Wilson v. City of Hollis

• Decision Date: 19 October 1943
• Docket Number: Case Number: 30211
• Citation: 193 Okla. 241,142 P.2d 633,1943 OK 344
• Parties: WILSON et al. v. CITY OF HOLLIS et al.
• Court: Oklahoma Supreme Court

1943 OK 344

142 P.2d 633

193 Okla. 241

WILSON et al. v. CITY OF HOLLIS et al.

Case Number: 30211

Supreme Court of Oklahoma

Decided: October 19, 1943

Syllabus

¶0 1. MUNICIPAL CORPORATIONS--SCHOOLS AND SCHOOL DISTRICTS--Liability where public property assessed under paving law--Statutory provision construed.

The provision of 11 O. S. 1941 § 100, providing "Any property owned by the city, town or county or any board of education or school district, shall be treated and considered as the property of other owners," does not make applicable to property owned and used by such municipalities for public purpose the provisions of the paving law relating to private property where there are special provisions in the act relating to the property of such municipalities.

2. SAME-Limit of municipality's liability.

The limit of a municipality's liability under section 100, supra, is the amount directed to be levied annually to pay the maturing installment and interest due on it at that date.

3. SAME--Bondholders' right of action against municipality to recover amount due on paving assessments where annual tax levies not made to pay same.

Where the municipality fails or refuses to make the annual levies directed to be made by section 100, supra, the bondholder is entitled to maintain a civil action for himself and others similarly situated against the municipality for the purpose of recovering judgment for any amount the municipality has failed to provide for. Independent School District v. Exchange National Co., 164 Okla. 176, 23 P. 2d 210, City of Shawnee v. Exchange National Co., 185 Okla. 4,151, 94 P. 2d 250, and First National Bank in Wichita et al. v. Bd. of Education, 174 Okla. 164, 49 P. 2d 1077, are overruled.

4. SAME--Obligation of municipality to pay paving assessments not subject to debt limitation provision of Constitution.

The obligation of a municipality to pay paving assessments is one imposed by law under section 7, art. 10, of the Constitution and does not come within the limitations provided by section 26, art. 10, or section 9, of art. 10, of this Constitution, as amended. St. Louis & San Francisco Ry. Co. v. Sanders, 154 Okla. 159, 7 P. 2d 161, and St. Louis & San Francisco v. Choctaw County Excise Bd., 173 Okla. 312, 48 P. 2d 312, are expressly overruled.

Appeal from District Court, Harmon County; T. R. Wise, Judge.

Action by the City of Hollis ex rel. L. R. Armstrong against A. F. Wilson et al., members of the Board of Education of the City of Hollis. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions.

Ross Cox, of Hollis, and Robinson & Oden, of Altus, for plaintiffs in error.

Norman E. Reynolds and W. Otis Ridings, both of Oklahoma City, for defendants in error.

BAYLESS, J.

¶1 This is a mandamus action brought by the plaintiff L. A. Armstrong, bondholder, for himself and all others similarly situated. He sought by the remedy of mandamus to require the board of education to provide in its budget for the fiscal year 1940-41 for funds with which to pay the 1929 installments of the paving assessments levied against the property of the board of education, together with the accrued penalty thereon, and to require said board of education to make provision in its budget for ensuing years for the funds with which to pay the remaining delinquent installments of the paving assessments on its property.

¶2 The pertinent allegations made by the plaintiff in his petition are essentially in conformity with the facts of the case hereinafter stated.

¶3 In answer to the alternative writ of mandamus issued, the board of education alleged that the petition of the plaintiff did not state facts sufficient to constitute a cause of action and that same was barred by the statute of limitation; it also set up in its answer a state of facts essentially in accord with the statement of facts hereinafter set out.

¶4 The facts of this case, as stipulated to by the parties, are these: During the months of February, March, and April, 1927, the city of Hollis issued street improvement bonds in connection with the paving of three districts; that the plaintiff Armstrong owns an unpaid bond against each district; that the board of education of the city of Hollis owned property in each district, all of which was used exclusively for school purposes, and assessments were levied against such property; that the assessments for the years 1929 to 1936, both inclusive, are delinquent and unpaid; that the principal amount due in September, 1929, was $1,420, and the interest and penalty thereon, as provided by law, amounts to $1,874.86; that for the fiscal year 1929-30 a levy of 15 mills, the full amount allowed by law, was made for current expense purposes; that no demand was made by the city of Hollis or the bondholder that an estimate be made by the board of education to take care of the assessments for the fiscal year 1929-30; that none of the bonds in question have been retired; that the assessments levied against the lots in said district were payable in ten equal installments with interest thereon at the rate of 7% per annum until maturity; that the statute provides for interest on delinquent installments at the rate of 12% per annum; that such bonds were payable in their numerical order on the 1st day of October, 1936.

¶5 A peremptory writ of mandamus was issued requiring the board of education to make provision in the budget of the school district for the fiscal year 1940-41 for the payment of the assessments that were due and payable September 1, 1929, with 7% interest per annum from date until paid. The school board appeals. The trial court continued the application as to the years 1930 to 1936, both inclusive.

¶6 The board of education for reversal urges that the action is barred by the statute of limitations and laches. The plaintiff in support of the judgment of the lower court argues: (1) That mandamus is not a civil action and therefore the statute of limitations does not apply; (2) that the paving assessment lien, created by statute, like a lien for ad valorem taxes, continues until paid and for this reason is not barred by any statute of limitations; (3) that the facts disclosed by the record in this case do not sustain a defense on the ground of laches, for the evidence does not show the delay resulted in a disadvantage to the board of education; that laches is rarely applied to executed rights as distinguished from executory rights; that the defense of laches will not be recognized where the demand is admitted and the duty continuing; that the board of education is estopped from defending on the ground of laches because of its violation of its mandatory duty; (4) that the application of a statute of limitation or the doctrine of laches would impair the obligation of the contract of the bondholders and therefore would violate section 15, art. 2, Constitution of Oklahoma, and para. 1, see. 10, art. 1, Constitution of the United States; and (5) that plaintiff has complied with Senate Bill 164, S. L. 1939, by commencement of this action within the time therein specified and thereby prevented the running of any statute of limitation.

¶7 It will be noted at the outset that the trial court in issuing a peremptory writ of mandamus directed only that the board of education make provision in its budget for the fiscal year 1940-41 for the payment of the assessments Which were due and payable September 1, 1929, with 7% interest per annum, from the foregoing date, to wit, September 1, 1929. In this appeal the plaintiff (bondholder) is attempting to sustain that judgment.

¶8 The statute applicable to this suit was passed by the Legislature in 1923. The foregoing statute authorizes cities to create street improvement districts; levy assessments against the property of such districts; by the provisions of the act said assessments are payable in ten equal annual installments bearing interest at the rate of 7% per annum until paid; the due date of the first installment is on or before the 1st day of September next succeeding passage of the ordinance creating the district (11 O. S. 1941 § 103); if an installment becomes due and is not paid, it and the interest accumulated thereon bear interest at the rate of 12% per annum until paid (sec. 105); all payments of assessment installments, together with the interest thereon, shall be to the city treasurer for the creation of a special fund to pay the bonds and interest coupons issued against such assessments; after the payment of all bonds and interest thereon, any surplus remaining shall be expended for maintenance and repairs of streets in the district (sec. 105); such special assessments and each installment thereon are declared to be a lien against the lots and tracts of land in the district from the date of the first publication of the ordinance, "coequal with the lien of other taxes and prior and superior to all other liens, against such lots or tracts of land, and such lien shall continue as to unpaid installments and interest until such assessments and interest thereon shall be fully paid..." (sec. 103); provision is made for notice by publication of the maturity date of installments, and the act provides that upon delinquency of payment the city clerk shall certify said delinquent installments and interest to the county for the collection of same as other delinquent ad valorem taxes (sec. 106); said statute provides for the issuance of negotiable coupon bonds in the aggregate amount of such assessments, bearing date 30 days after the publication of the ordinance (sec. 151). Such bonds are mature and payable October 1st after the due date of the last installment of the assessment and bear interest at the rate of 6% per annum payable October 1st next succeeding the due date of the first installment and semiannually thereafter until the maturity date of the bonds and 10% after maturity; the bonds are payable from the assessments levied upon the lots...