Serv. Feed Co. v. City of Ardmore

• Citation: 42 P.2d 853,1935 OK 284,171 Okla. 155
• Decision Date: 19 March 1935
• Docket Number: Case Number: 23431
• Parties: SERVICE FEED CO. et al. v. CITY OF ARDMORE et al.
• Court: Oklahoma Supreme Court

1935 OK 284

42 P.2d 853

171 Okla. 155

SERVICE FEED CO. et al. v. CITY OF ARDMORE et al.

Case Number: 23431

Supreme Court of Oklahoma

Decided: March 19, 1935

Syllabus

¶0 1. Statutes - Street Improvement Act - Title of Act Held to Cover Provision Authorizing Foreclosure in District Court of Lien Created by Paving Assessment.

The procedure authorized by section 29, chapter 173, Session Laws 1923 (section 6240, O. S. 1931), for foreclosing in a district court a lien created by a paving assessment, which provides a concurrent or cumulative remedy for the enforcement of such lien, is referable, cognate, and complementary to the general purpose and subject of the act as expressed in its title, and hence does no violence to section 57, article 5, of the Constitution, which requires, inter alia, that such act shall embrace but one subject, which shall be clearly expressed in its title.

2. Statutes - Construction of Constitutional Provision that "No Low Shall Be Revived, Amended, or the Provisions Thereof Extended or Conferred by Reference to Its Title Only," etc.

An act of the Legislature, which is in form original and in itself intelligible and complete, and does not, either in its title or body, appear to be revisory or amendatory of any existing law, is not within the inhibition of section 57, article 5, of the Constitution, providing that "no law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only; but so much thereof as is revived, amended, or conferred shall be re-enacted and published at length," and this is true, even where the procedure for effectuating the rights acquired under such statute is provided by reference to a general procedural statute, previously enacted.

3. Same.

Section 57, article 5, of the Constitution of Oklahoma, which provides, "no law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended, or extended or conferred shall be re-enacted and published at length," limits legislation which grants, modifies, or destroys rights, but it has no application to legislation which affects remedies and methods of procedure alone.

4. Constitutional Law - Statutes - Municipal Corporations - Statutory Provision Authorizing Enforcement of Lien for Special Improvement Assessments by Foreclosure in Court Held Constitutional.

Section 29, chapter 173, Session Laws 1923 (section 6240, O. S. 1931), which authorizes the enforcement of a lien for special improvement assessments by foreclosure proceedings in court, does not violate any of the provisions of the Constitution which relate to special laws, the functions of the judiciary, taxation, or the rights of municipalities.

5. Municipal Corporations - Any Holder of Street Improvement Bond Authorized to Sue to Foreclose Lien Without Joining as Parties Other Bondholders.

Any holder of a street improvement bond issued under the provisions of chapter 173 Session Laws 1923 (6240, O. S. 1931), may prosecute an action to foreclose a delinquent assessment lien, as provided by section 29 of said act, without joining as parties other bondholders similarly situated.

6. Same - Nature of Foreclosure Action - Parties Defendant.

The action provided by section 29, chapter 173, Session Laws 1923 (6240, O. S. 1931), to foreclose the lien of a street improvement assessment should proceed in rem against all those lots or parcels of land in the improvement district as to which assessment payments have been in default for a period of twelve months, and the owners and incumbrancers of all such lots and parcels of land with respect to which such default has been made should be joined as defendants in such action.

7. Same - Lien of Special Paving Assessment not Affected by Sale of Property for Delinquent Ad Valorem Taxes Only.

A sale of property by the county treasurer for delinquent ad valorem taxes only does not affect the lien of a special paving assessment of co-equal rank.

8. Same - Right of Action to Foreclose Delinquent Paving Assessment Lien not Precluded by Certification of Delinquent Assessments to County Treasurer by Municipal Authorities.

The fact that delinquent assessments for street improvements made under the provisions of chapter 173, Session Laws 1923 (6240, O. S. 1931), have been certified in the ordinary manner to the county treasurer by the municipal authorities, does not preclude an owner of a bond secured by the lien of such assessment from proceeding by action in the district court to foreclose such delinquent assessment lien for the benefit of himself and other bondholders similarly situated.

Appeal from District Court, Carter County; John B. Ogden, Judge.

Action by the City of Ardmore on relation of Love & Thurmond against the Service Feed Company and others. Judgment for plaintiff, and certain defendants appeal. Affirmed.

Reuel W. Little, for plaintiffs in error.

Potter & Potter, for defendants in error.

PER CURIAM.

¶1 This suit was brought by the city of Ardmore ex rel. Love & Thurmond against J.T. Spears, Louie Bastine, Service Feed Company, F.L. Lewis, and Ben F. Brown, under the authority of section 29, chapter 173, Session Laws 1923 (section 6240, O. S. 1931), for the enforcement by foreclosure of an assessment lien for street improvements in district 79, city of Ardmore. Spears and Bastine, owners of lot 8, block 427, defaulted. Plaintiffs in error, owners of lot 1, block 428, appeal from a judgment of foreclosure. The action does not involve any property in the district other than these two lots. Since the case was tried upon an agreed statement of facts, it is unnecessary to state the contents of the pleadings. Plaintiffs in error properly raised all the questions now presented to this court. They contend that there was a defect of parties plaintiff; a misjoinder of causes of action; lack of jurisdiction; an adequate remedy at law; that the title obtained by them in 1927 from the county, through tax resale proceedings, extinguished the lien of the special improvement assessments for the years 1925, 1926, and 1927; and that said section 29, under which the foreclosure suit was brought, violates article 4, sec. 1; article 5, secs. 32, 53, 59, 46 (subdivisions (a), (b), (m), (o), (w); article 7, sec. 10; article 10, sees. 7, 14, 20; article 17, sec. 2; section 18, Schedule, of the Constitution of the state of Oklahoma.

¶2 The following facts appear from the agreed statement and the transcript of the proceedings which culminated in the resale tax deed: Love and Thurmond own street improvement bonds Nos. 9 and 11, dated July 31, 1925, each in the sum of $500, bearing 6 per cent. interest per annum until maturity, and thereafter 10 per cent. per annum, issued upon said district. The bonds are of a series of same date. No payment has been made on the bonds, which matured September 15, 1930. Defaults were made as to said lot 1, block 428, on September 15th, for each of the six years 1925 to 1930, inclusive. Plaintiffs in error acquired title to this lot through a tax deed made by the county October 3, 1927. The delinquent assessment installments and interest thereon were duly certified to the county treasurer and entered upon his books as required by law. The agreed statement further shows a dispute as to whether or not the installments due for improvements were canceled by the resale and county deeds as to any of the period in question.

¶3 There is a controversy as to whether or not, in fact, the sale by the county was for ad valorem taxes only, plaintiffs in error contending that the sale was for both the general taxes and the improvement assessments for the years 1925, 1926, and 1927. It is admitted that the improvement lien for the years 1928 to 1930, inclusive, was valid and subsisting when this action was commenced, April 30, 1931. Since the resale tax deed was made April 30, 1927, and the improvement assessment for that year became due the following September 15th, there is no ground for the claim that the 1927 improvement assessment was extinguished by the sale. This dispute narrows down to the years 1925 and 1926. The original sale to the county was on the 3rd day of November, 1924, for the 1923 ad valorem taxes, and could not have involved the improvement assessments as to which the first default was made, September 15, 1925. The resale to the county, made April 30, 1927, was for failure to redeem for more than two years after original sale to the county. The deed of October 3, 1927, by the county, through which plaintiffs in error claim, recites, with respect to the resale deed of April 30, 1927: "* * * Carter county * * * acquired title * * * for taxes, penalties and costs for the year 1923." We have examined the whole record, the agreed statement of facts and exhibits, and find that the weight of the evidence shows that the sale by the county was for general or ad valorem taxes only.

¶4 These facts present the following questions of law: (1) Does said section 29, chap. 173, S. L. Okla. 1923 (sec. 6240, O. S. 1931), violate the provisions of section 57, art. 5, of the Constitution? (2) Are the provisions of said section 29 violative of any parts of the Constitution relating to special laws, the functions of the judiciary, taxation, or the rights of municipalities? (3) Was there a defect of parties plaintiff? (4) Was there a misjoinder of causes of action? (.5) Did the sale by the county treasurer extinguish any of the improvement assessments? (6) Are the bondholders precluded from recovery by the fact that the delinquent assessments for improvements were certified in due course to the county treasurer by the municipal authorities?

¶5 1. Section 57, art. 5, of the Constitution provides, with exceptions not necessary to consider, that:

"Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title * * *; and no law shall be revived, amended, or the

...