White v. City of Pawhuska

• Decision Date: 21 February 1928
• Docket Number: Case Number: 17893
• Citation: 130 Okla. 156,265 P. 1059,1928 OK 136
• Parties: WHITE v. CITY OF PAWHUSKA et al.
• Court: Oklahoma Supreme Court

1928 OK 136

265 P. 1059

130 Okla. 156

WHITE v. CITY OF PAWHUSKA et al.

Case Number: 17893

Supreme Court of Oklahoma

Decided: February 21, 1928

Syllabus

¶0 1. Municipal Corporation--Street Improvements--Resolution of Necessity.

Where city council, desiring to grade and pave certain streets, under chapter 173, S. L. 1923, page 278 (providing that it may be done whenever the public necessity may require it), regularly adopts a necessity resolution, declaring that it is necessary to grade and pave said streets, it complies with the act, and an objection that the words "public necessity" are not used is without merit. (See section 5 of the Act, supra.)

2. Same--Definition of "Necessity."

The word "necessity" in connection with condemnation proceedings does not mean an absolute but only a reasonable necessity, such as would combine the greatest benefit to the public with the least inconvenience and expense to the condemning party and property owner consistent with such benefit.

3. Same--Regularity of Proceedings to Support Special Assessments--Injunction by Lot Owner not Available.

Where a necessity resolution proper in substance and in form is passed by city council, and legal advertisement thereof made as required, under chapter 173, S. L. 1923, the council is clothed with legislative function to determine the necessity for the improvement and empowered to take the necessary steps to complete the same and levy assessments for the same; and, in absence of majority protest, jurisdiction being present, and the council having acted in the premises, action will not be reviewed here in a suit for injunction at the instance of a lot owner whose property was assessed, in the absence of fraud or oppression.

4. Same--"Lowest and Best" Bidder Where Only Two.

Under the paving act, supra, one may be legally the "lowest and best" bidder even where there are only two bidders--grammar to the contrary notwithstanding.

5. Same--Judgment Dismissing Injunction Suit Sustained.

Evidence examined; held, that the action of the court in sustaining defendants' demurrer to the evidence and in denying injunction and dismissing the action was without error.

Commissioners' Opinion, Division No. 2.

Error from District Court, Osage County; Jesse J. Worten, Judge.

Action by H. P. White against the City of Pawhuska and the city council et al., for injunction to restrain the levy and collection of special assessments against real estate for special improvements. Injunction denied. Plaintiff appeals. Affirmed.

H. P. White, for plaintiff in error.

Wilson, Murphey & Duncan and Allen, Underwood & Smith, for defendants in error.

BENNETT, C.

¶1 This was a civil action filed in the district court of Osage county by plaintiff in error, H. P. White, against the city of Pawhuska, C. S. MacDonald, A. F. Stephenson, P. O. Sill, J. H. DeRoche and C. H. Gilbert, commissioners of the city of Pawhuska, and C. M. Hirt, city clerk, defendants in error, seeking an injunction against collection or enforcement of certain special assessments against property of plaintiff in error described as lots 11 and 12, in block 7, in the original town site of Pawhuska. It was sought also to prevent the issuing of any bonds or tax warrants chargeable against said property by reason of improvements thereon hereinafter set out. Parties will be designated as they appeared below.

¶2 At the conclusion of the plaintiff's case in chief, a demurrer was interposed by defendants, upon consideration of which the contention of defendants was sustained, injunction denied, and cause dismissed, and this case is brought here for review.

¶3 The petition is in the usual form, alleging that plaintiff is owner of above described real estate; that said lots are within improvement district No. 34, which comprises that portion of Revard avenue from north side of Eleventh street to north side of Palmer Highland addition; that on June 29, 1925, the city engineer of Pawhuska filed final estimate of total cost of paving and otherwise improving said district, and that the governing body of said city passed a resolution appointing appraisers to appraise and apportion benefits accruing to property in said paving district by reason of said improvements, and that thereafter said appraisers, after taking oath, filed their report and appraisement, but before the grading, paving and other improvements had been completed, and that thereafter, on July 27, 1925, the plaintiff filed his protest and asked leave to produce witnesses as to the manner of making said appraisement, but was refused. That on said last-named date, the governing body of said city passed a resolution approving, accepting and adopting said report of said appraisers while the work was yet incomplete; that on August 17, 1925, the city commissioners passed an assessing ordinance purporting to levy and assess $ 546.36 against lot 11 and $ 668.60 against lot 12, and thereafter on August 21, 1925, published the same in a newspaper in Pawhuska, Osage county, and that by the passing of said assessing ordinance the property of plaintiff is charged and assessed with the sum of $ 1,214.96; that the said assessment and levy is void for want of jurisdiction in said city to order the same, in that there was no public necessity requiring such improvements; that no resolution was passed, approved or adopted declaring that such public necessity existed in manner and form as required by law; further, that prior to the letting of a purported contract for making of improvements aforesaid, plaintiff filed in district court of Osage county action No. 9576 against the same defendants to enjoin the acceptance of the bid and the letting of the contract for improving said district; that a temporary restraining order was issued, which was, upon application of defendants, thereafter dissolved, whereupon the cause was carried to Supreme Court of the state ( White v. City of Pawhuska, 113 Okla. 270, 239 P. 578, dismissed as involving moot question), and that defendants had notice of pendency of such cause at all times; that plaintiff is without adequate remedy at law, and that the action of defendants is illegal.

¶4 For answer the defendants filed a general denial. Upon trial of the case, after evidence taken on behalf of plaintiff, the demurrer of defendants was sustained. The motion for new trial sets up four grounds. The same are carried forward in the brief as assignments of error. There was introduced in evidence Exhibit "A," which is a paving resolution, also Exhibit "B," paving resolution No. 2, also Exhibit "C." It is not necessary to copy the full text of these resolutions, but same will be quoted from hereinafter. It was testified by Mr. C. M. Hirt, city clerk, that Exhibits "A, " "B" and "C" were the only preparatory resolutions passed leading up to contract for paving. Proof of publication of paving resolution No. 2 was offered in evidence as Exhibit "D." There was offered in evidence also the written protest of plaintiff as Exhibit 1, setting forth the same contentions made in plaintiff's brief, and in addition setting out the manner of awarding the bid for the construction of the improvement and also a statement of the estimated damages accruing to the property by reason of such improvements.

¶5 J. M. Buckley, city engineer, testified that he had been city engineer since 1910; he describes location of paving district No. 34. This testimony is pertinent only in fixing location of the improvement in order that the court might observe upon its own account the necessity for this improvement, and also what part of the city might be served thereby, and the accessibility of other improvements of like character leading into and out of the city within the same neighborhood. W. E. McGuire, a witness testified that, considering the cost, he did not think the improvement was necessary; that it was not a public necessity in his opinion; that he thought the cost would outweigh the necessity. A. C. Seeley, a witness, testified that he was one of the appraisers; that all of the grading had not been done at the time he was on the premises for the purpose of making the assessments; that the city engineer furnished a statement of the amount to be charged against each block and a statement of the costs of said improvement to each particular quarter block, and that, in effect, they accepted the statement of the engineer as to what should be assessed against each quarter block.

¶6 Plaintiff testified that he was a practicing attorney; that he appeared before the board of commissioners of the city of Pawhuska, sitting as a board of review, on July 27, 1925, and, in addition to filing a written protest, requested leave to present witnesses, before the commission and to have a hearing before the commission on the appraisement that had been rendered by the board of appraisers, and to make a record of such hearing, but the same was denied. On cross-examination he testified as follows:

"A. What I wanted to do was to bring the appraisers before the commission, before the board, and show what they did in the matter of making the appraisement. Q. That's substantially what you have done before this court; you wanted to show that before the city commissioners, by the appraisers themselves, what you have shown before this court by those appraisers? A. Yes. My object was that I wanted to present them in person and make a record. Q. Mr. White, what you wanted to show by these appraisers was substantially what the court permitted you to show here by these men here this morning? A. Yes, substantially; yes."

¶7 In the plaintiff's brief his first assignment argued is: Said court erred in sustaining the demurrer of defendants in error to the evidence of plaintiff in error. His contentions are: First, that under chapter 173, Session Laws 1923, p. 278, cities and towns can acquire jurisdiction to grade and pave streets only:

"When the public necessity may require such improvements; second, before an

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