Seibold v. City of Muskogee ( 1932 )

The plaintiffs, in error have filed a petition for rehearing in this case in which they urge that in the opinion filed this court overlooked certain questions presented in the brief of plaintiffs in error. We have carefully considered the proposition which it is claimed was not considered, namely, that the property of plaintiffs, in error was not benefited by the pavement. We held that as a general rule the question of the benefits accruing to city property by virtue of improvements made within an improvement district is a legislative question to be determined by the legislative body of the city. We think the rule announced is correct. However, we do not desire to be understood as holding that upon proper pleadings land proof the plaintiffs in error upon a retrial of the case will not be permitted to bring themselves within the exception to the general rule which is clearly stated by the Supreme Court of the United States in Village of Norwood v. L. R. Baker, 43 L.Ed. (U.S.) 443; Briscoe v. Cuno H. Rudolph, Commissioners of the District of Columbia, 55 L.Ed. (U.S.) 848; Myles Salt Co. v. Board of Commissioners of the Iberia and St. Mary Drainage District, 60 L.Ed. (U.S.) 392; Martin v. District of Columbia, 51 L.Ed. (U.S.) 743; and by the Supreme Court of Kentucky in City of Louisville v. Louisville Rolling Mills CO., 3 Bush (Ky.) 416, 96 Am. Dec. 243.

Petition for rehearing denied.

LESTER, C. J., CLARK, V. C. J., and RILEY, HEFNER, CULLISON, ANDREWS, McNEILL, and KORNEGAY, JJ., concur.

Note: See under (1) annotation in 61 L. R. A. 55; 28 L. R. A. (N. S.) 1202; 25 R. C. L. 159; R. C. L. Perm. Supp. p. 5544; R. C. L. Pocket Part, title "Special or Local Assessment," § 73. (3) annnotation in 28 L. R. A. (N. S.) 1152; 25 R. C. L. 139, 140; R. C. L. Perm. Supp. p. 5541.