Abilene v. Lambing
| Decision Date | 03 July 1908 |
| Docket Number | 15,620 |
| Citation | 78 Kan. 484,96 P. 838 |
| Parties | THE CITY OF ABILENE et al. v. C. W. LAMBING et al |
| Court | Kansas Supreme Court |
Decided July, 1908.
Error from Dickinson district court; R. F. THOMPSON, judge pro tem.
Judgment reversed.
SYLLABUS BY THE COURT.
MUNICIPAL CORPORATIONS--Contract for Improvements--Estimate by De Facto Engineer--Injunction. Engineers chosen and employed by the mayor and council of a city of the second class to make plans, specifications and estimates for a sewerage system for the city, and to supervise the construction of sewers, made an estimate in pursuance of section 1009 of the General Statutes of 1901, under which a contract was let and a sewer constructed. Owners of lots subject to assessment to pay for the sewer sought to enjoin the work and the assessment on the grounds that the engineers were non-residents and ineligible to be city engineers, that they had not been appointed and qualified as such, and that the estimate and contract were therefore invalid. Held, that, as the engineers were chosen by the officer having authority to appoint a city engineer, at a time when no one else was in possession of the office of city engineer, and as they acted in behalf of the city in respect to the improvement and had been so recognized by the city authorities and others, and as they faithfully performed their duties, there was a substantial compliance with the requirement of the statute as to an estimate, and plaintiffs were not entitled to maintain injunction upon the grounds assigned.
C. C Towner, for plaintiffs in error.
C. S. Crawford, for defendants in error.
This was a suit to enjoin the building of a sewer under a contract made between the city of Abilene and the Abilene Plumbing & Heating Company. It was brought by lot-owners to prevent the performance of the contract and the levy of special assessments upon their property to pay for the sewer, upon the alleged ground that a valid estimate of the cost of construction had not been made. It was shown that the city had procured Burns & McDonnell, of Kansas City, to act as engineers in making plans, specifications and estimates for a sewerage system in Abilene, that they made the estimate of the cost of construction under which the contract was made, and that the work was in progress when the suit was begun.
The principal objection to the estimate and contract was that the engineers employed to make the estimate were non-residents of Abilene, and that they were not regularly appointed and installed as city engineers. They were employed to act as engineers in behalf of the city to plan and supervise the building of a sewerage system in Abilene, and in the contract of employment it was provided that they should give a bond in the sum of $ 5000 for the faithful performance of their duties. They did not act generally for the city, nor perform any function as city engineers other than that connected with the construction of sewers. It appears that at the time they were designated and employed as engineers the city did not have a regularly appointed city engineer. Local engineers were designated by the city from time to time to look after sidewalks and other specific work. In the records of the city pertaining to the letting of the sewer contracts Burns & McDonnell are referred to as city engineer, and the estimate of the cost of the sewer as one made by them as city engineer. In the contract between the city and the Abilene Plumbing & Heating Company they are spoken of as consulting engineers. The trial court found "that the estimate of the cost of construction of sewers in sewer district No. 3 was not made by any person acting in the capacity of city engineer for the city of Abilene," and it was therefore held that the estimate and contract were illegal. On this ground alone a permanent injunction was granted against the levy of any assessment or the collection of any tax upon the plaintiffs' property to pay for the sewer.
Abilene is a city of the second class, and the statute relating to contracts for improvements in cities of that class provides:
" Before the city council shall make any contract for building bridges or sidewalks or...
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Edmonds v. Town of Haskell
...were made by nonresident engineers. This identical question, however, was decided by the Supreme Court of Kansas in City of Abilene v. Lambing, 78 Kan. 484, 96 P. 838, in which the court said:"Engineers chosen and employed by the mayor and council of a city of the second class to make plans......
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Arnhold v. Klug
...the city by the mayor and council before the maximum cost of a proposed improvement shall be known." (p. 72.) (See, also, Abilene v. Lambing, 78 Kan. 484, 96 P. 838.) A or improvement within the meaning of this section usually implies some physical change or construction. "Improvement" has ......
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Bocox v. Town of Bixby
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