Oklahoma City v. Shields

• Decision Date: 16 September 1908
• Citation: 100 P. 559,22 Okla. 265,1908 OK 195
• Parties: OKLAHOMA CITY v. SHIELDS.
• Court: Oklahoma Supreme Court

100 P. 559

22 Okla. 265, 1908 OK 195

OKLAHOMA CITY v. SHIELDS.

Supreme Court of Oklahoma

September 16, 1908

Syllabus by the Court.

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.

[Ed Note.-For other cases, see Street Railroads, Cent. Dig. §§ 103, 105; Dec. Dig. § 37. ^[*]]

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.

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.

[Ed Note.-For other cases, see Municipal Corporations, Cent. Dig § 1021; Dec. Dig. § 417. ^[*]]

An assessment can be made against a steam railroad company to pay for that portion of its right of way more than the 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.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1032; Dec. Dig. § 425. ^[*]]

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 Okl. 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.

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.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 811, 812; Dec. Dig. § 304. ^[*]]

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.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 2039; Dec. Dig. § 962. ^[*]]

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.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 129-131; Dec. Dig. § 70. ^[*]]

Act April 17, A. D. 1908 (Laws 1908, p. 172, c. 10, § 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.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 332; Dec. Dig. § 251. ^[*] ]

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.

A city ordinance making it the duty of a street railway company to pave between its rails, but not expressly exempting the railway company from any additional paving, does not preclude the imposition of such additional burden upon the railway company so as to relieve it from compliance with Act April 17, 1908, Acts 1908, p. 166, c. 10, requiring a street railway company to pave between its rails, and in addition, two feet on each side thereof.

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 costs 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 it 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

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