Okla. City v. Shields, Case Number: 308

CourtSupreme Court of Oklahoma
Writing for the CourtWILLIAMS, C. J.
Citation1908 OK 195,22 Okla. 265,100 P. 559
Decision Date16 September 1908
Docket NumberCase Number: 308
PartiesOKLAHOMA CITY v. SHIELDS.

1908 OK 195
100 P. 559
22 Okla. 265

OKLAHOMA CITY
v.
SHIELDS.

Case Number: 308

Supreme Court of Oklahoma

Decided: September 16, 1908


Syllabus

¶0 1. MUNICIPAL CORPORATIONS--Paving Streets. Act April 17, A. D. 1908 (Acts 1908, p. 166, c. 10), entitled "An act to provide for the improvement of streets and other public places within cities of the first class, by grading, paving, macadamizing, curbing, guttering and draining the same, and declaring an emergency," is valid.

2. SAME--Pavement by Street Railway. The cost and expenses of making such improvements along such street, where the street railway has two tracks laid, shall be taxed against such railway as provided by said act, two feet on each side of said tracks and the paving in between said tracks.

3. SAME--Liability of Abutting Property. The costs and expenses of instituting and laying drainage pipes for the purpose of macadamizing, curbing, guttering, and draining, including the cost of all manholes, catch-basins, etc., can be taxed against the property fronting and abutting on said street along which such paving is made and pipes laid.

4. SAME--Liability of Railroad. An assessment can be made against a steam railroad company to pay for that portion of its right of way including that portion between the rails and two feet on each side thereof, and the assessment therefor shall be the same as against individuals or natural proprietors.

5. SAME--Question Not Decided. The same rule applies equally to street railways who own any portion of their right of way and abutting lands, unless section 3, art. 4, c. 9, p. 141, Sess. Laws Okla. T. 1903, which provides that "all licenses or franchises heretofore granted to any street railway company authorizing the construction and operation of an electric street railroad in any city of the first class in the territory of Oklahoma, and which have not become forfeited or lapsed by their terms, are hereby ratified, legalized and confirmed," operates to exempt such railway companies as had a license or franchise granted for such purpose by a city of the first class, and had not become forfeited or lapsed by its terms prior to the passage of said act. (a) Quaere: As to whether or not said section 3, art. 4, operated to exempt such railway companies, except as stipulated in the franchise, the question is reserved and not determined in this case.

6. SAME--Pavement--Designation of Material. It is the duty of the mayor and council to designate under one resolution and under one contract one particular kind of material for such paving or other improvements.

7. SAME--Street Intersections--Authority to Make General Levy. The city can make a general levy for the payment of the cost and expenses of the improvements of street intersections against all of the property owners of said city.

8. STATUTES--Time of Taking Effect--Emergency--Review by Courts. The declaring of an emergency by the Legislature, when it is expressed in the act that such measure is immediately necessary for the preservation of the public peace, health, or safety, when such act is not for the purpose of carrying into effect provisions relating to the initiative and referendum, or a general appropriation bill, or does not include the granting of a franchise or license to a corporation or individual to extend longer than one year, nor provision for the purchase or sale of real estate, nor the renting or incumbering of real property for a longer term than one year, is conclusive on the courts.

9. SAME--Paving Act--Creation of Lien on Realty. Act April 17. A. D. 1908 (Laws 1908, p. 172, c. 10, sec. 5), relating to paving, providing that "assessments in conformity to said appraisement and apportionment, as corrected and confirmed by the council shall be payable in ten equal annual installments, and shall bear interest at the rate of seven per cent. per annum until paid, payable in each year. * * * Such special assessment and each installment thereof, and the interest thereon, * * * declared to be a lien against the lots and tracts of land so assessed, * * * " creates an incumbrance upon said realty for a longer term than one year, and said act did not take effect until 90 days after the adjournment of the session of the Legislature at which it was passed.

Error from District Court, Oklahoma County; J. G. Lowe, Judge.

Action by John W. Shields against the city of Oklahoma City. Judgment for plaintiff, and defendant brings error. Reversed.

On the 20th day of July, A.D., 1908, the plaintiff in error, as defendant, and the defendant in error, as plaintiff, filed in the district court of Oklahoma county an agreed case, in words and figures as follows:

"That the plaintiff is the owner of certain lots abutting and fronting upon Western avenue, a street extending north and south in the city of Oklahoma City, state of Oklahoma, and between the north line of Main street in said city, and the north line of Seventeenth street in said city. That said city of Oklahoma City is a city of the first class. That on the 21st day of April, 1908, the mayor and council of the city of Oklahoma City duly passed a resolution to pave certain streets and avenues in said city, among which was included 'Western avenue from the north line of Main street to the north line of Seventeenth street.' That said resolution was duly published as required by law. A copy of said resolution is hereto attached, marked 'Exhibit A,' and made a part of this agreement.

"That pursuant to said resolution the said city council intends to pave and improve said streets, and the expenses of such paving and improvement so to be contracted for are to be charged up against said lots, pieces, and parcels of ground, and to levy assessments thereon to pay for the same as provided in house bill No. 231 of the Legislature of the state of Oklahoma, dated April 17, 1908 (Acts 1908, p. 166, c. 10), entitled 'An act to provide for the improvement of streets and other public places within cities of the first class, by grading, paving, macadamizing, curbing, guttering and draining the same, and declaring an emergency.'

"That a railroad intersects and crosses said street about blocks north of the north line of Main street, which said railroad is owned and operated by the Chicago, Rock Island & Pacific Railway Company, and the right of way of said railway is one hundred feet. That a street railway line extends along said Western avenue, and has two tracks laid in said street from street to street, a distance of blocks, said tracks being four feet apart from rail to rail, and said street railway being owned and operated by the Oklahoma City Railway Company.

"That it is the intention of the city of Oklahoma City to levy an assessment against the property fronting on said Western avenue, for the cost and expenses of said pavement, and charge said costs and expenses by said assessment to each quarter block for the costs and expenses of the paving in front of said quarter block in proportion to the benefit received by each of said lots within said quarter block.

"That it is further the intention of said city to pass a resolution designating asphalt, brick, or macadam as the character of material which may be used in constructing said improvements, and instructing the city engineer to prepare plans and specifications and estimates of the costs of each of the materials so designated, and further instructed the clerk to publish notice for bids for the doing of said improvements, said bids to be made upon any or each of said, characters of materials based upon the respective plans and specifications and estimates of costs to be prepared by said city engineer.

"That it is further the intention of the city council to require of the said street railway, which extends along said street as above stated, to pay for the paving of only six and two-thirds feet for each track, pursuant to a contract heretofore entered into between the city of Oklahoma City and the Metropolitan Railway Company, now Oklahoma City Railway Company, a domestic corporation. A copy of said contract is hereto attached, marked 'Exhibit B,' and made a part of this agreement.

"That the plans and specifications provided by said improvement is to include the institution of certain drainage pipes to be laid along the property of the plaintiff, and which drainage pipes will drain an extensive scope of territory beyond and above the property of the plaintiff, which said territory is not provided with drainage pipes, and it is the intention of the city to tax the costs and expenses of the institution of such drainage pipes to the property immediately fronting said street along which said pipes are laid according to the benefit accrued thereto in quarter block districts.

"That is further the intention of said city to provide for the payment of the costs of improving the street intersections by said city, and to make a special levy therefor against all of the property of said city at the time of the next annual tax levy, after the estimate of costs and expenses is made.

"That upon the above statement of facts the said parties hereto respectfully ask the court to determine the rights of the parties hereto, and render judgment upon the following propositions:

"First. Can assessments be made against the property fronting on the street to be improved according to the benefit thereto in quarter block districts, or can this assessment be legally made against such property under the act of the Legislature of the state of Oklahoma, dated April 17, 1908, entitled 'An act to provide for the improvement of streets and other public places within cities of the first class, by grading, paving, macadamizing, curbing, guttering and draining the same and declaring an emergency?'

"Second. If such act is held valid, and the court holds such assessment can be made, then shall the costs and expenses of making such improvements along said street where the street
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34 practice notes
  • Idaho State AFL-CIO v. Leroy, AFL-CIO
    • United States
    • United States State Supreme Court of Idaho
    • January 29, 1986
    ...They cited Kadderly and the cases resulting therefrom, including a case relied upon by defendants herein, Oklahoma City v. Shields, 22 Okla. 265, 100 P. 559 (1908). The Michigan Supreme Court rejected the rule of no review, even though the possibility of defeating the constitutional right t......
  • City of El Reno v. Cleveland-Trinidad Paving Co., Case Number: 1130
    • United States
    • Oklahoma Supreme Court
    • February 8, 1910
    ...Kellogg v. School Dist., 13 Okla. 285; Denison v. Kansas City, 95 Mo. 416; Crampton v. Zabriskie, 104 U.S. 601; Shields v. Oklahoma City, 22 Okla. 265; Dillon on Munic. Corp., sec. 915; Harmon v. Auditor, 123 Ill. 122; Sabin v. Sherman, 28 Kan. 289; 22 Cyc. 890, 891; McQuillen on Munic. Ord......
  • Coyle v. Smith, Case Number: 2225
    • United States
    • Supreme Court of Oklahoma
    • February 9, 1911
    ...Governor and the Legislature in the premises is conclusive upon, and not subject to be reviewed by, this court. Oklahoma City v. Shields, 22 Okla. 265, 100 P. 559; State ex rel. v. Brown, Judge, 24 Okla. 433, 103 P. 762; Martin v. Mott, 12 Wheat. 19, 6 L. Ed. 537; In re Special Session, 9 C......
  • City of Okmulgee v. Okmulgee Gas Co., Case Number: 18465
    • United States
    • Supreme Court of Oklahoma
    • November 5, 1929
    ...franchise as is specifically authorized by section 47, article 9, of the Constitution. ¶26 In the early case of Oklahoma City v. Shields, 22 Okla. 265, 100 P. 559, this provision is construed and held to apply to franchises of public utilities. The particular franchise under consideration w......
  • Request a trial to view additional results
34 cases
  • Idaho State AFL-CIO v. Leroy, AFL-CIO
    • United States
    • United States State Supreme Court of Idaho
    • January 29, 1986
    ...They cited Kadderly and the cases resulting therefrom, including a case relied upon by defendants herein, Oklahoma City v. Shields, 22 Okla. 265, 100 P. 559 (1908). The Michigan Supreme Court rejected the rule of no review, even though the possibility of defeating the constitutional right t......
  • City of El Reno v. Cleveland-Trinidad Paving Co., Case Number: 1130
    • United States
    • Oklahoma Supreme Court
    • February 8, 1910
    ...Kellogg v. School Dist., 13 Okla. 285; Denison v. Kansas City, 95 Mo. 416; Crampton v. Zabriskie, 104 U.S. 601; Shields v. Oklahoma City, 22 Okla. 265; Dillon on Munic. Corp., sec. 915; Harmon v. Auditor, 123 Ill. 122; Sabin v. Sherman, 28 Kan. 289; 22 Cyc. 890, 891; McQuillen on Munic. Ord......
  • Coyle v. Smith, Case Number: 2225
    • United States
    • Supreme Court of Oklahoma
    • February 9, 1911
    ...Governor and the Legislature in the premises is conclusive upon, and not subject to be reviewed by, this court. Oklahoma City v. Shields, 22 Okla. 265, 100 P. 559; State ex rel. v. Brown, Judge, 24 Okla. 433, 103 P. 762; Martin v. Mott, 12 Wheat. 19, 6 L. Ed. 537; In re Special Session, 9 C......
  • City of Okmulgee v. Okmulgee Gas Co., Case Number: 18465
    • United States
    • Supreme Court of Oklahoma
    • November 5, 1929
    ...franchise as is specifically authorized by section 47, article 9, of the Constitution. ¶26 In the early case of Oklahoma City v. Shields, 22 Okla. 265, 100 P. 559, this provision is construed and held to apply to franchises of public utilities. The particular franchise under consideration w......
  • Request a trial to view additional results

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