94 P.2d 250 | Okla. | 1939
Lead Opinion
This action was instituted in the district court of Pottawatomie county by the Exchange National Company, hereinafter referred to as plaintiff, against the city of Shawnee, hereinafter referred to as defendant, wherein it was sought to recover judgment for certain past due installments on sewer tax warrants which had been issued by defendant in the year 1927 in payment of the cost of construction of sewers adjacent to the property owned by the city within certain sewer districts. From a judgment in favor of plaintiff, defendant has appealed.
The cause was tried upon a stipulation of facts. It was agreed that defendant was the owner of the property described in plaintiff's amended petition, and that the same was used for public purposes; that the assessments against said property were due and unpaid; that no appropriation had been made to pay such assessments; that no demand had been made by plaintiff on the proper officials either by way of oral demand or mandamus for the making of a levy to pay such assessments; that no funds were available for the payment of such assessments.
It appears that the assessments herein involved were due in December, 1928, December, 1929, and December, 1930. A judgment was rendered against the city for the amount of said assessments plus interest at 8 per cent. per annum from the date they became due to the date of judgment.
As we view it, the determinative issue is whether or not a judgment may be taken against the defendant for delinquent unpaid sewer tax warrants for sewer tax assessments on property owned by the city and used for public purposes.
The levy of the assessments herein involved was made under authority of section 6047, O. S. 1931, 11 Okla. St. Ann. § 274, which provides that in the establishment of sewer districts the city shall be liable for the cost of said sewers in the same manner as other property owners within the district.
The plaintiff relies upon the rule announced in the case of City of Drumright v. McCormick,
It will be observed that the provisions of sections 4593 and 4605, C. O. S. 1921, dealing with assessments for paving, are very similar to the provisions of sections 6047 and 6051, O. S. 1931, 11 Okla. St. Ann. §§ 274 and 278, dealing with assessments for sewers.
In the case of First National Bank in Wichita v. Board of Education of the City of Enid,
In the case of Trustees of Incorporated Town of Broken Bow v. Fishman Realty and Investment Co.,
The judgment of the trial court is reversed and the cause is remanded, with directions to dismiss the same.
BAYLESS, C. J., and CORN, GIBSON, HURST, DAVISON, and DANNER, JJ., concur. WELCH, V. C. J., dissents. RILEY, J., absent.
Dissenting Opinion
I think the decision should be otherwise and should follow City of Drumright v. McCormick,