Shultise v. Town of Taloga

• Decision Date: 12 May 1914
• Docket Number: 3046.
• Citation: 140 P. 1190,42 Okla. 65
• Parties: SHULTISE v. TOWN OF TALOGA ET AL.
• Court: Oklahoma Supreme Court

140 P. 1190

42 Okla. 65

SHULTISE v. TOWN OF TALOGA ET AL.

No. 3046.

Supreme Court of Oklahoma

May 12, 1914

Syllabus by the Court.

The board of trustees of an incorporated town, organized in pursuance of the laws of Oklahoma Territory, as extended in force in the state by the terms of section 2 of the schedule to the Constitution, and the provisions of section 10 of said schedule, has the power to levy special assessments against abutting property for the purpose of laying sidewalks.Leatherman v. Town of Addington,37 Okl. 436, 132 P 129.

A statute that authorizes the trustees of an incorporated town after notice to the abutting property owners, to construct sidewalks in front of their property, and, upon failure of owners to construct same, to construct such improvements and assess the cost thereof to the abutting property upon a frontage basis, and to issue a tax warrant for the actual cost of labor and material, obtained at the market price, and used for such improvements, and to make such tax warrant a lien against the property therein described, contravenes neither section 7 or 24 of article 2 of the Constitution; hence such statute is not invalid on that account.

The act of March 13, 1909, entitled "An act regulating elections in cities and towns; requiring nominations by primaries prescribing the time for such elections; repealing section 8 article 1, chapter 14, of the Statutes of Oklahoma, 1893, as amended by section 1, article 1, chapter 6, Session Laws of Oklahoma, 1897; also repealing sections 9and10 of article 1, chapter 14, of the Statutes of Oklahoma, 1893; also repealing sections 12,13,14,15,16and17 of said Statutes of Oklahoma, 1893, and declaring an emergency"(Sess. Laws 1909, c. 16, art. 2, p. 262)--repealed section 841,Comp. Laws 1909, which provides that the inspectors at municipal elections shall make a certified statement over their signatures of the persons elected to fill the several offices in such municipality, and file the same with the county clerk in the county within ten days after the date of such election.

Commissioners' Opinion, Division No. 1.Error from District Court, Dewey County; C. A. Brown, Judge.

Action by Milton Shultise against the Town of Taloga, D. R. Wright, R. E. Carmichael, and G. W. Kouns, as the board of trustees of of the Town of Taloga, W. T. Bell, John Bremer, and J. M. Williams, as the County Treasurer of Dewey County, and his successor in office.From a judgment in favor of defendants, plaintiff brings error.Affirmed.

W. P. Hickok, of Taloga, for plaintiff in error.

Robert E. Adams, of Taloga, for defendants in error.

SHARP C.

Plaintiff's action was instituted in the district court of Dewey countyJanuary 3, 1911, and, after answer was filed, the parties filed the following agreed statement of facts:

"Comes now Milton Shultise, the plaintiff above named by his attorney, W. P. Hickok, and the town of Taloga, D. R. Wright, G. W. Kouns, and R. E. Carmichael, as the board of trustees of the town of Taloga, in Dewey county, Oklahoma, W. T. Bell, and John Bremer, and J. M. Williams, as the county treasurer of Dewey county, and E. L. Porter, his successor in office, defendants, by their attorney, Robt.E. Adams, and all of said parties do hereby submit the following agreed statement of facts as and for all of the relevant, material, and competent evidence in said cause above named, and ask the court to consider same as the evidence in the case.Said facts are as follows, to

wit:

I.That the town of Taloga, in Dewey county, Oklahoma, is, and was at all times hereinafter mentioned, a duly and legally incorporated town or village, organized, incorporated, and existing under and by virtue of the statutes of Oklahoma Territory, now state of Oklahoma.

II.That D. R. Wright, G. W. Kouns, and R. E. Carmichael constitute the duly elected, qualified, and acting board of trustees of the said town of Taloga, and were such duly elected, qualified, and acting trustees at all times hereinafter mentioned.

III.That Milton Shultise, plaintiff herein, is, and was at all times hereinafter mentioned, the owner in fee simple and in possession of the following described real estate in Dewey county, Oklahoma, to wit: Lots 1 and 2, in block 68, and lots 11 and 12, in block 54, all in the original town of Taloga, Oklahoma, according to the official plat thereof on file in the office of the register of deeds of Dewey county, Oklahoma.

IV.That the board of trustees did, on or about the 6th day of July, A.D. 1909, in a duly and regularly called and constituted meeting of said board, introduce, consider, and pass an ordinance designated as OrdinanceNo. 14, a copy of which said OrdinanceNo. 14 is hereto attached, referred to, and marked Exhibit A, and made a part hereof.That said ordinance was duly and legally signed by the president of said board of trustees, D. R. Wright, with the seal of said board attached and attested by the clerk of said town, and was duly and legally published as required by the laws of the state of Oklahoma relating to cities, towns, and villages, and that all of the requirements of the laws of the state of Oklahoma governing cities, towns, and villages were complied with in the passage of said ordinance and the adoption thereof.

V.That thereafter, and prior to the institution of this suit, the said board of trustees, in pursuance of and in accordance with said OrdinanceNo. 14, passed resolutions levying special taxes against the lots herein described, for a sidewalk along said lots, on the streets of said town, and that all of the notices, steps, and proceedings required and provided by the laws of the state of Oklahoma then in force and applicable to towns and villages in said state, relating to the building of sidewalks, and levying of special taxes therefor by such municipalities, and including all notices, assessments, and estimates, were by said board of trustees and the town clerk and marshal of the town of Taloga made, given, and served, as provided by the laws of the state of Oklahoma in force at said time, and true and correct copies of said proceedings are hereto attached and referred to and made a part hereof.That ten days' notice of said assessment, resolution, and intention to build said sidewalk was given and served on the plaintiff herein, and proof of service filed as required by law.

VI.That the plaintiff, after notice as aforesaid, failed and refused to build said sidewalk, or any part thereof, and the same was thereafter built by John Bremer and W. C. Bell, defendants herein, at the instance and request of the said board of trustees acting for the town of Taloga.

VII.That said sidewalk was built and constructed according to the provisions and requirements of said OrdinanceNo. 14, and a tax warrant issued by said town of Taloga against each separate lot aforesaid abutting said improvement, and said tax warrants were filed with the clerk of said town of Taloga, as required by law, and a notice of their issuance published in the Taloga Advocate, a newspaper published in said corporation and located therein, for four weeks successively.That at the expiration of said notice the said plaintiff herein did not, nor did any one for him, pay the amount named in said warrant, with fees of the clerk and costs of publication, nor any part thereof, and thereafter the said board of trustees caused a penalty of 25 per cent. to be added to said fees and costs and made a part of the original assessment, and the clerk of said town listed each of said tax warrants as aforesaid, with full description of the property therein, with all the costs and penalties thereon, and presented the same to the county clerk of Dewey county, Oklahoma, at the time for said clerk to transmit the annual levy of said town of Taloga, and the same were by said clerk extended on the tax rolls and entered for collection and delivered to the treasurer of Dewey county, Oklahoma.

VIII.That all the requirements of the laws of the state of Oklahoma respecting said levy and the certification thereof, and extending same on the tax rolls for collection, were regularly and legally done by the proper and duly qualified officers of said town and county.

IX.That the parties hereto further agree that no point is to be made in the trial of this cause on the regularity of any of the proceedings taken by said officers in said matter, but same are admitted to be regular and in compliance with the statutes of the state of Oklahoma in force at such time.

X.It is further agreed that the plaintiff, before the building of said sidewalk, and before any steps were taken toward building same, notified the defendants to refrain from building same, and from interfering with, tearing up, or destroying the sidewalk already built adjacent to the said lots, and served upon the defendants such notice in writing.

XI.That the said special assessment, tax, and penalty thereto added are spread upon the tax rolls of the county of Dewey as liens and tax charges against the said lots, prima facie, and apparently valid liens and charges against the said lots, and that the county treasurer threatens, and will if not restrained, or if said special tax and assessment be not paid, sell the said lots and collect the said special tax and assessments and penalties thereto added, as well as the other taxes against said lots.That all other taxes against said lots are as follows, to wit.: Against lot 1, in block 68, the sum of $15.86; against lot 2, block 68, the sum of $6.34; against lot 11, block 54, the sum of $22.20; against lot 12, block 54, the sum of $3.56--and that several sums against the said several lots were tendered in lawful money of the United States to the county treasurer at his office in Dewey

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