Armstrong v. Sewer Improvement Dist. No. 1 , 201 Okla. 531 ( 1948 )

On Rehearing.

LUTTRELL, J.

In the original opinion in this cause, promulgated October 5, 1948, we held the proceeding for the organization of the sewer district invalid for the sole reason that the petition for the formation of the district was not published as provided by law, but in lieu thereof a notice containing the substance of the petition was published.

In their second petition for rehearing the defendants below, defendants in error here, call attention to House Bill No. 278 of the 22nd Legislature, amending the law to provide that notice shall be given by a notice containing the substance of the petition, and providing in section 10 thereof as follows:

“Any sewer improvement district heretofore created under the provisions of Chapter 19, Title 19, Session Laws 1947, in the organization of which the petition for the creation thereof was not published, but the substance thereof was included in a notice which was published for the hearing on the petition and which district has been authorized at an election held for such purpose is hereby validated, and such sewer improvement district shall be deemed validly created.”

This bill, carrying an emergency clause, was duly passed by the Legislature, and was approved by the Governor on the 12th day of May, 1949. Defendants assert that the curative provisions of section 10 validated the notice given by them of the formation of the sewer district and removed the sole objection to the validity of the bonds. We agree with this contention.

In Chicago, R. I. & P. Ry. Co. v. Austin, 63 Okla. 169, 163 P. 517, we held that the Legislature could remove a defect on which a judgment proceeded, and that such curative act applied to pending proceedings. In that case, referring to curative acts of the Legislature, we said:

“In consideration of legislation of this character the important question to be considered in determining its validity and effect is to ascertain whether the acts which it attempted to validate would be effectual for the purposes intended if a valid law enacted prior to the doing thereof had directed that they be done as they were done. In such cases the authority of the Legislature to validate them thereafter is well established, and rights predicated upon such curable defects are not deemed meritorious nor entitled to the protection ordinarily accorded to vested rights. 2 Lewis’ Sutherland, Stat. Const. 1232.”

Since the judgment of the lower court held the bond issue valid and the proceeding on appeal is still pending, we hold that the provisions of section 10, supra, removed the sole defect in the proceeding and validated the organization of the sewer improvement district. It follows that the judgment of the trial court should be affirmed.

Affirmed.

DAVISON, C.J., ARNOLD, V.C.J., and WELCH, GIBSON, HALLEY, and JOHNSON, JJ., concur.