Close Bros. & Co. v. City of Oklahoma City

Supreme Court of Oklahoma

Close Bros. & Co. v. City of Oklahoma City

1920 OK 5, 186 P. 931, 77 Okla. 104, 1920 Okla. LEXIS 194

CourtSupreme Court of Oklahoma

DecidedJanuary 6, 1920

Docket8912

StatusPublished

Cited by8 cases

This text of 1920 OK 5 (Close Bros. & Co. v. City of Oklahoma City) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Close Bros. & Co. v. City of Oklahoma City, 1920 OK 5, 186 P. 931, 77 Okla. 104, 1920 Okla. LEXIS 194 (Okla. 1920).

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Opinion

OWEN, C. J.

This is an action for mandamus to compel the city authorities to levy and certify to the county treasurer one year's interest on certain paving certificates held by plaintiff. It is alleged that the paving *105 certificates were issued at various times from October 26, 1905, to December 8, 1915, bearing interest from date, and that no levy and certification to the county clerk was made until the year 1906, and no payments were made to the plaintiff upon said paving certificates until during the year 1907. It appears the certificates were paid, together with ten years’ interest, but it is alleged there is still one year's interest due on account of failure of the city officials to levy assessments for the first year’s interest due on the certificates and to certify these assessments to the county clerk.

The certificates were issued under section 449 of Wilson’s Rev. Stat. of 1903, and the assessments made under subsequent sections of this statute. The statute provides that upon completion of the contract the mayor and council shall cause certificates to be issued, without expressly providing the time in which such action shall be taken, and the provisions relating to the levy of the assessments are indefinite as to the time for making such levy.

The rule is well settled that mandamus will not be awarded when the right of relief sought is not clear and free from doubt, and will not issue in any case where the petitioners have a plain and adequate remedy in the ordinary course of law. City of Guthrie v. Stewart, 45 Okla. 603, 146 Pac. 585; 18 R. C. L., p. 128 (section 41); 26 Cyc. 153. Prom a reading of the various sections of the statute applicable, it will readily be seen that plaintiff’s right to relief sought is not clear and free from doubt. The amount drie, if anything, depends upon the time the certificates should have been issued and the time for'levying the assessments. The amount should be determined in a proper action at law, and not by mandamus.

The judgment of the trial court is affirmed.

RAINEY. RITCHFORD. JOHNSON. Mc-XEILL. and HIGGINS, JJ., concur.

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OWEN, C. J.

This is an action for mandamus to compel the city authorities to levy and certify to the county treasurer one year's interest on certain paving certificates held by plaintiff. It is alleged that the paving *105 certificates were issued at various times from October 26, 1905, to December 8, 1915, bearing interest from date, and that no levy and certification to the county clerk was made until the year 1906, and no payments were made to the plaintiff upon said paving certificates until during the year 1907. It appears the certificates were paid, together with ten years’ interest, but it is alleged there is still one year's interest due on account of failure of the city officials to levy assessments for the first year’s interest due on the certificates and to certify these assessments to the county clerk.

The certificates were issued under section 449 of Wilson’s Rev. Stat. of 1903, and the assessments made under subsequent sections of this statute. The statute provides that upon completion of the contract the mayor and council shall cause certificates to be issued, without expressly providing the time in which such action shall be taken, and the provisions relating to the levy of the assessments are indefinite as to the time for making such levy.

The rule is well settled that mandamus will not be awarded when the right of relief sought is not clear and free from doubt, and will not issue in any case where the petitioners have a plain and adequate remedy in the ordinary course of law. City of Guthrie v. Stewart, 45 Okla. 603, 146 Pac. 585; 18 R. C. L., p. 128 (section 41); 26 Cyc. 153. Prom a reading of the various sections of the statute applicable, it will readily be seen that plaintiff’s right to relief sought is not clear and free from doubt. The amount drie, if anything, depends upon the time the certificates should have been issued and the time for'levying the assessments. The amount should be determined in a proper action at law, and not by mandamus.

The judgment of the trial court is affirmed.

RAINEY. RITCHFORD. JOHNSON. Mc-XEILL. and HIGGINS, JJ., concur.

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1920 OK 5, 186 P. 931, 77 Okla. 104, 1920 Okla. LEXIS 194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/close-bros-co-v-city-of-oklahoma-city-okla-1920.

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