Paulsen v. City of El Reno , 22 Okla. 734 ( 1908 )

In this case it is necessary to pass upon the following questions:

(1) Whether or not whenever in a city of the first class the property owners on any street or part of a street of not less than 2,000 feet in length by petition signed by a majority of such property owners request the city council to pave such street, or part of a street, with any material used for standard paving to be designated in said petition, and it thereupon becomes the duty of the city council to proceed to pave such street in accordance with the prayer of said petition, it being provided by statute that no resolution or notice of intention to pave or publication thereof shall be necessary — such improvement shall be directed and made under an ordinance.

(2) Whether or not a majority of the property owners on any street, or part of a street, of not less than 2,000 feet in length, having duly petitioned the council to pave such street, or part thereof, with the designated material used for standard paving, and such council having proceeded to pave such street in accordance with the prayer of such petition, no resolution or notice of intention to pave, or publication thereof, having been made, on account of irregularities such improvement will be restrained, where there is neither allegation nor proof as to fraud, or that the party complaining sustains a specific injury on account thereof.

1. The proviso contained in section 2 of an act entitled "An act to provide for the improvement and permanent paving, curbing and guttering of streets, and other public places, within a city of the first class," approved March 5, 1901 (Laws 1901, p. 67, c. 8), being section 444, Wilson's Rev. Ann. St. 1903, provides that "the property owners on any streets or part of any streets of not less than two thousand feet in length, may by petition signed by a majority of such property owners, request the city council to pave such streets or part of street with any material used for standard paving, to be designated in such petition, and it shall thereupon be the duty of the city council to proceed to pave such street in accordance with the prayer of such petition, and no resolution or notice of intention to pave or publication thereof shall be necessary." This proviso appears to be mandatory upon the city council, when requested by such petition, to proceed with such improvement with all reasonable dispatch; and, in order that there might not be any delay or expense, it is declared that "no resolution or notice of intention to pave or publication thereof shall be necessary." When the petition is initiated by the property owners, it is evident that no ordinance is required. Kerker etal. v. Bocher et al., 20 Okla. 729, 95 P. 981.

2. It is neither alleged nor proved that, on account of the irregularities in not recording on the minutes of the council its action in designating the streets, or parts of streets, ordered to be improved, the material and method for the construction thereof, or in adopting the plans and specifications, or in the notices, operated to the injury of the complainant, or any one else, or was fraudulently done. The plaintiff made no protest to the city council against such contract, or the action taken by it, either for the purpose of preventing the improvement being made under such a procedure or of having any omissions or irregularities amended or corrected, and permitted the defendant Connelly to proceed, without any objection or warning under said contract, to curb the streets and alleys throughout the district to be paved, and to grade Wade street throughout the whole course where pavement was to be laid, and pave a portion of said street up to and adjoining the lots of complainant, thereby standing by and allowing him to make outlay to his detriment under said undertaking. The city council acquired jurisdiction by proper petition presented by a majority of the property owners; it being its duty to pave such street or streets in accordance with the prayer of said petition without any resolution or notice of such intention to pave or publication thereof. Any irregularity that may subsequently occur in the record of the proceedings of the city council relative to said paving, there being neither any allegation nor proof of fraud, or that such irregularity worked any specific injury to the plaintiff's property rights, or to any one else similarly circumstanced, or that there was reason to believe that there would have been submitted a less bid for such improvement, there is no ground for equitable intervention. Hixon et al., v. Oneida County, 82 Wis. 515, 52 N.W. 445; Marth v. City of Kingfisher, ante, p. 602, 96 P. 436; Cooley on Taxation (3d Ed.) p. 1440; Gilmore v. Hentig, 33 Kan. 156, 5 P. 781; Newman v. Emporia, 41 Kan. 586, 21 P. 593.

The decree of the lower court is affirmed.

All the Justices concur.