Weaver v. City of Chickasha

• Decision Date: 26 November 1912
• Docket Number: Case Number: 2246
• Citation: 1912 OK 783,128 P. 305,36 Okla. 226
• Parties: WEAVER et al. v. CITY OF CHICKASHA et al.
• Court: Oklahoma Supreme Court

1912 OK 783

128 P. 305

36 Okla. 226

WEAVER et al. v. CITY OF CHICKASHA et al.

Case Number: 2246

Supreme Court of Oklahoma

Decided: November 26, 1912

Syllabus

¶0 1. MUNICIPAL CORPORATIONS--Public Improvements--Assessments--Complaints and Objections. Where street improvements have been decided upon under sections 722-733, Comp. Laws 1909, and the work has proceeded under resolutions and proceedings passed in conformity thereto, and the appraisers appointed thereunder have appraised and apportioned the cost of the improvement, and returned and filed their report, and the council has fixed and given notice of the time and place for hearing "complaints or objections" concerning the "appraisement and apportionment as to any such lots," etc., the complaints and objections contemplated are such as concern the equitable and just distribution of the total cost of the improvements, according to benefits received, upon the various lots or tracts of land affected. At such session of the council, any individual owning a lot affected can appear before the council and contend, and, if possible, convince the council that the appraisers have placed more of the total cost to be distributed upon his lot than is its just and equitable share thereof, according to benefits received. And the council, after hearing all complaints as to such apportionment, reviews, and, if need be, corrects such report, by raising or lowering the amount the appraisers have charged to any lot as to the council may appear just. In doing this the individual lots only are affected. The total cost to be distributed, and which has been previously ascertained, is not changed. If one lot is lowered, another must be correspondingly raised; and a paper filed by a lot owner at such hearing, which makes no complaint as to the distribution of cost, but objects to "any assessment or taxes whatever" because "we deem same injurious to said streets and of no use or benefit whatever," and that "we will resist any and all payments of any kind or nature," is not a complaint or objection within the contemplation of the statute, and presents nothing for the council to pass upon.

2. SAME--Where a contract for street improvement has been let under sections 722-733, Comp. Laws 1909, by the mayor and council, to the "lowest and best bidder," and is within the engineer's estimate, and jurisdiction of the subject-matter has been obtained by the council, and all the resolutions and proceedings required by law have been regular, and bids have been received and the contract let under the notice required, such action of the mayor and council is final as to the contract price of the work, in the absence of fraud, collusion, or mistake.

3. SAME--Estoppel to Question Validity. Property owners in a street improvement district, with knowledge that the streets are being graded and otherwise improved by a contractor, with the intention that a special tax be levied against their property for the payment of same, who permit such improvement to be done, and stand by and see it proceeded with, without objection to the council, and receive the benefits to their property, will be deemed, when afterwards they seek relief in equity from the payment thereof, to have ratified same, and to be estopped from setting up any irregularity, except such as goes to the extent of jurisdiction.

4. SAME--Waiver of Irregularities. Where proper notice of the time and place for hearing objections to the report of appraisers has been given, and property owners affected appear at such time and place, and file their objections without raising the question that the report was not filed within ten days after the appointment of the appraisers, they will be deemed to have waived such irregularity.

5. SAME--"For Five Successive Issues." Where the notice required by section 726, Comp. Laws 1909, fixing the time for hearing objections to the report of appraisers, was published in a daily newspaper of general circulation in the city on the 19th, 21st, 22d, 23d, and 24th of June, 1909, the 20th being Sunday, on which date the paper was not published, held, that the notice was sufficient, the same being published in "five successive issues," as required by law.

W. M. Wallace, for plaintiffs in error.

Highley & Mills and W. H. Harris, for defendants in error.

BREWER, C.

¶1 This is a suit by M. Weaver and other property owners in Improvement District No. 5 of the city of Chickasha, and is brought to set aside an assessment levied on the lots of plaintiffs in such district. It was filed in the district court of Grady county October 7, 1909. The plaintiffs in error here were the plaintiffs below, and the parties will be referred to herein as they were known in the trial court. At a trial on the 3d day of November, 1910, the court at the close of all the testimony sustained defendants' demurrer to the evidence. On November 4, 1910, the court overruled the motion for a new trial, and the plaintiffs appeal to this court. The facts material to this inquiry briefly stated are: Improvement District No. 5 embraces a number of streets in the city of Chickasha. On October 23, 1908, the city council passed a resolution declaring the necessity of improving and grading the streets embraced in that district. This resolution was properly published for six days beginning October 25, 1908. On November 19th following the city council passed a second resolution reciting the passage and publication of the first one, and that no sufficient protests against the proposed improvement had been filed, and that bids for said work should be called for. The city engineer made plans and specifications for, and an estimate of, the costs of such improvement, filing same with the city clerk. Bids were advertised for, and on December 3, 1908, the bids received were opened and the contract awarded to the defendant Heman, who proceeded to improve and grade the streets according to the plans and specifications of the city engineer, under his contract. On April 23, 1909, H. B. Spender, Elmer Terrell, and Ben Hampton were appointed to appraise and apportion the benefits of the improvements to the various lots and parcels of land in the improvement district. These appraisers performed their work, and on June 15, 1909, filed with the city council their appraisement and apportionment. The city council set July 1, 1909, at 2:30 p. m. as the date for hearing complaints and objections by property owners in such improvement district to the appraisement and apportionment so made. Notice of the time and place of hearing such protests and objections were published in the Chickasha Daily Express, a daily newspaper, published and of general circulation in the city of Chickasha, on the 19th, 21st, 22d, 23d, and 24th day of June, 1909. On the day named in such notice, July 1, 1909, at 2:30 p. m., the plaintiffs through their spokesman, Mr. Weaver, appeared before the city council, and presented and demanded a hearing upon the following written protest:

"To the Honorable Board of Mayor and Aldermen of Chickasha, Oklahoma--Gentlemen: We the undersigned hereby enter our protest against levying or collecting of any taxes whatever on the streets described by the published copy hereto attached. We deem same injurious to said streets and of no use or benefit whatever. We desire to state that we will resist any and all payment of any kind or nature. Respectfully submitted. [Signed] M. Weaver and by twenty-nine other names."

¶2 The notice referred to in this paper was the one published by the city clerk fixing the time and place for hearing objections to the appraisement and apportionment theretofore filed by the appraisers. The plaintiffs contend that the assessment made against their property under above proceedings is void: (1) That the council refused to hear and consider the protests of plaintiffs; (2) because the contract was let for a price greatly in excess of that for which the work could have been done; (3) that the report of the appraisers was not filed within ten days after their appointment; (4) that the notice fixing the time for protests against the apportionment was not published for five successive issues of a daily newspaper as required by law. 1. No charge of fraud or collusion is made in this suit against the officers and agents of the city or the contractors. No charge of irregularity is urged relative to any of the proceedings of the council from the preliminary resolution of the necessity of the improvement up to the filing of the report of the appraisers showing the appraisement and apportionment of the cost of the work upon the various individual lots and parcels of land in the district. No protest or objection to making the improvement was filed, as the parties had the right to do under the law; but,...