Board of Education of Duncan v. Johnston , 189 Okla. 172 ( 1941 )

While I agree that the plaintiff's right to have the levies made is barred by laches, I am of the further opinion that there is no statute authorizing a school district to levy and collect a tax during one fiscal year to pay special assessments that should have been collected and paid during a prior fiscal year, and consequently, since there is no clear legal right or duty to do so, mandamus will not lie to compel it. Marland v. Hoffman, 184 Okla. 591, 89 P.2d 287. I reach this conclusion by the application of the following well-settled principles of law:

1. Municipal levies to pay special improvement assessments are current expense, not sinking fund, levies and must come within the limit fixed by law for current expense purposes. Chicago, R.I. P. Co. v. Henderson, 167 Okla. 302,29 P.2d 768; Lowden v. Excise Board, 182 Okla. 413, 77 P.2d 1150.

2. The remedy of the holder of a special assessment bond to enforce his right against a municipality is by mandamus, timely brought to compel the making of the levy the year it is due, and a personal judgment cannot be rendered and enforced by three annual levies as judgments against municipalities are enforced. Independent School District v. Exchange National Company, 164 Okla. 176, 23 P.2d 210; First National Bank v. Board of Education, 174 Okla. 164, 49 P.2d 1077; City of Shawnee v. Exchange National Co., 185 Okla. 451, 94 P.2d 250.

3. Except as restrained by the Constitution, the method and process of collecting paving assessments made against municipalities is statutory, as is the whole process of taxation, and the taxing officials must look to the statutes for such authority. Being purely a legislative function, the courts are without authority to do more than to carry out the will of the Legislature as expressed in valid statutes. Independent School District v. Exchange National Co., supra; Nelson v. Oklahoma City Ry. Co., 24 Okla. 617, 104 P. 42; City of Shawnee v. Exchange National Co., supra; 56 C. J. 634; 24 Rawle C. L. 592; 26 Rawle C. L. 27-30.

4. Even in the event of a deficit in a sinking fund to pay direct (contract) obligations of a municipality, in the absence of statute authorizing it, mandamus will not lie to compel a tax levy to make up such deficit, but the bondholder is limited to his right to sue and procure a judgment, to be followed by levies to pay judgment as the statutes provide. Excise Board v. Chicago, R.I. P. Ry. Co., 168 Okla. 523, 34 P.2d 268; Missouri, K. T. Ry. Co. v. Goad, 117 Okla. 129, 245 P. 617; In re Gypsy Oil Co., 141 Okla. 291, 285 P. 67; Protest of Chicago, R.I. P. Co., 156 Okla. 197, 10 P.2d 398; Ralls County Court v. United States, 105 U.S. 733. To remedy the situation created by the enforcement of this rule, chapter 27, S. L. 1933, was enacted. See Le Flore County Excise Board v. St. Louis S. F. Ry. Co., 185 Okla. 440, 93 P.2d 1087.

5. The purchasers of bonds are charged with knowledge of the statutes under which the bonds are issued and are bound by the remedies given for their enforcement. Sutton v. Kalka,141 Okla. 233, 285 P. 1; United States v. County Court of Macon County, 99 U.S. 582, 25 L. Ed. 551.

WELCH, C. J., concurs in these views.