City of Topeka v. Gillett

• Decision Date: 07 October 1884
• Citation: 32 Kan. 431,4 P. 800
• Parties: THE CITY OF TOPEKA, et al., v. JAMES GILLETT, et al
• Court: Kansas Supreme Court

4 P. 800

32 Kan. 431

THE CITY OF TOPEKA, et al., v. JAMES GILLETT, et al

Supreme Court of Kansas

October 7, 1884

Error from Shawnee District Court.

ACTION brought by Gillett and other tax-payers and residents of "Ritchie's Addition" to the city of Topeka against The City, The Board of Education thereof, and Bradford Miller, as treasurer of Shawnee county, to enjoin the collection of certain taxes for 1883, levied by the city upon the plaintiffs' property situated in said addition and claimed by them to be illegal and void. February 14 1884, the district court adjudged that Ritchie's Addition is not legally a part of the city of Topeka; that the taxes aforesaid are void, and that the collection thereof be perpetually enjoined. The defendants bring the case to this court. The opinion states the facts.

Judgment affirmed.

A. B. Quinton, and J. B. Johnson, for plaintiffs in error.

Wm. P. Douthitt, C. M. Foster, and Waters & Ensminger, for defendants in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This action was commenced by James Gillett and other tax-payers and residents of what is called "Ritchie's Addition" to the city of Topeka, against the city and others, to enjoin the collection of certain taxes claimed to be illegal and void, and levied by the city upon the plaintiffs' property situated in such so-called addition. It is admitted that if such so-called addition is a part of the city of Topeka, that the taxes attempted to be enjoined are legal and valid. Whether such so-called addition is a part of the city of Topeka, or not, depends upon other questions, the principal of which is whether chapter 73 of the Laws of 1875 is constitutional and valid, or not. The act reads as follows:

"AN ACT supplemental to an act entitled 'An act to incorporate cities of the second class,' approved February twenty-eighth, eighteen hundred and seventy-two.

Be it enacted by the Legislature of the State of Kansas:

"SECTION 1. The city council in their discretion may add from the territory adjacent to the city limits, as defined and existing at the date of the approval of this act, such additional territory as they may deem proper, and shall in every case have power to increase or diminish the city limits in such manner as in their judgment and discretion may redound to the benefit of the city: Provided, That before said city council shall add from the adjacent territory any additional territory to the city, and enlarge the limits thereof, the mayor of the city shall give twenty days' notice in some newspaper published in said city, or if no newspaper be published therein, then twenty days' notice in some newspaper of general circulation in the city, of the time and place of meeting of the city council at which the proposition for the enlargement of the limits of the city will be taken up and considered by the city council; at which time and place any person having an interest in any property proposed to be included in said city limits, shall have a right to be present and be heard before the city council; and said notice shall specify and describe the territory that is proposed to be included in the limits of the city.

"SEC. 2. No city of the second class shall avail itself of the provisions of this act after the first day of May, and not unless the city council shall, within ten days from the time of the taking effect of this act, give notice by resolutions, passed by a majority of its council, of the intention of the city to avail itself of the provisions of this act; such notice to be by publication in some newspaper published in said city; said publication to be made within ten days from the time of the taking effect of this act: Provided, That this act shall not apply to cities of less than six thousand inhabitants."

Section 3 of this act, which is the last section, simply provides when the act shall take effect and how it shall be published. The act was approved March 3, 1875, and took effect March 7, 1875.

It is claimed by the plaintiffs below, defendants in error, that this act is unconstitutional and void, for the reason that it contravenes § 1, article 12, of the constitution of Kansas, which reads as follows:

"SECTION 1. The legislature shall pass no special act conferring corporate powers. Corporations may be created under general laws; but all such laws may be amended or repealed."

It is admitted that § 1, article 12, of the constitution applies to cities, towns and villages, as well as to corporations of a private character, and that all such corporations, municipal as well as private, must be created, governed, regulated and controlled by general laws only, and cannot be created, governed, regulated or controlled, or increased or diminished, by any merely special act or acts. On the other hand, it is also admitted that a statute, in order to be valid, need not be so general in its terms or character as to have application to all the corporations of the state, public and private; but it is admitted that the various corporations coming within the provisions of said § 1, article 12, public as well as private, may be classified, and that valid acts be passed with reference to each particular class. Of course, however, there must be a limit to classification. The classes cannot be made so numerous that it would require a separate statute for each separate corporation; nor could any supposed class be so specifically named or defined that only one particular corporation could come within such name or definition; for in either such case the statute itself would be special and not general. It is admitted that cities may be divided into three classes, and possibly into six or more classes, or possibly into three classes and then each subdivided into two or more sub-classes. Up to the present time the cities of the state of Kansas have been divided into three classes, and three classes only, and only upon the basis of population. May they be divided into classes upon some other basis? For the purposes of this case, it is not necessary to answer this question; and yet we might remark as above intimated that they cannot be divided into classes simply by their names, or by some specific description amounting only to a name. They could not be designated as all the cities of the state of Kansas by the name of Topeka, or Leavenworth, or Atchison. (City of Council Grove, 20 Kan. 619, et seq., and cases there cited.) And precisely the same result would follow if a description were used apparently general, but really so specific that it could not apply to anything except to certain particular and existing things. (The State, ex rel., v. Lawrence Bridge Co., 22 Kan. 438.)

Also for the purposes of this case, we shall assume that the legislature may pass valid acts conferring corporate powers, where the acts themselves for the time being apply only to one municipal corporation; as, for instance, the various acts passed by the legislature of Kansas, from 1862 up to 1880, for the government of cities of the first class, and which acts really applied only to the city of Leavenworth. But such acts, in order to be valid, must in their form be general, and they must also be such that in the ordinary course of things they might and probably would apply to other corporations. Take, for instance, the first-class-city act that was first enacted in this state: that act was for the government of all cities or municipal corporations of not less than 7,000 inhabitants. (Laws of 1862, ch. 46.) At the time of its passage it applied only to the single city of Leavenworth; but it was a general act in its form, theoretically applying to a class of cities, and theoretically enacted for all time to come; and if it had not been repealed or modified by subsequent legislation, it would now apply to nine different cities of the state of Kansas. Theoretically it was enacted for all cities which might in all the future attain to the population of 7,000, as well as for the city of Leavenworth, which then had that population. If, however, at the...