Bunker v. City of Hutchinson

• Citation: 74 Kan. 651,87 P. 884
• Parties: BUNKER et al. v. CITY OF HUTCHINSON et al.
• Decision Date: 10 November 1906
• Court: Kansas Supreme Court

87 P. 884

74 Kan. 651

BUNKER et al. v. CITY OF HUTCHINSON et al.

Supreme Court of Kansas

November 10, 1906

Rehearing Denied Dec. 8, 1906.

Syllabus

An owner of property may, under chapter 334, p. 550, of the Laws of 1905, maintain an action against the mayor and council to enjoin them from entering into any contract for the paving of a street of the city, or the doing of any illegal act which may result in the creation of a public burden or the levy of any illegal tax, charge, or assessment, although the amount to be charged against his property has not been ascertained.

[Ed. Note.–For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, §§ 842–846, 2158–2162.]

The statute governing cities of the second class does not require that contracts for the paving of streets shall be let to the lowest bidder, but the manner of awarding such contracts is left to the sound discretion of the mayor and council.

[Ed. Note.–For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 854.]

In such a case the mayor and council cannot tie their own hands, nor limit the discretion vested in them, by the passage of an ordinance requiring competitive bidding, and such ordinance will not prevent them from contracting in good faith for a pavement in which patented articles or processes are used.

[Ed. Note.–For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 854.]

Error from District Court, Reno County; P. J. Galle, Judge.

Action by L. A. Bunker and others against the city of Hutchinson and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

Geo. A. Vandeveer and F. L. Martin, for plaintiffs in error.

A. C. Malloy (Prigg & Williams, of counsel), for defendants in error.

OPINION

JOHNSTON, C. J.

The district court sustained a demurrer to the petition of L. A. Bunker and others, who sought to enjoin the city of Hutchinson from providing for assessments and taxes to pay for the paving and curbing of Main street in that city. On a petition of property owners asking for the construction of a bitulithic pavement, an ordinance was passed providing for the building of such pavement, and in pursuance of that ordinance a contract to curb and pave the street was awarded to the Kansas Bitulithic Paving Company, which proceeded with the work. Property owners contested some of the preliminary proceedings, but these were sustained by the courts. Carey Salt Co. v. City of Hutchinson (Kan. Sup.) 82 P. 721. In their petition in this case the plaintiffs allege that the contract and other steps taken were unwarranted and illegal, because the bitulithic pavement is a monopoly owned by Warren Bros., who have an interest in the Kansas Bitulithic Paving Company; that portions of the material, process, and machinery are covered by letters patent and trade-marks, which practically gives Warren Bros. and those with whom they act a monopoly of the contracts for bitulithic pavement. It is also averred that their pavement is not superior to that made out of similar material, by others, which may be had at less cost. It is further alleged that the monopoly mentioned, and the combination of the parts covered by the patent with those not so covered, practically prevented competition or the letting of the pavement to the lowest responsible bidder, and that in this respect it violated a city ordinance. The ordinance in terms provides that the mayor and council shall let such contracts "to the lowest responsible bidder, as determined by the mayor and council; the right being reserved by said mayor and council to reject any and all bids." The petition set out the proceedings of the mayor and council relating to the matter, including the ordinances authorizing the paving, as well as the levying of special assessments to pay for it.

The defendants first contend that plaintiffs had no right to maintain the action when it was brought; that, if they had a right of action, this one was prematurely brought; and that the state was the only party which could then institute a proceeding. This contention is based upon the theory that the owners of abutting property affected by the illegal tax proceedings may not institute an action to enjoin an assessment against their property until the amount chargeable against it has been ascertained. Until the passage of a recent statute it was held that such an owner of property was not so far affected by preliminary proceedings, which had not been brought up to the ascertainment of an assessment against his property, as to give him a right of action to enjoin the progress of a proposed improvement. Bridge Company v. Com’rs of Wyandotte County, 10 Kan. 326; Challiss v. City of Atchison, 39 Kan. 276, 18 P. 195; Mason v. City of Independence, 61 Kan. 188, 59 P. 272. The Legislature of 1905, however, expanded the remedy of injunction against the levy of an illegal tax, charge, or assessment by permitting a person whose property might be affected by such a tax, charge, or assessment "to enjoin any public officer, board or body from entering into any contract, or doing any act not authorized by law, that may result in the creation of any public burden, or the levy of any illegal tax, charge or assessment." Laws 1905, p. 550, c. 334, § 1; Water, Light & Gas Co. v. Hutchinson Interurban Railway Co. (just decided) 87 P. 883. Defendants call attention to a part of the act authorizing cities of the second class to levy assessments for the improvement of a street, which provides that "no suit to set aside the said assessment shall be brought after the expiration of thirty days from the time the amount due on such lot liable for such assessment is ascertained." Gen. St. 1901, § 1016. It is contended that this section specially applies to the matters of improving streets and must control in actions of this character. The provision, as will be observed, gives no remedy. An owner must look elsewhere for the remedy of injunction. But in it is found a limitation on the remedies which the Code provides. It is no more than a statute of limitation, which prohibits the bringing of a suit of any kind to annul an assessment more than 30 days after the amount due on the assessment is ascertained. The plaintiffs were, therefore, entitled to the benefits of the act of 1905, and could challenge by injunction any step taken or the doing of any act by the city council not authorized by law which might result in the levy of an illegal tax or assessment against their property.

On the merits of the case the principal contention is that there was in fact no competition in the letting of the contracts for the bitulithic pavement. If it were assumed that the law required competitive bidding for such work, the fact that the material which...