City of Topeka v. Huntoon

• Decision Date: 11 April 1891
• Citation: 26 P. 488,46 Kan. 634
• Parties: CITY OF TOPEKA v. HUNTOON.
• Court: Kansas Supreme Court

26 P. 488

46 Kan. 634

CITY OF TOPEKA v. HUNTOON.

Supreme Court of Kansas

April 11, 1891

Syllabus

1. In the absence of positive proof of fraud, the establishment of a sewer district in a city of the first class, by the mayor and council thereof, is not subject to judicial interference.

2. To disqualify a member of a city council from voting on the passage of an ordinance establishing a sewer district, it must appear that he has a pecuniary interest in the measure adverse to that of the city.

Commissioners’ decision. Error to district court, Shawnee county; JOHN GUTHRIE, Judge.

S.B Isenhart, for plaintiff in error.

Wheat Chesney & Curtis, for defendant in error.

OPINION

SIMPSON, C.

In the month of August, in the year 1889, a large number of real property owners in the city of Topeka presented to and filed with the clerk of said city a petition requesting the mayor and council to create a certain sewer district, and to build and construct sewers therein. This petition was presented to the council; referred to its committee on ways and means; was considered by the committee; and the city engineer was requested to suggest the proper territory that should constitute the sewer district. The committee and city engineer reported after some months, and finally, on the 27th day of January, 1890, the mayor and council passed an ordinance creating and establishing sewer district No. 14 defining the territory thereof, and providing for a complete sewer system therein, and providing the manner of construction and for the payment thereof. Said ordinance was duly approved and published.

On the 27th of February, 1890, three disinterested householders of the city were appointed to value and appraise the real property situate in said sewer district preparatory to a levy of the assessments thereon to pay for the work. On March 27, 1890, detailed estimates were duly prepared and filed by the city engineer, and the city clerk was authorized to advertise for sealed proposals for the building of the sewers. Sealed proposals were received, and the city authorities were about to enter into a contract for the construction of the sewers, when an injunction was granted by the district court of the county. The petition for injunction set forth, among other things, that the person applying therefor, Joel Huntoon, was the owner of real property, all of which was included within said sewer district, and would be subject to taxation for the payment of the costs of constructing said sewers; that various other tracts or lots needed sewers, and ought to have been included in said sewer district in order to relieve the property of the plaintiff, and make his burden lighter; that one Hale Ritchie was a member of the city council, and owned a number of tracts and pieces of land which were not taken into said sewer district; that one E. B. Whaley was a member of the city council, and that his wife owned six or eight lots which were not included in said sewer district; that said Whaley appeared before the ways and means committee, and before said city council, and illegally and fraudulently used his personal and official influence, with intent and for the purpose of inducing the city council to pass the ordinance leaving out of the boundary of said sewer district certain real estate belonging to Hale Ritchie, and to the wife of the said Whaley, and that said property was left out, and needed sewers. In due time an answer was filed and the cause tried, the court making special findings and separate conclusions of law, as follows:

CONCLUSIONS OF FACT.

"(1) That several months prior to January 27, 1890, the mayor and councilmen of the city of Topeka, defendant, by resolution directed the city engineer to make surveys, with the view of creating a sewer district in territory situated in the Third and Fifth wards of the city of Topeka, with a main sewer, commencing and connecting with a large main sewer before that time constructed from at or near the intersection of Tenth avenue and Adams street, in the city of Topeka, extending the said main sewer from said connection at Tenth avenue and Adams street, in the city of Topeka; thence westerly through the Fifth and Third wards of the city of Topeka, towards or west of Lane street, in the city of Topeka. That, in obedience to the said direction of the mayor and councilmen of the city of Topeka, the city engineer of the city of Topeka made the necessary topographical surveys, for the purpose of locating said main sewer, and the necessary lateral sewers, for said new sewer district, and a description of the boundaries of said new sewer district, for the use of the mayor and councilmen of the city of Topeka, for the purpose of enabling the mayor and councilmen of the city of Topeka to enact the necessary ordinance for the establishment and creation of said new sewer district, and the said city engineer reported and recommended to the mayor and councilmen of the city of Topeka that the said new sewer district should be defined and bounded by ordinance substantially as bounded, defined, and described by the map or profile attached to plaintiff’s petition, and marked ‘Exhibit B,’ and made a part of said petition, including the green, yellow, and blue coloring on said map or profile.

"(2) That long before the passage, approval, and publication of ordinance No. 1093, to-wit, January 27, 1890, hereinafter mentioned, and the passage of the resolution directing the city engineer to make a topographical survey for the proposed sewer district, all that portion or part of the city of Topeka which lay between Adams street and Van Buren street, and north of Tenth avenue, in said city, sewers for public use had been built, constructed, and were maintained by said city in various sewer districts under and in accordance with several and different ordinances of said city, and the lots and blocks in said sewer districts had been before that time assessed and taxed by the mayor and councilmen of the city of Topeka to pay for the building and construction of said several main and lateral sewers in said several districts, and one of such main sewers, in district No. 12, so built and constructed and maintained by said city, commenced at or near the point or place described as the commencing point for the main sewer mentioned and described in ordinance No. 1093, creating sewer district No. 14, and thence running northerly to and discharged or emptied into the Kansas river, in the city of Topeka.

"(3) That for a long time prior to and at the passage, approval, and publication of ordinance No. 1093, and from thence until the present time, Martha Whaley, the wife of one E. B. Whaley, was and is the owner of the following-described real estate, to-wit: Commencing at the south-west corner of lot No. 350, on Mon roe street, in the city of Topeka; running thence easterly 150 feet; thence northerly, at right angles with the last-mentioned line, to the north line of the north-east quarter of section 6, township 12, range 16; thence west, along said section line, to the east side of Monroe street; thence southerly, along the east side of Monroe street, to the place of beginning, and the same being a part of said quarter section. Also the following described real estate: Commencing at a point 225 feet north of the north-west corner of Madison and Eleventh streets, in the city of Topeka, on the west side of Madison street, and running thence westerly, on a line parallel with Eleventh street, 150 feet; thence northerly, to the north line of the north-east quarter of section 6, township 12, range 16; thence east, to the north line of said quarter section, on the west line of Madison street; thence southerly, along the west line of Madison street, to the place of beginning, - the same being a part of said quarter section. That both of said described pieces or parcels of land were where the city engineer made his topographical survey for the mayor and councilmen of the city of Topeka, and within the boundaries of the premises described in conclusion of fact No. 1, and is a part of the premises included within the blue coloring on the map marked ‘Exhibit B,’ and made a part of plaintiff’s petition, and that at all times heretofore and hereafter mentioned in these conclusions of fact the said Martha Whaley and her husband, E. B. Whaley, occupied these premises as their homestead.

"(4) That for a long time prior to the passage of said ordinance No. 1093 by the mayor and councilmen of the city of Topeka, and from thence to this time, one Hale Ritchie was and is the owner of the following described real estate in the city of Topeka, to-wit: Lots Nos. 445, 447, 449, 457, 459, 461, 436, 438, 440, 448, on Quincy street, and lots Nos. 434, 436, 446, 448, 450, 460, 462, 464, on Kansas avenue, and lots Nos. 380, 382, 384, 392, 394, 396, 434, 436, 438, 446, 448, 450, 452, 456, on Monroe street, lots Nos. 377, 379, 381, 383, on Madison street, and all of that block of ground lying east of Madison street, south of Eleventh street, west of Jefferson street, and the right of way of the Kansas, Nebraska & Dakota Railway Company, and north of Twelfth street, excepting the alleys in said block; and that the said Hale Ritchie, prior to the passage of said ordinance, resided on said premises with his family, and has ever since continued to reside on said premises, and that all of said premises last above described are within the boundaries of the proposed sewer district surveyed by the said city engineer, or said district described in conclusion of fact No. 1, and within the boundaries of the map attached to plaintiff’s petition, and within the territory on said map indicated and marked in blue color.

"(5) That for a long time prior to and at the passage of...