Baccus v. Banks

HURST, C.J. In March, 1929, the city of Cordell created paving district No. 8, paved the streets in said district, levied special assessments, and issued bonds under the 1923 paving law, 11 O.S. 1941 §81-117. The assessments and bonds became delinquent on March 17, 1939. The plaintiff, W. F. Banks, owned a lot in said paving district on which the assessment had not been paid. In October, 1945, Vernon Baccus, county treasurer of Washita county, advertised the lot for sale at the November, 1945, delinquent tax sale to satisfy such special assessment. The amount of the special assessment and interest thereon then amounted to $672.62. On October 29, 1945, Banks commenced this action against the county treasurer to enjoin the sale of the same to satisfy the special assessment. A. F. Reeder, owner of bonds No. 34-39, inclusive, issued against said paving district, was allowed to intervene in the case. In his petition, the plaintiff alleged that prior to the filing of this action, the lien for special assessments had ceased to exist by reason of the provisions of section 1 of article 6 of chapter 33, p. 156, Session Laws of 1939, 11 O.S. 1941 §242, in that the owners of the bonds issued against said paving district had commenced no suit to enforce this special assessment lien. The county treasurer filed an answer admitting that the plaintiff owned the lot in question, admitting the levy of the special assessment and the issuance of the bonds and the delinquency of the assessments and that the intention was to sell the lot for said special assessment at the November, 1945, delinquent tax sale, and alleging that the plaintiff had an adequate remedy in law. The intervener filed an answer alleging that 11 O.S. 1941 §242, in so far as it attempted to extinguish the special assessment lien, impaired the obligation of his contract and was unconstitutional, and he further alleged that the plaintiff had an adequate remedy at law by payment of the special assessment and suing as provided by 68 O.S. 1941 §15.50. To the answers of the defendant and intervener, the plaintiff filed a demurrer which was sustained by the court and thereupon the court entered judgment granting plaintiff a permanent injunction enjoining the county treasurer from selling the lot for said special assessment. From that judgment, the defendant and intervener have perfected this appeal. Section 242, on which the plaintiff relies, and which the intervener and amici curiae say is unconstitutional, is as follows: “From and after the effective date of this Act, the right of any holder to enforce the lien of any ‘Street Improvement Bond’ issued under authority of Chapter 10, Article 12, Oklahoma Revised Laws of 1910, or of any ‘Street Improvement Bond’ or ‘Refunding Street Improvement Bond’ issued under any authority contained in Chapter 33, Article 14, Oklahoma Statutes of 1931, and statutes supplementary and amendatory thereto, by foreclosure, mandamus, refunding or otherwise, shall be barred upon the expiration of three years immediately following the maturity date named in the face of such bond, unless the holder of any such bond shall have commenced suit to foreclose his lien by filing an action for that purpose and procuring service of summons therein or shall have evidenced his willingness to accept Street Improvement Refunding Bonds issued under the provisions of this Act, in exchange therefor, prior to the expiration of said three year period of limitation; Provided, however, that in all cases where the period of limitation herein mentioned has expired or will expire prior to November 1, 1939, the holder of such bonds shall have until December 1, 1940, in which to pursue — 650 — his remedy or obtain the benefits of this Act. The running of the period of limitation herein fixed shall be an absolute bar to any action or proceeding brought thereafter, whether the same is plead as a defense or not, and the property against which such bonds theretofore represented a lien shall thereafter be, by operation of law, absolved of any lien or liability on account of said bonds. “It shall be the mandatory duty of the city clerk to notify the holders of all outstanding Street Improvement Bonds that the same are about to be barred by the Statute of Limitations, by mailing to the holder of each such bond at his last known address, as shown by the records of said city clerk, and by publication of notice in some newspaper of general circulation in the city or town in which such Street Improvement District is located, and if there be no newspaper published in said city or town, then the publication shall be made in some newspaper published in said county, and by publication thereof in at least one nationally recognized financial journal, which notices shall be mailed and published at least sixty days prior to the expiration of such Statute of Limitation; said notices shall be substantially in the following form: “ ‘NOTICE “ ‘ To all holders of Street Improvement Bonds of District No. _(or, if appropriate, insert the Ordinance or Serial No.) of the City of___ , Oklahoma: “You are hereby notified that on the day of_, 19_, the above bonds and rights thereunder will be barred by Statute of Limitation, as provided in Senate Bill 164, Oklahoma Session Laws, 1939 You will govern yourselves accordingly. “ ‘City Clerk of the City of_, Okla.’ “Failure of the city clerk to give the notice provided herein shall not impair any of the provisions of this Act.” 1. The county treasurer argues that injunction will not lie to restrain the sale, but that the only remedy of the property owner was to pay the assessment under protest and sue to recover the same as provided by 68 O.S. 1941 §15.50. He argues that the decision in Payne v. Smith, 107 Okla. 165, 231 P. 469, holding that the prior statute, C.O.S. 1921 §9971, which was substantially identical with §15.50, does not apply to special assessments, was overruled by Antrim Lbr. Co. v. Sneed, 175 Okla. 47, 52 P. 2d 1040. We do not agree. That case deals with the corporation license tax, and cites with approval Payne v. Smith, and points out that it stands for the rule that special assessments are not “taxes” within the purview of the prior statute. We think the rule stated in Payne v. Smith is still in effect, and injunction is the proper remedy to prevent the sale of property to satisfy special assessments where the lien therefor has been extinguished. 2. Amici curiae argue that the 1939 act was intended to apply only to foreclosure actions, and was not intended to apply to foreclosure by the tax sale and resale method. The title refers to enforcement of the lien of street improvement bonds “by court action or otherwise”, and section 1 fixes a limitation on enforcement of the lien “by foreclosure, mandamus, refunding or otherwise”. (Emphasis ours.) They contend that, under the doctrine of ejusdem generis, the general word “otherwise” is restricted by the particular words preceding it, and does not refer to tax sales and resales. They cite, among other authorities, Board of Com’rs v. Grimes, 75 Okla. 219, 182 P. 897; Worley v. French, 184 Okla. 116, 85 P. 2d 296; State v. Ellenstein, 121 N.J.L. 304, 2 Atl. 2d 454; Post v. Land, 27 Colo. App. 270, 148 P. 377. In Kansas City Southern Ry. Co. v. Wallace, 38 Okla. 233, 132 P. 908, in the third paragraph of the syllabus, the rule applicable here is stated thus: “The rule of ejusdem generis is resorted to merely as an aid in construction. If, upon consideration of the whole law upon the subject, and the purposes sought to be effected, it is apparent the Legislature intended the general words — 651 — to go beyond the class specifically designated, the rule does not apply. Moreover, where the particular words exhaust the class, then the general words must be given a meaning beyond the class.” When we consider the conditions that brought about the enactment of the law and the evils sought to be remedied, and the fact that the preceding words “action” and “foreclosure, mandamus, refunding” exhausted the remedies the bondholder could resort to, we are of the opinion that by the use of the word “otherwise” the Legislature intended to include the method of enforcement by tax sale and resale. Furthermore, the 1939 act is expressly made applicable to liens created under the 1910 Revised Laws, and the only method of foreclosure under that law was by tax sale and resale. See section 643. 3. Amici curiae argue that, as to properties subject to special assessment liens, which had not been sold at an annual sale to satisfy such liens, the 18 months intervening between the effective date of the act and December 1, 1940, was not sufficient to complete the foreclosure under the tax sale and resale law, and that the bondholders were left no remedy where the remedy by action was barred, as held in City of Bristow v. Groom, 194 Okla. 384, 151 P. 2d 936. They argue that this renders the law unconstitutional. But, we are of the opinion that a mandamus proceeding instituted by the bondholder prior to December 1, 1940, would have been effective to permit the treasurer to complete the sale at the annual sale and resale, even though the resale could not have been held until May, 1942. The applicable rule is that “a statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubt as to its constitutionality.” Brown v. State Election Board, 197 Okla. 169, 170 P. 2d 200; West Okla. Digest, Constitutional Law. §48. 4. Both the county treasurer, the intervener and amici curiae argue that section 23 of the 1923 paving statute (11 O.S. 1941 §103), providing that the special assessment lien shall be “co-equal with the lien of other taxes” and shall “continue as to unpaid installments and interest until such assessments and interest thereon shall be fully paid”, became a part of the bonds, and that the effect of that portion of section 1 of the 1939 statute, 11 O.S. 1941 §242, above quoted, providing that the property against which the lien exists shall be by operation of law, absolved of the lien or liability, if the bondholder fails to file suit to foreclose the lien or fails to signify his willingness to accept refunding bonds before the expiration of the limitation period prescribed by the section was to impair the obligation of the contract. In support of this contention, the case of Hann v. City of Clinton, 131 Fed. 2d 978, is cited. The parties also cite many cases holding that the law under which the bonds were issued entered into and became a part of the obligation of the bonds. The plaintiff contends that section 1 of the 1939 act is but a statute of limitations, and that it afforded bondholders sufficient time to pursue their remedies before the bar was complete, and that the lien is a part of the remedy afforded by the 1923 statute for the enforcement of the rights of the bondholder, and that the remedy can be changed or taken away after the expiration of a reasonable time. The 1939 act became effective on May 12, 1939, and it did not purport to bar bonds then delinquent for more than three years, such as those involved in this case, until December 1, 1940, and the plaintiff contends that the . period of more than 18 months given such bondholders to commence actions or proceedings to enforce their rights is reasonable. We do not understand that it is contended by the defendant, the intervener or amici curiae that the time allowed is unreasonably short. Those urging that the 1939 Act is unconstitutional cite cases adhering to the — 652 — well settled rule that the laws in force when and under which municipal bonds are issued enter into and become a part of the obligation of the bonds, but they overlook the fact that there is an exception to that rule that is as well settled as the rule itself. The exception is that limitation statutes do not enter into and become a part of the obligation of such bonds or other contracts. Case v. Pinnick, 186 Okla. 217, 97 P. 2d 58; Mires v. Hogan, 79 Okla. 233, 192 P. 811; 12 Am. Jur. 89; 34 Am. Jur. 28; 17 R.C.L. 680; 12 C.J. 1079; Cooley, Constitutional Limitations (8th Ed.) p. 760. The appellants and amici curiae cite . no case holding unconstitutional a statute of limitations applying to existing contract rights under, which the parties are given a reasonable time after the statute becomes effective within which to enforce their rights. They rely upon cases dealing with substantive rights or cases in which the remedy for the enforcement of contract rights is entirely taken away or changed in such a way as to affect substantial rights. Thus, in Nelson v. Pitts, 126 Okla. 191, 259 P. 533, the statute held to impair the obligation of paving bonds could have the effect of extinguishing the lien before all the installments were due. The statute held unconstitutional in Moore v. Otis, 275 Fed. 747, had the effect of the statute in Nelson v. Pitts, and also had the effect of depriving the bondholder of any share in the proceeds of a tax resale thereby depriving the bondholders of the benefit of the co-equality provision. In Davis v. Mc-Casland, 182 Okla. 49, 75 P. 2d 1118, the statute held unconstitutional authorized payment of assessments by delivery of bonds against the district, thereby changing the medium of payment, and lessening the value of the security. The statute held unconstitutional in Straughn v. Berry, 179 Okla. 364, 65 P. 2d 1203, released the accrued penalties on unpaid assessments and to that extent deprived the bondholder of a remedy without substituting another adequate one, and also deprived him of the co-equality provision. In United States v. City of Quincy, 18 L. Ed. 403, the statute in force when the bonds were issued granted the city the right to assess and collect taxes necessary to pay the bonds. Later the Legislature limited the amount of taxes the city could collect, and gave the city a first right to the taxes collected for a special purpose, so that it was not certain any would be left for payment of the bonds, and no other remedy was given for collection of the bonds. The statute involved in United States v. City of New Orleans, 26 L.Ed. 395, is similar in effect to that involved in the City of Quincy Case. In Seibert v. United States, 122 U.S. 284, the statute under which the bonds were issued entitled the bondholder to be paid by a tax to be levied and collected in the same manner as county taxes, and the subsequent act held to be unconstitutional provided that county taxes should be levied and collected by the direct action of the county court while all other taxes were to be levied in a more cumbersome manner requiring the action of the prosecuting attorney and the circuit court, which was held not to be the “legal equivalent” of the prior method. In Worthen v. Kavanaugh, 79 L.Ed. 1298, 55 S.Ct. 555, 97 A.L.R. 905, at the time the special assessment bonds were issued, the Arkansas statutes made effective provision for the collection of the assessments. The law held to be invalid repealed that law and did not substitute an adequate remedy, the new law being termed “oppressive” and making the remedy a mere “shadow”’. State v. City of Lakeland (Fla.) 150 So. 508, 90 A.L.R. 704, is similar to Worthen v. Kavanaugh, in that the only remedy available to the bondholders, mandamus, was so limited that it was not adequate. None of the foregoing authorities involved a statute of limitations. In Wilson v. Standifer, 184 U.S. 399, it was held that an act of the Texas Legislature substituting an administrative method of forfeiture of the rights — 653 — of one who had purchased state lands, and was delinquent in his payments, for a judicial method of forfeiture in existence at the time the sale was made, did not impair the obligation of the contract, and quoted the following from Chief Justice Marshall: “ .. . The distinction between the obligation of a contract and a remedy given by the Legislature to enforce that obligation exists in the nature of things and without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation may direct.” In the recent case of Richmond Mortg. & Loan Corp. v. Wachovia Bank & T. Co., 300 U.S. 124, the true rule is stated as follows: “The Legislature may modify, limit, or alter the remedy for enforcement of a contract without impairing its obligation, but in so doing, it may not deny all remedy or so circumscribe the existing remedy with conditions and restrictions as seriously to impair the value of the right. The particular remedy existing at the date of the contract may be altogether abrogated if another equally effective for the enforcement of the obligation remains or is substituted for the one taken away.” At the time of the enactment of the 1939 act, there was no statute of limitations applicable to the sale and resale by the county treasurer of property to satisfy street improvement liens, and at that time this court .had not decided that the general statute of limitations applied to actions to foreclose such liens. The case of City of Bristow v. Groom, 194 Okla. 384, 151 P. 2d 936, so holding, was not decided until 1944. The law is well settled that statutes of limitation may be made to apply to rights or causes of action against which there was no such statute in existence at the time they were created, or existing statutes may be shortened, and they may be made applicable to existing causes of action provided a reasonable time is allowed for their enforcement, and such statutes do not violate the constitutional provision against impairment of the obligation of contracts. Mires v. Hogan, 79 Okla. 233, 192 P. 811; Case v. Pinnick, 186 Okla. 217, 97 P. 2d 58; 34 Am. Jur. 26, note 14, 33, 36; 12 Am. Jur. 89, note 6; United States v. Morena, 245 U.S. 392; Terry v. Anderson, 95 U.S. 628. It is clear that the time allowed under the statute in question was not unreasonably short. 34 Am. Jur. 32. “An existing law of limitations is not considered as being a part of the contract. Hence, the Legislature may enact a statute which limits the time within which actions may be brought to enforce demands where there was previously no period of limitation or which shortens the existing time of limitation, and such a law may operate upon existing contracts without necessarily being invalid as impairing their obligations.” 12 Am. Jur. 89. We are of the opinion that the 1939 act” did not have the effect of depriving the bondholders of any of the remedies that were then available to them until the period of limitations fixed by section 1 should expire. Those whose rights were barred by the three-year provision at the time the law became effective or whose rights would be barred by November 1, 1939, were given 18 months after the effective date of the act within which to pursue all such remedies. We 'think it is clear that, under the authorities just cited, it cannot be said that there was a contractual obligation not to impose a statute of limitations upon such remedies, and it was within the power of the Legislature to do so. The question, then, is whether section 1 of the 1939 act, above quoted, is more than a statute of limitations, and whether the provision extinguishing the lien after the statutory period expired has the effect of unconstitutionally impairing the obligation of the contract existing between the bondholder and the city. We think not. At the time of the enactment of the act in question, the delinquent special assessments for street improvement pur — 654 — poses had piled up in most of the cities and towns of the state, until the properties in many instances were not worth the amount of delinquent taxes and special assessments standing against them, rendering the properties unmarketable. This condition was brought about by the failure of the city clerks to certify to the county treasurers delinquent special assessments and by the failure of the county treasurers to hold resales and by the failure of the bondholders to commence foreclosure proceedings and proceedings to compel the city clerk to certify delinquent special assessments and by the failure'of the county treasurers to enforce the special assessment liens under the tax sale and resale laws. The act was passed to remedy this condition by compelling bondholders to take steps to enforce their rights within the time limited, and barring actions and proceedings and absolving the properties from the statutory liens if they failed to do so. The provision absolving the properties from the liens was a part of and was intended to make effective the statute of limitations. That provision was consistent with 42 O.S. 1941 §23, which provides: “A lien is extinguished by the mere lapse of the time within which, under the provisions of civil procedure, an action can be brought upon the principal obligation.” In Wheeler v. Jackson, 137 U.S. 245, the court held valid a statute of New York applying a statute of limitations to tax certificates that had been outstanding for more than eight years at the time of the enactment of the statute, where at the time the certificates were issued they were subject to no statute of limitations, but giving the holders of such certificates six months within which to commence actions or proceedings to enforce their rights, and providing that after the expiration of such six months the tax authorities should cancel in their offices all such sales, if such action or proceeding should not be instituted, and providing further that “thereupon the lien of all such certificates of sale shall cease and determine.” This case has never been departed from, and is in point. The rule, then, is that the law under which a contract is made enters into and becomes a part of the obligation of the contract and applies to the remedies in the sense that the Legislature cannot take away the remedy without substituting another remedy substantially as effective as the prior remedy, or, in other words, the legal equivalent of the prior remedy. The remedy may be changed so long as no substantial rights under the contract are affected. The imposing of a reasonable statute of limitations where none previously existed or reducing the period, leaving a reasonable period to commence proceedings, is a permissible change in the remedy, and it does not violate the contract clause of the Constitution, though it may incidentally affect the contract by denying the party the advantage of “biding his time” and delaying indefinitely the assertion of his rights while high interest piles up, which was the result in Wheeler v. Jackson, Case v. Pinnick, and other cases above mentioned. In Curtis v. Whitney, 80 U.S. 68, it was held that a statute requiring the owner of a tax sale certificate to give notice of intention to demand a deed, when there was no such requirement when the certificate was obtained. In Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 88 A.L.R. 1481, it was said: “Not only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order.” The power to enact limitation laws is one of the sovereign powers which is read into contracts. In 12 Am.Jur. 86, it is said that “a lien created by statute for the payment of a debt is only a part of the remedy — 655 — afforded by the law for its collection; a change of that remedy does not affect the obligation of the contract, even though the statute may operate retrospectively” The court in Hann v. City of Clinton, 131 Fed. 2d 978, cited no authority in support of its holding that the 1939 act is unconstitutional, and apparently gave no consideration to the above-cited authorities, probably because its attention was not called to them. The act in question is in harmony with several recent acts of the Legislature that had for their purpose the prompt collection of taxes and special assessments and imposing a period of limitations and extinguishing the rights after the bar of the statute had become complete. This and the other acts were brought about by the depression that set in in 1929 and continued for some eleven years. Thus in 1935 the Legislature enacted 62 O.S; 1941 §482, fixing a period of limitations for municipal warrants and extinguishing the liability thereon if suit was not commenced within time but allowing time for the holder of bonds that had been outstanding the full period when the act was passed to sue on their bonds. This law was sustained against an attack similar to the attack in the present case in Case v. Pinnick, 186 Okla. 217, 97 P. 2d 58. In 1939 the Legislature enacted 68 O.S. 1941 §433e, which imposed a period of limitation on the administrative enforcement of tax sale certificates, where no limitation previously existed, and canceling the certificates after the limitation had run, and again allowing time for the holders of certificates that had been outstanding the full period when the act was passed to secure deeds. Again, in 1939, the Legislature enacted the Resale Statute (68 O.S. 1941 §§432-432p) making it mandatory that the county treasurers annually hold sales and resales for the sale of real property to satisfy delinquent ad valorem taxes and special assessments, imposing penalties, and making it a removal offense for failure to do so. Then, at the same 1939 Session of the Legislature the statute in question (11 O.S. 1941 §242-242 o) was enacted imposing a statute of limitation's applying alike to the administrative method and the civil action method of enforcing paving assessments, allowing a reasonable time for the holders of bonds that had been delinquent the period prescribed for the enforcement of the liens, and absolving the property from the liens after the limitation period had fully run. The fact that the refunding bonds provided for in the 1939 act provided that the bonds shall all be on a par instead of giving the lower numbered bonds the preference as provided in the prior law and the fact that the assessments could be liquidated by surrendering the bonds do not render the law invalid. The bondholder was not required to accept refunding bonds, but, instead, could pursue his other remedies during the period allowed after the act became effective. The 1923 statute does not say that the lien shall be perpetual. It is only by process of reasoning that such a contention can be made. We have held that the term “co-equal” refers to the rank of the lien. Service Feed Co. v. City of Ardmore, 171 Okla. 155, 42 P. 2d 853. It is from the provision that the lien shall continue until the assessments are paid that the duration of the lien is determined. But, as pointed out in Moore v. State, 43 N.J.L. 203, 39 Am. St.Rep. 558, the reason that limitation laws do not become a part of the obligation of contracts is that parties look to performance and not breach of their contracts. The substantial obligation of the contract was that the bondholder should receive his money with interest when the bonds matured, and not that he could delay indefinitely taking steps afforded him for the enforcement of his rights. Statutes of limitations are of two classes: (1) those which extinguish only the remedy, and (2) those which extinguish both the remedy and the right. — 656 — 34 Am.Jur. 22. Our statute, 42 O.S. 1941 §23, is of the second class. The 1939 act is also of the second class. Our attention is called to no decision, and we know of none, denying the right of the state to make a limitation law of the second class applicable to existing contracts. In Wheeler v. Jackson, 137 U.S. 245, such a statute was sustained. We think the constitutional power of the Legislature to enact limitation laws, includes the right to make them either of the first or second class, and the courts cannot question the discretion of the Legislature in that regard. As was said in United States v. City of Quincy, above, “nothing can be more material to the obligation than the means of enforcement. Without the remedy the contract may, indeed, in the sense of the law, be said not to exist. . . . The obligation of the contract is the law which binds the parties to perform their agreement.” It follows, then, that the contract is no more impaired by a statute of limitations that extinguishes the right along with the right along with the remedy than one that extinguishes only the remedy. A contract of the nature of the one here involved would be of no value without a remedy to enforce it. The contract clause refers to legal, not moral, obligations. 12 Am.Jur. 12. Amici curiae say the act under consideration is violative of not only the contract clause, but also of the due process clause and the equal protection .clause of the State and Federal Constitutions. However, their argument revolves around the contract clause. We are of the opinion, and hold, that the act violates neither clause of the Constitution. Affirmed. DAVISON, V.C.J., and RILEY, BAY-LESS, WELCH, and CORN, JJ., concur. GIBSON, J., dissents.