Addis v. Kansas City

• Decision Date: 25 January 1936
• Docket Number: 32318.
• Citation: 143 Kan. 25,53 P.2d 809
• Parties: ADDIS et al. v. KANSAS CITY et al. [*]
• Court: Kansas Supreme Court

53 P.2d 809

143 Kan. 25

ADDIS et al. v. KANSAS CITY et al. ^[*]

No. 32318.

Supreme Court of Kansas

January 25, 1936

Syllabus by the Court.

Taxpayers held not entitled to enjoin collection of special assessments for trunk line sewer jointly constructed by city and adjoining drainage district, which was begun more than two years after publication of ordinance levying assessment, in view of 30-day limitation to challenge legality and regularity of special assessment and pertinent antecedent proceedings, where city had power to make improvements (Rev.St.1923, 12-- 608, 13--1013 to 13--1016, 13--1029 24--408; Rev.St.Supp.1933, 13--1088).

A taxpayers' suit cannot be maintained to enjoin the collection of special assessments to pay for a trunk line sewer jointly constructed by a city and an adjoining drainage district, where such suit was not begun within the thirty days' time allowed by statute in which the legality and regularity of special assessment and pertinent antecedent proceedings may be challenged; and the city's demurrer to plaintiffs' petition in such a suit, begun more than two years after the city ordinance levying such special assessment was adopted and published, was properly sustained.

Appeal from District Court, Wyandotte County, Division No. 4; James H. Wendorff, Judge pro tem.

Suit by T. B. Addis and others against the City of Kansas City Kansas, and others. From a judgment sustaining a general demurrer to the petition, plaintiffs appeal.

Elmer E. Martin and Thomas A. Pollock, both of Kansas City, for appellants.

Alton H. Skinner, City Atty., John C. O'Brien, and Wm. H Towers, Deputy City Atty., all of Kansas City, for appellees.

DAWSON Justice.

This was a taxpayers' suit to enjoin the collection of special assessments levied against plaintiffs' properties to pay the cost of certain sewer construction in and about Kansas City.

The case was essentially a companion case to that of Alber v City of Kansas City, 138 Kan. 184, 25 P.2d 364, where the pertinent facts were stated so fully that it is needless to repeat them here.

In brief, the present plaintiffs to the number of 438 allege that they are resident property owners in sewer district 31 of Kansas City; that various egregious irregularities were committed by the city in creating the sewer district, in contracting with an adjoining drainage district to divide the expense of building a trunk line sewer to serve their joint needs; that the Union Pacific Railroad Company dictated the terms of that contract; that the city's share of the expense raised the city's indebtedness beyond its authorized statutory maximum; that the city officials were not acting in good faith when they set about the sewer project; that the sewer itself was mostly constructed outside the city limits; that as constructed the sewer is of no practical service to the properties of plaintiffs; and that it never will be unless laterals or subsewers are constructed to connect their properties with this trunk line sewer. Based on these allegations, plaintiffs prayed for an injunction against the city.

Some pertinent dates gleaned from this record, and from the Alber Case to which we are referred in the brief of appellants, are as follows:

May 27, 1924, Kansas City v. the Fairfax drainage district signed the contract for the construction of the sewer.

July 16, 1925, construction of sewer completed.

July 7, 1927, sewer district No. 31 organized.

December 7, 1927, Ordinance No. 24010 levying assessments on plaintiffs' properties adopted.

January 5, 1928, Ordinance No. 24010 published.

December 15, 1930, this action by plaintiffs was begun to enjoin assessments levied under Ordinance No. 24010.

March 20, 1931, general demurrer to plaintiffs' petition filed.

The action was permitted to slumber on the dockets until October 9, 1934, at which time, following arguments of counsel, the trial court sustained the demurrer, and this appeal followed.

The obvious basis for the trial court's ruling on the demurrer was the 30 days' statutory limit in which a taxpayer's suit challenging the validity of special assessments may be instituted. R.S. 12--608; R.S.Supp. 1933, 13--1088.

How then could this action be maintained --begun, as it was, two years, eleven months, and ten days after the publication of the ordinance levying the special assessments?

Counsel for appellants cite Randall v. Arkansas City, 114 Kan. 178, 217 P. 298, in which it was held that where the city had no power to make the improvement (a sewer outside a city of the second class), the thirty days' limit in which to bring an action to enjoin the collection of special assessments did not apply. But that case cannot help these plaintiffs. Here Kansas City, a city of the first class, did have statutory power to make the contract for the building of the sewer which lay partly outside the city. R.S. 13--1013 to 13--1016, inclusive, and R.S. 13--1029; also R.S. 24--408 by necessary implication.

Other arguments urged in support of plaintiffs' contention that the 30 days' limit should not be applied have been carefully considered, but all such arguments have been met and demolished by frequent and familiar decisions of this court. Thus in Rockwell v. Junction City, 92 Kan 513, 141 P. 299, Ann.Cas.1916B, 315, where a taxpayer's suit to enjoin a special...