City of Chetopa v. Board of Com'rs of Labette County

• Decision Date: 07 November 1942
• Docket Number: 35686.
• Parties: CITY OF CHETOPA v. BOARD OF COUNTY COM'RS OF LABETTE COUNTY.
• Court: Kansas Supreme Court

130 P.2d 614

155 Kan. 886

CITY OF CHETOPA v. BOARD OF COUNTY COM'RS OF LABETTE COUNTY.

No. 35686.

Supreme Court of Kansas

November 7, 1942

Rehearing Denied Jan. 23, 1943.

Syllabus by the Court.

Section 68-416 providing for transfer of certain funds from state highway fund into a fund known as the county and township road fund, section 68-506e requiring county commissioners to pay each city annually $250 a mile for maintenance of connecting links in county highway system out of county and township road fund, and section 68-424 authorizing county commissioners to adopt a resolution providing for apportionment of 35 percent of county and township road fund among cities of county on basis of population, all deal with disbursement of same fund, and should be construed together. Gen.St.1935, 68-416, 68-424, 68-506e.

If county commissioners proceeded pursuant to section 68-424 authorizing county commissioners to adopt a resolution providing for apportionment of 35 percent. of county and township road fund among cities of county on basis of population, commissioners were not bound to pay $250 a mile to cities and counties for maintenance of connecting links in county highway system as provided in section 68-506e relating to apportionment of county and township road fund. Gen.St.1935, 68-424, 68-506e.

In an action by a city to recover from the county commissioners the payment of $250 a mile for the maintenance of connecting links in a county highway system pursuant to the provisions of G.S.1935, 68-506e, the commissioners set up the defense that they had proceeded under G.S.1935, 68-424. The allegation setting up this defense was stricken from the answer of defendants. Held, that the county commissioners had a right to set up this defense and it was error to strike it from the answer.

Appeal from District Court, Labette County; Vernor J. Bowersock Judge pro tem.

Action by the City of Chetopa against the Board of Commissioners of the County of Labette, James Reed and others, county commissioners, to recover from the defendants the payment of $250 a mile for the maintenance of connecting links in a county highway system pursuant to statute. From a judgment for plaintiff striking out certain paragraphs of defendants' answer, the defendants appeal.

Glenn Jones, Co. Atty., of Parsons, and Jack L. Goodrich, Asst. Co. Atty., of Oswego, for appellant.

Elmer W. Columbia, of Parsons, and Hugh Randall, of Chetopa, for appellee.

SMITH Justice.

This is an action wherein the city of Chetopa seeks to recover from the board of county commissioners of Labette county for money it claims should have been apportioned it pursuant to G.S.1935, 68-506e for the maintenance of streets that were connecting links in the county highway system. Judgment was for the plaintiff striking out certain paragraphs of the answer of the county commissioners. The defendants have appealed.

After the formal allegations, the petition set out chapter 230 of the Laws of Kansas for 1929, being section 68-506e of the General Statutes of Kansas for 1935. That section will be set out hereafter. The petition further set out that the above statute was in effect and made it mandatory upon defendants to pay the plaintiff $250 per mile for the maintenance of city streets which were used as connecting links in the system of highways of the county; that defendant had never made any payments to the city pursuant to the statute even though it had received all the funds due it from the state of Kansas; that no duty rested upon the plaintiff to make demand for this payment and that a claim had been made therefor in February, 1940, and the claim was unpaid. The petition further alleged that certain streets, five in number, of the city of Chetopa were connecting links in the county highway system and that in the aggregate the county commissioners from 1933 to 1942 should have paid the city $10,385.39. Judgment was prayed for this amount.

The answer of the board of county commissioners first denied that some of these streets were connecting links in the county highway system and then alleged in paragraph 7 that plaintiff had received payment for any claims it had against the defendants for the maintenance of any streets located in it pursuant to the terms of a resolution adopted by the board of county commissioners on July 20, 1934; that by that resolution the defendants exercised their election to operate under the provisions of G.S.1935, 68-416 and G.S.1935, 68-424 and that this election was made at the request of plaintiff together with other cities of the county. A copy of this resolution was attached to the answer.

The answer also alleged in paragraph 8 that the plaintiff in good conscience ought not to be permitted to recover under the provisions of G.S.1935, 68-506e for the reason that it had requested defendant to set aside 35 percent of the county and township road fund, as provided by G.S.1935, 68-424, and that this action had been taken after a meeting between the board of county commissioners and the city authorities and that at that time the city authorities knew of the provisions of G.S.1935, 68-506e; that since July 20, 1934, plaintiff had received payment direct from the state treasurer for its proper share of the funds so set aside; that since July 20 1934, plaintiff had received the benefit of the money obtained from that fund and no claim was filed prior to filing this suit and that up to the time this claim was filed plaintiff had not made demand from defendant, and that defendant in good faith relying on the resolution adopted July 20, 1934, had collected only 65 percent of the fund and made no provision for paying plaintiff pursuant to G.S.1935, 68-506e, and that money received by the defendant pursuant to G.S. 1935, 68-416, had been budgeted and spent and at the time plaintiff requested defendants to adopt the resolution referred to defendant was under no obligation to set aside for plaintiff any money of the fund but defendant in good faith had performed this part of the resolution, and that by reason of these acts the plaintiff was estopped from making any claim against defendant for $10,386.39 for the reason it would be unconscionable and inequitable to defendant and that the defendant would suffer great loss and damage.

The plaintiff moved to strike paragraph 7 and paragraph 8 from the answer.

This motion was sustained by the trial court. Hence this appeal.

It will be noted that the defendant attempted in paragraph 7 to present the defense that by complying with G.S.1935, 68-424, it was excused from complying with the provisions of G.S.1935,68-506e; that the second defense raised by the answer was a defense of estoppel and that the third defense was one of laches. All three of these defenses were stricken out by the court so that the question to be decided by this court on appeal is whether the county was entitled to raise any of those three defenses.

This will require an examination of the pertinent statutes.

The first statute we shall consider is G. S.1935, 68-506e. That section is chapter 230 of the Laws of 1929 and provides as follows:

"That the board of county commissioners of each county shall annually apportion and distribute quarterly to each city on the county highway system from the fund known as the county and township road fund at the rate of two hundred fifty dollars ($250) per mile for the maintenance of the streets in such cities used as connecting links in the system of county highways which are not connecting links in the state highway system, said moneys to be credited to the street and alley fund of such cities. In lieu of said apportionment the board of county commissioners may maintain in cities of the third class such streets and pay for such maintenance from the county and township road fund."

This act took effect on April 1, 1929.

It is the above statute upon which the plaintiff has based this action. Attention is called to the use of the words "county and township road fund" and to the fact that the statute directs that the county commissioners shall "apportion and distribute" certain money from that fund.

The next statute we shall consider is G.S.1935, 68-416, especially subparagraph (2) of that section. For a history of the evolution of the section see section 7 of chapter 255 of the Laws of 1927 and section 17 of chapter 225 of the Laws of 1929 and section 1 of the Laws of 1933, chapter 241.

The subparagraph with which we are to deal was enacted in 1929, has not been amended, and is a part of section 17 of chapter 225 of the laws of that session. It provides as follows:

"(2) The sum of $800,000 quarterly up to April 1, 1930, and the sum of $900,000 quarterly on and after April 1, 1930, shall be transferred by the state treasurer from the highway fund into a fund known as the county and township road fund, which shall be distributed to the 105 counties as follows: 40 percent shall be distributed equally to the 105 counties of the state and 60 percent shall be apportioned and distributed to the 105 counties of the state in proportion to the assessed valuation based upon the preceding year's assessment. The fund thus distributed to the various counties shall be used for the construction, improvement, reconstruction and maintenance of county and township roads and bridges at the option of the county commissioners: Provided, That not less than 50 percent of said fund shall be used on township roads and bridges and shall be divided among the various townships in each county in the proportion that the mileage of township roads in the various townships bears to the total mileage of township roads in the county: Provided, That in counties which have adopted the county -unit system said fund shall be

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