410 P.2d 324 (Kan. 1966), 44234, Schulenberg v. City of Reading

Docket Nº:44234.
Citation:410 P.2d 324, 196 Kan. 43
Party Name:E. F. SCHULENBERG et al., Appellants, v. The CITY OF READING, Kansas, A Municipal Corporation, and Lee Cowden, as Mayor, Louis Whittington, Roy Johns, Patrick Duggan, Charles Schlobohm, and Ronald Hooper, as Council Members, and J. M. Hensen, as City Clerk, Appellees.
Attorney:[6] Leonard W. McAnarney, of Lyndon, argued the cause and was on the briefs for appellants. John G. Atherton, of Emporia, argued the cause, and Samuel Mellinger, of Emporia, was with him on the briefs for appellees.
Case Date:January 22, 1966
Court:Supreme Court of Kansas
 
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Page 324

410 P.2d 324 (Kan. 1966)

196 Kan. 43

E. F. SCHULENBERG et al., Appellants,

v.

The CITY OF READING, Kansas, A Municipal Corporation, and

Lee Cowden, as Mayor, Louis Whittington, Roy Johns, Patrick

Duggan, Charles Schlobohm, and Ronald Hooper, as Council

Members, and J. M. Hensen, as City Clerk, Appellees.

No. 44234.

Supreme Court of Kansas

January 22, 1966

Page 325

Syllabus by the Court

The record in an action brought by a group of taxpayers pursuant to K.S.A. 60-907 to enjoin the collection of special assessments made by the defendant city and its officials, to pay the costs of constructing a sewer system within the city, is examined and, as more fully set forth in the opinion, it is held: The district court erred in sustaining the defendants' motion to dismiss the action upon the ground that the plaintiffs failed to state a claim upon which relief could be granted. It is further held that the plaintiffs were proper parties and had legal capacity to maintain the action.

Leonard W. McAnarney, Lyndon, argued the cause and was on the briefs for appellants.

John G. Atherton, Emporia, argued the cause, and Samuel Mellinger, Emporia, was with him on the briefs, for appellees.

FRATZER, Justice.

This action was brought by a group of taxpayers pursuant to K.S.A. 60-907, to enjoin the collection of special assessments made by the city of Reading for the purpose of financing the construction of a sewer system.

Reading is a city of the third class, and acting pursuant to K.S.A. 12-617 and 12-618 it created a sewer district comprising the entire area within the corporate limits, except a very small fractional part of the area was omitted from the sewer district. Prior to the construction of the sewer system in controversy, the city had no sewer [196 Kan. 44] and it had not been divided into sewer districts as provided in K.S.A. 12-618. The sewer construction was completed, and the governing body of the city enacted Ordinance No. 546 which levied assessments on each lot or piece of real estate within the sewer district, including real estate owned by joint common school district No. 4 and joint rural high school district No. 4, Lyon and Osage Counties. The ordinance further provided that if the assessments were not paid in a lump sum, the city would issue improvement bonds which would be payable in part from assessments made against the property of the school districts.

The action was commenced on March 11, 1964, the day preceding the expiration of the 30-day period fixed by K.S.A. 12-618 to set aside the special assessments imposed upon the real estate owned by the school districts. The plaintiffs are individual taxpayers and reside and own real and personal property in one or both of the joint school districts, and none of them reside within the city except J. W. Newman. The defendants are the city, the members of the city council and the city clerk. The plaintiffs' motion to make the county clerks of Lyon and Osage Counties additional parties defendant was not ruled upon. On motion of the defendants, the district court dismissed the action for the reason that the plaintiffs failed to state a claim against the defendants upon which relief could be granted. As applied in this case, the motion to dismiss may be treated as the modern equivalent of a demurrer, and questions presented must be decided from the well-pleaded facts of the plaintiffs' petition. (Parker v. City of Hutchinson, 196 Kan. --, 410 P.2d 347, this day decided.)

Generally speaking, the boundaries of both school districts are coterminous and the city is located within their boundaries. The school districts jointly own and occupy a common school site located within the city, and pursuant to the ordinance, the city made special assessments against each of the school districts of $13,500, or a total assessment against both districts of $27,000. The total area of real estate owned by the school districts subjected to assessment was approximately 3 percent of the total area included within the sewer district in the city. The remaining 97 percent of the total area of lots and pieces of real estate within the sewer district was assessed approximately $2,000.

Page 326

Real and personal property owned by all of the plaintiffs lies outside of the city but within the school districts, and is subject to [196 Kan. 45] tax levies, special assessments and liens of all taxes that are authorized by law to be levied or assessed against their property by the school boards of either or both school districts and is subject to levies extended upon their property to pay bonded indebtedness of all types whereby either or both of the school districts become obligated in connection with any bound issue. The improvement bonds proposed to be issued by the city to pay the school districts' proportionate share of the special assessments will necessarily be extended upon the property of the plaintiffs and create the additional burden of an illegal tax upon their property. The plaintiffs do not claim, nor was it alleged, that special assessments were made against any property owned by them, other than J. W. Newman who resides within the city, but Newman does not individually object to the special assessments against his city property. In other words, the action was brought to set aside only the special assessments made against the real estate owned by the school districts within the city.

The petition alleged the plaintiffs commenced the action 'in their own behalf and in behalf of all other taxpayers similarly situated' as provided in K.S.A. 60-907(c), and described the real property owned by the school districts. Allegations that the assessments and the proposed issue of improvement bonds by the governing body of the city were illegal, unlawful, fraudulent and void, are summarized:

(1) That under the provisions of K.S.A. 12-618 the city constitutes one sewer district comprising the entire area within the corporate limits and there is no statutory authority to make special assessments against the lots and pieces of ground contained within the district unless the city is divided into separate sewer districts; that the city, as constituting one sewer district, was authorized to construct the sewer system and to pay for the same by the issuance of improvement bonds for which a general tax levy might be extended against the taxable property in the city, but that it was not authorized to make special assessments against individual property owners, and particularly against the property of the school districts;

(2) That the city made 'an assessment of $27,000 against the school districts' and did not follow any fair and equitable method of assessment but assessed the property of the school districts on the basis of anticipated usage of the sewere, and that the assessment was an arbitrary, unreasonable and fictitious amount made for the [196 Kan. 46] purpose of causing the school districts, through their governing bodies, to be obligated to make payment of said amounts either as a lump sum or on installment payments, under the proposed improvement bond issue of the city;

(3) That the assessments against the property of the school districts was illegal, unlawful, unreasonable and void because it attempted to assess 'over 50 percent of the total cost of the construction of the sewer system' when the real estate owned by the school districts constituted not more than 3 percent of the property subject to assessment, and that the assessment on its face disclosed that it was arbitrary, unreasonable and made for the purpose of causing the school districts to pay a large portion of the costs of the sewer system;

(4) That 'the assessment attempted is unreasonable, illegal, unlawful, and void in that a different system was utilized in...

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