Mcknight v. Okla. City

• Decision Date: 12 September 1933
• Docket Number: Case Number: 23318
• Citation: 1933 OK 463,25 P.2d 638,165 Okla. 210
• Parties: McKNIGHT et al. v. OKLAHOMA CITY et al.
• Court: Oklahoma Supreme Court

1933 OK 463

25 P.2d 638

165 Okla. 210

McKNIGHT et al. v. OKLAHOMA CITY et al.

Case Number: 23318

Supreme Court of Oklahoma

Decided: September 12, 1933

Syllabus

¶0 1. Municipal Corporations--Street Improvements--Personal Notice not Required.

Personal notice in reference to public street improvement is not required. This is a matter clearly within the province of the Legislature.

2. Same--Legal Publication Conferring Jurisdiction to Proceed With Improvement.

The question of the necessity of a public street improvement is legislative, and a publication as required by law relating to the resolution and the necessity concerning such improvement, in the absence of a sufficient protest, and benefits received therefrom confers jurisdiction upon the governing body of the city to proceed with such improvement.

3. Same--Notice Held Legally Published in Daily Newspaper.

A notice relating to proceedings of a public street improvement in Oklahoma City published as required by law in the Daily Record, a daily newspaper published in said city, comes within the provisions of the statute relating to legal publications sufficient to constitute constructive notice to such property owners relative to such improvement.

4. Same--Necessity of Improvement-- Discretion of Governing Body of City.

The necessity of a public street improvement, in the absence of fraud, collusion, or private understanding between the contractor and the governing body of a city, and a sufficient protest, is within the discretion of the governing body of the city.

5. Same--Contract for Improvement not Invalidated by Fact That There Was but One Bidder.

Where there is but one bidder for a public street improvement, and the governing body of the city, within its discretion, enters into a contract for such improvement, such contract is not invalid by reason thereof; such a bid constitutes competitive bidding within the meaning of the law requiring competitive bidding where there has been a compliance with the law in relation to the establishment of the district and the publishing of notices, in the absence of fraud or collusion.

6. Same--City Charter Provision Requiring Oath of Office for City Engineer Held Merely Directory.

A provision of the city charter which requires the city engineer to take and subscribe the oath of office is only directory, and a failure to comply therewith does not work a forfeiture of such office and void the proceedings relating to a public street improvement.

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

Action by J. R. McKnight and others against Oklahoma City et al. Judgment for defendants, and plaintiffs appeal. Affirmed.

Billups & Billups, D. I. Johnston, and C. W. King, for plaintiffs in error.

W, H. Brown, Municipal Counselor, Harlan T. Deupree, Asst. Municipal Counselor, and G. A. Paul, for defendants in error.

McNEILL, J.

¶1 This is an action for injunction. The city of Oklahoma City, through its constituted officers, awarded a contract to the Western Paving Company to resurface a portion of Seventeenth street in said city. This work was completed. Plaintiffs, as property owners, affected by such improvement, seek an injunction against said city, its governing body, and the Western Paving Company to cancel said contract for improvement and to enjoin said city from taking any action toward the levy and collection of the assessment made against the property of plaintiffs. Plaintiffs alleged, in substance, that on November 5, 1930, said city passed a resolution purporting to authorize the letting of a contract to repair a portion of said street in question; that the city advertised for bids; that no notice was ever served on plaintiffs; that the proposed ordinance, advertising, notice, and contracts let to the paving company pursuant thereto are null and void; that the improvements constructed were inferior in character; that they were not in compliance with the plans and specifications of said contract; that the notices published relative to passing of the ordinance making assessments against the property in the Daily Record were not within the meaning and intent of the statute relating to a legal publication; that the assessments are unjust, exorbitant, and unreasonable; that plaintiffs if denied injunctive relief will be deprived of their property without due process of law; that the street in question, prior to the improvement, was in a good state of repair and serviceable; that this was known to the city engineer and the governing body of said city; that no public necessity existed for the resurfacing of said street; that the acts of the defendants were fraudulent and oppressive; that they exercised an abuse of power and in so doing have established a large indebtedness against the respective property of plaintiffs for a needless public improvement in violation of the Constitution of the state of Oklahoma and the Constitution of the United States; that it was generally understood by the property owners affected by said improvement that the improvement was being done at the cost and expense of said city out of its repair and maintenance fund, and that this expense was not to be charged against the property of plaintiffs; that false and fraudulent data were prepared by the agents and employees of said city; that the city engineer confederated and conspired with the Western Paving Company in deceiving and inducing said city to cause said improvement to be made.

"1. The contemplation of the Paving Act (chapter 173, Session Laws of 1923) as to the publication notices was that the same should be published in a newspaper of general circulation within the city.

"2. The determination by the city council that a public necessity existed for resurfacing the street in question can be inquired into by a court of equity if fraud, oppression or abuse of power existed in such determination.

"3. That section 31, ch. 173, Session Laws of 1923, of the Paving Act, is unconstitutional and void in so far as the same seeks to conclusively bind the courts of interested parties where fraud, oppression and abuse of power are alleged in the proceedings leading up to the acceptance of public works, being violative of the Fifth and Fourteenth Amendments of the Constitution and an unwarranted invasion of the judicial branch of government.

"4. The finding of the court that there was an entire absence of fraud on the part of the defendants, and each of them, in the entirety of this project and rendering judgment accordingly was against the clear weight of the evidence.

"5. That the letter and spirit of section 4, art. 9 of the city charter of Oklahoma City, as to 'competitive bidding' on public works was ignored in this project and the contract awarded to the Western Paving Company upon its sole bid, was contrary to law and public policy and void.

"6. The contract in this case, under an estimate made by the city engineer, who had failed, neglected, and refused to take and subscribe the oath of office required by the city charter, is void, and the levying of assessments against plaintiffs' property under such a contract can be enjoined by a court of equity."

¶2 On the other hand, the defendants present the following propositions:

"(1) Paving improvements are controlled by property owners.

"(2) The publications in The Daily Record constituted full compliance with the provisions of the paving law.

"(3) No sufficient protests appeared from the evidence.

"(4) The determination of the necessity of the improvement is legislative, and binding in the absence of fraud and oppression.

"(5) The property owners are estopped by virtue of laches to enjoin the assessments.

"(6) Fraud is never presumed.

"(7) The preliminary estimate is a public record.

"(8) Failure of an officer to take an oath of office is an irregularity, and cannot be collaterally attacked after the completion of the work.

"(9) The special statute of limitation, found in section 30 of the Paving Act, bars the right of recovery by the plaintiffs in this action.

"(10) Courts of equity will sustain the judgment if not against the clear weight of the testimony."

¶3 It does not appear to be challenged that the improvement project in question was constructed, completed, and accepted in compliance with the provisions of the Paving Act, chapter 173, Session Laws 1923 [O. S. 1931, secs. 6212-6248]. No irregularity in the proceedings or failure to comply with any statutory provisions relating to street improvement has been urged by the plaintiffs.

¶4 The initial steps toward the improvement were made by the governing body. These proceedings were in compliance with the statute and the jurisdiction of the governing body of the city over the subject-matter of the improvement was acquired. No protest or objection was ever filed by any property owner affected by the improvement to prevent the contractor or the city from proceeding with the improvement. It was not until about three months after the project had been completed and accepted that the instant action was instituted to cancel the contract for the project and void the assessments to pay the costs. No question has been presented by the evidence that the costs have been excessive and unreasonable.

¶5 The property owners complain that they had no personal knowledge of the improvement proceedings. There seems to be no sound reason why personal notice ought not be given to property owners in reference to public street improvement where it is practicable and reasonably possible to do so, but this is a matter clearly within the province of the Legislature. Personal notice is not required. Alley v. City of Muskogee, 53 Okla. 230, 156 P. 315; Riley v. Carrico, 27...