McGrath v. Oklahoma City

• Decision Date: 16 February 1932
• Docket Number: 20578.
• Citation: McGrath v. Oklahoma City, 9 P.2d 711, 156 Okla. 34, 1932 OK 126 (Okla. 1932)
• Parties: McGRATH v. OKLAHOMA CITY.
• Court: Oklahoma Supreme Court

9 P.2d 711

156 Okla. 34, 1932 OK 126

McGRATH v. OKLAHOMA CITY.

No. 20578.

Supreme Court of Oklahoma

February 16, 1932

Rehearing Denied March 29, 1932.

Syllabus by the Court.

1. The provision in the Act of March 12, 1897 (Laws 1897, c. 32 art. 13), section 6033, Wilson's Revised and Annotated Statutes of Oklahoma 1903, for the issuance of a resale tax deed, was not repealed by House Bill No. 168 (chapter 38) approved March 10, 1909, but remained in full force and effect. House Bill No. 168 (chapter 38), approved March 10 1909, and House Bill No. 231 (chapter 10), approved April 7 1908, were each in full force and effect in 1911; they were supplementary to each other, in no wise in conflict with each other, and must be construed together. The provisions of each must be applied to bonds issued by a municipality in the year 1911 to evidence the amount due for paving assessments made pursuant thereto.

2. When installments of an assessment levied under and by virtue of House Bill No. 231 (chapter 10), approved April 17, 1908, become delinquent and are certified to the county treasurer and by him are placed upon the delinquent tax list, they are to be collected as other taxes, and the lots and tracts against which the assessment was levied may be sold by the county treasurer for such delinquent installments together with delinquent ad valorem taxes, and, if there be no bidder at such a sale, the county treasurer may bid in the same in the name of the county.

3. Under the provisions of House Bill No. 168 (chapter 38), approved March 10, 1909, the county treasurer is authorized to sell to the highest bidder any real estate that has been bought in by the county and which has remained unredeemed for two years, and in such case, where the original sale was for both ad valorem taxes and a delinquent installment of a paving assessment, it is the duty of the county treasurer to distribute the proceeds of the sale ratably between the ad valorem tax lien and the paving assessment lien, and, whether said distribution is made or not, such a sale extinguishes the lien for both ad valorem taxes and the delinquent installments of the paving assessment included in the first sale, but it does not affect the lien of other delinquent installments of the paving assessment or installments of the paving assessment which are not delinquent.

4. The laws existing at the time of the issuance of municipal bonds, and under the authority of which they are issued, enter into and become a part of the contract in such a way that the obligation of the contract cannot thereafter be in any way impaired, or its fulfillment hampered or obstructed, by a change in the law.

5. Paving bonds actually delivered for cancellation on April 25, 1928, pursuant to an ordinance providing for a refund of the indebtedness evidenced thereby dated April 7, 1928, under the provisions of House Bill No. 255, chapter 93, Session Laws 1927, are canceled thereby, the date of delivery relating back to the date of the ordinance authorizing the cancellation of the same.

6. A reassessment under the provisions of House Bill No. 255, chapter 93, Session Laws 1927, in an amount in excess of the original assessment, but which is in amount less than the original assessment, with penalties and interest accrued thereon, is not excessive.

7. An ordinance providing for a refunding of the indebtedness evidenced by paving bonds, under the provisions of House Bill No. 255, chapter 93, Session Laws 1927, is not an ordinance levying a tax or charge against the property, but one ratifying a contract, and such an ordinance is not in violation of section 58, article 5, of the Constitution of Oklahoma, or of section 4, article 5, of the city charter of the city of Oklahoma City.

8. Record examined and held to support the judgment of the trial court.

Appeal from District Court, Oklahoma County; T. G. Chambers, Judge.

Action by M. McGrath against the City of Oklahoma City. From the judgment, plaintiff appeals.

Affirmed.

H. A. Wilkinson, of Oklahoma City, for plaintiff in error.

Malcolm W. McKenzie, Municipal Counselor, and G. A. Paul, both of Oklahoma City, for defendant in error.

Geo. M. Callihan, Co. Atty., and I. L. Harris, Asst. Co. Atty., both of Oklahoma City, amici curiæ.

ANDREWS J.

This is an appeal from a judgment of the district court of Oklahoma county in favor of the defendant in error, the defendant in the trial court, against the plaintiff in error, the plaintiff in the trial court. The parties hereinafter will be referred to as they appeared in the trial court. The action was brought to cancel paving assessments against the property of the plaintiff. The cause was tried to the court. At the conclusion of the plaintiff's evidence the defendant demurred thereto. That demurrer was sustained, and judgment was rendered for the defendant, from which judgment the plaintiff appealed to this court.

The litigation arose out of the facts hereinafter stated. A portion of Classen boulevard from Thirty-Seventh street to Fiftieth street in Oklahoma City was paved in 1911; assessments were levied against the several tracts and lots therein to pay the cost of the improvement; the defendant issued street improvement bonds therefor, and those bonds were sold in the regular course of business. Included in the district was the property involved herein. That property was purchased by the plaintiff in 1924 at a tax resale held pursuant to the provisions of chapter 158, Session Laws 1923. At that time the assessments were unpaid and the bonds had matured. In October, 1928, under the authority of House Bill No. 255, chapter 93, Session Laws 1927, known as the "Refunding Paving Law," the defendant refunded the indebtedness evidenced by the improvement bonds, canceled them, reassessed the property, and issued new bonds in lieu thereof. After that assessing ordinance was passed, the plaintiff instituted this suit to enjoin the defendant from reassessing his property. Therein he alleged irregularity and partiality in the reassessing of the property, and that his resale tax deed canceled and set aside all delinquent taxes, penalties, interest, and costs previously assessed or existing against the property purchased, and vested in him an absolute and perfect title in fee simple to the property. By the reassessing ordinance the interest and penalties on the prior bonds were canceled and extinguished and the original assessment was increased about 35 per cent. The amount of the reassessment was approximately 2 per cent. per annum in excess of the original assessment, but it was less than the amount of the original assessment with the interest and penalties accrued thereon.

The plaintiff contends that the resale tax deed conveyed the real estate to him and vested in him an absolute and perfect title. The question is thus presented of whether or not the resale tax deed canceled the debt evidenced by the improvement bonds which had been issued and which, with interest and penalties, were past due at the time of the resale.

In order to understand more fully the rights and remedies existing under the special improvement or paving law and the law authorizing a sale of real estate for nonpayment of taxes, we will review some of the former legislative enactments.

The first paving law enacted appears as article 6, chapter 12, Wilson's Revised and Annotated Statutes of Oklahoma 1903 (sections 443 to 453, inclusive). It contained a provision relating to liens, as follows: "* * * The said assessment shall be a charge and lien against the property upon which assessed, until fully discharged. * * *" Section 450, supra.

That act remained in force until the Legislature enacted House Bill No. 231, approved April 17, 1908 (Laws 1907-08, c. 10). By section 5 of article 1 of that act it was provided: "Such special assessments and each installment thereof and the interest thereon are hereby declared to be a lien against the lots and tracts of land so assessed from the dates of the ordinances levying the same, co-equal with the lien of other taxes, and prior and superior to all other liens against such lots or tracts, and such lien shall continue until such assessments and interest thereon shall be fully paid. * * *"

The revisers changed the section, and it appears as section 634, R. L. 1910, as follows: "Such special assessments and each installment thereof and the interest thereon are hereby declared to be a lien against the lots and tracts of land so assessed from the date of the ordinance levying the same, coequal with the lien of other taxes, and prior and superior to all other liens against such lots or tracts; and such lien shall continue as to unpaid installments and interest until such assessments and interest thereon shall be fully paid, but unmatured installments shall not be deemed to be within the terms of any general covenant or warranty." The section was carried forward and appears as section 4609, C. O. S. 1921.

The assessment in the instant case was made and the bonds were issued in 1911 prior to the time of the taking effect of the revision of 1910, and the law applicable thereto is the 1907-08 act (chapter 10), supra. As held in Prince County Treas., v. Ypsilanti Savings Bank, 140 Okl. 131, 282 P. 282, the law existing at the time of the issuance of the bonds and under the authority of which they were issued entered into and became a part of the contract in such a way that the obligations of the contract cannot thereafter be in any way impaired or its fulfillment hampered or obstructed by a change in the law. It will be noted that under that law each and every installment of special assessments and the interest thereon are declared to be a lien, coequal with the lien of other taxes. The...