Newman v. Warner-Quinlan Asphalt Co. , 71 Okla. 284 ( 1918 )

This action was instituted by plaintiffs in error, in the district court of Garfield county, to enjoin the collection of certain paving assessments in the city of Enid. Judgment was for the defendants denying the injunction.

Two reasons are urged for reversing the judgment of the court below: First, that proof of the publication of the initial resolution for paying was insufficient, in failing to show that it was published in a newspaper of general circulation in the city of Enid, and which paper had been published for 52 consecutive weeks; second, that the court erred in not permitting the plaintiffs to prove that the assessment against the lots was out of proportion to the benefits received.

It was admitted that the initial resolution was published in the Enid Daily Eagle. The burden was upon the plaintiffs to establish the insufficiency of the publication. The only proof offered by plaintiffs was the affidavit of publication made by the publisher and filed with the city authorities as part of the improvement proceedings, and which in substance, stated the initial resolution was published in the Enid Daily Eagle, a daily newspaper published at Enid, in Garfield county, Oklahoma, and of general circulation in the county and state, and that the notice was published in the regular edition for 6 consecutive issues naming the dates of publication. This affidavit did not state that the paper had been published for 52 consecutive weeks.

Counsel urge that the failure to make such statement was equivalent to a positive statement that it had not been published for that period, as the statute requires. We do not agree with this construction. The proceedings of the city authorities, making street improvements and assessing and levying taxes to pay for same, are presumed to be regular, and the introduction of this affidavit failed to meet the burden upon the plaintiffs, attacking the regularity of the assessment. This question was presented in the case of Rawlins et al. v. Warner-Quinlan Asphalt Co. et al., 71 Okla. 309,174 P. 526, and decided against this contention, following the cases of Berry v. City of Stillwater, 49 Okla. 560,153 P. 870, and Board of County Com'rs v. Field, 63 Okla. 80,162 P. 733. To the same effect is the case of Arnold v. City of Ft. Dodge, 111 Iowa, 152, 82 N.W. 495.

The question presented under the second proposition urged by plaintiffs in error was also presented in Rawlins v. Warner-Quinlan Asphalt Co., supra, and decided against that contention, following the cases of Okla. RY. Co. v. Severns Pav. Co., 67 Okla. 206, 170 P. 216; City of Chickasha v. O'Brien, 58 Okla. 46, 159 P. 282; Alley v. City of Muskogee,53 Okla. 230, 156 P. 315; M., K. T. Ry. Co. v. City of Tulsa, 45 Okla. 382, 145 P. 398.

Adhering to the rule announced in these cases, the judgment of the lower court is affirmed.

All the Justices concur.