Jones v. Holzapfel

• Decision Date: 18 February 1902
• Citation: 68 P. 511,1902 OK 5,11 Okla. 405
• Court: Oklahoma Supreme Court
• Parties: C. G. JONES et al. v. LOUELLA C. HOLZAPFEL et al.

1902 OK 5

68 P. 511

11 Okla. 405

C. G. JONES et al. v. LOUELLA C. HOLZAPFEL et al.

Supreme Court of Oklahoma

Decided: February 18, 1902

Error from the District Court of Oklahoma County; before C. F. Irwin, Trial Judge.

Syllabus

¶0 1.CITY COUNCIL--Authority of.Under a statute authorizing a municipal corporation to "provide for" the extension or construction of lateral sewers and which provides that the "actual cost of labor or material expended" in constructing such lateral does not limit the city council to the extension or construction of the work by the employment of laborers, or by permission of the respective lot owners to do the work themselves along and in front of their lots respectively but authorizes the city council to provide for such construction, by the making of a contract for the construction of the work as a whole, as was done in this case.

2.SAME--Implied Power.The authority of the city council to make the improvements specified, carries with it the implied power to make a general contract therefor, there being no statutory provision evincing a different legislative intent.

3.ASSESSMENTS BY CITY COUNCIL NOT TAXES.While the authority of the city council to make the improvements within the municipality, and to levy assessments therefor upon the property especially benefitted, is derived from the general power of taxation, yet such assessments are not "taxes" under that provision of the organic act which provides that "all property subject to taxation shall be taxed in proportion to its value."Such assessments are no part of those general taxes which are imposed for the purpose of carrying on the ordinary expenses of government, and do not fall within the prohibition of the organic act.

4.APPORTIONMENT OF LEVY--Inference.While the authority of the city council to "apportion" a levy to various lots might, in the absence of an especial direction, be regarded as a direction to apportion such levy equally, yet such inference or rule cannot be sustained in the presence of an express provision of the statute that the apportionment shall be made "according to the actual cost of labor or material expended in constructing such lateral along the lot assessed."

5.TAXES, TENDER OF-- Relief in Equity.It is the general law that no one will be entitled to relief in equity to enjoin the collection of an assessment until he shall have shown that he meant to do equity by paying that portion of the tax assessed against him as it can be clearly seen that he ought to pay; and the owner of property will not be permitted to refuse the payment of a total assessment where it is clear that he ought to pay a part, and where it can be seen what that part is.

6.SAME--Not Necessary, When.But this rule has no application to a case like the present, where the entire tax fails by reason of an illegal assessment, and in such a case the assessment may be enjoined without the payment or tender of any portion of the tax, since it is impossible for the court to determine what portion is actually due.

John H. Wright, Hays, McMechan & Johnson, and Karnes, New, Hall & Krauthoff, for plaintiffs in error.

J. R. Keaton and Douglas & Ramer, for defendants in error.

This action was begun in the district court of Oklahoma county by the defendants in error, who prayed for an injunction to restrain the collection of assessments for the construction of lateral sewers.They alleged that they were the owners of property abutting upon the sewers which have been constructed under an ordinance passed by the city council of Oklahoma City, which provided that when the actual cost of such construction was determined, the city clerk should notify the owners of each lot assessed of the amount of his assessment, with penalty in case of failure to pay within ten days, and a direction to place the amount on the tax rolls of the county as a special assessment against such lots, to be collected as other taxes.

Thereafter, the mayor and city council of Oklahoma City, acting under this ordinance, advertised for bids for the construction of the sewers and having received several bids, accepted that of Black & Laird, claiming it to be the lowest bid received for their construction.That on the 8th day of July, 1901, the mayor and city council entered into a contract on behalf of the city with the firm of Black & Laird, for the construction in that portion of the city designated in the ordinance, and that in pursuance of the contract, Black & Laird have constructed lateral sewers, and have charged therefor a price largely in excess of the actual cost of labor and material required therefor, in order that they may make a large profit; that the city clerk has notified the owners of the lots abutting upon such laterals, of a pretended assessment against their respective lots, and that unless paid certain costs and penalties will be added thereto, and that the assessment will be certified to the clerk of Oklahoma county, who threatens to extend the pretended assessment upon the tax rolls of the county, and that a cloud will thereby be placed upon the title of the plaintiffs to their respective lots, and that the plaintiffs had no adequate remedy at law.

The plaintiffs averred that the ordinance was void, because, (1), it attempted to confer power upon the mayor and councilmen to let the contract to a person outside of the mayor and city councilmen of the city for the construction of the sewers, and to levy a special assessment upon the abutting lots for the payment of the contract price, and, (2), that it attempted to authorize the apportionment of the costs of construction equally among the lots abutting upon the laterals thus built within one of the districts specified in the ordinance, in violation of the territorial statute, and, (3,) that the contract was void because it did not state the "actual cost of labor and material," and that it did not provide that Black & Laird should perform the work and furnish the material at the actual cost, without any profit thereon, and that Black & Laird had made a pretended assessment against each of the lots owner by the plaintiffs of a specified sum as the proportionate share of the cost of said construction, to be borne by each of the lots, and that this assessment was much in excess of the actual cost for labor and material" used in the construction.The prayer was for an injunction, restraining the certification, extention upon the tax rolls, and of all steps toward the collection of these assessments.

The defendants, the mayor and city council, filed a general demurrer to the petition, alleging that it did not state a cause of action.The defendants, Black & Laird, also separately demurred to the petition upon the usual statutory grounds.These demurrers were overruled by the court, to which exceptions were reserved.The defendants then filed their answer, containing a general denial of the averments of the plaintiffs' petition, and set forth the ordinance, (No. 262,) providing for the construction of the sewers in question, and averred that they had full and absolute authority to enact the ordinace, and to provide payment and make the special assessments to pay for them, and that the ordinance authorized them to proportion the costs and expenses of the said sewers against the lots abutting upon the said laterals, and included within the specified district.They denied the averments that any other bids had been received for the construction of the lateral sewers, lower or as low as that of Black & Laird, and said that they had accepted the bid of Black & Laird, and had entered into a written contract with that firm, which had entered upon the performance of their part of the contract, and had begun the construction.

The defendants denied "that said ordinance leaves the fixing of the amount to be charged for the construction of the lateral sewers to the defendants, Black & Laird," but alleged "that the charges were fixed by the defendants, the mayor and city councilmen of Oklahoma City, based upon the estimates of the city engineer of Oklahoma City, which estimates were made and submitted to the mayor and councilmen before the contract was awarded to Black & Laird, and before any price was agreed or attempted to be agreed upon for the construction of the laterals."And they averred their right to fix the amount by contract with the defendants, Black & Laird.They answered further that the "price charged for the work of defendants, Black and Laird, is not in excess of the actual cost of constructing the same," and denied that the bid submitted by Black & Laird was in excess of that submitted by other bidders, and averred that the bids submitted by the defendants, Black & Laird, was the lowest and best bid submitted to the mayor and city councilmen.They further denied that "it is not provided in said ordinance and contract that Black & Laird should perform the work and furnish the material and labor necessary for the construction of the lateral sewers at the cost thereof," but alleged that said ordinance specifically contains said provision.They further denied that they were, as a mayor and city councilmen, "without lawful power and authority to pass the ordinance and execute the contract," but averred that they were fully authorized and empowered so to do, and that they had entered into the contract by virtue of the authority vested in them under chapter 6, article 3, of the Session Laws of 1897, and that they had acted in conformity with the law.

They further averred that the plaintiffs were now estopped from complaining of any alleged irregularity in the levying and collection of assessments, for the reason that the plaintiffs "well knowing that said work was progressing and was nearly, if not wholly completed, made no objection, and entered no protest and took no steps looking to the arrest of said special assessments upon the tax rolls or collecting of said special assessment, until the work was...