Riley v. Carrico
| Decision Date | 12 July 1910 |
| Citation | 110 P. 738,27 Okla. 33,1910 OK 246 |
| Parties | RILEY, County Clerk, v. CARRICO et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Article 16 of the Constitution of Oklahoma, providing for the establishment of a department of highways and creation of improvement districts and systems of levees, drains, and ditches and of irrigation, is not limited by section 26 of article 10 thereof.
The declaring of an emergency by incorporating in an act that such measure is immediately necessary for the preservation of the public peace, health, and safety, when such an act provides for "the encumbrance of real property for a longer term than one year," is invalid.
2 (a). The emergency having been declared without authority of law such act, otherwise being valid, takes effect 90 days after the adjournment of the session of the Legislature at which it was passed.
Section 24, art. 2, does not apply to section 3, art. 16, Const., so as to require the viewers or commissioners appointed under the provisions of article 1, c. 15, Sess. Laws 1909, to be selected from the regular jury list of names as prepared as the law provides.
The bond required by section 4, art. 1, c. 15, Sess. Laws 1909 meets the requirements when it substantially complies with said section.
The Legislature has a wide discretion in determining the kind of notice to be given, though not having the power to dispense with all notice.
5 (a). The notice should be such as would reasonably and fairly apprise the landowner of the pendency of the proceedings so as to give him an opportunity to be heard on the merits.
5 (b). Notice by publication, consisting of two successive insertions in a paper of general circulation in the county in which the land is located, is sufficient to constitute due process of law.
(Additional Syllabus by Editorial Staff.)
A special assessment for local improvement is neither a tax within the meaning of the constitutional requirement that all taxes shall be uniform throughout the state, nor does the levying of such an assessment constitute taking of the property without due process of law.
Error from District Court, Oklahoma County; J. J. Carney, Judge.
Application by G. W. Carrico and others for writ of mandamus to J. W Riley, county clerk of Oklahoma county. From a judgment awarding the writ, the defendant brings error. Affirmed.
Carlisle & Edwards, for plaintiff in error.
E. E. Reardon and Grant Stanley, for defendants in error.
Application for writ of mandamus was made in the district court of Oklahoma county, state of Oklahoma, to require the county clerk to sign, certify, and affix the seal of said county to the bonds of Deep Fork drainage district No. 1 of said county, and register the same, the proceeds of which were to meet the expenses of the construction of a drainage ditch for said district. On answer to the alternative writ the peremptory writ was awarded, and, an appeal having been prosecuted to this court, the following questions are raised:
(1) That said bonds are invalid, in that three-fifths of the voters of said county have not assented thereto.
(2) That said bonds, to be issued under the provisions of chapter 30, Sess. Laws 1907-08, House Bill No. 526, Sess. Laws 1909, art. 1, c. 15, pp. 217-235, are not subject to the emergency. Such having been declared, the entire act is void.
(3) That the board of viewers was not constituted and appointed as required by section 24, art. 2, Const. Okl., and had no right to act.
(4) That the jurisdictional facts were not stated in the petition so as to entitle the board of county commissioners to assume jurisdiction of the proceeding.
(5) That the bond approved and filed was not in the sum as required by law.
(6) That there was no due process of law for want of notice.
(7) Want of jurisdiction on account of reference to the viewers for re-assessment.
1. Section 1, art. 16, Const. Okl., after directing the establishment of a department of highways, especially vests the Legislature with the power to create improvement districts, and provides for building and maintaining public roads and for the utilization of convict and punitive labor thereon. Section 3 of the same article, correlative to the former section, declares that the Legislature, with a specific grant of power thereto, shall provide for a system of levees, drains, and ditches and of irrigation in this state when deemed expedient, and for a system of taxation on the lands affected or benefited by such levees, drains, and ditches, or on crops produced on such land, to discharge such bonded indebtedness or expenses necessarily incurred in the establishment of such improvements, and for compulsory issuance of bonds by the owners or lessees of the lands benefited by such levees, drains, ditches, or irrigation, or on crops produced on such land, and to provide for the issuance of bonds, and the means and manner of discharging such indebtedness or expenses necessarily incurred in the establishment of such improvements. See Houston & Texas Ry. Co. v. Harry & Bros., 63 Tex. 259. Section 7 of article 10 supports this construction. Within the same article with section 26, limiting the indebtedness of cities and counties, etc., and section 8, providing that all property which may be taxed ad valorem shall be assessed for taxation at its fair cash value estimated at the price it may bring at a voluntary sale, is included section 7, providing that the Legislature may authorize county and municipal corporations to levy and collect assessments for local improvements upon property benefited thereby, homesteads included, without regard to a cash valuation. Section 2 of article 12 provides that "the homestead of the family shall be, and is hereby protected from forced sale for the payment of debts, except for the purchase money therefor or a part of such purchase money, the taxes due thereon, or for work and material used in constructing improvements thereon. ***" The "homestead," as included in section 7, is a construction by the constitutional convention that the word "tax," as applied to general taxation, does not include an assessment for benefits, etc. Section 6 of the organic act of Oklahoma Territory (Act May 2, 1890, c. 182, 26 Stat. 84) provides that "no tax shall be imposed upon the property of the United States, nor shall the lands or other property of the non-residents be taxed higher than the lands or other property of residents, nor shall any unequal discrimination be made in taxing different kinds of property, but all property, subject to taxation, shall be taxed in proportion to its value." In Jones et al. v. Holzapfel et al., 11 Okl. 405, 68 P. 511, it was held: According to the current weight of authority, a special assessment for local improvements, whilst of a species of taxation, is neither a tax within the meaning of the constitutional requirement that all taxes shall be uniform throughout the state, nor does the levying of such an assessment constitute taking of property without due process of law. In 2 Cooley on Taxation (3d Ed.) at page 1199, it is said: "The fact very clearly appears that, while there is not such a concurrence of judicial opinion as would be desirable, the overwhelming weight of authority is in favor of the position that all such provisions for equality and uniformity in taxation, and for taxation by value, have no application to these special assessments." Beginning with page 1184, and ending with page 1202 of said volume, a full summary of the Constitutions of the different states, as they existed at that time is found. In Arnold v. Knoxville, 115 Tenn. 195, 90 S.W. 469, 3 L. R. A. (N. S.) 837, 5 Am. & Eng. Ann. Cas. 881, is found an elaborate discussion of the question wherein the former holding of that court was overruled, and the rule hereinbefore announced is declared.
See, also, a collation of authorities on this subject in 25 Am. & Eng. Ency. of Law (2d Ed.) 1171-1172; also section 145 at page 233, 1 Page & Jones on Taxation by Assessment (1909).
2. It is contended by the plaintiff in error that the provisions of chapter 30, Sess. Laws 1907-08, as amended by House Bill 526, Sess. Laws 1909, declaring an emergency, is unconstitutional and void, as being in violation of article 5, § 58, Const. Okl. By its terms bonds are to be issued for a period of 10 years, creating a lien or incumbrance on both the land and crops raised thereon for such period. Such an act cannot be put into immediate effect by declaring an emergency. Oklahoma City v. Shields, 22 Okl. 265, 100 P. 559; Norris et al. v. Cross (Okl.) 105 P. 1000; In re Menefee, 22 Okl. 365, 97 P. 1014. The fact that the action of the Legislature in declaring an emergency was void did not invalidate the act, but resulted in its taking effect 90 days after the adjournment of the Legislature at which it was passed.
3. Section 24, art. 2, Const., having no application to drainage or improvement districts, where the expenses of constructing same is borne by the land affected or benefited, is not a limitation upon any of the provisions of article 16 of the Constitution.
4. The petition for the writ of mandamus...
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