Opinion
No. 31123.
February 6, 1945.
(Syllabus.)
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[11-100], 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.
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.
Appeal from District Court, Grady County; Will Lynn, Judge.
Action by City of Chickasha ex rel. H.C. Pool against Board of Education of City of Chickasha and Excise Board of Grady County. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions.
Bailey Hammerly and Wm. W. Grigsby, County Atty., all of Chickasha, for plaintiffs in error.
Jeff H. Williams, of Chickasha, for defendant in error.
This is a mandamus action brought by the plaintiff, H.C. Pool, 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 1942-43 for funds with which to pay the 1927 or 1928 installment 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.
The facts involved here are almost identical with the facts in Wilson v. City of Hollis, 193 Okla. 241, 142 P.2d 633. The situation of the parties and the respective rights and liabilities are identical, and without further discussion we hold that the rules of law promulgated and followed in that former decision are applicable and controlling here.
In that former decision we announced our conclusions in the following language:
"We hold that the Legislature provided, as it had a right to do, the amount that should be paid on public property and the manner in which it should be paid. We therefore hold under this act that the only amount that public property may be liable for is the proportionate amount assessable to it, which amount is payable in ten installments with interest at the rate of 7% per annum as of the date each installment is due, and that no delinquency that will carry with it additional interest or penalty can accrue against public property, and that the provisions relating to delinquencies and penalties were not intended to apply to municipalities."
And in a subsequent paragraph as follows:
"We therefore hold judgment may be rendered against the school district whose property has been assessed a portion of the cost of a public improvement for the principal of the unpaid annual installments, plus the interest due on each on the date of its maturity. This judgment may then be paid as other judgments are paid under section 28, art. 10, Const. of Oklahoma, and 62 O.S. 1941 § 431[ 62-431] et seq. To this extent Independent School Dist. v. Exchange Nat. Co. supra, First Nat. Bank v. Board of Education, 174 Okla. 164, 49 P.2d 1077, and City of Shawnee v. Exchange Nat. Co. 185 Okla. 451, 94 P.2d 250, are overruled."
Therefore, as was adjudged in the Wilson Case, the judgment of the trial court here appealed from, which granted mandamus for the year involved, is hereby set aside and this cause is remanded to the trial court, with directions to take further proceedings in conformity with the views expressed herein.
GIBSON, C.J., HURST, V.C.J., and OSBORN, BAYLESS, CORN, DAVISON, and ARNOLD, JJ., concur.