BOARD OF TRUSTEES OF CANTON v. GUNNING

BOARD OF TRUSTEES OF CANTON v. GUNNING
1942 OK 76
130 P.2d 817
191 Okla. 448
Case Number: 30195
Decided: 02/17/1942
Supreme Court of Oklahoma

BOARD OF COM'RS OF SEMINOLE COUNTY
v.
CITY OF WEWOKA ex rel. MERTEN et al.

Syllabus

¶0 1. TAXATION--Statutory provision that special assessment lien for street improvements shall be "coequal with the lien of other taxes" held constitutional.
"The provision of 11 O. S. 1941 § 103, that the special assessment lien for street improvements shall be 'coequal with the lien of other taxes' is constitutional, and does not offend the provisions of section 53, art. 5, of the State Constitution, which, as construed by this court, prohibits the releasing or extinguishing, in whole or in part,' of ad valorem tax liabilities, nor does it offend the provisions of section 5, art. 10, of the State Constitution, which provides that 'the power of taxation shall never be surrendered, suspended or contracted away.'" Board of County Com'rs v. City of Wewoka, 191 Okla. 142, 127 P.2d 826.
2. SAME--Special assessment lien not extinguished by resale of property for ad valorem taxes only.
"Where the county treasurer sells at the resale for ad valorem taxes only, property that is subject to a special assessment lien for street improvements, the lien of the special assessments is not thereby extinguished." Board of County Com'rs v. City of Wewoka, above.
3. SAME--Equality of liens not affected by resale to county for ad valorem taxes only.
"Where property is subject to a special assessment lien for street improvements and same is sold to the county at resale for ad valorem taxes only, the special assessment lien does not thereby become superior to the claim for taxes. The equality of the liens is not affected by such sale." Board of County Com'rs v. City of Wewoka, above.
4. SAME--MUNICIPAL CORPORATIONS--County properly made party to lien foreclosure action by holder of paving bonds-Marshaling and satisfaction of liens-Liability for costs of action.
"The holder of street improvement bonds instituted an action to foreclose the lien for the delinquent assessments against a certain lot. Thereafter the county treasurer sold the property to the county at the 1939 tax resale for ad valorem taxes only, no mention of the special assessments being made in the resale notice or in the resale proceedings. Thereafter, the county was made a party to the foreclosure proceedings. Held, (1) that the county could be so made a party and the two liens marshaled; and (2) that the property should be sold and the proceeds divided between the county and the bondholders in the proportion that the amount necessary to satisfy each lien bears to the total amount necessary to satisfy both. The costs of foreclosure should be paid out of the share payable on the special assessment lien in the event the property does not sell for enough to satisfy both liens and the costs of foreclosure." Board of County Com'rs v. City of Wewoka, above.

Appeal from District Court, Seminole County; Tal Crawford, Judge.

Action by the City of Wewoka, on the relation of Addie Merten and others, to foreclose lien of special assessment for street improvement bonds, wherein the Board of County Commissioners of Seminole County was made a party. From the judgment the Board of County Commissioners of Seminole County appeals. Reversed, with directions.

Mae. Q. Williamson, Atty. Gen., and P. C. Lackey, Asst. Atty. Gen., for plaintiff in error.
W. R. Banker and A. Camp Bonds both of Muskogee, for defendant in error.

HURST, J.

¶1 This is a companion case to No. 30042, Board of County Com'rs v. City of Wewoka, 191 Okla. 142, 127 P.2d 826. The two cases have been briefed together. The facts are substantially the same. The principles of law there announced are controlling here, and the four paragraphs of the syllabus in that case are adopted as the syllabus in the present case.

¶2 Judgment reversed, with directions to proceed in the manner directed in the cited case.

¶3 WELCH, C. J., CORN, V. C. J., and OSBORN and BAYLESS, JJ., concur. GIBSON and ARNOLD, JJ., dissent. RILEY, J., absent. DAVISON, J., concurs in part and dissents in part.