Kerker v. Bocher

• Decision Date: 13 April 1908
• Docket Number: Case Number: 1938 OK Ter
• Citation: 20 Okla. 729,1908 OK 52,95 P. 981
• Parties: KERKER et al. v. BOCHER et al.
• Court: Oklahoma Supreme Court

1908 OK 52
95 P. 981
20 Okla. 729

KERKER et al.
v.
BOCHER et al.

Case Number: 1938 OK Ter

Supreme Court of Oklahoma

Decided: April 13, 1908

Syllabus

¶0 1. MUNICIPAL CORPORATIONS--Street Improvements Assessments--Ordinance Unnecessary, When. Where the city council shall deem it necessary to pave any street, or any part thereof, within the limits of a city, for which a special tax is to be levied and such council, by resolution duly passed, declares such improvement necessary, and causes the publication of game for four consecutive weeks in a proper newspaper, the owners of a majority of the lots or parts of lots liable to taxation therefor failing within 20 days thereafter to file with the clerk of said city protest against such improvements, and proceeds to cause such improvements to be done, without the adoption of an ordinance to that end, but by adopting plans and specifications, including an estimate of the cost of such improvement, and authorizing the clerk to advertise for bids therefor, the contract being accordingly let under competitive bidding, and afterwards by ordinance appraisers being appointed, and their report after some amendments by the council, being adopted by ordinance, the abutting property owners, under such circumstances, can be estopped from questioning the validity of such assessment.

2. SAME--Objections of Property Owners--Waiver. Abutting property owners, with knowledge that such paving is being done with the intention of levying a special tax upon them for payment of the same and permitting such improvement to be done without objection to the council, and knowingly receiving the benefits, when afterwards they seek relief in equity to escape payment therefor, will be deemed to have ratified the same, and estopped from setting up any irregularity, except when it goes to the extent of jurisdiction.

3. SAME--Review of Assessment-Equity. When the estimate of benefits is referred to a board of appraisers, and afterward approved by the council, the remedy of one who considers himself unfairly assessed is to apply for redress to such tribunal, and, failing so to do, he will not be permitted in an action in equity to overcome such finding, especially on review in the Supreme Court, when the referee found that there was no proof to show that appraisement or assessment was in any way inequitable or unjust.

Error from District Court, Pottawatomie County; before B. F. Burwell, Judge.
Action by J. F. Kerker and others against C. J. Bocher and others. Injunction to prevent collection of assessments for street improvements. Judgment for defendants,, and plaintiffs bring error. Affirmed.

On the 6th day of September, 1904, this action was begun in the district court of Pottawatomie county, Oklahoma Territory, seeking a temporary restraining order against the defendants, as mayor and city council of the city of Shawnee, to enjoin them to issue certificates or tax warrants against the several property of the plaintiffs in error, or any or either of them, abutting on Park street, until the further order of said court, and, further, to restrain the defendants C. J. Bocher and C. J. Becker, respectively as mayor and city clerk of said city, from attaching their official signatures and affixing the corporate seal of said city to such certificates or tax warrants in favor of W. M. Davis or his assigns against any property of said plaintiffs in error, and from delivering said certificates to said Davis, his assigns, and others, until a further order of said court. Said petition was supported by accompanying affidavits, and upon presentation to the county judge of Pottawatomie county the temporary injunction prayed for was granted, to become effective on the plaintiffs filing with the clerk of the district court a bond under the conditions as required by law in the sum of $ 1,000, to be approved by the clerk, which bond was duly executed, filed, and approved. Afterwards, on the 14th day of July, 1905, plaintiffs filed their amended petition, praying as follows:

"That a temporary restraining order be issued to the defendants, as mayor and city council of the city of Shawnee, enjoining them from issuing certificates or tax warrants against the several property of these plaintiffs, or any or either of them, abutting on said Park street, until the further order of this court, and that the defendants C. J. Bocher and C. J. Becker, as mayor and city clerk of the city of Shawnee, be enjoined and restrained therein from attaching their official signatures and attaching the corporate seal of the city of Shawnee to certificates or tax warrants, in favor of said W. M. Davis or his assigns, against the property of these plaintiffs, and from delivering said certificates or tax warrants to said W. M. Davis, or his assigns, or at all, till the further order of this court. That the defendants, as mayor and city council of the city of Shawnee, be enjoined and restrained from levying a special tax or assessment against the property of these plaintiffs, or any of them, to pay said certificates or tax warrants issued or sought to be issued, and that the defendant C. J. Becker, as city clerk of the city of Shawnee, be enjoined and restrained from certifying any tax levy' of a special tax or assessment made and levied to pay said certificates or tax warrants issued against the property of these plaintiffs, or any of them, abutting on Park street, until the further order of this court. That the defendants, as mayor and city council of the city of Shawnee, be enjoined and restrained from levying a special tax or assessment against the property of these plaintiffs, or any of them, to pay said certificates or tax warrants issued or sought to be issued, and that the defendant C. J. Becker, as city clerk of the city of Shawnee, be enjoined and restrained from certifying any tax levy of a special tax or assessment made and levied to pay said certificates or tax warrants issued against the property of these plaintiffs, or any of them, abutting on Park street, until the further order of this court. That the defendants, as mayor and city council of the city of Shawnee, and C. J. Becker as city clerk of said city, be perpetually enjoined from signing, sealing, issuing, or delivering said certificates or tax warrants against the said property of these plaintiffs, or either of them, to said W. M. Davis, or his assigns, or at all. That the defendants, as mayor and city council of the city of Shawnee, be perpetually enjoined from levying a special tax or assessment against the said property of these plaintiffs, or any of them, to pay off and discharge the said certificates, or any part or installment thereof, and that the defendant C. J Becker, as city clerk of said city, be perpetually enjoined from certifying any such levy to the county clerk of Pottawatomie county."

On the 27h day of July, 1905, defendants served upon the plaintiffs their answer to the amended petition and notices of motion to dissolve said temporary injunction; said answer having been duly filed by leave of court. Afterwards plaintiffs were permitted, by way of amendment, to add an additional paragraph to the first amended answer, said paragraph being in words and figures as follows:

"Plaintiffs and each of them are ready and willing to pay all special assessments that are now or may hereafter become a legal charge against their property, or the property of any of them, to the full extent of the benefits resulting to their property, or the property of any of them, from such improvement, when the same shall have been ascertained by the courts, or under its direction, and now here in court offer to pay the same."

On the 15th day of September, 1905, by agreement, said cause was referred to J. H. Everest, Esq., to try and determine the issues of law and fact and report thereon to the court. Afterwards, on the 29th day of March, 1906, the said referee made his findings of fact and conclusions of law in words and figures as follows:

"That on September 7, 1903, defendants passed a resolution declaring it necessary to grade Park street, from north side of Main street to the north line of Dill street, as follows:

"'Resolution to Grade Certain Streets and Avenues.

"'Be it resolved by the mayor and councilmen of the city of Shawnee: First, that it is necessary to grade and improve certain following described streets and avenues of the city of Shawnee, to wit: Market street, from the north side of Main street to the south side of Dill street; Park street, from the north side of Main street to the north line of Dill's addition to the city of Shawnee; Louisa street, from the north line of Main street to the north side of Dill's addition to the city; Ninth street, from Broadway to Kickapoo street; Highland avenue, from Broadway to Kickapoo street; Tenth street, from Broadway street to Kickapoo street; Ridgewood avenue, from Broadway to Kickapoo street; Dewey avenue, from Market street to Kickapoo street; Wallace avenue, from Market street to Kickapoo street; South Broad street, from south line of Choctaw, Oklahoma & Gulf Company's right of way to Bluff street; Dill street, from Kickapoo to Broadway. That if the owners of a majority of the lots or parcels of land liable to taxation for the above improvements shall not, within twenty (20) days after the completion of the publication of this resolution, file with the city clerk of said city their protest--if made against each street and avenue to be improved, must be separate--which shall be considered only against the street or avenue protested against, then the council of such city shall cause such improvements to be made, and contract therefor at the expense of the abutting lots, pieces, or parcels of ground, as provided in section 3, art. 2, c. 8, of 1901 Session Laws of Oklahoma Territory, and will issue certificates against such lots, pieces, or parcels of ground for the amount as provided by law.

"'Adopted and approved

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