Gayman v. Mullen

• Citation: 58 Okla. 477,1916 OK 863,161 P. 1051
• Decision Date: 10 October 1916
• Docket Number: Case Number: 7590
• Parties: GAYMAN, County Treasurer, et al. v. MULLEN.
• Court: Supreme Court of Oklahoma

1916 OK 863

161 P. 1051

58 Okla. 477

GAYMAN, County Treasurer, et al. v. MULLEN.

Case Number: 7590

Supreme Court of Oklahoma

Decided: October 10, 1916

Syllabus

¶0 1. DRAINS--Statutes--Drainage Districts--Appointment of Viewers--Assessments. The act of March 24, 1910 (Laws 1910, c. 79), amending sections 3046, 3049, 3050, 3053, 3054, and 3057, c. 32, Comp. Laws 1909, relating to drainage and declaring an emergency, is within the provision of section 58, art. 5 (Williams, sec. 147a), of the State Constitution that an emergency measure shall not include, among other inhibited things, any provision for "the purchase or sale of real property," and the same did not take effect until 90 days after the adjournment of the session at which it was passed, that is, until June 18, 1910.

(a) The selection of drainage district viewers in accordance with the provisions of this act, on April 25, 1910, was invalid, and their services and report on June 22, 1910, under an order of the county commissioners made on April 25, 1910, was also invalid and afforded no basis for a hearing and for an assessment and lien against real property on account of drainage benefits.

2. SAME--Statutes--Repeal--Pending Proceedings. Where, on August 12, 1909, a board of county commissioners, acting upon a petition for drainage improvements, appoints drainage district viewers under Laws 1907-8, p. 299 (section 2964, Rev. Laws 1910), to make the first view and report thereon, required by the statutes relating to drainage districts, and where, on September 14, 1909, in accordance with the report duly made by such viewers, such county commissioners found in favor of said petition for drainage improvements and directed such viewers, with a designated surveyor, to make the second and final view and report required by the statute as the basis for the final hearing in such proceedings and the assessment of real property on account of the benefits it will receive from such improvements, and where, on June 22, 1910, said viewers, having performed the services required of them, made and filed their report and the county commissioners thereafter, upon due notice and hearing, approved and confirmed the same and made such assessment, such report and assessment is valid, notwithstanding the act of March 29, 1910, which took effect on June 18, 1910, provided a different method and manner of selecting viewers in such cases.

(a) Under section 54, art. 5 (Williams, sec. 144), of the State Constitution, the repeal of a statute does not affect proceedings begun by virtue of such repealed statute, where the rights to which the proceedings relate remain unchanged, although such proceedings are in a matter involving legislative as well as judicial questions and in the main are of legislative character.

3. SAME--Assessments--Review. Under Laws 1907-08, p. 304, as amended by Laws 1909, p. 220, as amended by Laws 1910, p. 162 (section 2979, Rev. Laws 1910), there is an adequate remedy at law, by appeal, from an assessment of real property that is not benefited by a proposed drainage improvement.

Error from District Court, Lincoln County; Chas. B. Wilson, Jr., Judge.

Action by Mary A. Mullen against John J. Gayman, county treasurer, and others. Judgment for plaintiff, and defendants bing error. Reversed, with directions to dismiss petition.

John J. Davis and Grant Stanley, for plaintiffs in error.

Erwin & Erwin, for defendant in error.

THACKER, J.

¶1 The plaintiffs in error will be designated as defendants, and the defendant in error as plaintiff, in accord with their respective titles in the trial court.

¶2 This is an action by plaintiff against defendants to vacate and set aside a special assessment of $ 2,280, based upon a finding of a drainage benefit, and to perpetually enjoin the collection of the same against her southwest quarter of section 15, in township 14 north, range 2 east, of the Indian meridian, in Lincoln county, as a part of Deep Fork drainage district No. 1, of said county, under Laws 1907-08, pp. 295-315, as amended by Laws 1909, pp. 217-236, as amended by Laws 1910, pp. 156-163 (sections 2959-3023, Rev. Laws 1910), upon showing as to the proceedings had and contending as to other facts and as to the effect of our statutes that on August 7, 1909, a sufficient petition to the board of county commissioners of said county for the organization of this district and the construction of a main and lateral ditch was duly filed; that on August 12, 1909, under Laws 1907-08, p. 299 (section 2964, Rev. Laws 1910), three viewers were duly appointed by said county commissioners and, with a designated surveyor, directed to proceed to the premises along and adjacent to the line of the proposed drains and to report whether the same were practicable and necessary, or of private or public utility and benefit, which service was duly performed and which report showed that the proposed improvement was practicable and necessary and a public utility and benefit, and was accompanied by a recommendation of route, etc.; that on September 14, 1909, after due notice by publication under Laws 1907-08, p. 299 (section 2965, Rev. Laws 1910), the county commissioners found in favor of said petition for the said drainage improvements, and ordered and directed said viewers and surveyor to go upon the lands in said drainage district and established the precise location of the proposed drainage ditch and laterals, survey and level the established line thereof, set a stake at every 100 feet, numbering downstream, mark the intersections and boundaries of lands, township, range, and county lines, bench marks, and road and railroad crossings, determine the dimensions and form of said drainage improvements, what disposition should be made of excavated earth, establish the number of cubic yards of earth or other substance to be removed and the cost per cubic yard of each section of 100 feet, and for the whole work, and to make report, profile, and plat of the same, together with a schedule of all lots and lands, and of public and corporate roads or railroads, together with the names and residences of the owners that will be benefited, damaged, or condemned by or for the improvement, and the damage or benefit to each tract of 40 acres or less, and make separate estimate of the cost of location and construction and apportion the same to each tract in proportion to the benefit or damage that may result to each, apportion and allot the construction or expense of same--of the number of lineal feet and cubic yards of said work--to each lot or tract of land, road, or railroad in proportion to the estimate of benefits or damages, specify the manner and time in which such improvements were to be made and completed, the number of floodgates, waterways, farm crossings, bridges, and the dimensions thereof, and note the county and township lines and railroad crossings, etc., as required by Laws 1907-08, pp. 300, 301 (section 3050, Comp. Laws 1909), which was changed by the amendatory act of March 24, 1910, the same being Laws 1910, p. 159 (section 2968, Rev. Laws 1910), by inserting next after the requirement that "if the commissioners shall find that the proposed drain or improvement is necessary for sanitary or agricultural purposes, or will be conducive to the public health or a public utility, they shall cause to be entered upon their record such finding," the following: "And they shall so certify to the judge of the district court of such county, and request that he appoint three disinterested freeholders from the regular jury list of names prepared for the district court, who shall not be interested in the construction of said work and not of kin to any person interested therein; and thereupon the judge of the district court shall immediately cause ten days' notice to be given in some newspaper printed and of general circulation in the county, of the said application for appointment of viewers, and at the time stated therein shall appoint three such disinterested freeholders from the regular jury list of names of his court, and shall cause the names of such viewers so appointed to be certified to the board of county commissioners, and the said county commissioners shall thereupon cause an order to be entered on their records" authorizing and directing the three viewers so appointed and the county surveyor, etc.; that on April 25, 1910, the said viewers and surveyor having neither completed their work nor reported thereon, the judge of the district court of said county acting upon the certified request of the county commissioners, assuming that the said act of March 24, 1910, which contained a section declaring the same an emergency measure to take effect and be in force from and after its passage and approval, was in effect, appointed three viewers and caused them to be certified to the county commissioners in accord with the above-quoted provisions of said act of March 24, 1910; that the county commissioners thereupon, on the same day, ordered and directed these viewers, together with a surveyor, to do and perform the same services with which the former viewers and surveyor were charged by the order of September 14, 1909; that on June 22, 1910, the first set of appointed viewers with a surveyor, acting under the order of September 14, 1909, and the second and last appointed set of viewers with a surveyor, acting under the order of April 25, 1910, each made a finding and reported the same to the board of county commissioners in identically the same form and in accordance with the requirements of these orders; that on November 11, 1910, after due notice of the hearing under Laws 1907-08, p. 302 (section 2971, Rev. Laws 1910), the county commissioners approved and confirmed the report of both sets of viewers and ordered said assessment of $ 2,280 as a lien upon plaintiff's lands hereinbefore described under Laws 1907-08, pp. 308, 309, as amended by Laws 1909, p. 225 (section 2988, Rev. Laws 1910);...