City of Emporia v. Smith

• Decision Date: 09 November 1889
• Citation: 22 P. 616,42 Kan. 433
• Parties: THE CITY OF EMPORIA v. JULIA A. SMITH
• Court: Kansas Supreme Court

22 P. 616

42 Kan. 433

THE CITY OF EMPORIA v. JULIA A. SMITH

Supreme Court of Kansas

November 9, 1889

Error from Lyon District Court.

INJUNCTION to restrain the collection of a certain tax. Judgment for the plaintiff Smith, at the February term, 1889. The defendant City brings the case to this court. The opinion states the facts.

Judgment reversed and case remanded.

E. W Cunningham, city attorney, for plaintiff in error.

Thomas Dever, and J. A. Smith, for defendant in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

On the 28th day of March, 1889, the district court of Lyon county rendered a judgment in favor of Smith and against the city of Emporia, perpetually restraining the authorities of said city from collecting or attempting to collect the tax levied for the year 1889 by said city against lot No. 1 of F. E. Smith's subdivision of the N.E. 1/4 of the N.E. 1/4 of section 16, township 19, of range 11, and restraining the officers of said city from exercising any municipal or corporate authority over said lot 1, by ordinance or otherwise. The judgment is in effect, that lot No. 1 in Smith's subdivision is no part of the city of Emporia. The facts are undisputed, and are as follows: On the 9th day of May, 1883, the defendant in error Julia A. Smith, and F. E. Smith her husband, Caroline George, and T. J. George, being the then owners of certain land lying adjacent to the city of Emporia, made, executed, acknowledged, and filed for record in the proper office, a plat of said land, subdivided into lots and blocks by streets and alleys, and called it F. E. Smith's subdivision of the land therein described. This plat was made, acknowledged and recorded in accordance with the law in force at the time, requiring such plats to be filed whenever any city or town, or an addition to a city or town, shall be laid out. On the 31st day of March, 1884, the mayor and common council of the city of Emporia, by ordinance duly passed, approved, and published, declared F. E. Smith's subdivision, as surveyed, subdivided, platted, and recorded, a part of the city of Emporia, and attached it to the third ward. On the 1st day of March, 1889, another ordinance of the city seems to have been passed, annexing this land to the city. The defendant in error, ever since the 8th day of September, 1886, has been the owner and in possession of lot No. 1.

The questions raised and discussed here and probably involved in the controversy are, that the city council had no power or authority to annex this land and make it a part of the city of Emporia, for several reasons. The first proposition is, that the law authorizing the city council of a city of the second class to extend the limits of the city, is unconstitutional. The second is, that as the five acres of land embraced within lot No. 1 of Smith's subdivision is the homestead of the defendant in error, the city council cannot, without her consent, take from her four acres of her homestead by extending the limits of the city, so as to bring her land within the corporate boundaries. The third proposition is, that the limits of the city can only be extended so as to embrace the land in controversy, under the facts in this case, by the order of the judge of the district court of Lyon county.

I. The pith and marrow of the first proposition is, that in accordance with § 21, article 2, of the constitution of this state, the board of county commissioners is the only body to which the legislature can delegate the power to extend the limits of a city of the second class. That section reads: "The legislature may confer upon the tribunals transacting the county business of the several counties such powers of local legislation and administration as it shall deem expedient." This language is too plain to admit of misconstruction, or to cause any diversity of opinion to arise in the minds of lawyers as to its meaning. Under this section the legislature may, if it deem it expedient, confer upon the tribunals transacting the county business, such local legislative and administrative powers as may aid in the transaction of the business of the various counties. The attorney for the defendant in error would have it read, that the legislature shall confer upon the tribunals transacting...