belonging to the city in the paving district involved.
In Severns Paving Co. v. Oklahoma City, 158 Okl. 182, 13 P.2d 94, this court had occasion to deal fully with the character of liability that is sought to be imposed upon the city in this case and after carefully examining the leading cases on the subject, including Oklahoma City v. Orthwein, supra, refused to sustain such liability and held:
'Under the Oklahoma...
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