
    WOODWARD et al. v. CITY OF TULSA et al.
    No. 11238
    Opinion Filed March 8, 1921.
    Rehearing Denied March 29, 1921.
    (Syllabus.)
    1. Municipal Corporations — Public Improvements — Assessments — Injunction—Limitation of Actions.
    Under section 471, Rev. Laws 1910, an action to enjoin assessments levied to pay certain tax warrants issued for the construction of sewers in the city of Tulsa and to cancel said tax warrants on the ground that the estimates for the work were fraudulently made by the contractor and the city officials, where the city acquired jurisdiction ■by proper proceedings to construct the sewers, cannot be maintained a*fter the expiration of sixty days from the passage of the ordinance making the final assessment.
    2. Same — Estimates of Work — “Irregularities” — Jurisdiction.
    The act of estimating the work done in sewer construction, if done incorrectly or fraudulently by the contractor and the city officials, is an irregularity, and does not go to the jurisdiction of the city in levying the assessments for the work or in issuing tax warrants therefor, and if taken advantage of by suit in equity or otherwise, it must be by action brought prior to the expiration of sixty days after the passage of the ordinance makijjg assessments for the work done.
    Error from District Court, Tulsa County; Redmond S. Cole, Judge.
    Action by R. C. Woodward and others against the city of Tulsa and others to enjoin the collection of an alleged illegal and unlawful sewer tax. Judgment for defendants, and plaintiffs bring error.
    Affirmed.
    Springer & Wilson, for plaintiffs in error.
    M. A. Breekenridge, Chas. R. Bostick, and Lee Daniel, for defendants in error.
   KANE, J.

This action was commenced August 23, 1919, by plaintiffs filing their petition in the district court of Tulsa county asking for the cancellation and annulment of tax warrants and for the enjoining of the collection of any part of the taxes assessed against sewer districts No. 107 and No. 120 of the city of Tulsa. On December 29, 1919, plaintiffs filed an application for and secured a temporary restraining order directed against the city of Tulsa and Tulsa county and their officials for levying or collecting any taxes or assessments on account of said sewer construction. The Central Trust Company of Des Moines, Iowa, holders of the tax warrants, was on January 21, vention and be made a party to tbe' suit. Tbe temporary restraining order was continued in force from time to time until February 2, 1920, wben tbe court, after having beard tbe evidence and considered tbe matter on briefs by tbe parties to tbe suit, entered an order overruling tbe application for temporary injunction and allowed an appeal to tbe Supreme Court upon tbe giving of a super-sedeas bond in tbe sum of $30,000.

It is alleged in tbe petition of plaintiffs that tbe city officials and tbe contractor conspired and confederated themselves together for tbe purpose of cheating and defrauding the plaintiffs. Tbe manner and method of such alleged illegal combination is fully set forth in tbe petition; tbe principal allegations of fraud being that tbe city officials and tbe contractor made return of a lesser number of cubic yards of earth than there were and that they padded and enlarged tbe return of rock and shale excavation greatly in excess of the actual number of cubic yards of rock and shale excavated, and that in doing so they cheated and defrauded the plaintiffs on account of tbe excess amount paid as the result thereof.

It appears that sewer district No. 107 was created by ordinance No. 1599 of the city of Tulsa on December 15, 1916, and sewer district No. 120 was created by ordinance No. 1600 on December 16, 1916. It also appears that tbe assessing ordinance to apportion, levy, and assess tbe special tax for district No. 107 was passed and approved on January 31, 1918, and that tbe assessing ordinance to apportion, levy, and assess tbe special tax to take care of sewer district No. 120 was passed and approved and published on August 1, 1918. There is no allegation that these ordinances did not comply with tbe statute in assessing tbe benefits against each separate lot. Tbe assessments were divided into three equal payments, tbe first of which became due December 15, 1918, and was paid by tbe plaintiffs. It dppears that thereafter, and some time in the latter part of 1918 or tbe first part of 1919, after tbe passage and approval of the creating ordinances, and after the tax warrants bad been sold to an innocent purchaser, and considerable time after tbe sewer bad been completed, plaintiffs, who were residents and property owners of these two sewer districts, after investigation, decided that there was an overcharge for tbe work done, and that they were being defrauded in the amount assessed for such work.

No complaint is made as to the regularity of the proceedings leading up to tfie issuance of tbe sewer warrants, in passing tbe creating ordinance; in making and filing tbe plans and specifications; in letting the contract for tbe construction of tbe sewers; and the passing and publishing of tbe assessing ordinance; and in issuing the tax warrants.

It is urged by the defendants that section 471, Rev. Laws 1910, providing that “No suit shall toe sustained to set aside any assessment or certificate issued i-n pursuance of any assessment or to enjoin tbe city council or town board from making any improvements unless brought within sixty days after the passage of the ordinance making such assessment,” is controlling in this case, and that plaintiffs, having failed to bring their action within the 60-day period provided by this statute, were barred from thereafter ■bringing it. Their position seems to toe sustained by the decisions of this court. This action was not filed until more than 18 months had expired after the passing and publication of assessment ordinance in district No. 107, and until more than a year after the assessment ordinance in district No. 120 was passed and approved. The action, therefore, comes squarely within the inhibition of this statute, being one to set ■aside the assessment and certificates issued for the construction of the sewer.

The estimation of the items making up the different kinds of work done in excavating the sewer, if done incorrectly and fraudulently, was an irregularity and did not go to the jurisdiction of the city in levying the assessment or in issuing the warrants or certificates, and to have been taken advantage of it must have been by action brought prior to the expiration of the 60-days period provided in section 471, Rev. Laws 1910. City of Chickasha et al. v. O’Brien et al., 58 Okla. 46, 159 Pac. 282; Grier v. Kramer et al., 62 Okla. 151, 162 Pac. 190; Hancock et al. v. City of Muskogee, 66 Oklahoma, 168 Pac. 445; Orr et al. v. City of Cushing et al., 66 Oklahoma, 168 Pac. 223; City of Muskogee et al. v. Rambo et al., 40 Okla. 672, 138 Pac. 567; Oliver et al. v. Picket, 79 Okla. 315, 193 Pac. 949; City of Ardmore et al. v. Appollos et al., 62 Okla. 232, 162 Pac. 211; Crosslin et al. v. Warner-Quinlan Asphalt Co. et al., 71 Oklahoma. 177 Pac. 376; Partee v. Cleveland Trinidad Paving Co., 70 Oklahoma, 172 Pac. 945.

In City of Chickasha v. O’Brien, supra, in construing section 644, Rev. Laws 1910, which is a similar statute pertaining particularly to street improvements, this court held that:

“Án action to enjoin assessments levied to pay certain bonds issued under the paving act, and to cancel said bonds on the ground that the work was not performed according to contract owing to fraud upon the part of the contractor and city officials, where the city acquired jurisdiction by proper proceedings to make the improvements, cannot be maintained after the expiration of sixty days from the passage of the ordinance making the final assessment.”

In Crosslin et al. v. Warner-Quinlan Asphalt Co., supra, the third paragraph of the syllabus reads:

‘‘That a city paid a paving contractor more than the amount provided in his contract, if illegal at all, is an irregularity and not a jurisdictional defect; and a suit cannot be maintained to set aside an assessment on the ground that the amount includes such excessive payment, when commenced more than 60 days after the passage of the ordinance making the final assessment. Section 7, art. 1, ch. 10, Sess. Laws 1907-8, p. 176 (section 644, Rev. Laws 1910).”

And in further discussing this section of the law in City of Chickasha v. O’Brien, supra, this court said:

.“By section 644, it is seen that no suit may be maintained on any ground except for the two reasons given, which-'two reasons were necessary to constitute due process of law; that is, that the city should acquire jurisdiction to make the contemplated improvements by the adoption and publication of the preliminary resolution, where' same was required, and should acquire jurisdiction of the property owner by giving notice of the hearing on the return of the appraisers. This language is as broad and comprehensive as it could be made, and indicates an intention upon the part of the Legislature to cause any litigation involving the validity of the assessments, or seeking to enjoin the payment of the bonds, to be brought within the time limit. No exception is made for fraud occurring thereafter in the performance of the work, and, had the Legislature intended that such exception should be made, it would have been perfectly easy to say so; and the significant fact that the language used is as broad and comprehensive as it is, and that no exception is made, is to oqr minds conclusive evidence that none was intended.”

The reason for the 60-day limitation'' for the bringing of actions against sewer and street improvement assessments is well understood. Tax certificates and bonds are' sold to obtain money to be used in making these improvements. Purchasers of such certificates are not presumed to do more than inquire into the regularity of the proceedings leading up to the issuance of such certificates and bonds, and the 60-day limitation against the bringing of actions .to destroy the validity- of such certificates and bonds was created for the purpose of assurance and protection to investors. Otherwise municipalities would be unable to raise money for city improvements. The property owners are protected in that they have the right to observe tbe work being 'done and the 60-day period in which to test the regularity of such work. Such time seems sufficient if diligence is ..used. They cannot, therefore, complain of irregularities after the • expiration of this 60-day period.

The Central Trust company had no way of telling how the work was done or whether or not the contractor and the city officials were honest in making their calculations. When the warrants were submitted to them the sewer construction had been completed for the time required by the statute of limitations for the bringing of actions to test the regularity of the work. This company was, therefore, not required to do more than to inquire into jurisdictional matters. When if had done this and the period of 60 days had elapsed, it had the right to invest its money in good faith that its investment would be .protected.

Plaintiffs rely upon the case of St. Louis & S. F. R. Co. v. City of Ada, 64 Okla. 279, 167 Pac. 621. This case is- not in point because that was an action to enjoin the collection of assessments where the city had abandoned the work and had not laid the paving at all,’ but had permitted the railway company to do it. Other cases cited by the plaintiffs are not in point for the reason that they deal with jurisdictional matters instead of mere irregularities, and still other cases cited by them are not in point for the reason that they are cases from other jurisdictions, holding that a court of equity has the power under proper circumstances to enjoin the collection of excessive assessments, but not pointing out ‘that this can be done in the face of a positive statute prohibiting its being done. A court of equity would have had the power to entertain the action herein ands to determine the same on its merits had the action been commenced within 60 days from the passage of the assessing ordinance.

There is also no merit to the distinction which the plaintiffs attempt to draw between enjoining the assessments and enjoining the collection of the tax bills.. It is a distinction without a difference, in principle at least, that they attempt to make.

For the reasons stated, the judgment of the trial court is affirmed.

HARRISON, O. J., and JOHNSON, MILLER, and KENNAMER, JX. concur  