State v. Armstrong
| Citation | 13 P.2d 198,158 Okla. 290,1932 OK 381 |
| Decision Date | 10 May 1932 |
| Docket Number | 22410. |
| Parties | STATE ex rel. v. ARMSTRONG, County Clerk, et al. SOUTHERN SURETY CO. |
| Court | Oklahoma Supreme Court |
Rehearing Denied July 27, 1932.
Syllabus by the Court.
1. Where the city issues bonds covering certain street improvements to be paid for out of the funds arising from special assessments levied against the property within said improvement district, the liability becomes a liability in rem against the property, and is not a liability of the municipality.
2. Where a city has issued its bonds as provided by law for the payment of the construction of certain street improvements the city does not agree or obligate itself to pay any part of the assessments provided for in the payment of said bonds but the entire expense represented by such bonds is to be paid from said special assessments, and the city is not liable in an action for damages because its officers have failed to do their duty in certifying the delinquent assessments to the county treasurer. The duty of such officers is merely to act as the agent or instrumentality for the bondholder in the collection or disbursement of the funds so collected, and in such a case the remedy of the bondholder is against such officers for the purpose of compelling them to act, and the indebtedness cannot be taken away from the property benefited and fixed against the property generally of the city. Broad v. City of Moscow, 15 Idaho, 606 99 P. 101.
3. State ex rel. v. District Court, 33 Wyo. 281, 238 P. 545.
4. "A judgment is void when it affirmatively appears from the inspection of the judgment roll, that any one of the three following jurisdictional elements are absent: First jurisdiction over the person; second, jurisdiction of the subject matter; and, third, judicial power to render the particular judgment." Winona Oil Co. v. Barnes, 83 Okl. 248, 200 P. 981.
5. A judgment granting relief which the law declares shall not be granted is void. Sache v. Wallace, 101 Minn. 169, 112 N.W. 386, 11 L. R. A. (N. S.) 803, 118 Am. St. Rep. 612, 11 Ann. Cas. 348.
6. Record examined, held, that an inspection of the judgment roll shows that no actionable negligence was stated in the petition, in cause No. 15901, in the district court of Okmulgee county; that said judgment based thereon was wholly unauthorized under the law; that the same was violative of section 4610, C. O. S. 1921; that the judgment rendered was outside of the issues; that the court had no power to render the particular judgment; that said judgment is null and void; that the same is subject to collateral attack; that the trial court did not err in denying the writ of mandamus.
Appeal from District Court, Okmulgee County; James M. Hays, Judge.
Mandamus proceeding by the State, on the relation of the Southern Surety Company, against D. V. Armstrong, County Clerk, and others, constituting the Excise Board of Okmulgee County. From a judgment denying the application for a writ of mandamus, the plaintiff appeals.
Affirmed.
Allen, Underwood & Canterbury, of Tulsa, for plaintiff in error.
J. W. Irwin, Co. Atty., C. M. Gordon, Deputy Co. Atty., and L. L. Cowley, all of Okmulgee, for defendant in error.
This is an appeal from the judgment of the district court of Okmulgee county denying the application of the plaintiff, state of Oklahoma ex rel. Southern Surety Company, a corporation, for writ of mandamus to the county excise board of said county.
A short statement of the facts follows: The Southern Surety Company was the owner and holder of certain city improvement bonds issued by the city of Beggs, dated November 24, 1921, due in 1931, and hearing interest at 6 per cent. per annum. On June 16, 1925, in the case of City of Beggs et al. v. Kelly et al., 110 Okl. 274, 238 P. 466, this court held that the assessment was valid, that improvement bonds issued under section 4610, 4611, 4612, and 4627, C. O. S. 1921, shall in no event become a liability of the municipality, and that, in such a case, the city is merely the collection agent for such bondholders. On October 17, 1927, plaintiff filed a mandamus action against the city clerk of the city of Beggs commanding her to certify all delinquent installments due under said improvement project to the county treasurer of Okmulgee county. On the same date an alternative writ of mandamus was issued which was continued from time to time and dismissed without prejudice on the 18th day of September, 1928. On June 27, 1928, plaintiff filed in the district court of said county an action in tort against the city of Beggs, cause No. 15901, charging the city clerk of said city and its officials with negligence in failing to certify the aforesaid delinquent assessments to the county treasurer. On September 18, 1928, the date of the aforesaid dismissal plaintiff recovered judgment against the city in the sum of $19,075, and interest in the sum of $5,075, representing said bond issue and interest thereon at 6 per cent. per annum from the 1st day of September, 1922. Thereafter, on November 6, 1930, plaintiff filed a petition for a writ of mandamus in said district court against the excise board of said county, setting forth that said judgment obtained on the 18th day of September, 1928, was in full force and effect, and had not been satisfied or released; that no appeal was perfected therefrom, and by virtue thereof said city was liable to plaintiff in the amount of said judgment. The city of Beggs certified the item represented by said judgment to said excise board, and, on the 28th of October, 1930, the excise board omitted the same from the appropriation for the sinking fund of said city for said fiscal year. The trial court denied the writ of mandamus, and plaintiff has appealed to this court.
It is urged by the plaintiff that the aforesaid judgment obtained on September 18, 1928, against the city of Beggs, not having been appealed from, became final and conclusive, and that it was the duty of the county excise board to approve the item of said judgment and to make appropriate levy thereon for the payment of said judgment according to law.
On the part of the defendant it is urged that said judgment shows upon its face that it is void, as shown by the judgment roll in the original action; that the court in the rendition of same was without authority of jurisdiction; that the city of Beggs is not liable for the payment of said judgment; that any levy made by the excise board of Okmulgee county would be null and void; that the purported judgment is in violation of section 7, article 10, of the Constitution of the state of Oklahoma, in that the authority of the city is to levy assessments against property benefited, and not against the entire city; also that it violates section 17, article 10, of the Constitution, in that the city of Beggs is not authorized to obtain or appropriate money for, or levy any tax for, or to loan its credit to, any corporation, association, or individual; that said judgment is an attempt to cause to be levied an ad valorem tax against the taxable property situated within the city of Beggs, Okl., and outside of said street improvement district, which property, outside of said district, is not and was not benefited by said street improvement. In short, the defendant contends that the judgment was invalid and void, and should not be a liability against the city of Beggs, and that the county excise board had a right to refuse to make the levy requiring the city to pay one-third of the principal and interest for each year on the judgment of said Southern Surety Company.
Other contentions are urged, but we direct our attention to the question of whether or not the judgment is void from an inspection of the judgment roll. The issuance of the bonds for the street improvement district was valid. City of Beggs v. Kelly, 110 Okl. 274, 238 P. 466.
Section 4610, C. O. S. 1921, provides for the issuance of the bonds in the aggregate amount of the assessments remaining unpaid with interest and costs, which bonds shall in no event become a liability of the city issuing the same. We view the judgment rendered on September 18, 1928, in part, in the light of this mandatory legislative enactment. If the judgment rendered against the city, on September 18, 1928, is valid, then the plaintiff is permitted to do indirectly that which is positively prohibited by said section 4610. An examination of said petition, in case No. 15901, shows that said petition does not state a cause of action against the city of Beggs. It affirmatively shows that the court under the facts alleged therein was unauthorized to render said judgment, which was in excess of its jurisdiction. Said petition recites that said bonds are payable solely according to their face from the funds created by the collection of assets which were on the 9th day of November, 1921, duly levied by the city of Beggs, Okl., under Assessing Ordinance No. 217, on certain property located within the city of Beggs; that it was the duty of the city clerk of Beggs on the 15th day of September, of each year beginning with the year 1922, to certify to the county treasurer of ...
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