Peerless Realty & Operating Co. v. City of Tulsa

• Decision Date: 07 February 1939
• Docket Number: Case Number: 28405
• Citation: 1939 OK 78,184 Okla. 335,87 P.2d 118
• Parties: PEERLESS REALTY & OPERATING CO. v. CITY OF TULSA
• Court: Oklahoma Supreme Court

1939 OK 78

87 P.2d 118

184 Okla. 335

PEERLESS REALTY & OPERATING CO. v. CITY OF TULSA

Case Number: 28405

Supreme Court of Oklahoma

Decided: February 7, 1939

Syllabus

¶0 1. MUNICIPAL CORPORATIONS--Ordinances Long in Existence Presumed to Have Been Properly Enacted.

Where ordinances passed by a municipality acting within its authority have been in existence for many years, during which time their validity has not been questioned, they will be presumed to have been properly enacted until the contrary is proven.

2. SAME--Consolidation of Cities or Towns not Molested in Suit by Private Individual Where Consolidating Ordinance Valid on Face and Long Acquiesced in.

Where two or more cities, or towns, lying adjacent to each other consolidate and become one municipal corporation under the authority conferred in section 5991, O. S. 1931, 11 Okla. St. Ann. sec. 2 (,section 4354, C. O. S. 1921), and the consolidating ordinance is valid on its face, and the validity of such consolidation is not challenged for an unreasonable length of time, such consolidation will not be molested in a suit instituted by a private individual.

3. SAME--EVIDENCE--JUDICIAL NOTICE OF GROWTH OF MODERN CITIES--Consolidation not Molested Though Intervening Territory Added by Ordinance Showing on Its Face Failure of Strict Statutory Requirements.

Courts will take judicial notice of the growth and development of modern cities, and where territory is added to a city by an ordinance showing on its face failure of strict statutory requirements, and thereafter a town adjacent to the added territory is legally consolidated with such city. the validity of the ordinance extending the limits of the city may not be questioned in a suit instituted by a private individual ten years after the approval of such ordinance.

Appeal from District Court, Tulsa County; Leslie Webb, Judge.

Suit for injunction by Peerless Realty & Operating Company against the City of Tulsa. Judgment for defendant, and the plaintiff appeals. Affirmed.

Frank Hickman, for plaintiff in error.

H. O. Bland, E. M. Gallaher, and Milton W. Hardy, for defendant in error.

DANNER, J.

¶1 The plaintiff, a domestic corporation, brought its action to enjoin the defendant and its officers and employees from interfering with or molesting the plaintiff in the operation of its swimming pool and public dancing pavilion located oil its property in Tulsa county and from enforcing an ordinance providing for the payment of $100 per year license fee for the operation of public dance halls within the city. The plaintiff appeals from the judgment rendered in favor of the defendant.

¶2 Under the record two questions are presented in the appeal: First, the legality of the proceedings consolidating the town of Red Fork with the city of Tulsa. Second, albeit the consolidating was legal, were the ordinances enacted by the city of Tulsa effective to annex plaintiff's property to the corporate limits of the city?

¶3 The defendant challenges the right of the plaintiff to question the validity of the ordinance. The general rule is that the state alone may question the validity of ordinances extending the corporate limits of a city; the exception being where such ordinances tire void on their face for failure to recite jurisdictional facts. Chicago, R. 1. & P. By. Co. v. Galyon, County Treas., et al., 179 Okla. 570, 66 P.2d 1066, and cases cited therein.

¶4 On September 30, 1927, prior to the consolidation, the city of Tulsa approved ordinance 3233, adding to the city a strip of land 200 feet in width and several rods in length pursuant to

"a petition in writing signed by a majority of the property owners of the tract of land herein described, and lying contiguous to and adjoining the present limits of said city. * * *"

¶5 This land is referred to in the record as the "Howard tract."

¶6 Also, on October 1, 1927, and prior to the consolidation, the city of Tulsa enacted ordinance 3234 annexing to the city a tract of land divided into parcels of less than five acres. This land was known as FullerWalter addition to West Tulsa. This tract was annexed pursuant to a petition filed by the owners of the property affected. Ordinance 3234 is not incorporated in the record, therefore its provisions may not here be considered. Anderst v. A., T. & S. F. R. Co., 19 Okla. 206, 91 P. 894; Honeyman v. Gallager, 144 Okla. 148, 289 P. 748. In the circumstances its validity wilt be presumed. Seminole Townsite Co. v. Town of Seminole, 35 Okla. 554, 130 P. 1098; Whitson v. City of Ada et al., 171 Okla. 491, 44 P.2d 829.

¶7 It is obvious that file lands described in ordinances 3233 and 3234 were annexed to the city of Tulsa in order to conform to the provisions of section 5991, O. S. 1931, 11 Okla. St. Ann. sec. 2 (C. O. S. 1921, sec. 4354), authorizing the consolidation of cities or towns "lying adjacent to each other." On this point William R. Wooten, assistant city engineer, a witness for the plaintiff, testified:

"Q. Mr. Wooten, when, if at all, did that strip of land separating the two municipalities come within the city of Tulsa? A. The two became contiguous when the Howard strip was annexed, which was in September, 1927. The Fuller-Walter addition was annexed immediately following the annexation of the Howard strip."

¶8 Plaintiff contends that ordinance 3233 is void inasmuch as it shows on its face that it was not enacted pursuant to "a petition in writing, signed by not less than threefourths of the legal voters and by the owners of not less than three-fourths (in value) of the property" sought to be annexed, as provided in section 6131, O. S. 1931. 11 Okla. St. Ann. sec. 482 (C. O. S. 1921, section 4464).

¶9 Ordinance No. 3233 did not conform to the statutory requirement relative to the number of legal voters and property owners required in a petition for annexation of territory to a city or town. However, the validity of the ordinance went unchallenged for ten years. In that period it is reasonable to assume that in a growing city like Tulsa many changes and improvements have been made since the purported annexation which has changed the property relationship of many citizens from the condition which existed at the time of the annexation. In Gorby v. Gayman, County Treas., et al., 59 Okla. 73, 157 P. 939, this court said:

"Where a city of the first class has by ordinance annexed certain territory in substantial compliance with section 458, Wilson's Rev. & Ann. St. 1903, and in pursuance thereof has exercised municipal control over same for six years levying and collecting taxes thereon, and treating it in all respects as an integral part of such municipal organization, the validity of such ordinance cannot be attacked in a collateral proceeding by a private party who seeks to enjoin the collection of taxes levied upon property in such territory upon the ground that it is not a part of the city."

See, also, City of Blackwell v. City of Newkirk, 31 Okla. 304, 121 P. 260; Biggerstaff v. City of Altus, 114 Okla. 98, 243 P. 751; Moore v. City of Perry, 126 Okla. 153, 259 P. 133; Pfeifer v. Klug, 114 Kan. 384, 219 P. 498; Cromwell-Franklin Oil Co. v. Oklahoma City, 14 Fed. Supp. 370; McQuillin on Municipal Corporations, vol. 1, sec. 182, p. 491.

¶10 The consolidating ordinance, No. 3274, was approved November 22, 1927. From an examination of the ordinance we conclude that it...