Mo., K. & T. Ry. Co. v. City of Tulsa

• Decision Date: 24 March 1925
• Docket Number: Case Number: 12681
• Citation: 238 P. 452,1925 OK 238,113 Okla. 21
• Parties: MISSOURI, K. & T. RY. CO. v. CITY OF TULSA et al.
• Court: Oklahoma Supreme Court

1925 OK 238

238 P. 452

113 Okla. 21

MISSOURI, K. & T. RY. CO. v. CITY OF TULSA et al.

Case Number: 12681

Supreme Court of Oklahoma

Decided: March 24, 1925

Syllabus

¶0 1. Municipal Corporations -- Charters -- Authority for Adoption.

Under section 3a. art. 18, of the Constitution, any city having a population of more than 2,000 inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and laws of this state, and the Governor shall approve the same if it shall not be in conflict with the Constitution and laws of this state.

2. Same--Paving Assessments and Liens--Procedure for Enforcement--Validity of Charter Provisions.

The provisions of a city charter, and of an ordinance in harmony therewith, authorizing the city board of commissioners to improve streets and alleys and to let contracts for paving same and to make assessments against abutting lots in proportion to the benefits accruing to such lots and to create a lien against such lots for the payment of such assessments and to provide that such lien may be foreclosed in a civil action in the district court, do not exceed the limitations, contained in section 3a, art. 18, of the Constitution, upon the powers of a city, or conflict with the provisions thereof, provided such charter provision and ordinance do not undertake to make the lien for city assessments prior and superior to the liens of the state for delinquent taxes or other liens which the state may have against such property.

Nor is the provision of such charter and ordinance authorizing a foreclosure of such lien by a civil action in district court invalid, provided such procedure is not made exclusive.

3. Same.

The statutes on revenue and taxation prescribe a procedure for enforcement of delinquent tax liens against real estate, including city taxes and assessments for city improvements, but, not being made exclusive, do not prohibit a city from authorizing different procedure for the collection of city assessments, provided such procedure authorized by the city is not made exclusive.

4. Statutes -- Cumulative Statutes -- Additional Remedies.

Provision for an additional remedy, not exclusive, though different from an existing remedy, does not take away the older remedy nor conflict therewith, nor does the fact that such additional remedy is cumulative render it invalid.

5. Constitutional Law -- Courts -- Right to Remedy.

Under section 6, art. 2, of the Constitution, "the courts of justice of the state shall be to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation. * * * "

6. Courts -- District Court Jurisdiction--Constitution.

Under section 10, art. 7, of the Constitution, the district courts shall have original jurisdiction in all cases, civil and criminal, except where exclusive jurisdiction is by this Constitution, or by law, conferred on some other court. * * *"

7. Municipal Corporations -- Validity of Charter Provisions -- Foreclosure of Assessment Liens in District Court.

The provision in the charter of the city of Tulsa, authorizing foreclosure of assessment liens in the district court, was not conferring a new and additional jurisdiction upon the district court, as the district courts already had jurisdiction over such matters, under the Constitution.

8. Same -- Priority of Assessment Liens Over Other Liens--Erroneous Judgment.

A judgment of the district court, decreeing an assessment lien for city improvements to be prior and superior to any and all other liens whatsoever, is in conflict with the rights of the state in the priority of any liens which it may have against such property, and also erroneous under an ordinance which expressly excepts state liens.

9. Same -- Power of City as to Improvements and Assessments.

A city, acting under its charter provisions and within its charter limitations, may determine the necessity for street improvements, make assessments of the cost thereof, apportion such costs against abutting property within the improved district, upon the basis of accruing benefit, and provide that such assessments shall constitute a lien against such property for the payment of such assessment.

10. Appeal and Error--Law of the Case--When Doctrine Not Applicable.

The doctrine of "the law of the case" is not applicable nor controlling in a second appeal, where issues of fact and rights of different parties are involved in a second appeal which were not involved and determined in the first appeal.

11. Municipal Corporations -- Liability of Property to Special Assessments -- Plats as Controlling.

In a controversy as to whether or not certain lots should be considered as abutting property and assessed as such, according to accruing benefits, where two plats are involved, one of which shows the lots as not abutting upon the street to be improved, the other, a later plat, showing that such lots have been changed and extended in length and that they do abut upon the improved street, the question is not so much whether they are to be considered as abutting property under one plat, as whether they are benefited property under the actual conditions as shown by the later plat.

12. Same -- Question of Benefits from Improvements -- Legislative Powers of City--Conclusiveness.

In the matter of improving a given district in a city, and the assessment of each piece of property within such district for its proportionate liability for costs of improvement, the determining question is the actual benefits to accrue to each piece of property and such question being legislative, and having been determined by a city in its legislative capacity, is conclusive upon the courts.

Error from District Court, Tulsa County; Owen Owen, Judge.

Action by the Missouri, Kansas & Texas Railway Company against the City of Tulsa (the First National Bank of Cleveland, Ohio, intervening). Judgment for intervener, and plaintiff brings error. Modified and affirmed.

M. D. Green and H. L. Smith, for plaintiff in error.

Harry L. S. Halley, Asst. City Atty., for defendant in error City of Tulsa.

Randolph, Haver & Shirk and H. M. Gray, for defendant in error First National Bank of Cleveland, Ohio.

HARRISON, J.

¶1 This action was begun in the district court of Tulsa county by the Missouri, K. & T. Ry. Company to enjoin the city of Tulsa from collecting certain paving assessments alleged to have been illegally levied against the railway company's property, the property in question being a portion of the railroad right of way, the assessment being the railway company's proportionate liability for the cost of paving a street upon which the city claimed the railroad property abutted. The railway company contends that a portion of the property assessed does not abut upon said street, and is therefore not subject to the assessment in question; the city of Tulsa contends that it is abutting property and joins issue with the railway company upon all of its alleged grounds for injunction.

¶2 Before the issues between the railway company and the city of Tulsa were determined by the trial court, the First National Bank of Cleveland, Ohio, which was the holder of certain "tax bills" issued against said property in payment of said paving, was permitted to intervene, and in its plea prayed for judgment for the sum of its "tax bills," and that such judgment be declared at first lien against the property in question and that the property be sold to satisfy such lien and judgment.

¶3 The court refused to grant the injunction asked for by the railway company, but permitted the bank to intervene, and rendered judgment in favor of such intervener for the amount of its several "tax bills" and decreed such judgment to be a first lien upon the property against which the respective bills" were assessed.

¶4 The intervener bank owned 30 of such "tax bills," or "certificates of assessment, " and sued upon each of same as a separate cause of action, its plea of intervention consisting of 30 separate causes of action in the one suit. The trial court gave separate judgments on each cause of action and concluded its judgment upon each cause with the following specific decree, to wit:

"And that to secure the payment of said sums the defendant First National Bank of Cleveland is hereby declared and decreed to have a lien prior and superior to any and all other liens and claims against the following described real estate in Tulsa county, Okla., to wit: (description) and is entitled to a foreclosure of such lien."

¶5 The concluding paragraph of the judgment contains the following:

"And it is further ordered, adjudged and decreed, that the aforesaid 30 liens and each of them be, and the same are hereby foreclosed, and that each of the above-described tracts of real estate be sold separately, subject to appraisement in manner provided by law, that the proceeds of the sale of each of said tracts, be applied:

"First: To the payment of the costs of this action.

"Second: To the satisfaction of the remainder of the liens of the defendant, First National Bank of Cleveland, Ohio, against said tracts of real estate.

"Third: That the residue, if any, be paid to the clerk of this court, and distributed as the court hereafter may order."

¶6 The railroad company brings the case here by appeal. Two questions are presented, the determination of which disposes of the case, viz.:

1st. Whether the district court erred in permitting said bank to intervene, in entertaining jurisdiction and in rendering the judgment rendered in favor of such bank.

2nd. Whether there was a portion of plaintiff's land which was not abutting property and should not have been assessed as such.

¶7 As to the first question, viz., whether the court erred in permitting the bank to intervene and in its judgment in favor of such bank, depends upon, first, whether such judgment is in accordance with the provisions of the charter and ordinances of the city of Tulsa under which the...